                  COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Humphreys and Retired Judge Olitsky ∗
Argued at Richmond, Virginia


PHILLYSTENE TUCKER JEFFERSON
                                           MEMORANDUM OPINION ∗∗ BY
v.   Record No. 2706-98-2                 JUDGE ROBERT J. HUMPHREYS
                                               AUGUST 22, 2000
COMMONWEALTH OF VIRGINIA

            FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY
                     Thomas V. Warren, Judge

          Wade A. Jacobson for appellant.

          Steven A. Witmer, Assistant Attorney General
          (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Phillystene Tucker Jefferson appeals her conviction in a

bench trial for malicious burning of a structure in violation of

Virginia Code § 18.2-80.    Jefferson claims that the trial court

erred in finding the evidence sufficient as a matter of law to

support the conviction.    We disagree and for the reasons that

follow, affirm her conviction.

                            I.   Background

     Jefferson and Berkley Haskins have a fourteen-year-old

daughter but have never been married.     The relationship between


     ∗
       Retired Judge Norman Olitsky took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400, recodifying Code § 17-116.01.
     ∗∗
       Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.101, this opinion is not designated for publication.
Jefferson and Haskins has been contentious.    In particular, they

have had disagreements regarding their daughter and various

custody issues.

        During the early morning hours of April 18, 1998, at

approximately 2:00 a.m., Haskins, who had custody of the

daughter by court order, telephoned Jefferson to inform her that

he had had the daughter arrested the previous day.    On April 21,

1998 and April 22, 1998, Jefferson made a number of telephone

calls to Haskins' home asking to speak with the daughter.

Haskins testified that when Jefferson spoke to the daughter, the

daughter told him she didn't want to speak to Jefferson and

handed him the phone.    Haskins then hung up on Jefferson because

"they couldn't talk with no sense."

        Haskins testified that Jefferson and a male friend, Joe

Todd, came to his home about 25 minutes later.    Haskins was

outside when they drove up.    After Todd and Jefferson got out of

the car, Jefferson and Haskins began to argue.    Haskins asked

Todd to take Jefferson out of his yard and threatened to call

the police.    Todd pleaded with Jefferson to leave, but Jefferson

said she had visitation rights and refused to leave.    Todd then

drove away.

        At that point, Haskins went into his house and locked the

door.    He testified that he went to a window where he could see

Jefferson and watched her through the blinds.    Jefferson

continued to yell for her daughter and started smoking a

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cigarette.    She then went to Haskins' car shed and went inside,

where Haskins could no longer see Jefferson.    He testified that

she stayed in the shed for approximately a minute to a minute

and a half.    She then exited the shed, still smoking, and used

something she had in her hand to put a dent in a car that was

sitting in Haskins' driveway.    Jefferson walked away from the

house, looked back when she was 100 yards away, and disappeared

into some nearby woods.    Approximately ten minutes later,

Haskins was outside and saw the shed on fire.    Haskins received

approximately $11,000 from his insurer for the value of the shed

and its contents.

        Jefferson testified that she did not go into the car shed

but only went to the front edge of the shed, where she could

urinate out of sight.    She testified that she dropped a

cigarette butt on the ground, stepped on it just before she

urinated, and then lit another cigarette just after leaving

Haskins' property.

        Special Agent Harold Adams of the Virginia State Police,

who specialized in arson investigations, investigated the shed

fire.    He testified that he concluded the fire had started in

the rear portion of the shed where a hay bale was located.    He

further testified that the fire could not have been started by a

cigarette butt and that he was unable to determine whether the

gasoline in the several lawn mowers that were in the shed had

started the fire or accelerated the fire.

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                            II.   Analysis

     "Where the sufficiency of the evidence is challenged after

conviction, it is our duty to consider it in the light most

favorable to the Commonwealth and give it all reasonable

inferences fairly deducible therefrom.       We should affirm the

judgment unless it appears from the evidence that the judgment

is plainly wrong or without evidence to support it.      Code

§ 8-491."   Higginbotham v. Commonwealth, 216 Va. 349, 352, 218

S.E.2d 534, 537 (1975).   Moreover, "[i]f there is evidence to

support the conviction, an appellate court is not permitted to

substitute its own judgment for that of the finder of fact, even

if the appellate court might have reached a different

conclusion."   Commonwealth v. Presley, 256 Va. 465, 466, 507

S.E.2d 72 (1998).   Code § 18.2-80 provides, in pertinent part,

that "any person [who] maliciously . . . burn[s] . . . or

cause[s] to be burned or destroyed . . . any building . . . or

other structure . . . at a time when no person is in such

building, or other structure, and such building, or other

structure, with the property therein, be of the value of $200,

or more, he shall be guilty of a Class 4 felony."

     To support a conviction under Code § 18.2-80, "[t]he

Commonwealth had the burden to prove beyond a reasonable doubt

both that the fire was incendiary and that the accused was the

criminal agent."    Marable v. Commonwealth, 27 Va. App. 505, 510,

500 S.E.2d 233, 235 (1998).   "Although fires are presumed to be

                                  - 4 -
accidental, that presumption is rebuttable."     Id.   See also

Knight v. Commonwealth, 225 Va. 85, 89, 300 S.E.2d 600, 601-02

(1983).

        Jefferson denies that she started the fire, but in the

alternative, states that she might have accidentally started the

fire by dropping the cigarette butt.     However, Agent Adams

testified that the fire began in the back of the shed, not in

the front.    He also testified that the fire could not have been

started by a cigarette butt.

        Furthermore, the circumstances proven by the Commonwealth

established that Jefferson was at the location of the shed,

alone and out of sight of any witness, only minutes before the

fire started.    Jefferson was admittedly angry at Haskins because

he would not let her see her daughter.    Jefferson displayed this

anger by intentionally denting the car just after leaving the

shed.    Moreover, Jefferson admits that she was smoking just

before she went to the shed and after.    Certainly it would be

reasonable for a fact finder to infer that at the time she went

to the shed, she had in her possession something which would

allow her to light the cigarette, be it a match or a lighter.

        The presumption of accident, as claimed by Jefferson, was

clearly rebutted by the expert testimony of Agent Adams.     "With

'the testimony of a qualified expert . . . negat[ing] every

reasonable possibility that a fire was of accidental origin,'

the fact finder was entitled to reject any conflicting evidence

                                 - 5 -
relative to accidental cause."     Marable, 27 Va. App. at 510, 500

S.E.2d at 236.   "Whether the origin of a fire was accidental or

incendiary is a question of fact, and resolution of that

question may, and often must, turn upon the weight of

circumstantial evidence."    Knight, 225 Va. at 89, 300 S.E.2d at

602.

       "Circumstantial evidence is as competent and is entitled to

as much weight as direct evidence, provided it is sufficiently

convincing to exclude every reasonable hypothesis except that of

guilt.   [T]he Commonwealth need only exclude reasonable

hypotheses of innocence that flow from the evidence, not those

that spring from the imagination of the defendant.    Whether a

hypothesis of innocence is reasonable is a question of fact."

Marable, 27 Va. App. at 510, 500 S.E.2d at 235 (1998) (citations

omitted).   Further, it is well settled that "[t]he credibility

of a witness and the inferences to be drawn from proven facts

are matters solely for the fact finder's determination.    In its

role of judging witness credibility, the fact finder is entitled

to disbelieve the self-serving testimony of the accused and to

conclude that the accused is lying to conceal his guilt."     Id.

at 509-10, 500 S.E.2d at 235 (citations omitted).

       Considering the evidence in the light we must, we hold that

it was sufficient to prove beyond a reasonable doubt that the




                                 - 6 -
fire was incendiary in nature and that Jefferson was the

criminal agent.

                                                  Affirmed.




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