                                COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Judges Elder and Humphreys
Argued at Richmond, Virginia


GORAN ANDELIC
                                                              MEMORANDUM OPINION * BY
v.      Record No. 0613-11-2                              CHIEF JUDGE WALTER S. FELTON, JR.
                                                                     MAY 15, 2012
COMMONWEALTH OF VIRGINIA


                     FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
                             Paul M. Peatross, Jr., Judge Designate

                  Charles L. Weber, Jr., for appellant.

                  Rosemary V. Bourne, Assistant Attorney General (Kenneth T.
                  Cuccinelli, II, Attorney General, on brief), for appellee.


        A jury convicted Goran Andelic (“appellant”) of arson of an occupied dwelling in

violation of Code § 18.2-77. On appeal, appellant contends the trial court erred in overruling his

motion to strike the Commonwealth’s evidence as being insufficient to prove that the dwelling

was occupied at the time of the fire. For the following reasons, we affirm the judgment of the

trial court.

                                          I. BACKGROUND

        “‘Where the issue is whether the evidence is sufficient, we view the evidence in the light

most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible

therefrom.’” Baylor v. Commonwealth, 55 Va. App. 82, 84, 683 S.E.2d 843, 844 (2009)

(quoting Sandoval v. Commonwealth, 20 Va. App. 133, 135, 455 S.E.2d 730, 731 (1995)).




        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
        In August 2009, appellant, a banquet server for Keswick Hall, began renting a room in a

house located at 850 Black Cat Road (“the dwelling”). 1 On September 14, 2009, after numerous

unexplained absences at work by appellant, the director of human resources (“director”) at Keswick

Hall told appellant that he had two weeks to move out of the dwelling.2 On September 17, 2009,

appellant again failed to report to work. Later that day, between 5:30 p.m. and 6:00 p.m., the

director and another manager went to the dwelling and informed appellant that his employment with

Keswick Hall was terminated. The director told appellant that he needed to move out of the

dwelling. However, at appellant’s request, she agreed to permit appellant to remain in the dwelling

for an additional two days. The director left the dwelling at approximately 6:15 p.m., and returned

to Keswick Hall. At 9:06 p.m., appellant purchased three gallons of gasoline at a gas station located

approximately ten minutes from the dwelling. A fire at the dwelling was reported to emergency

services at approximately 9:20 p.m. After his arrest for arson of the dwelling, appellant told a

fellow inmate at the jail that he had burned down a $2.5 million home with gasoline because “he

had worked for the people and the people was trying to get rid of [him].”3

        At the conclusion of the Commonwealth’s evidence, appellant moved “to strike the

occupied element of the charge . . . so the [c]ourt would find that this was an unoccupied

dwelling and the unoccupied dwelling is punishable as a Class 4 felony.” Appellant argued that

the Commonwealth’s evidence showed that, although he had been granted two more days to

reside in the dwelling, he vacated the premises prior to the fire, taking his possessions with him,


        1
          Keswick Hall is a historic hotel and banquet hall in Albemarle County. The dwelling on
Keswick Hall property is used to house foreign interns. The dwelling had multiple bedrooms, a
living room, and a kitchen.
        2
         The director testified that she also feared for the safety of other potential occupants of the
dwelling because two men repeatedly came to Keswick Hall saying that appellant owed them
money.
        3
            The dwelling was actually valued at $334,600.
                                                  -2-
he did not intend to return, and he was, therefore, permanently absent from the dwelling. The

trial court overruled appellant’s motion to strike the Commonwealth’s evidence stating that it

was doing so “because I think it’s a factual determination for the jury whether [appellant] was

temporarily absent or permanently absent.”

       Appellant testified in his defense. He told the jury that when he was terminated, he asked

the director to give him two more days to reside in the dwelling, but that she denied his request.

He stated that on the same night his employment was terminated, he packed his belongings in his

car and left around 7:00 p.m. or 8:15 p.m. 4 He also testified that when he left the dwelling, he

went to the North Berkshire Apartments 5 in Charlottesville, and thereafter left to purchase gas

for his car. He further testified he did not start the fire that burned the dwelling.

       Among other jury instructions, the trial court gave Instruction #13 that defined

“occupied” as follows: “The term occupied does not require the physical presence of the

occupant at the time of the arson, but means that the use of the dwelling is as a place of current

habitation rather than a dwelling that is temporarily vacant.” Appellant did not object to the

granting of that instruction. 6 The jury found appellant guilty of arson of an occupied dwelling

and fixed his punishment at imprisonment for seven years. Appellant “move[d] to set aside the



       4
         The record provides no explanation for the hour and fifteen minute gap in his stated
departure times.
       5
         Appellant testified that even though he lived at the Keswick Hall dwelling, he also paid
for and maintained an apartment at the North Berkshire Apartments. Other than his testimony,
no other evidence established that he maintained an apartment at the North Berkshire
Apartments.
       6
           By per curiam order dated November 1, 2011, this Court denied that portion of
appellant’s petition for appeal asking us to consider his assertion, for the first time on appeal, that
the trial court erred in granting Instruction #13, and further asking that we invoke the ends of
justice, pursuant to Rule 5A:18, and hold that the trial court erred in granting jury Instruction
#13.

                                                 -3-
jury verdict . . . as being contrary to the law” because “the evidence clearly established it was an

unoccupied dwelling.” The trial court denied appellant’s motion to set aside the jury verdict.

                                           II. ANALYSIS

        On appeal, appellant argues the trial court erred in ruling that whether the dwelling was

occupied in the context of Code § 18.2-77 was a question of fact for the jury, and in overruling

his motion to strike the Commonwealth’s evidence as insufficient to prove the dwelling was

occupied as a matter of law. We conclude from the record on appeal that the trial court did not

err in instructing the jury that the issue of whether the dwelling was occupied was a question of

fact for it to determine.

                                       A. Standard of Review

        “When reviewing the sufficiency of the evidence to support a conviction, the Court will

affirm the judgment unless the judgment is plainly wrong or without evidence to support it.”

Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008). “The credibility of

the witnesses and the weight accorded the evidence are matters solely for the fact finder who has

the opportunity to see and hear that evidence as it is presented.” Sandoval, 20 Va. App. at 138,

455 S.E.2d at 732. Furthermore, “[i]n 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.” Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d

233, 235 (1998).

                An appellate court does not “ask itself whether it believes that the
                evidence at the trial established guilt beyond a reasonable doubt.”
                Williams v. Commonwealth, 278 Va. 190, 193, 677 S.E.2d 280,
                282 (2009) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19
                (1979)) (emphasis in original). “Rather, the relevant question is
                whether ‘any rational trier of fact could have found the essential
                elements of the crime beyond a reasonable doubt.’” Id. (citation
                omitted and emphasis in original). Thus, when a jury has rendered
                its verdict, “it is not for this court to say that the evidence does or
                does not establish his guilt beyond a reasonable doubt because as
                                                 -4-
               an original proposition it might have reached a different
               conclusion.” Cobb v. Commonwealth, 152 Va. 941, 953, 146 S.E.
               270, 274 (1929). Suffice it to say, an “appellate court is no
               substitute for a jury.” Id.

Rushing v. Commonwealth, 58 Va. App. 594, 606, 712 S.E.2d 41, 47 (2011) (footnotes omitted).

                               B. Arson of an Occupied Dwelling

       Code § 18.2-77 provides:

                        A. If any person maliciously (i) burns, or by use of any
               explosive device or substance destroys, in whole or in part, or
               causes to be burned or destroyed . . . any dwelling house . . . , he
               shall be guilty of a felony, punishable by imprisonment for life or
               for any period not less than five years and, subject to subdivision g
               of § 18.2-10, a fine of not more than $100,000. Any person who
               maliciously sets fire to anything . . . , by the burning whereof such
               occupied dwelling house . . . is burned shall be guilty of a violation
               of this subsection.

                      B. Any such burning or destruction when the building . . .
               mentioned in subsection A is unoccupied, shall be punishable as a
               Class 4 felony. 7

(Footnote added).

       In Johnson v. Commonwealth, 18 Va. App. 441, 444 S.E.2d 559 (1994), this Court

addressed the meaning of the term “occupied” in the context of the burglary statute, Code

§ 18.2-92, and held that

               the phrase “while said dwelling is occupied” in Code § 18.2-92 is
               not an element of the crime requiring the physical presence of the
               occupant at the time of the unlawful entry. Rather, it is language
               intended by the legislature to emphasize the character of the use of
               the dwelling as a place of current habitation rather than a dwelling
               that is temporarily vacant.




       7
         A Class 4 felony is punishable by imprisonment for a period of two years to ten years.
Code § 18.2-10(d). We note that the jury fixed appellant’s punishment at imprisonment for a
term of seven years, well within the range of punishment for either arson of an unoccupied
dwelling under Code § 18.2-77(B), a Class 4 felony, or arson of an occupied dwelling pursuant
to Code § 18.2-77(A).

                                               -5-
Id. at 447, 444 S.E.2d at 562. 8 In Marable, we addressed the meaning of “occupied” for

purposes of Code § 18.2-77, the arson statute at issue here, and noted that “[a]lthough Johnson

involved an interpretation of Code § 18.2-92, a breaking and entering statute, we find no reason

to distinguish between the two statutes.” Marable, 27 Va. App. at 513, 500 S.E.2d at 237. We

concluded that a dwelling is occupied “where the occupant or occupants are merely temporarily

absent but continue to reside there.” Id.

               At common law, arson occurred even if the occupants of a
               dwelling were “temporarily absent at the time of (its) burning.”
               State v. Gulley, 266 S.E.2d 8, 8 (N.C. Ct. App. 1980). Thus, the
               burning of a dwelling that is “merely temporarily unoccupied” is
               arson. Id. A structure is “temporarily unoccupied” if it is
               “dedicated and intended for residential use, and . . . is not presently
               occupied as a person’s habitation, but . . . has [not] been
               permanently abandoned nor vacant for a prolonged period of
               time.” State v. Green, 480 N.E.2d 1128, 1132 (Ohio Ct. App.
               1984).

Davis v. Commonwealth, 16 Va. App. 6, 8, 427 S.E.2d 441, 442 (1993) (alterations in original).

       The evidence presented to the jury proved that the dwelling was regularly inhabited by

employees of Keswick Hall, including appellant. It further proved that appellant was an

inhabitant of the dwelling and that at the time of the termination of his employment at Keswick

Hall, appellant requested and was granted permission by the director to inhabit the dwelling for

an additional two days. On the day his employment was terminated, appellant was at the

dwelling at 6:15 p.m. when the director departed. Appellant testified that he left the dwelling at

either 7:00 p.m. or 8:15 p.m. with his belongings. At 9:06 p.m. he purchased three gallons of



       8
          Webster’s Third New International Dictionary defines “occupancy” in part as
“taking . . . possession of real property under a lease or tenancy at will.” Webster’s Third New
International Dictionary 1560 (2002). Black’s Law Dictionary describes “occupant” as “One
who has possessory right in, or control over, certain property or premises.” Black’s Law
Dictionary 1184 (9th ed. 2009). It also describes “occupancy” as “[t]he act, state, or condition of
holding, possessing, or residing in or on something; actual possession, residence, or tenancy, esp.
of a dwelling . . . .” Id.
                                                 -6-
gasoline from a gas station located ten minutes away from the dwelling. Less than fifteen

minutes later, the fire at the dwelling was reported. Viewed in the light most favorable to the

Commonwealth, appellant was absent from the dwelling for approximately one hour prior to

returning and setting it on fire, using gasoline as an accelerant. In finding that the dwelling

retained its occupied status when appellant committed the arson, the jury rejected his hypothesis

of innocence that he did not start the fire and did not occupy the dwelling when it was burned.

       Based on our review of the record on appeal, we hold the trial court did not err in denying

appellant’s motion to strike the Commonwealth’s evidence, and finding that its evidence was

sufficient for the jury to conclude that at the time appellant set the fire, the dwelling was

occupied within the meaning of Code § 18.2-77(A).

                                        III. CONCLUSION

       For the foregoing reasons, we affirm appellant’s conviction for arson of an occupied

dwelling in violation of Code § 18.2-77(A).

                                                                                            Affirmed.




                                                 -7-
