Hancock v. Com.

• Decision Date: 01 July 1991
• Docket Number: No. 1482-88-2,1482-88-2
• Citation: 12 Va.App. 774,407 S.E.2d 301
• Parties: Kennedy Fitzgerald HANCOCK v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 301

407 S.E.2d 301

12 Va.App. 774

Kennedy Fitzgerald HANCOCK v. COMMONWEALTH of Virginia.

Record No. 1482-88-2.

Court of Appeals of Virginia.

July 1, 1991.

Michael HuYoung (Jane Chittom, on brief), Richmond, for appellant.

Eugene Murphy, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BENTON, COLEMAN and DUFF, JJ.

COLEMAN, Judge.

On July 11, 1987, Kennedy Fitzgerald Hancock and three companions robbed the people attending a turkey shoot at a clubhouse in Chesterfield County. At his bench trial, Hancock pled guilty to three counts each of armed robbery and use of a firearm during a robbery. Code §§ 18.2-58 and 18.2-53.1. He was also found guilty of arson, Code § 18.2-79, and three counts of attempted capital murder by arson. Code §§ 18.2-25 and 18.2-31(d). ¹ On appeal, Hancock claims the Commonwealth did not prove the arson charge beyond a reasonable doubt. He also assigns several errors to his attempted capital murder convictions: (1) that the Commonwealth failed to prove beyond a reasonable doubt that he was a principal in the first degree to the arson and, therefore, because Code § 18.2-18 mandates that only a principal in the first degree can be convicted of capital murder, he cannot be convicted of attempted capital murder; (2) that the Commonwealth failed to prove beyond a reasonable doubt that he acted with the specific intent to kill; and (3) that the Commonwealth failed to prove each element of the three counts of attempted capital murder because it produced only one of the three victims who were allegedly robbed and, therefore, failed to prove the crucial element that each victim was robbed. We find no merit in these contentions and affirm Hancock's convictions.

At Hancock's suggestion, he and three companions planned to rob the people who were attending the turkey shoot at the clubhouse. Hancock, who had been to several turkey shoot gatherings before, knew that people with large amounts of cash would be there gambling late into the night. On the way to the clubhouse, Hancock, who was driving, stopped his truck at a store so one of his compatriots could purchase a container of gasoline. Hancock anticipated that only a few people would be left at the clubhouse when they arrived around 1:00 a.m. Instead, they found approximately eighteen people present. Wearing masks, the four men burst through the only door to the small wooden structure, which had dirt floors and no windows. One of the men fired a shot into the air and announced it was a stickup. Hancock, who was carrying a pistol, gathered wallets from some of those present. One of Hancock's accomplices, who was armed with a double barrel shotgun, fired a shot over one man's head.

After the robberies, two of Hancock's accomplices left the building. According to Hancock, after his two confederates left, he and Kevin W. Bell remained behind in the clubhouse with the can of gasoline. Hancock testified that he never intended to start a fire and that he had merely planned to spill the gasoline in front of the door so the smell would scare the victims. He maintained that he did not carry the gasoline into the clubhouse and that he did not place the foam rubber cushion in front of the door, pour gasoline on it, or strike the match that started the fire. Hancock claimed that Bell did all of these acts. However, Thomas Mays, the only victim to testify at trial, said that the two men divided the tasks between them. He acknowledged that one was more responsible, perhaps, than the other. Mays could not identify which man was Hancock and which was Bell because they were wearing masks. He testified as follows:

Q. The two individuals that came back in, when you say there was a seat on the couch are you referring to one cushion or a number of cushions?

A. One cushion.

Q. Did you see which one of the individuals took that cushion off?

A. No, I didn't.

* * * * * *

Q. Did you see whether or not the other individual had something in his hands?

A. Yes.

Q. What did he have?

A. A can of gas.

Q. Now, after that first individual took the cushion off the couch where did he place it, on the floor?

A. Yes.

Q. What did the second individual that had the can, what did he do?

A. He poured the gas on it and the first man lit the fire.

Q. That would be the man that took the cushion off the couch?

A. Right.

Upon starting the fire, one of the two men commanded, "Stay in with your hands over your head. Don't come out for ten minutes or we will shoot." As the two men left, one shut the door behind them and the room filled immediately with smoke. Those trapped inside were afraid to leave by the door. They managed to put out the fire by smothering it with plywood and escaped by kicking through the back wall. No one was injured. The arson investigator who inspected the scene testified that the center pole of the structure had been charred by the fire.

I. ARSON

Hancock contends the evidence was insufficient to support his conviction for arson under Code § 18.2-79. We disagree.

Hancock does not contest that the fire was incendiary in origin; he conceded the fire was deliberate and even testified to the manner in which it was set. He claims, instead, the Commonwealth failed to prove that the fire damaged the building or, whatever damage may have occurred was insufficient to establish "burning" within the meaning of Code § 18.2-79.

The arson expert testified that while the boards used by the victims to put out the fire were charred because of those efforts to extinguish the fire, damage to the center pole supporting the roof of the structure was due to the fire set by Hancock and his accomplices. While Thomas Mays, one of the victims, did testify that the building was not damaged, the arson expert testified the center pole was, in fact, charred. On appeal, the decision of a trial court sitting without a jury is afforded the same weight as a jury's verdict and will not be disturbed unless plainly wrong or without evidence to support it. King v. Commonwealth, 217 Va. 601, 604, 231 S.E.2d 312, 315 (1977). The trial court considered and determined the credibility of the witnesses and the weight to be given their testimony. We consider the evidence in the light most favorable to the Commonwealth, affording it all reasonable inferences fairly deducible therefrom. Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987). Viewed in this light, we find the evidence supports the finding that the fire, which was of incendiary origin, did damage to the building.

"The amount of 'burning' necessary to be shown is any amount, provided there is a perceptible wasting of the fiber of the building or object which is a subject of arson, or some part of that building or object, by fire." 2A Michie's Jurisprudence, Arson § 1 (1981). While no Virginia case has directly addressed this proposition, we follow the precedent set by a majority of other states which hold that only a slight burning is necessary. See Annotation,What Constitutes "Burning" to Justify Charge of Arson, 28 A.L.R.4th 482 at §§ 3, 6 (1984).

Hancock also claims the Commonwealth failed to prove he was the one who actually ignited the match to start the fire. Proof that he struck the match and ignited the gasoline is unnecessary for a conviction under Code § 18.2-79. The statute provides that anyone who did "aid, counsel, or procure the burning or destruction" is guilty of arson. Having established the fire was incendiary in origin, the Commonwealth's remaining burden was to prove "the accused was a guilty agent in the burning within the scope of the statute," Augustine v. Commonwealth, 226 Va. 120, 123, 306 S.E.2d 886, 888 (1983), and this the Commonwealth did. Hancock acknowledged that he was one of the two men who remained behind when the fire was ignited. We know from Thomas Mays that Hancock either doused the cushion with gasoline or placed the cushion and used the match to ignite the gasoline. Either act was sufficient to constitute arson in violation of Code § 18.2-79. Also, Hancock admitted it was his idea to bring the gasoline along. The evidence was sufficient for the fact finder to find that Hancock took an active part in setting the fire and did "aid, counsel, or procure the burning." See id.

II. ATTEMPTED CAPITAL MURDER

Hancock claims the Commonwealth failed in several respects to prove that he attempted to commit capital murder. He contends that Code § 18.2-18, as interpreted in Johnson v. Commonwealth, 220 Va. 146, 255 S.E.2d 525, cert. denied, 454 U.S. 920 (1981), permits only a principal in the first degree to be convicted of capital murder. He argues, and the Commonwealth concedes, that the logical extension of the Johnson decision leads to the conclusion that only a principal in the first degree can be convicted of attempted capital murder. ² He reasons that, since he was not the "triggerman" who ignited the fire, he cannot be convicted of an attempt to commit capital murder because he could not have been convicted of capital murder had the attempt been carried to fruition. He claims, therefore, that his convictions for attempted capital murder were faulty because the Commonwealth failed to prove that he was a principal in the first degree to the arson. Hancock also contends that the Commonwealth failed to prove that he had the specific intent to kill by setting the fire. We hold that the evidence was sufficient to prove that Hancock was a principal in the first degree to attempted capital murder.

Hancock contends that only the person who struck the match to ignite the gasoline and the cushion could be convicted as a principal in the first degree to attempted capital murder by arson. He contends that the Commonwealth's eyewitnesses could not identify whether he or his accomplice was the one to strike the match and set the fire. He argues that the evidence would, at most, prove he was a principal in the second degree since the Commonwealth...