                   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.
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.




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