Darrell Roosevelt Layne v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Coleman and Elder
Argued at Salem, Virginia
DARRELL ROOSEVELT LAYNE
MEMORANDUM OPINION *
v. Record No. 1492-95-3 BY JUDGE JOSEPH E. BAKER
OCTOBER 8, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF WISE COUNTY
J. Robert Stump, Judge
(Jeffery L. Elkins; Adkins, Elkins &
Hunnicutt, on brief), for appellant.
Kathleen B. Martin, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Darrell Roosevelt Layne (appellant) appeals from a judgment
of the Circuit Court of Wise County (trial court), that approved
his jury trial conviction of carrying a concealed weapon, third
offense, in violation of Code § 18.2-308. On appeal, appellant
challenges the sufficiency of the evidence to support his
conviction. The Commonwealth asserts that appellant's appeal is
procedurally barred and, in the alternative, that the evidence
supports 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." Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). Viewed
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
accordingly, the record reveals that on March 29, 1994, at about
9:52 a.m., Officer George Sewell (Sewell) of the Wise Police
Department, responded to a report from a fellow officer that "a
man [was] sick or drunk in a parked vehicle on Lake Street below
the church." Sewell found appellant, whom he knew, asleep in his
pickup truck. The truck was parked on a private dirt road.
Sewell woke appellant and appellant opened the passenger door to
facilitate conversation.
Sewell saw several rounds of different caliber ammunition
throughout the vehicle. Appellant consented to a search of his
vehicle, and Sewell found a .380 automatic handgun under the
front passenger seat. The gun was loaded with six rounds of
ammunition, was placed completely under the seat, was not visible
to common observation, and was "easily accessible" to appellant.
Appellant told Sewell that he forgot the gun was in the truck
and that he thought he could carry a concealed weapon in his own
vehicle. Appellant told Sewell that he was living in his truck
because he had been "put out of" his trailer; however, when
Sewell arrested appellant, appellant gave his address as "Lot 62,
County Manor Trailer Park." Sewell knew that appellant had lived
in a trailer at that address.
Melissa Joseph (Joseph), appellant's girlfriend, testified
that she and appellant had lived together in the trailer until he
moved out on March 21, 1994. According to Joseph, appellant
"lived in his truck," sleeping in it, while parked "close to the
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trailer," at night. She would wake appellant in the mornings and
he would come back to the trailer when the children went to
school. Appellant still received mail at Joseph's address.
Appellant did not recall when he moved from the trailer but
said that it was before March 29, 1994. He stated that he lived
in his truck for a total of "about six months." Appellant kept
his possessions in his truck but continued to receive mail at the
trailer.
Appellant was indicted for violating the provisions of Code
§ 18.2-308 which forbids any person not exempted by the statute
from carrying about his person, hidden from common observation,
(i) any pistol, revolver, or other weapon designed or intended to
propel a missile of any kind but further provides that the
provisions thereof shall not apply to any person while in his own
place of abode. Appellant argues that under the facts presented
at his trial, his truck was his place of abode and, therefore,
the Commonwealth did not prove that he violated Code § 18.2-308.
In support of his argument, appellant requested the trial
court to instruct the jury as follows:
If you believe that the defendant was in
his own place of abode or the curtilage
thereof, then you shall find him not guilty.
Place of abode means one's home;
habitation; place of dwelling; residence; or
living place.
The trial court granted the instructions. Upon consideration
thereof, the jury rejected appellant's contention that his truck,
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under these facts, was his place of abode.
On June 6, 1995, appellant filed a motion to correct a
clerical error, alleging that he did not receive a copy of the
April 18, 1995 order affirming his conviction and would "suffer
great and irreparable harm" unless the court entered "a new
order" allowing him time to note an appeal. The trial court
granted appellant's motion and, over the Commonwealth's
objection, gave appellant thirty days to file a petition for
appeal.
Sufficiency of the Evidence
Assuming but not deciding that the trial court did have
jurisdiction to enter the order extending appellant's time to
note his appeal, we hold that the abode issue was fairly
presented to the jury with clear instructions. The jury weighed
the evidence and determined that appellant was not in his place
of abode or its curtilage when Sewell arrested him. The evidence
supports the jury's conclusion; thus, it will not be disturbed on
appeal. See Traverso v. Commonwealth, 6 Va. App. 172, 176, 366
S.E.2d 719, 721 (1988). While appellant and his girlfriend
testified that he "lived" in his truck, the evidence also
revealed that appellant considered his address to be that of his
girlfriend's trailer. His mail was delivered to that address and
he gave Sewell that address when arrested. The fact that there
was a court order prohibiting appellant from being in the trailer
is evidence which appellant chose to keep from the jury, and the
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mere presence of such order did not require the trial court to
find that appellant's truck was his place of abode. The jury
rejected appellant's argument, and we find that the evidence is
sufficient to support the trial court's judgment that approved
its verdict.
For the foregoing reasons, the judgment of the trial court
is affirmed.
Affirmed.
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