Schwartz v. Com.

• Decision Date: 17 June 2003
• Docket Number: Record No. 0325-02-2.
• Citation: 581 S.E.2d 891,41 Va. App. 61
• Parties: Marc Andre SCHWARTZ, v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

581 S.E.2d 891

41 Va. App. 61

Marc Andre SCHWARTZ, v. COMMONWEALTH of Virginia.

Record No. 0325-02-2.

Court of Appeals of Virginia, Richmond.

June 17, 2003.

John W. Luxton (Morchower, Luxton & Whaley, on brief), Washington, DC, for appellant.

Margaret W. Reed, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., and HUMPHREYS and KELSEY, JJ.

HUMPHREYS, Judge.

Marc A. Schwartz appeals his convictions, after a bench trial, for three counts of arson, three counts of vandalism, one count of unlawful entry, and one count of underaged possession of alcohol. Schwartz contends the circuit court erred in finding he did not fall within the jurisdiction of the juvenile and domestic relations district court, and finding the evidence sufficient as a matter of law to establish three separate counts of arson. Schwartz further argues that the final sentencing order issued by the circuit court erroneously classified the vandalism and possession of alcohol offenses as adult convictions, as opposed to juvenile convictions. For the reasons that follow, we affirm and remand for correction of the sentencing order.

I. Background

In accordance with settled rules of appellate review, we state the evidence presented at trial in the light most favorable to the Commonwealth, the prevailing party below. Burns v. Commonwealth, 261 Va. 307, 313, 541 S.E.2d 872, 877 (2001).

Around midnight, on May 28, 2001, Schwartz,¹ and three of his high school classmates, James Steadman, Dale Edward Wright and Scott Bennett, gathered at Wright's home. While there, they drank alcohol and watched television. After some time, they decided to go outside and vandalize a school bus that was parked at a home in Wright's neighborhood. As they left Wright's home, they picked up "bats, [a] hatchet, and [a] hammer," and then got into Steadman's car. Schwartz also had a pocketknife.

The young men vandalized the bus by slashing the tires and breaking several windows. They then vandalized another bus. After this, the young men got back into Steadman's car and drove around. At some point, they decided to try and "tip" a car. The young men went to a neighborhood where they knew one of their school teachers lived, and looked for a "top-heavy" car to "tip." They parked the car "somewhere in [H]ardings [T]race" and got out, carrying the items they used in vandalizing the buses. They then approached a truck that was parked in the driveway of one of the homes. Schwartz slashed the tires on one side. Although they saw that lights were on inside the home, they rocked the truck in an attempt to tip it over. When they were unable to tip the truck, they noticed a container in the back, containing fuel. They then decided to set the grass in the yard on fire. Schwartz helped pour some of the fuel onto the grass. Wright tried to light the fuel with a lighter he had taken from the front seat area of the truck. However, because it was raining at the time, the young men were unable to start the fire.

At that point, Schwartz put the fuel container back into the truck. One of the young men then decided that they should try to start a fire in the truck. Bennett "discouraged" the idea and said that the house might catch on fire as a result. Nevertheless, Steadman and Wright stood in the back of the truck and attempted to start a fire with the fuel. Schwartz stood nearby and watched as Steadman took a piece of paper, lit it, and threw it in the back of the truck. The young men then ran back to their car and drove away.

The young men returned to Wright's home and drank more alcohol. They later returned to the home in Hardings Trace to "check on the fire." When they arrived, they could see small flames, but "it wasn't very big at all," so they left. When they returned again, later that night, they saw a fire truck, so they again left. After stopping to eat breakfast in a restaurant, the young men returned to their respective homes.

The property that was burned belonged to Michael Drye. The fire began in the back of his pickup truck then spread to his Ford Explorer, which was parked nearby, then to the garage attached to his home. The fire ultimately progressed across the roof of his home and spread vertically to the third floor, heavily engulfing the attic. Drye was home, asleep, at the time, but was able to get out of the home before the fire spread from the garage. Once fire officials arrived, the fire was brought under control in approximately one hour. By that time, the fire had destroyed Drye's home and two vehicles.

On June 1, 2001 and June 7, 2001, the Commonwealth filed several petitions against Schwartz in the juvenile and domestic relations district court in Henrico County. The petitions included a charge of felonious arson of an occupied dwelling, two charges of felonious arson of personal property, two charges of felony vandalism, a charge of misdemeanor vandalism, a charge of misdemeanor unlawful entry, and a charge of underage possession of alcohol. On June 14, 2001, the Commonwealth filed a notice of transfer hearing to be held on July 9, 2001.

During the transfer hearing, Schwartz pled guilty to underaged possession of alcohol and three counts of vandalism. After considering the probation officer's transfer report recommending transfer of the remaining charges to circuit court, and after considering the "statutory factors in [Code] § 16.1-269.1(A)(4)," the juvenile and domestic relations district court transferred the remaining charges to circuit court. In ordering the transfer, the juvenile and domestic relations district court noted that it relied "primarily" on factors "b, c, & d," as contained in Code § 16.1-269.1(A)(4), in finding that the Commonwealth's request for transfer should be granted. Specifically, the court noted as follows:

seriousness of crime, cannot be retained long enough in juvenile system [and] nothing to offer him in juvenile system.

Schwartz appealed the transfer order to the circuit court on July 16, 2001. During the de novo hearing, Schwartz presented the testimony of a clinical psychologist, the medical director of the Adolescent Health Center, and his mother. Each testified that, in their opinion, Schwartz suffered from no psychopathology or personality disorder, but was a very bright and intelligent young man, who was "socially immature" and acted in an attempt to gain social acceptance within his peer group. The clinical psychologist testified that Schwartz presented a low risk for similar behavior in the future, and opined that he would benefit from counseling for approximately six to twelve months, to help him deal with his personal growth and identity issues.

Schwartz also testified. He claimed that he had not attempted to start the fire that evening, but admitted his participation in the events that took place. He told the court that he had apologized to Drye.

Schwartz also submitted several documents to the court for consideration, including apology letters he had written to Drye and his school superintendent, letters written by several of his teachers documenting his intelligence and good nature, and documents demonstrating his "exceptional intelligence" rating and academic achievement.

After hearing arguments of counsel and considering the evidence and "all papers connected" with the matter, the circuit court found that Schwartz "was not a proper person to remain within the jurisdiction of the Juvenile Court." The circuit court ordered further that "[u]pon agreement of counsel, the charges now pending in the Juvenile and Domestic Relations Court are transferred to this Court for disposition."

The Commonwealth subsequently obtained indictments against Schwartz for one count of arson of an occupied dwelling, in violation of Code § 18.2-77, and two counts of arson of personal property, in violation of Code § 18.2-81. On October 16, 2001, Schwartz was tried on these charges, along with a charge of misdemeanor unlawful entry, in violation of Code § 18.2-121. He was tried jointly, with codefendants Wright and Steadman, and testified for the Commonwealth as to the events set forth above.²

At the close of the Commonwealth's case, and again at the close of all the evidence, Schwartz raised a motion to strike, contending, in relevant part, that the "single larceny theory" applied to this matter, allowing only one charge for arson, as opposed to three separate charges involving the burning of the individual items. The circuit court denied the motion and subsequently convicted Schwartz of the charges.

On December 20, 2001, the circuit court heard evidence pertaining to the three vandalism offenses and the underage possession of alcohol offense, forwarded for disposition by the juvenile and domestic relations district court, and "affirm[ed] the finding of guilt of the Henrico Juvenile & Domestic Relations Court" on these charges.

On January 10, 2002, Schwartz filed a motion to set aside the findings of guilt with regard to the arson convictions, arguing in relevant part, that the arsons of the vehicles were lesser-included offenses of the arson of the occupied dwelling.³ The record contains no ruling by the circuit court pertaining to this motion.

By order of January 14, 2002, the circuit court sentenced Schwartz on all the convictions. The aggregate sentence amounted to thirteen years and thirty days in prison, with twelve years, six months and thirty days suspended. The sentencing order reflected all of the convictions, including the juvenile and domestic relations district court convictions, as adult convictions.

II. Analysis

On appeal, Schwartz raises three issues. Schwartz contends the circuit court abused its discretion in determining that he was not a proper person to remain within the jurisdiction of the juvenile court and that it erred in finding him guilty of three counts of arson, because there was only one point of ignition. Schwartz further...