Roberto Calderon v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judge Annunziata, Senior Judge Duff and Judge Clements∗
Argued at Alexandria, Virginia
ROBERTO CALDERON
MEMORANDUM OPINION∗∗ BY
v. 	Record No. 2132-99-4 	JUDGE CHARLES H. DUFF
JUNE 27, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
F. Bruce Bach, Judge
Michael C. Sprano, Assistant Public Defender
(Clinton R. Shaw, Jr., Assistant Public
Defender, on brief), for appellant.
John H. McLees, Assistant Attorney General
(Mark L. Earley, Attorney General; Thomas M.
McKenna, Assistant Attorney General, on
brief), for appellee.
∗ Judge Jean Harrison Clements took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400, recodifying Code § 17-116.01.
∗∗ Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Roberto Calderon, appellant, appeals his conviction for
malicious burning of a school building structure. 	Appellant
contends that the trial court erred by finding the evidence
sufficient to prove that an actual burning occurred. 	For the
following reasons, we find no error and affirm the conviction.
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'" 	Archer v.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)
(citation omitted). 	The conviction will not be reversed "unless
it is plainly wrong or without evidence to support it."
Reynolds v. Commonwealth, 30 Va. App. 153, 163, 515 S.E.2d 808,
813 (1999).
Larry Lindsay was "performing locker duty" at Langston
Hughes School when he noticed that a locker was on fire.
Lindsay saw flames "coming out of the locker." 	In response to
Lindsay screaming that there was a fire, Bill Stitch
extinguished the flames with a fire extinguisher. 	Officer
Garrett Bailey investigated the fire. 	Appellant admitted
filling the locker with notebook paper and lighting the paper
with a lighter. 	In a conversation with Bailey, appellant
admitted setting the fire and showed Bailey the trashcan where
he had thrown away the lighter. 	Bailey took pictures of the
charred locker, and the pictures were admitted into evidence at
trial. 	The trial judge viewed the pictures and noted that the
lockers had been damaged by the fire. 	The trial judge said, "I
mean it looks like the paint is charred on [the locker]." 	The
damaged lockers had to be repainted.
The amount of "burning" necessary to support appellant's
conviction pursuant to Code § 18.2-79 is "'any amount, provided
there is a perceptible wasting of the fiber of the building or
object which is the subject of arson.'" 	See Hancock v.
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Commonwealth, 12 Va. App. 774, 779, 407 S.E.2d 301, 303-04
(1991) (citation omitted). 	Only a "slight burning" is
necessary. 	See id. at 779, 407 S.E.2d at 304.
The trial judge considered and determined the credibility
of the witnesses, heard the evidence that appellant stuffed
paper into the locker and lighted the fire, viewed pictures of
the locker taken after the fire was extinguished, and noted that
the pictures showed that the locker was charred and damaged by
the fire. 	Viewing the evidence and the pictures of the charred
locker, the evidence was sufficient to prove beyond a reasonable
doubt that a "burning" occurred, and therefore, was sufficient
to support appellant's conviction for malicious burning. 	The
photographic evidence supports the trial judge's decision, and
we cannot say that the trial judge was plainly wrong or that his
decision was without evidence to support it.
For these reasons, we find no error in appellant's
conviction, and accordingly affirm.
Affirmed.
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