                     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.


                               - 3 -
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

                               - 4 -
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.




                                - 5 -
