Present: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Kinser, JJ., and Compton, S.J.
THOMAS ABRAM GRAY, SR. OPINION BY
SENIOR JUSTICE A. CHRISTIAN COMPTON
v. Record No. 992566 November 3, 2000
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
Defendant Thomas Abram Gray, Sr., was found guilty by a
jury in the Circuit Court of Botetourt County in July 1998 of
conspiracy to murder one James M. Martin, Code §§ 18.2-22 and
-32, and of attempted possession of an unregistered firearm
muffler or silencer, Code §§ 18.2-308.6 and -26. Judgment was
entered upon the verdicts, and defendant was sentenced to three
years' imprisonment for the conspiracy and to a fine of $2,500
for the other crime.
Upon defendant's appeal to the Court of Appeals of
Virginia, the judgments of conviction were affirmed. Gray v.
Commonwealth, 30 Va. App. 725, 519 S.E.2d 825 (1999).
We awarded defendant this appeal to consider whether the
Court of Appeals erred in its judgment regarding the sufficiency
of the evidence to support the convictions; the
constitutionality of Code § 18.2-308.6, the firearm muffler
statute; and certain instructions tendered by the defendant but
refused by the trial court.
Employing settled principles of appellate review, we shall
recite the facts in the light most favorable to the
Commonwealth, the prevailing party in the trial court.
James M. Martin and Dorothea Martin, both in their late
forties, separated in March 1994 after almost 16 years of
marriage. After the separation, she lived in Bedford County and
was employed at the Troutville post office; he resided in
Fincastle.
In October 1996, defendant, age 39, met Dorothea at the
post office when he went there to obtain money orders in
connection with his life insurance business. At the time, no
final decree had been entered in the Martins' pending divorce
suit.
In the proceedings, Martin had agreed to pay her $67,500.
However, if he died before the divorce became final, she would
receive his home (valued near $170,000), his half of his
construction business (valued about $80,000), the proceeds of
his $100,000 life insurance policy, and additional property he
owned in Bedford County.
The defendant and Dorothea began a sexual relationship in
December 1996. Dorothea's husband first met defendant in April
1997 and learned about the affair after defendant had contacted
the Martins' teenage son "and discussed [defendant's] whole sex
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life" with him. Later, Martin observed defendant and Dorothea
together at a local "Pizza Den."
In June 1997, Martin summoned defendant to testify at a
divorce hearing, believing defendant would state that Dorothea
was guilty of adultery. Instead, upon Dorothea's promise to pay
him $15,000, defendant lied about the relationship and denied
having had sexual intercourse with her. She reneged on her
promise, and defendant wrote her a letter in August threatening
to expose all her misconduct if she did not pay him the promised
amount.
In September 1997, Dorothea was planning her husband's
murder. She showed defendant a magazine ad for a "blueprint" to
make a firearm silencer that she desired to procure. She
ordered the diagram and, upon receipt, showed it to defendant, a
former mechanic. Upon review of the diagram, defendant told
Dorothea, that "you don't need nothing like that," and stated
that the same purpose could be accomplished, that is, reducing
the sound of a firearm, by use of an automotive fuel filter and
by "knock[ing] a hole through it and put[ting] it on a .22."
Subsequently, while so enamored with Dorothea that he would do
anything she asked, defendant bought such a fuel filter and
fabricated a firearm silencer to fit two .22 caliber rifles that
he owned.
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The relationship between defendant and Dorothea became
turbulent. On February 20, 1998, defendant called Martin on the
telephone telling him "that Dorothea was [a] no count tramp and
there was some things that [Martin] should know and he had a
tape he said would prove everything that he was telling [Martin]
about her was the truth." Defendant and Martin met later that
day and defendant had Martin listen to an audio tape recording
of conversations between defendant and Dorothea in which they
discussed "their sex and telephone sex and all kinds of talk
about [Martin] and just everything." At that meeting, defendant
told Martin that "she'd used [defendant], played him for a fool,
played him for a sucker."
Defendant gave Martin the tape, and he met Dorothea the
following night. According to Martin, when he played the tape
for her, "[s]he denied every word of it," although the sound of
her voice on the recording was clear.
The evidence establishes a plan by Dorothea and defendant
to have Martin murdered by an out-of-state assassin while Martin
was following a routine of walking alone at night near the
Roanoke airport. During a discussion on February 22, 1998 at
defendant's home between Martin and defendant that was recorded
on tape by Martin with defendant's consent, defendant revealed
the murder plot to Martin. Defendant exhibited a rifle while
"screwing a silencer on the end of it." Defendant said, "'Jim,
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this was made for you.'" Defendant stated, "'Dorothea ordered
the plans and I made it.'" Continuing, defendant told Martin,
" 'Jim, she wants you dead . . . she tells me that with a phone
call and a plane ticket you're history.' " According to Martin,
defendant "told me why he built it, he built it to kill me."
The next day, February 23, Martin contacted the Virginia
State Police at the Salem office where he was interviewed by
special agent Doug Orebaugh. Executing a search warrant at
defendant's home on that day, Orebaugh seized the home-made
silencer from defendant's tool box along with two .22 caliber
rifles the barrels of which had been threaded to accept the
silencer.
Orebaugh also seized from defendant nearly 100 audio tapes
containing "a couple hundred hours" of recorded conversations,
mainly between defendant and Dorothea involving so-called
"telephone sex." These conversations had been taped because
defendant's office telephone was voice activated. Many of the
tapes that included conversations related to the murder plot
were played for the jury.
The following colloquy between defendant and Dorothea
illustrates the nature of many of the comments between the duo
about the murder plot. During a conversation recorded on
November 15, 1997, defendant described his efforts to muffle the
sound of the rifle shot and to make the firing "completely
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quiet." He stated, "The only thing you can hear is the trigger
snap . . . going clunk. That's all you hear and then you hear
the bullet hit, plunk." Dorothea responded, "I want to hear
that bullet hit. Yee-ha." Defendant then said, "You don't want
to do it fast . . . . This is something that's got a lot of pain
and suffering in it. Slowly, gradually. The first one is dead
center below the belt. You've heard of getting shot in the
ass." At trial, defendant admitted he was referring in that
conversation to Martin being shot.
Defendant testified that he had not agreed with Dorothea to
kill Martin nor had he intended that Martin be killed. He
stated that he made the silencer for his teenage son to use when
hunting squirrels. When called to testify by defendant's
counsel, Dorothea refused, invoking her constitutional privilege
against self-incrimination.
In this appeal, defendant contends the Court of Appeals
erred by affirming the trial court's failure to strike the
evidence with respect to the charge of conspiracy to commit
murder. Defendant argues the evidence was insufficient to
support the conviction. We disagree.
A conspiracy is an agreement between two or more persons by
some concerted action to commit an offense. Wright v.
Commonwealth, 224 Va. 502, 505, 297 S.E.2d 711, 713 (1982);
Falden v. Commonwealth, 167 Va. 542, 544, 189 S.E. 326, 327
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(1937). See Code § 18.2-22. The crime may be proved by
circumstantial evidence. Indeed, because of the very nature of
the offense, "it often may be established only by indirect and
circumstantial evidence." Floyd v. Commonwealth, 219 Va. 575,
580, 249 S.E.2d 171, 174 (1978).
In Virginia, the crime of conspiracy is complete when the
parties agree to commit an offense. Falden, 167 Va. at 544, 189
S.E. at 327. No overt act in furtherance of the underlying
crime is necessary. Stevens v. Commonwealth, 14 Va. App. 238,
241, 415 S.E.2d 881, 883 (1992).
In the present case, the evidence is sufficient for a jury
reasonably to infer from all the circumstances that defendant
agreed with Dorothea to have Martin killed so that she could
receive a financial windfall. As part of the agreement,
defendant was to make a firearm silencer that he contemplated
Dorothea would use to accomplish the homicide, employing, in
defendant's words, "some out of town muscle." The jury was
entitled to reject defendant's denials that he agreed to have
Martin shot and his assertion that he attempted to make the
silencer for his son's use.
Next, defendant contends the Court of Appeals erred in
affirming the trial court's failure to strike the evidence with
respect to the charge of attempted possession of a firearm
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silencer in violation of Code § 18.2-308.6. Defendant argues
the evidence was insufficient to convict.
At the threshold of this issue, however, defendant contends
the statute is unconstitutionally vague and the indictment
should have been dismissed for that reason. He argues the
statute fails to define the prohibited conduct with sufficient
clarity to provide reasonable persons with fair notice of what
is prohibited. We do not agree.
Code § 18.2-308.6 provides:
"It shall be unlawful for any person to possess any
firearm muffler or firearm silencer which is not
registered to him in the National Firearms
Registration and Transfer Record. A violation of this
section shall be punishable as a Class 6 felony."
Defendant has no standing to mount a broad, general, facial
statutory challenge because he does not contend his conduct was
constitutionally protected nor is the First Amendment
implicated. Woodfin v. Commonwealth, 236 Va. 89, 92, 372 S.E.2d
377, 379 (1988), cert. denied, 490 U.S. 1009 (1989). Thus, the
narrow question is whether the statute is vague as applied to
defendant's conduct in this case.
The rule applicable here, given the defendant's argument,
is that a "penal statute is void for vagueness if it fails to
give a person of ordinary intelligence notice that his
contemplated conduct is forbidden by the statute . . . ." Id.
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In the context of this case, there is nothing uncertain or
ambiguous about the statutory language making it "unlawful for
any person to possess any firearm muffler or firearm silencer"
that is not properly registered. The words "muffler" and
"silencer" relating to firearms have commonly accepted meanings.
A "muffler" is "any of various devices to deaden the noise of
escaping gases or vapors; something that silences," and a
"silencer" is a "device for small arms that permits the exit of
the projectile but reduces the noise without materially impeding
the escape of the exploding gases; a device for silencing or
reducing noise." Webster's Third New International Dictionary
1483, 2117 (1993).
The statute in question plainly sets forth the conduct it
proscribes, that is, possessing all unregistered firearm
silencers or mufflers, including those privately manufactured.
Thus, there was no basis to dismiss the indictment, and the
Court of Appeals properly so ruled.
And, we reject defendant's contention that the evidence was
insufficient to convict of the attempted possession of such a
device. In a circular argument, defendant contends that "any
'attempted possession' of a firearm muffler or silencer as
charged in the indictment did not violate the statute because
there is no obligation to register a firearm until the weapon is
actually possessed."
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An attempt is composed of the intention to commit the
crime, and the doing of some direct act towards its consummation
that is more than mere preparation but falls short of execution
of the ultimate purpose. Sizemore v. Commonwealth, 218 Va. 980,
983, 243 S.E.2d 212, 213 (1978).
The evidence in this case establishes that defendant tried
to construct a firearm silencer using an automotive fuel filter.
Although the device that defendant made was not a perfect
silencer, it functioned to reduce the sound of a rifle shot.
Defendant intended to make an operational silencer, he possessed
the imperfect device, and he had no plans to register what he
had made. This is a classic case of an attempt to possess an
unregistered firearm muffler or silencer because there was an
intent to violate the statute accompanied by a direct act
towards its consummation.
Next, claiming there was evidence he changed his mind after
agreeing to participate in Martin's murder, defendant contends
the Court of Appeals erred in approving the trial court's action
in instructing the jury that "[w]ithdrawal from the agreement or
change of mind is no defense to the crime of conspiracy." He
also contends error was committed by the Court of Appeals in
approving the trial court's refusal to give an instruction
tendered by him stating that withdrawal from the agreement to
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kill Martin or a change of mind by defendant is a defense to the
charge of conspiracy.
We hold the Court of Appeals did not err in ruling that, in
Virginia, unlike some other jurisdictions, withdrawal is not a
defense to conspiracy. As we already have stated, citing Falden
and Stevens, in Virginia the crime of conspiracy is complete
when the parties agree to commit an offense, and no overt act in
furtherance of the underlying crime is necessary. Therefore, as
the Court of Appeals stated, no action subsequent to the
formation of the agreement can exonerate the conspirator of that
crime. Gray, 30 Va. App. at 733, 519 S.E.2d at 829.
Finally, we find no merit in defendant's contention that
the Court of Appeals erred in affirming the trial court's
refusal to give instructions defining certain terms in Code
§ 18.2-308.6, the firearm silencer statute. As we have stated,
the statutory terms are unambiguous. A defendant is not
entitled to jury instructions defining clear and unambiguous
statutory terms. Roach v. Commonwealth, 251 Va. 324, 346, 468
S.E.2d 98, 111, cert. denied, 519 U.S. 951 (1996).
Consequently, the judgment of the Court of Appeals will be
Affirmed.
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