Underwood v. Com.

Citation218 Va. 1045,243 S.E.2d 231
Decision Date21 April 1978
Docket NumberNo. 770808,770808
PartiesRobert Clay UNDERWOOD v. COMMONWEALTH of Virginia.
CourtSupreme Court of Virginia

E. Eugene Gunter, Winchester, for plaintiff in error.

Jim L. Chin, Asst. Atty. Gen. (Anthony F. Troy, Atty. Gen., on brief), for defendant in error.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN and COMPTON, JJ.

HARMAN, Justice.

After a jury trial, Robert Clay Underwood (Underwood or defendant) was convicted of feloniously and maliciously burning or destroying personal property of the value of $100 or more in violation of Code § 18.2-81. The jury fixed his punishment at confinement in the penitentiary for a term of eight years. We awarded a writ of error to the final judgment confirming the conviction and imposing sentence.

The only issue raised on appeal is the sufficiency of the evidence of criminal agency to sustain this conviction. In such circumstances, we must consider the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Andrews v. Commonwealth, 216 Va. 179, 217 S.E.2d 812 (1975).

The evidence shows that an unattended police car owned by the Frederick County Sheriff's Department and assigned to Deputy Sheriff Raymond Pannell (Pannell) was destroyed by fire at approximately 4:00 A.M. on May 26, 1976. The car was parked at an apartment development where Pannell resided in the City of Winchester. Upon returning from work the preceding day, Pannell parked his car, and, after ascertaining that all of the windows were closed, locked it.

When the fire was reported around 4:00 A.M., the fire department and several policemen responded to the alarm. When the first officer arrived at the scene, he observed fire in the interior of the car, but saw no flames emanating from either the hood or the trunk of the vehicle.

While the firemen were still fighting the fire, a dark blue station wagon owned by the defendant's brother, David Underwood (David), was observed approaching the scene. David, a convicted arsonist, had been released from police lockup earlier that night. David Drescher (Drescher) was driving the station wagon, and the defendant and his brother were passengers. The officers observed the station wagon stop, turn around, and speed away in the direction from whence it came.

Several officers took up pursuit of the station wagon and followed it until it stopped near David's apartment in the same development. The officers then arrested the occupants of the station wagon and seized two gasoline cans containing the residue of a flammable liquid and a rubber hose which were in plain view inside the vehicle. The officers also seized a sheath knife which they discovered under the front seat of the station wagon and a hunting knife disclosed by a search of the defendant's person.

The evidence further reveals that the defendant and his two companions had left the apartment of one of David's neighbors, Wanda Damastus, at around 3:30 A.M. on the morning of the fire. As he was leaving, the defendant's hostess overheard him say that "he wanted to go because they had some business to take care of."

Subsequent examination of the police car disclosed that one of the front tires had been punctured in several places by a sharp instrument. This examination also disclosed that the fire originated on and about the right front seat inside the passenger compartment. The defendant concedes that the scientific evidence establishes the corpus delicti of the crime, that the fire was of incendiary origin.

The only other testimony linking the defendant with the fire is a statement which he subsequently made to Sergeant Karinshak (Karinshak) of the Arlington County Police Department in a conversation with that officer on the night of September 7-8, 1976. Prior to that conversation, Karinshak did not know that a police car had been burned in Winchester.

Karinshak testified that the defendant said he, his brother and Drescher were riding around in a station wagon in Winchester, "when they saw a Deputy Sheriff's cruiser parked." Underwood told Karinshak that "David got out of the car, approached the cruiser, busted out the front passenger side window with a hammer, poured some fuel oil all over the seat and then tossed a match inside." After the police car "(b)urst into flames(,) (we) got back into the (station wagon) . . . and left the scene. (We) rode around for awhile, later (we went) back to the scene where (we) were stopped by the police and arrested."

To convict the defendant of the crime with which he was charged, arson of personal property, the Commonwealth had the burden of proving that the fire which burned the police car was of...

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20 cases
  • King William Cnty. v. Jones
    • United States
    • Virginia Court of Appeals
    • August 9, 2016
  • Thomas v. Commonwealth, Record No. 2765-04-2 (VA 2/28/2006), Record No. 2765-04-2.
    • United States
    • Virginia Supreme Court
    • February 28, 2006
    ...aiding and abetting. Rollston v. Commonwealth, 11 Va. App. 535, 539, 399 S.E.2d 823, 825 (1991) (citing Underwood v. Commonwealth, 218 Va. 1045, 1048, 243 S.E.2d 231, 233 (1978)); see also Myers v. Commonwealth, 43 Va. App. 113, 125, 596 S.E.2d 536, 541 (2004) (reversing defendant's convict......
  • Dunn v. Com.
    • United States
    • Virginia Court of Appeals
    • September 9, 2008
    ...2 Va.App. 265, 269, 343 S.E.2d 465, 468 (1986). "[M]ere presence and consent," however, "will not suffice." Underwood v. Commonwealth, 218 Va. 1045, 1048, 243 S.E.2d 231, 233 (1978) (emphasis added). "The prosecution must prove that the accused did or said something showing his consent to t......
  • Bass v. Com.
    • United States
    • Virginia Court of Appeals
    • January 27, 2000
    ...(an accused's mere presence and consent to the crime will not suffice to convict as an accomplice (citing Underwood v. Commonwealth, 218 Va. 1045, 1048, 243 S.E.2d 231, 233 (1978))). Furthermore, because Bass' statement did not thoroughly substantiate those of Sirls and Scott, and because t......
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