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. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 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. 
 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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