FROM THE CIRCUIT COURT OF FLOYD COUNTY. Marcus H. Long, Jr., Judge.
Lindsay H. Honeycutt (The Honeycutt Law Office, PLLC, on brief), for appellant.
Leah A. Darron, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Present: Judges Beales, Decker and AtLee. OPINION BY JUDGE RANDOLPH A. BEALES.
[66 Va.App. 10] RANDOLPH A. BEALES,
Christopher Eugene Wilson (appellant) was convicted following a bench trial of attempted arson in violation of Code § § 18.2-79 [66 Va.App. 11] and 18.2-26 and misdemeanor trespass in violation of Code § 18.2-119. Appellant challenges his conviction for attempted arson by arguing that " the evidence presented at trial was insufficient, as a matter of law, for the trial court to establish that the structure involved in the case met the definition of any of the listed structures in Va. Code Ann. § 18.2-79." For the following reasons, we affirm the trial court.
We consider the evidence on appeal " in the light most favorable to the Commonwealth, as we must since it was the prevailing party" in the trial court. Beasley v. Commonwealth, 60 Va.App. 381, 391, 728 S.E.2d 499, 504 (2012) (quoting Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004)). So viewed, the evidence at trial was that the Check Country Store in Floyd County is owned by Wayne Lamay. On May 28, 2014, appellant was involved in an incident at the store. As a result of that incident, Mr. Lamay told appellant, in " no uncertain terms," that he could no longer come back onto the premises of the store. The Check Country Store has a room for storing grain or feed and offers other goods for retail sale. The trial court found from the evidence that grain is stored in the feed room of the store.
On the morning of May 30, 2014, appellant's mother drove appellant to the Check Country Store. Upon arriving, appellant remained in the vehicle in the parking lot as his mother entered the store to purchase alcohol for him. Cassandra Kietzmann testified that she saw appellant get out of the vehicle and yell loudly. Ms. Kietzmann heard appellant yelling about not being allowed to be at the store and heard him threaten to fight a man in the parking lot. Next, she saw appellant walk back to his mother's vehicle and grab some type of book. Appellant began to rip up the pages of the book and light the pages on fire. Ms. Kietzmann then witnessed appellant stuff those pages of paper into the door handle of [66 Va.App. 12] the Check Country Store. She testified that appellant tried to light those pages on fire with a lighter, but was unsuccessful because it was a " very windy day." When the pieces of paper did not light, Ms. Kietzmann heard appellant yell, " Go ahead, call the cops," followed by, " I'll kill you." After appellant and his mother left the premises, Ms. Kietzmann, who had been viewing this incident from across the street, pulled up to the store to pump gas. Before leaving, Ms. Kietzmann removed some wrinkled, burned paper from the door handle of the Check Country Store.
Tim Austin testified that he was at the Check Country Store on May 30, 2014, to install a door. Mr. Austin testified that appellant screamed at him that he would kill him. Mr. Austin witnessed appellant tearing pages out of a Bible and throwing them into the air. At this point, Mr. Austin went into the Check Country Store through the grain room door to check on his wife Cathy, who worked at the store. As he was walking towards his wife, Mr. Austin saw burning papers swirling around -- including some that had entered into the store through the open front door. Once inside the store, Mr. Austin's wife told him to " go back in the grain room and lock the door and stay back there," which Mr. Austin did.
Cathy Austin, the wife of Tim Austin, testified that appellant's mother remained in the store for " five or ten minutes." While appellant's mother was in the store, Mrs. Austin could see appellant " pacing" and hear him " hollering" outside. Mrs. Austin witnessed appellant's mother purchase an alcoholic drink from the Check Country Store before she left with appellant. After appellant and his mother had left, Mrs. Austin " collected a bunch of [the] papers," noticed that " some of them were burned," and " put them in a plastic bag in case the police wanted them." Both Mr. and Mrs. Austin testified that the Check Country Store has a room for grain or feed and that Mr. Austin locked himself inside the grain room during the incident involving appellant.
Appellant testified that the papers he placed in the door handle of the Check Country Store were pages from a Bible [66 Va.App. 13] he had burned at his home -- prior to his arrival at the store on May 30, 2014. Appellant denied having a lighter with him on that day and said he had no intent to burn the store. He testified that he was expressing his feelings because he " was a little upset." Appellant acknowledged that he had previous convictions for felonies and for crimes of moral turpitude. The trial court rejected appellant's testimony as " not credible" and found him guilty of both charges.
A. Standard of Review