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. 
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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 

 

 1Collins 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.