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. 
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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.