                       COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Bray and Annunziata
Argued at Alexandria, Virginia


MARIA AVILA
                                           MEMORANDUM OPINION * BY
v.   Record No. 1980-99-4         CHIEF JUDGE JOHANNA L. FITZPATRICK
                                                JUNE 27, 2000
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                        Joanne F. Alper, Judge

          Gary H. Smith for appellant.

          Stephen R. McCullough, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Maria Avila (appellant) was convicted in a jury trial of

arson, in violation of Code § 18.2-77.   The sole issue on appeal

is whether the evidence was sufficient to sustain her conviction.

Finding the evidence sufficient, we affirm.

     Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

the prevailing party below, granting to that evidence all

reasonable inferences fairly deducible therefrom.     See Juares v.

Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).

"The burden is upon the Commonwealth, however, to prove beyond a

reasonable doubt that [the defendant] was the perpetrator of the

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
crimes."     Derr v. Commonwealth, 242 Va. 413, 424, 410 S.E.2d

662, 668 (1991).    "Additionally, circumstantial evidence is as

competent, and entitled to the same weight, as direct testimony

if such evidence is sufficiently convincing."     Id.   It is true

that, in a case based upon circumstantial evidence, the

Commonwealth must exclude every reasonable hypothesis of

innocence.     See Cantrell v. Commonwealth, 7 Va. App. 269, 289,

373 S.E.2d 328, 338 (1988).    "However, '[w]hether the

Commonwealth relies upon either direct or circumstantial

evidence, it is not required to disprove every remote

possibility of innocence, but is, instead, required only to

establish guilt of the accused to the exclusion of a reasonable

doubt.'"     Id. (quoting Bridgeman v. Commonwealth, 3 Va. App.

523, 526-27, 351 S.E.2d 598, 600 (1986)).

     In the present case, the evidence, viewed in the

appropriate light, established that appellant was separated from

her husband, Isreal Avila (Avila), and had lived in the

condominium purchased by Avila before the marriage.     In July

1998, a court granted Avila possession of the condominium and

appellant moved from there in August 1998.

     At approximately 7:30 p.m. on September 8, 1998, Percy and

Angelite Covington saw appellant leave an assigned parking space

at the condominium.    Approximately forty-five minutes later, the

Covingtons saw smoke and noticed that the door to Avila's

condominium was black.    Chief Fire Marshall Sean Kelley (Kelley)

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arrived at the scene at approximately 8:30 p.m.    Following an

investigation, Kelley determined that nine separate fires had

been deliberately set and that the smoke detector had been

tampered with so that it did not work.   A fire was set in

Avila's bed, couch, dining table, computer and other household

items.   A fire was not set in a bedroom that contained the toys

belonging to the child of appellant and Avila.    Testimony given

by Avila's supervisors and employment records established that

Avila was at work at the time of the fires.

     In the course of his investigation, Kelley was unable to

locate appellant for questioning and, thus, he conducted a

surveillance of her son.   A few days after the fire, Kelley saw

a third party pick up appellant's son from school and take him

to a park to meet appellant.   Kelley then followed appellant to

her apartment.   When Kelley went to appellant's apartment, her

first words were, "How did you find me?"   Appellant denied that

she set the fires and stated that she was attending church,

approximately three miles from the condominium, at the time of

the incident.

     At trial, the Covingtons testified that they arrived at the

condominium on September 8, 1998 at approximately 7:30 p.m. and

called for assistance at approximately 8:30 p.m.   However, on

cross-examination the two witnesses admitted to making a verbal

statement on the night of the fire that they observed appellant

leave the complex at approximately 8:30 p.m.   Based on that

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first statement given by the Covingtons and subsequent written

statements, Fire Marshall Kelley originally estimated that the

fires were set around 8:20 p.m.    However, he testified that,

consistent with the Covingtons' trial testimony, the fires could

have been started earlier.   In appellant's defense, several

members from her church testified that on the night of the fire

she was present at church before 7:30 p.m. and throughout the

evening.   At the conclusion of the evidence, the jury convicted

appellant of arson.

                                  II.

     On appeal, appellant contends that the Covingtons gave

inconsistent statements concerning the time they saw her on the

day of the fires and that the testimony of Fire Marshall Kelley

was inconsistent.   Given these inconsistencies, appellant argues

that the evidence was insufficient to establish that she was the

perpetrator of the crime.

     "In a prosecution for arson, the Commonwealth must prove

that 'the fire was of incendiary origin and that the accused was

a guilty agent in the burning.'"        Hickson v. Commonwealth, 258

Va. 383, 387, 520 S.E.2d 643, 645 (1999) (quoting Augustine v.

Commonwealth, 226 Va. 120, 123, 306 S.E.2d 886, 888 (1983)).

Like other crimes, arson may be proved by circumstantial

evidence "[w]here all the circumstances of time, place, motive,

means, opportunity and conduct concur in pointing out the

accused as the perpetrator of the crime."        Schlimme v.

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Commonwealth, 16 Va. App. 15, 18, 427 S.E.2d 431, 433-34 (1993)

(citations omitted).    Thus, "we consider the evidence as a whole

in deciding whether it is sufficient to support the jury's

findings that [the defendant] was the perpetrator of the

crimes."     Chichester v. Commonwealth, 248 Va. 311, 329, 448

S.E.2d 638, 650 (1994).

     In the instant case, the evidence was sufficient to

establish that appellant was the perpetrator of the crime.

Appellant and Avila were involved in divorce proceedings, and

Avila was forced to petition the court for relief when appellant

refused to leave the condominium.    Both parties changed the

locks to the residence without notice to the other, and the

evidence demonstrated an animosity between the two individuals.

Fire Marshall Kelley testified that the manner in which the fire

was set (i.e., the burning of the marital bed and husband's

clothes) was a "classic" revenge-type fire, and he had no doubt

the fire was of incendiary origin.

     In addition to motive, the circumstantial evidence

established time, means and opportunity, from which the jury

could infer that appellant was the perpetrator of the crime.

There was no sign of a forced entry and, although she returned

one set of keys to Avila, appellant was the last one to change

the locks.    Additionally, the testimony of the Covingtons placed

appellant at the crime scene on the evening of the fires and

appellant's church was within a five-minute drive.    Put simply,

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the jury heard the testimony regarding the time of the fire,

observed the demeanor of all the witnesses, and was free to

accept or reject the evidence presented.   "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 v.

Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995).

"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."

Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d

233, 235 (1998).

     The Commonwealth's evidence was competent, was not

inherently incredible, and was sufficient to prove beyond a

reasonable doubt that appellant was guilty of arson.

Accordingly, appellant's conviction is affirmed.

                                                          Affirmed.




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