                   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.
     1
      Code § 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,
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.
(..continued)
          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.




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     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"




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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,




                                 - 4 -
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



                                - 5 -
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.




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        Affirmed.




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