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Arson charge dismissed in Ogle’s Fire case

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David Christopher Rose was charged with statutory burglary, grand larceny, and violation of a protective order

By Shaina Stockton

INDEPENDENCE — David Christopher Rose, charged in connection with the 2017 apartment fire at the former Frogs Ogle’s Deli in Independence, was found guilty of grand larceny, statutory burglary (in the nighttime), and violation of a protective order in Grayson County Circuit Court last Friday; while other charges, including a charge of arson, were dismissed by the judge.
Rose’s verdict came Friday evening after a long and complex bench trial that began early that morning, a day after he was seen in court for results of a requested mental evaluation, which determined his readiness for trial. The court date fell in with Rose’s right to a speedy trial, after he’d waived his right to a jury trial in a prior hearing.
Rose was scheduled for a plea hearing on two separate occasions last August, before motions reset the case back to a trial that was set back in October.
Rose was indicted by a Grayson County Grand Jury last year, with charges of arson, statutory burglary (in the nighttime), felonious damage to property, grand larceny, violation of a protective order, and interfering with property rights.
On April 16, 2017 at 11:46 p.m., firefighters responded to a structure fire at the former Frogs Ogle’s Deli building on South Independence Avenue. On arrival, they discovered flames showing from two windows on the second floor.
Crews extinguished the fire, but not before it caused significant property damage.
The apartment was rented by Samantha Gray, Rose’s estranged wife, and their daughter. No one was home at the time of the fire; but all of Gray’s belongings were lost. 
Investigators concluded that the fire was set intentionally, and police later confirmed that information they’d received led them to Rose. Rose met with authorities voluntarily, and was arrested without incident in Speedville, according to the police report.

Setting up the trial

During Thursday’s hearing, Commonwealth’s Attorney Doug Vaught and defense attorney R. Christopher Munique, argued the variables in the case in setting a date for a speedy trial. Vaught argued that it would be difficult to assemble all eight of his witnesses for the case in that time frame, and that he’d requested that a trial date be set in the previous hearing to avoid this issue. Munique pointed out that there were only four days left to set a trial date based on his client’s right to a speedy trial, and requested that they meet either Friday or Monday. Munique added that Rose had been incarcerated for several months without bond; and argued that since the burden of proof rests on the Commonwealth’s shoulders, it was their duty to assemble their case within the remaining timeline.
A review of court tapes did not uncover proof of Vaught’s request to schedule a hearing. After making some calls, he told the court that his witnesses could be available on Friday.
The next morning, the Hon. Judge H. Lee Harrell presided over the day-long proceedings, which included a lengthy presentation from the Commonwealth with nine witness testimonies and a series of motions to strike charges from the defense.
Prior to hearing the Commonwealth’s argument, Harrell read the list of charges against Rose, all to which Rose offered a plea of “not guilty.”
Munique also offered Rose’s request to the judge that his hand restraints be removed, so that he could take notes during the trial. Court security refused the request to remove his handcuffs, but provided Rose with a pen and paper.

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Analyzing the fire and damage
To head off the witness testimonies, Vaught called Tom Maxwell of Independence to the stand. Maxwell testified that he had called for help after spotting the fire from his home nearby.
Sgt. Matthew Adams of the Independence Police Department, and Captain of the Independence Volunteer Fire Department, was the next witness to testify. After his expertise in firefighting was noted, Adams told the court that he was on the first fire truck to arrive on scene that evening, which was sent out at 11:46 p.m., and arrived at 11:53 p.m. On arrival, the team found the second floor of the Ogle’s building with heavy fire coming through the windows. He said the team had to use forcible entry through the front entrance, and that he assisted the attack crew that went upstairs to douse the fire.
The source of the fire, Adams said, was a bedroom in Gray’s apartment.
He also detailed that fire and water damage led to the floor of the bedroom collapsing. He described a mattress in the middle of the room that was later moved as they attacked “hot spots” from the fire.
Damage in other rooms, he said, were caused by smoke.
During cross-examination, Munique asked what type of forcible entry was used. Adams explained that after trying the doors, they broke out a glass window downstairs to unlock the door; and then used a special tool to pry open the door to the apartment.
Galax firefighters who arrived to assist also attacked the fire by making entry through the windows from the roof.
Tony Flippen, the owner of the building, testified that he’d rented the upstairs apartment to Gray on March 1, 2017. The downstairs restaurant had been closed for renovations, and he’d just finished renovating Gray’s apartment and another apartment upstairs for renting.
Flippen was notified of the fire after midnight on April 17, he told the court. The building and land, he said, was valued at $250,000 — only some of which was covered by insurance. He lost several pieces of equipment, valued at around $3,000; and spent $17,000 to have the building demolished and the debris removed.
When asked for details about the building when he arrived, Flippen mentioned that he’d seen another door that had been forced open, which the firefighting teams said they had not used.
Flippen also testified that he had never met Rose at that point, nor given him permission to be on the property.  
Vaught asked Flippen if he was aware of any electrical issues, to which Flippen answered that he wasn’t aware of any.
Munique asked Flippen how the electricity was checked after renovations. Flippen answered that he checked all of the hookups himself.
Independence Fire Chief Gary Hash, whose testimony was also admitted as expert in firefighting, also testified to an unlocked door on the north side of the building. He shared that the doorknob was still intact, but he’d noticed pry marks on the door frame. When asked about the special tool described by Adams, Hash said the marks weren’t large enough for a match.
Munique asked Hash if he could testify to how long he believed the pry marks had been there, to which Hash said he could not.
Russell Edwards of the Virginia State Police, accepted as an expert witness in fire investigation, was called to the scene on April 17, 2017, where he documented the fire damage using panoramic photos. During his testimony, he gave a digital tour of the building after the fire, noting significant damage to the bedroom where the bed springs were found by the fire department, as well as heavy smoke damage to other rooms and in areas downstairs, and the debris in the downstairs dining area from the collapsed floor upstairs.  
The bed springs, he noted, were welded together in one spot, which led him to infer that the mattress was the possible origin of the fire.
Edwards also noted a spot in the apartment where a TV had fallen prior to the fire, which he inferred after finding the carpet underneath it still clean and fully intact.
While he couldn’t rule out that the fire was incendiary in nature, Edwards told the court that he’d ruled the fire “undetermined,” because he couldn’t locate the origin of the heat.
Munique asked Edwards if it was possible that an electrical component had been near the origin of the fire, and that the evidence hadn’t been found because it had been burned.
“There were no components or plug-ins in that area,” Edwards said.
“But if there were, could they have burned in the fire?” asked Munique.
“If they were plugged in an extension cord, which I found no evidence of, it’s possible,” said Edwards.
Munique asked if there could have been battery-operated components in that area. Edwards said that he didn’t find any evidence of a battery-operated device; and that he didn’t know of any that would cause a fire.

The investigation
Independence Police Chief James Wagoner was the next witness called to the stand by the Commonwealth. He shared that he responded to the fire after midnight on April 17, 2017. After the fire department finished working at around 2:30 a.m., he said he was able to enter the building and look around. He noted the open door, which he described as being cracked open a couple of inches. After consulting with the Grayson County Sheriff’s Office, Wagoner he contacted Virginia State Police and scheduled an informal meeting with Rose in Wytheville the following Tuesday. He noted later that Russell Edwards of the Virginia State Police was also present during the meeting.
Munique objected to a statement made by Wagoner about an alibi, which was sustained when Wagoner shared that he didn’t take any notes when meeting with Rose.
Moving forward, Wagoner identified Rose in court, and shared that he’d told Rose he was investigating the fire at his wife’s apartment. He said he’d asked Rose about his whereabouts that evening; and that Rose had given him his contact information and assured him that he would cooperate with the investigation.
Wagoner also shared that he’d met with Gray, after which he’d made a list of items that were missing from the property. Later, he recovered a duffel bag with a DVD player, computer, cell phone, notebook, and purse from Leiann Thompson of Smyth County, who was dating Rose at that time.
Wagoner presented the bag and its contents — noting that the DVD player was added to the bag at a later time — and the items were admitted as evidence.
Mike Dalton, an acquaintance of Rose and a close friend of Thompson, testified that he’d known Rose around three months before a strange incident happened. After identifying Rose during his testimony, Dalton said that Rose had given him a bag and asked him to keep it in his house. Thinking nothing of it, he said he’d put the bag in a closet in his bedroom.
Later, Dalton said Rose sent him a text message, telling him to discard the bag because he didn’t want it anymore.
“I have two kids, and I was concerned that whatever is inside would be dangerous,” said Dalton. So, he opened the bag, then called Thompson to inform her of what he’d found.
Dalton was presented with the bag entered into evidence, and its contents. He told the court that he recognized the items.
Thompson was then called to the stand. When asked if she could identify Rose for the court, she pointed at the defendant before beginning her testimony.
She told the court that on April 16, 2017, they’d spent most of the day together, with the exception of a few hours that afternoon while she spent Easter with her family.
“He came back that evening… and around 7 that night we went to Dollar Tree, and then Macados to get something to eat,” she said.
While they were at Dollar Tree, Thompson said Rose bought latex gloves and a hat.
Later, they went back to her house, where she said she took medicine and fell asleep between 9 and 9:30 p.m. She noted that she sleeps fairly heavily, but that his Nissan would have woken her up if he’d left in it that night. She also said that he’d fallen asleep fully clothed, in a Spiderman t-shirt — which she noted was uncharacteristic.
The next morning, she said that she woke up to take her son to school, and found that a quarter tank of her gas was missing, and that she’d found a DVD player in her car. Vaught presented her with the DVD player in evidence, and she identified it as the same player.
When asked how she knew gas was missing, she replied, “As a mother of two, I watch my gas.”
Later in the week, she told Dalton about the DVD player, and said that he brought the bag to her. Vaught presented her with the bag and contents in evidence, and she identified the items. She told the court that she’d taken the bag to Chief Wagoner, and agreed to wear a wire when talking to Rose.
“He told me that he hadn’t started the fire, but he’d went in [the apartment] and gotten [the items] earlier in the day,” Thompson said.
She also noted that he’d told her something about tampering with Gray’s gas tank. “I’m wanting to say that he told me he’d put a bottle of Coke in it,” she said.
Munique asked about her breakup during that time with Rose. She told the court that Rose had broken up with her the Wednesday after the fire, by leaving town and ceasing all contact with her. She said the conversation when she was wearing the wire happened after the breakup.
Thompson concluded her testimony by saying that she would not make up a story to the court because of the breakup.

A custody battle

Cody Dean, a friend and a former business associate of Rose, testified that Rose and his wife had named him as a supervisor of Rose’s visitation with their daughter on Sundays. He told the court that he was with Rose the afternoon of April 16, 2017, while Rose spent Easter Sunday with his daughter.
Dean said that before he’d taken Rose’s daughter home, Rose had suggested that Dean record a video of Gray, and to try to get her to hit him on camera.
After the drop-off, Dean said he’d went back to check on him, and that he was noticeably angry, which he inferred was due to the estranged couple’s custody battle.
“He was dressed up, and he asked me for a shirt, so I gave him one of my t-shirts,” said Dean. When asked to specify, he told the court that it was a Spiderman t-shirt.
The next day, Dean said he went to get coffee with Rose, and that he’d received a picture from his wife of the fire. When he showed Rose, he said Rose had asked him to call Gray and ask if it was okay if Rose called her. He was aware at that time that a protective order was in place, Dean said.
“At the beginning of the separation, he was depressed; then anger took over during the custody battle,” said Dean. “He expressed that he wanted his daughter back. And he wished bad things that I don’t want to repeat on [Gray] and her father, and her car.”
When asked specifically what he’d wished on them, Dean answered, “Death.”
“I started to distance myself from him then, because I was starting to get uncomfortable,” Dean said.
Dean shared that he’d been convicted of felonies in 2009, and had been under strict probation when he’d met Rose. He worked at Rose’s business for a while, and said he broke away when Rose opened a vape shop.
He also told the court about a time when Rose tried to get Dean to use nude photos of Gray to get her fired from her job.
The Commonwealth’s final witness was Samantha Gray, who testified that she’d left Rose in November, 2016, after he’d asked her for a divorce during an argument.
“He was drunk, and I didn’t feel safe. So I went to my parents’ house. Later, I moved in above Ogle’s,” Gray told the court.
She shared that Rose hadn’t wanted her to take many items out of their marital home, so she’d spent around $2,500 on new furniture, and received several items from her parents.
When asked if there were any electronic items on the bed the night of the fire. She said no. When asked what was on the bed, she described a special pillow she’d had since she was two years old, that she taken everywhere with her. She added that Rose had hated it, and nicknamed it the “plague pillow.”
Vaught asked if she and Rose had been fighting around the time of the fire. She admitted that they had, and explained, “He wanted more time with his daughter, but I was worried about my schedule so I had my parents bring our daughter to visit for nine hours.”
Afterwards, she said their daughter went back to her parents’ house.
Vaught asked about the protective order. She said that it was in place at that time, and added that she’d been afraid to get it, fearing that it would cause more conflict.
“After the apartment burned down, he was there to make sure I was okay,” she said. Thinking that things would go back to normal, she’d dropped the protective order.
“I thought I was just unlucky,” she said.
The next Sunday, she said officers visited her and presented her with a purse that had been gifted to her by her mother-in-law when she and Rose were married. She was presented with the bag and its’ contents from evidence, and she identified each item. She noted that the DVD player was her daughter’s, and that she knew it because the door on the player didn’t close. The notebook wasn’t hers, but it was in the foyer inside the building. The laptop, she said, was hers; and the cell phone had been gifted to her by her father.
Prior to the fire, she said he’d told her, “You’ll never make it on your own without me.”  
She detailed other incidents, including a charge he’d brought against her for assault, of which she wasn’t convicted.
A week before the fire, Gray also testified that her car broke down, and that it was in the shop for three weeks. She noted that the bill was more than $1,000, with towing included.  
After Rose was arrested, she said he’d written to her, and asked her to put his things in a spare bedroom at her mom’s house. Other items, she said, were stored in his trucks. She said she’d found a screwdriver in one of the trucks, which she described as “bent almost in half.”
Munique asked Gray about statements she’d made back in May, stating that she wanted David home, that she wasn’t scared of him, and that she was frustrated with law enforcement. She explained that she had.
After questions were re-directed to Vaught, Gray said, “I thought things were going to be good again. I was tired of fighting and I still am. But I changed my mind.”
She added that he’d asked her to testify that she’d left the door unlocked, and that she’d given him permission to go into her apartment. But she’d said no.
She said that she was unaware of the surviving personal property when she dropped the protective order.

Motions to strike
Following the conclusion of the Commonwealth’s presentation of evidence, Munique made a series of motions to strike based on incomplete testimonies.
One motion was made regarding the charge of arson, to which he noted a similar case within the Commonwealth where a suspect convicted of arson had the conviction reversed through the Supreme Court. The court, he said, succeeded that evidence of an accidental fire could have been lose in the fire.
Vaught argued the motion, stating that a charge of arson can be proven by circumstantial evidence. He noted that the purse — which Gray said had been packed away — didn’t mean anything to anyone else, linking more suspicion to Rose.
“That is evidence that would have been burned, too,” Vaught said.
The judge, however, agreed with Munique’s argument, and the arson charge was dismissed.
Munique also moved to strike the statutory burglary charge at night, stating that Rose had went somewhere in the day, and evidence didn’t clearly rule out his presence at the apartment during the day. Vaught argued that Dean’s and Thompson’s testimonies accounted for Rose’s presence until 9-9:30 p.m., and again noted that the bag containing the items from the apartment showed clear intent on Rose’s part.
The judge agreed with Vaught, and denied the motion.
The judge also denied Munique’s motion to strike the felonious damage to property and grand larceny charges, despite Munique’s argument that, as a married couple, the items were things he’d bought and items for the child. Vaught argued that items were separate property, or gifted to her; and noted that, while the arson charge dismissal made the property damage charge difficult to prove, there was still the evidence suggesting his tampering with her car.
After the motions, Rose then changed his plea on the charge of interfering with property rights, to “no contest.”
The Commonwealth expressed concern that the change of plea could impact the other charges, stating, “I disagree with this, but if this is granted, I would then have a motion.”
Munique argued that the defendant had every right to change his plea.
The judge granted Rose’s new plea, to which the Commonwealth moved to dismiss the charge.
Munique objected, stating that the plea was already made.
Following a short recess, the judge granted the Commonwealth’s motion, and the charge was dismissed.
During closing arguments, Munique stated that there was no clear timeline, and no evidence to establish that Rose had broken into anyone’s home, especially at night. He also argued that Gray’s testimony didn’t establish a reason why her car broke down.
Vaught argued that the evidence and testimonies were more than enough to convict Rose of the remaining charges, and added that his statements to Gray were indicative of an attempt to control her.

The ruling
In consideration of all evidence and arguments, Judge Harrell made the following findings:
Statutory burglary in the nighttime — The judge found sufficient evidence from the testimonies by Thompson and Dean, regarding Rose’s whereabouts that evening; noted that Rose’s purchase of a hat and latex gloves established intent, and noted the evidence of the DVD player, which belonged to Gray, in Thompson’s car — in addition to her gas missing — as sufficient evidence.
Felonious damage to property — The judge was satisfied by Munique’s argument that the testimonies failed to link Gray’s car problems with anything specific, and dismissed the charge.
Grand larceny — The judge stated that the testimonies of Dalton, Thompson and Gray were sufficient, and that the items were valued together at more than $200.
Violation of a protective order — The judge found Rose guilty of violation of a protective order, as it was in effect during that time.
To conclude, Munique requested a presentencing report, and a sentencing hearing was scheduled for March 8.