                     COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Elder and Senior Judge Cole
Argued at Richmond, Virginia


DONALD D. LEWIS, S/K/A
 DONALD DANE LEWIS, III
                                          MEMORANDUM OPINION * BY
v.           Record No. 2504-95-2        JUDGE SAM W. COLEMAN III
                                             DECEMBER 3, 1996
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY
                     James F. D'Alton, Jr., Judge
             M. Duncan Minton, Jr. (White, Hamilton, Wyche
             & Shell, on briefs), for appellant.

             John K. Byrum, Jr., Assistant Attorney
             General (James S. Gilmore, III, Attorney
             General, on brief), for appellee.



     Donald D. Lewis was convicted in a bench trial of

maliciously setting a fire in the Dinwiddie County jail in

violation of Code § 18.2-77.    On appeal the defendant challenges

the sufficiency of the evidence to support the conviction.

Specifically, he contends that the Commonwealth failed to prove

(1) that the fire was not accidental, and (2) that he had the

requisite intent to burn the jail.    We find the evidence

sufficient and affirm the defendant's conviction.

     In order to convict an accused, the Commonwealth must prove

beyond a reasonable doubt "each and every constituent element" of

the crime.     Hamm v. Commonwealth, 16 Va. App. 150, 153, 428

S.E.2d 517, 520 (1993).    To establish arson under Code § 18.2-77,
     *
       Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the Commonwealth must prove that "the fire was of incendiary

origin and that the accused was a guilty agent in the burning."

Augustine v. Commonwealth, 226 Va. 120, 123, 306 S.E.2d 886, 888

(1983).   An incendiary fire is one that involves a deliberate or

intentional burning of property.     See Callahan v. Commonwealth, 8

Va. App. 135, 138, 379 S.E.2d 476, 478 (1989); Webster's Third

New International Dictionary 1141 (1981).     Whether a fire is

incendiary or accidental is an ultimate question of fact to be

determined by the fact finder.     Ramsey v. Commonwealth, 200 Va.

245, 250-51, 105 S.E.2d 155, 159 (1958).

     The determination of whether a fire is accidental or

incendiary in nature often is proven solely by circumstantial

evidence.   Where no direct evidence establishes how a fire

started, there is a rebuttable presumption that the fire was

caused by accident instead of by arson.     Cook v. Commonwealth,

226 Va. 427, 431-32, 309 S.E.2d 325, 328 (1983); Knight v.

Commonwealth, 225 Va. 85, 89, 300 S.E.2d 600, 601-02 (1983);
Simmons v. Commonwealth, 208 Va. 778, 782, 160 S.E.2d 569, 572

(1968).   However, when there is direct evidence as to how a fire

started, the presumption of accidental cause does not apply and

the fact finder must determine from the direct evidence whether

the fire was incendiary or accidental.

     Here, the defendant testified that he and his cellmate were

"plucking" matches in their cell, which involves intentionally

lighting a match and tossing it in the air.    As he walked out of




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the room, the defendant plucked one more match into the cell and

went to use the phone.   The arson investigator testified that all

accidental causes, such as mechanical or electrical defects, were

eliminated as having caused the fire.   He also testified that

throwing a match onto the mattress on the bottom bunk could have

caused the fire.    The evidence was sufficient to prove that the

fire ignited on the mattress.   Thus, the dispositive question is

whether the evidence is sufficient to prove beyond a reasonable

doubt that the defendant had the specific intent to burn the

mattress.
     The trial judge found that the fire was not accidental.     The

decision of the trial court sitting without a jury is afforded

the same weight as a jury verdict and will not be disturbed on

appeal unless plainly wrong or without evidence to support it.

King v. Commonwealth, 217 Va. 601, 604, 231 S.E.2d 312, 315

(1977).

     Code § 18.2-77(A) states, in pertinent part,
          If any person maliciously (i) burns . . . in
          whole or in part, or causes to be burned or
          destroyed, or (ii) aids, counsels or procures
          the burning or destruction of . . . any
          occupied jail or prison, he shall be guilty
          of a felony . . . . Any person who
          maliciously sets fire to anything, or aids,
          counsels or procures the setting fire to
          anything, by the burning whereof such
          occupied . . . jail or prison, is burned
          shall be guilty of a violation of this
          subsection.


(Emphasis added).   Malice, which the Commonwealth must prove in

arson cases, is no different from that required in other common


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law crimes.     Bell v. Commonwealth, 11 Va. App. 530, 532, 399

S.E.2d 450, 452 (1991).

             It is well-settled in Virginia that "[m]alice

             inheres in the doing of a wrongful act

             intentionally, or without just cause or

             excuse, or as a result of ill will.   It may

             be directly evidenced by words, or inferred

             from acts and conduct which necesarily [sic]

             result in injury.   Its existence is a

             question of fact to be determined by [the

             trier of fact]."
Id. at 532-33, 399 S.E.2d at 452 (quoting Long v. Commonwealth, 8

Va. App. 194, 198, 379 S.E.2d 473, 475-76 (1989)).

        Relying upon familiar principles, we view the evidence in

the light most favorable to the Commonwealth, granting to it all

reasonable inferences fairly deducible therefrom.        Higginbotham

v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).

Lewis testified that he was away from his cell for only three or

four minutes before returning to find a fire on his mattress

consisting mostly of smoke with a flame seven or eight inches

high.    He also testified that the fire was not touching the upper

bunk.    However, the arson investigator testified that the

physical damage to the cell was consistent with heavy fire damage

caused by direct flame impingement or contact on the top bunk,

radiant heat severe enough to cause blistering of paint on the



                                  - 4 -
walls, and heavy smoke damage.    The physical evidence, including

the intensity of the fire and the damage caused, was inconsistent

with the defendant's explanation that he had accidentally set a

small fire which was extinguished when it was momentarily

discovered.

     As the trier of fact, a trial judge is entitled to reject

testimony he finds implausible.     Durham v. Commonwealth, 214 Va.

166, 169, 198 S.E.2d 603, 606 (1973).    Here, the trial judge was

justified in finding the defendant's testimony that the fire was

accidental to be incredible and in finding that the physical

evidence proved that the defendant intentionally threw a match on

the lower bunk and left the area until the fire had caused

substantial damage.   Furthermore, the facts show that, on the

night of the fire, the defendant gave a false account of events

when he denied having any involvement in setting the fire.    He

only admitted any knowledge of the fire and offered an account

that it was accidental when confronted with being given a

polygraph test.    He also gave a fake account as to whether his

cellmate was present when the fire ignited.    At trial, he

explained that he lied "[b]ecause everybody was threatening

whoever did it, bad threatening."    The trial judge did not accept

this explanation.   "The fact finder need not believe the

accused's explanation and may infer that he is trying to conceal

his guilt."   Black v. Commonwealth, 222 Va. 838, 842, 284 S.E.2d

608, 610 (1981).    The evidence supports the trial judge's finding



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that the defendant possessed the specific intent to burn the

mattress.

     Accordingly, the evidence is sufficient to support the

defendant's arson conviction, and we affirm the trial court's

decision.

                                                        Affirmed.




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