COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Humphreys
Argued by teleconference
THOMAS A. WYANT
MEMORANDUM OPINION * BY
v. Record No. 1496-01-2 JUDGE RICHARD S. BRAY
JUNE 11, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ORANGE COUNTY
Daniel R. Bouton, Judge
Bonnie J. Lepold (Snook & Haughey, P.C., on
brief), for appellant.
Kathleen B. Martin, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Thomas A. Wyant (defendant) was convicted in a bench trial of
two counts of possession of a firearm after having been convicted
of a violent felony, violations of Code § 18.2-308.2. On appeal,
he contends that possession of the "same firearm" in the "same
jurisdiction," albeit on two separate occasions, constitutes one
"continuous" offense and, therefore, the convictions constituted
"multiple punishments for the same offense," a violation of the
prohibition against double jeopardy. However, because defendant
has failed to provide a record sufficient to permit proper
appellate review, we dismiss the appeal.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts essential to a
disposition of the appeal.
I.
The record discloses that, on the evening of March 29,
2000, defendant, a previously convicted felon, robbed George's
Crossroad Market and Deli in Orange County. In committing the
offense, defendant, accompanied by his cousin, Chad Wyant,
entered the store, placed a gun "directly at [George Gordon's]
face" and demanded he "empty [his] register." Gordon
surrendered "approximately three hundred dollars" to defendant
and the two robbers "left the store."
Approximately a month thereafter, on the evening of April
26, 2000, defendant entered Spencer's Market, also in Orange
County, "threw a brown bag up on the counter," "showed [the
store clerk] the gun," and demanded "[her] money." When the
clerk stated "[she] didn't have any money," defendant "grabbed
his bag" and "left the store."
As a result of the two offenses, the Commonwealth obtained
the instant indictments against defendant, alleging, inter alia,
that he, "a person having been convicted of a violent felony[,]
. . . did unlawfully, feloniously, knowingly and intentionally
possess, or transport a firearm" in violation of Code
§ 18.2-308.2.
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Prior to trial on the indictments, defendant filed a
"Motion to Consolidate [the two] Counts" into one, arguing
"[p]ossession of a [f]irearm by a [c]onvicted [f]elon" is an
"inherently continuous offense[]." Following a related hearing
on December 4, 2000, 1 the court denied the motion and proceeded
with trial, resulting in the subject convictions and appeal.
II.
The Commonwealth contends defendant is procedurally barred
from arguing for the first time on appeal that the convictions
violated the prohibition against double jeopardy. Defendant
counters that his "Motion to Consolidate Counts," which cited
Acey v. Commonwealth, 29 Va. App. 240, 511 S.E.2d 429 (1999),
and Blockburger v. United States, 284 U.S. 299 (1932), together
with the arguments made in support of the motion at the December
4, 2000 hearing, sufficiently presented the issue to the trial
court. He further contends the point was preserved by renewed
objections during the trial. We disagree.
[O]n appeal the judgment of the lower
court is presumed to be correct and the
burden is on the appellant to present to us
a sufficient record from which we can
determine whether the lower court has erred
in the respect complained of. If the
appellant fails to do this, the judgment
will be affirmed.
1
By order dated November 9, 2001, we denied defendant's
motion to enlarge the instant record to include a transcript of
the December 4, 2000 hearing.
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Justis v. Young, 202 Va. 631, 632, 119 S.E.2d 255, 256-57 (1961)
(citations omitted); see White v. Morano, 249 Va. 27, 30, 452
S.E.2d 856, 858 (1995) (citation omitted). "We . . . act only
upon facts contained in the record" provided on appeal and
"cannot base [our] decision upon [defendant's] petition or
brief, or statements of counsel in open court." Smith v.
Commonwealth, 16 Va. App. 630, 635, 432 S.E.2d 2, 6 (1993)
(citation omitted).
"The transcript of any proceeding is a part of the record
when it is filed in the office of the clerk of the trial court
within 60 days after entry of the final judgment," provided an
appellant otherwise complies with Rule 5A:8. Rule 5A:8(a). "In
lieu of a transcript, a written statement of facts, testimony,
and other incidents of the case" becomes a part of the record
when filed and approved in accordance with Rule 5A:8(c). Rule
5A:8(c). "When the appellant fails to ensure that the record
contains transcripts or a written statement of facts necessary
to permit resolution of appellate issues, any assignments of
error affected by such omission shall not be considered." Rule
5A:8(b); see Anderson v. Commonwealth, 13 Va. App. 506, 508-09,
413 S.E.2d 75, 76-77 (1992); Turner v. Commonwealth, 2 Va. App.
96, 99-100, 341 S.E.2d 400, 402 (1986).
Our review of the instant appeal clearly discloses that
either a transcript of the proceedings on December 4, 2000 or a
written statement of facts is "indispensable to the
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determination of the case." Turner, 2 Va. App. at 99, 341
S.E.2d at 402. However, the record before us is deficient in
each respect. Accordingly, "we must dismiss the appeal on the
ground that the record on appeal is insufficient to fairly and
accurately determine the issues presented." Id.
Dismissed.
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