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. 

 1Code § 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, 
- 2 - 

(..continued) 

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. 

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. 
- 3 - 

 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" 
- 4 - 

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, 
- 5 - 

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 
- 6 - 

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. 
- 7 - 

 Affirmed.