                     COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Benton and Bray
Argued at Richmond, Virginia


JASPER PLOWDEN
                                           MEMORANDUM OPINION *
v.           Record No. 1620-96-2       BY JUDGE JOSEPH E. BAKER
                                              JUNE 10, 1997
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                     Thomas N. Nance, Judge
             Melissa A. Hobbie (Phillips, Webb &
             Wallerstein, P.C., on brief), for appellant.

             Daniel J. Munroe, Assistant Attorney General
             (James S. Gilmore, III, Attorney General, on
             brief), for appellee.



     Jasper Plowden (appellant) appeals from his bench trial

conviction for arson of a dwelling house in violation of Code

§ 18.2-77.    The sole issue presented by this appeal is whether

the evidence was sufficient to prove beyond a reasonable doubt

that appellant was the criminal agent who caused the dwelling

house to burn.

     Viewing the evidence in the light most favorable to the

Commonwealth, granting to it all reasonable inferences fairly

deducible therefrom, Martin v. Commonwealth, 4 Va. App. 438, 443,
358 S.E.2d 415, 418 (1987), we find that prior to March 11, 1996,

the date of the fire from which this case arises, appellant and

his friend Martha Allen had been lovers for approximately nine

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
years.   Appellant and Martha resided together "off and on."   In

February 1995, appellant learned that Martha was possibly

enjoying a relationship with another man.   Appellant threatened

to harm Martha if he caught her with another man.   In June or

July 1995, appellant and Martha "broke up."

     By March 1996, appellant and Martha had revived their

relationship on a periodic basis, and appellant again was living

with her at her apartment "off and on."   At the time of the fire,

appellant kept clothes, furniture, a musical instrument, and

other personal objects at Martha's house.   In the afternoon of

March 11, 1996, Martha observed appellant enter her house.     After

a brief conversation with her, appellant walked upstairs to use

the bathroom.   Appellant had nothing in his hands as he climbed

the stairs.   After about four to five minutes, while appellant

alone remained upstairs and in the bathroom, Martha heard a loud

noise emanate from the second floor.   A window air conditioner

had blown out from an upstairs window and onto the ground.

Neither Martha nor her daughter who were inside the house saw,

heard, or smelled anything unusual in the house prior to the loud

noise.
     Two or three minutes after the loud noise occurred,

appellant walked down the stairs and, speaking slowly, informed

Martha that there was a fire upstairs.    Investigation by Fire

Investigator Allen Collins revealed that two fires had started:

one in the main bedroom where the air conditioner was located,




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and one in another bedroom.   There was no fire trail from one

room to the other.   Collins ruled out electrical receptacles and

sockets as a cause of the fire.   He opined that the two separate

fires, the exploded air conditioner unit, and the heat of the

fires were consistent with the use of an accelerant and

inconsistent with an accidental slow burning fire. 1    He further

testified that if an accelerant was used it would have taken "a

pint or more" to create the type of fire in the apartment.     Floor

samples were taken to test for accelerants, and no paint,

propane, gasoline, or other combustible material was found inside

or outside the house.   Collins observed appellant and did not

smell any burn or accelerant odor about him.   Moreover, a

television in one of the upstairs bedrooms away from the air

conditioner also burned.   Collins admitted that he could not tell

whether the fire originated from the television set.     Collins

could not state the point of origin for either of the two fires.
     In order to support a conviction for arson, it is essential

that the evidence reveal that the fire was of incendiary origin

and that it point unerringly to the guilty party.      Poulos v.

Commonwealth, 174 Va. 495, 499, 6 S.E.2d 666, 667 (1940).     Even

assuming that the fires here were of an incendiary origin, the

evidence does not show beyond a reasonable doubt that appellant

started them.   "'Evidence only that a fire was incendiary, that
     1
      Collins did not state as a definite opinion that the damage
resulted from use of accelerants and was unable to give a
positive statement as to the actual cause of the fire.



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the defendant had an opportunity to commit the crime, and that he

cherished ill feelings towards the owner of the property

destroyed, does not warrant a conviction.'"     Id. at 500, 6 S.E.2d

at 667-68 (citation omitted).   In reversing Poulos' arson

conviction, the Virginia Supreme Court quoted the following

language from Jones v. Commonwealth, 103 Va. 1012, 1013, 49 S.E.

663, 665 (1905):
          "The prisoner is presumed to be innocent
          until his guilt is established, and he is not
          to be prejudiced by the inability of the
          Commonwealth to point out any other criminal
          agent, nor is he called upon to vindicate his
          own innocence by naming the guilty man. He
          rests secure in that presumption of innocence
          until proof is adduced which establishes his
          guilt beyond a reasonable doubt, and whether
          the proof be direct or circumstantial, it
          must be such as excludes any rational
          hypothesis of the innocence of the prisoner."

Poulos, 174 Va. at 500, 6 S.E.2d at 667.

     While there may be some suspicion that the fires here were

of an incendiary origin, on the facts contained in this record,

we hold that the evidence does not support the judgment of the

trial court.   The Commonwealth did not present sufficient

evidence to prove beyond a reasonable doubt that appellant was

the criminal agent who started the fires.

     Accordingly, the judgment of the trial court is reversed,

and appellant is dismissed from further prosecution pursuant to

the indictment.
                                           Reversed and dismissed.




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