Glenn Everette Small v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Baker and Coleman
Argued at Richmond, Virginia
GLENN EVERETTE SMALL
MEMORANDUM OPINION * BY
v. Record No. 1574-95-2 JUDGE SAM W. COLEMAN III
JUNE 11, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF AMELIA COUNTY
Thomas V. Warren, Judge
V. Eileen Long for appellant.
Margaret Ann B. Walker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Glenn Everette Small was indicted for and convicted in a
bench trial of feloniously and maliciously "burning an unoccupied
camper trailer, a manufactured home," belonging to Kenneth W.
Ellis in violation of Code § 18.2-77. 1 Small contends that the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
1
Code § 18.2-77. Burning or destroying dwelling house, etc.
A. If any person maliciously (i) burns,
or by use of any explosive device or
substance destroys, in whole or in part, or
causes to be burned or destroyed, or (ii)
aids, counsels or procures the burning or
destruction of any dwelling house or
manufactured home whether belonging to
himself or another, or any occupied hotel,
hospital, mental health facility, or other
house in which persons usually dwell or
lodge, any occupied railroad car, boat,
vessel, or river craft in which persons
usually dwell or lodge, or any occupied jail
or prison, he shall be guilty of a felony,
punishable by imprisonment for life or for
any period not less than five years and,
trial judge erred by denying his motion to set aside the guilty
verdict without granting him an opportunity to be heard orally or
to present evidence in support of the motion, by refusing to
allow him to proffer evidence in support of the motion, and by
refusing to grant his motion to enlarge the record for appeal to
include that evidence which the trial judge refused to accept by
proffer. He does not appeal the trial court's denial of the
motion to set aside the verdict on the ground that the evidence
was sufficient to prove a violation of Code § 18.2-77.
We hold that because the evidence that the appellant sought
to proffer was not necessary or relevant to whether the verdict
should be set aside, and because the trial court could rule upon
the merits of the motion without argument by counsel, the trial
judge did not commit reversible error by refusing to accept the
proffer or by refusing to permit argument. Accordingly, we
affirm the trial court's rulings and we affirm the conviction.
(..continued)
subject to subdivision g of [Code] § 18.2-10,
a fine of not more than $100,000. Any person
who maliciously sets fire to anything, or
aids, counsels or procures the setting fire
to anything, by the burning whereof such
occupied dwelling house, manufactured home,
hotel, hospital, mental health facility or
other house, or railroad car, boat, vessel,
or river craft, jail or prison, is burned
shall be guilty of a violation of this
subsection.
B. Any such burning or destruction when
the building or other place mentioned in
subsection A is unoccupied, shall be
punishable as a Class 4 felony.
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At trial the Commonwealth proved that the defendant burned
an unoccupied travel trailer owned by Kenneth W. Ellis. The
trailer had been commercially manufactured and measured
approximately eighteen by eight feet. Witnesses variously
referred to the burned trailer as a "manufactured travel
trailer," "a professionally manufactured travel-trailer on a
frame," a "camper," a "camper trailer," and a "travel trailer."
The defendant stipulated that Ellis periodically used the travel
trailer as a dwelling on weekends. After the defendant was found
guilty, he filed a motion to set aside the verdict, claiming that
the evidence was insufficient to prove that "the [burned]
structure was either a dwelling house or manufactured home" as
alleged in the indictment.
The defendant acknowledged that the evidence was sufficient
to prove a violation of Code § 18.2-77 in that it proved he
burned a structure or "other house . . . in which people usually
dwell or lodge." See Davis v. Commonwealth, 16 Va. App. 6, 8,
427 S.E.2d 441, 442 (1993). Nevertheless, relying upon Etheridge
v. Commonwealth, 210 Va. 328, 171 S.E.2d 190 (1969), he argues
that because the indictment specifically alleged a "dwelling
house" or "manufactured home," which is a discrete type of
structure expressly defined by Code § 36-85.3 and Title VI,
Section 603(6) of The National Manufactured Housing Construction
and Safety Standards Act of 1974, the Commonwealth was required
to prove that the burned structure was either a "dwelling house"
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or a "manufactured home." For purposes of this opinion, we
accept the defendant's contention that the Commonwealth had to
prove that the structure was a dwelling house or a manufactured
home. Also, we accept the defendant's representations that his
proffered evidence would have shown that the travel trailer did
not comport with the definition of a manufactured home under the
state and federal statutes, and that it was not permissible under
the local building code to erect a dwelling on the property where
the trailer was located or to run a temporary electrical
connection to the trailer.
We first consider whether the trial court erred by summarily
ruling upon the motion to set aside the verdict without
permitting the defendant to proffer evidence in support of the
motion or to complete the record for appeal. The Supreme Court
and Court of Appeals have consistently held that alleged error
assigned to a trial court's ruling that depends upon evidence
that is not part of the record will not be considered on appeal
in the absence of a proffer of the evidence or a proper
stipulation or avowal of counsel. Whittaker v. Commonwealth, 217
Va. 966, 969, 234 S.E.2d 79, 81 (1977); Stewart v. Commonwealth,
10 Va. App. 563, 568, 394 S.E.2d 509, 512 (1990). However, where
the trial judge denies the defendant the opportunity to proffer
relevant evidence that is central to the issues being adjudicated
and subject to appeal, the conviction must be reversed for a new
trial. Brown v. Commonwealth, 246 Va. 460, 465, 437 S.E.2d 563,
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565 (1993). Thus, a trial court generally should accept a
proffer of evidence in order to ensure a complete record on
appeal, so long as the evidence is relevant, on its face, to the
issue before the court. See Board of Supervisors of Fairfax Co.
v. Miller and Smith, Inc., 222 Va. 230, 238, 279 S.E.2d 158, 163
(1981). Here, therefore, we decide whether the defendant's
proffered evidence was relevant to grounds that the trial court
would have been required to consider in ruling on the motion to
set aside the verdict.
The evidence the defendant sought to proffer was not
relevant to, and did not support the grounds for the motion to
set aside the verdict. The rejected evidence would have proved
the content of a state and a federal statute, as well as a local
building code. It also would have provided opinion testimony
that the burned travel trailer did not satisfy the statutory
definitions of a manufactured home or dwelling. Without deciding
whether the statutes or local building code have any bearing upon
the definition of a manufactured home or dwelling house under
Code § 18.2-77, we note that the trial court could take judicial
notice of the content of the statutes and the building code.
Code § 19.2-265.2. Moreover, whether the statutes and ordinance
were applicable, and if so, whether the evidence was sufficient
to prove that the travel trailer was a "dwelling house" under the
local building code or a "manufactured home" under the statutes,
were legal issues for the trial judge to determine, and were not
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the proper subject for an opinion by a lay witness. Thus, the
proffered evidence was not relevant or germane to the motion to
set aside the verdict because it was neither necessary nor proper
evidence for the trial court to consider in determining whether
the burned structure was a dwelling or manufactured home under
the statutes or local code as the defendant claimed.
Accordingly, the trial judge did not err by refusing to accept
the defendant's proffer of evidence or permitting him to enlarge
the record for appeal.
The defendant next contends that the trial judge erred by
not permitting him to be heard orally in support of his motion to
set aside the verdict on the ground that the evidence was
insufficient to prove the charges in the indictment. Although
the common practice is to allow oral argument on motions to set
aside verdicts where the claim is that the evidence is
insufficient, Rule 3A:15(b), which governs such motions, does not
require the trial court to hear oral argument. Thus, the trial
court does not abuse its discretion by ruling on a motion to set
aside the verdict without hearing oral argument where the court
determines that the issues have been sufficiently defined in the
motion and can be decided without hearing counsel orally.
Accordingly, we hold that the trial court did not err by
summarily denying the motion to set aside the verdict without
accepting the proffer of evidence or hearing oral argument by
counsel.
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Affirmed.
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