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. 
- 2 - 

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 
- 3 - 

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 
- 4 - 

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 
- 5 - 

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 
- 6 - 

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.