COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Annunziata
Argued at Alexandria, Virginia
JONATHAN PETER PARSONS
OPINION BY
v. Record No. 2747-98-4 JUDGE ROSEMARIE ANNUNZIATA
JUNE 13, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
William Shore Robertson, Judge
Robert C. Whitestone (Whitestone, Brent,
Young & Merril, P.C., on brief), for
appellant.
Jeffrey S. Shapiro, Assistant Attorney
General (Mark L. Earley, Attorney General,
on brief), for appellee.
Jonathan Peter Parsons appeals his conviction for attempt
to purchase a firearm as a convicted felon in violation of Code
§ 18.2-308.2(A)(ii). 1 Parsons contends the trial court erred in
excluding as hearsay his testimony concerning statements made by
the juvenile and domestic relations district court judge who
sentenced him in 1994 and that the exclusion of this evidence
prejudiced his defense in violation of the Fourteenth Amendment
to the United States Constitution. Parsons also claims the
trial court erred in finding the evidence sufficient to convict
1
The statute provides that it shall be unlawful for "any
person under the age of twenty-nine who was found guilty as a
juvenile fourteen years of age or older at the time of the
offense of a delinquent act which would be a felony if committed
by an adult" to possess a firearm.
him of an attempt to purchase a firearm in violation of Code
§ 18.2-308.2(A)(ii). For the reasons that follow, we reverse
and remand for a new trial.
FACTUAL BACKGROUND
"On appeal, we view the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Hunley v. Commonwealth,
30 Va. App. 556, 559, 518 S.E.2d 347, 349 (1999). On September
10, 1997, Parsons visited the Clark Brothers Gunshop in Fauquier
County in order to purchase a firearm. Parsons selected the
weapon he wished to purchase and completed and signed the
"Virginia Criminal History Check Form" ("Form") required of
prospective purchasers of firearms. The Virginia State Police
are required by law to review and approve this form before the
gun dealer may sell a firearm to a prospective customer.
Parsons did not state on the Form that he had any prior
convictions or juvenile adjudications. Subsequently, the state
police investigated Parsons' statements on the Form and found
that Parsons had pleaded guilty in a juvenile adjudication on
October 3, 1994, on a charge which would have been a felony had
Parsons been tried as an adult. Parsons was charged with
attempting to purchase a firearm as a convicted felon, in
violation of Code § 18.2-308.2(A)(ii).
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A bench trial was held on July 22, 1998, at which time
Parsons sought to have admitted statements purportedly made to
him by the juvenile and domestic relations district court judge
indicating that once he reached the age of eighteen, all record
of his juvenile adjudication would be expunged. Parsons
proffered this evidence, not for its truth, but to show its
effect upon him as the intended recipient of a statement made by
a government official interpreting the law. The circuit court
excluded this testimony as hearsay but accepted Parsons' proffer
of the excluded statement's nature and content. Parsons moved
to strike the Commonwealth's evidence as insufficient to support
a conviction for attempt. His motion was denied. At the
conclusion of all of the evidence, Parsons renewed his earlier
motion to strike, and the court again denied it. Parsons was
found guilty as charged and was sentenced to five years in
prison, with four years suspended. This appeal followed.
HEARSAY ISSUE
The Commonwealth concedes, and we agree, that although
hearsay evidence generally is inadmissible, a "verbal act," a
statement merely offered to show its effect upon a party and not
for the truth of the matter asserted is excluded from the
hearsay rule and, consequently, the statements of the juvenile
and domestic relations district court judge should have been
admitted. See Eckhart v. Commonwealth, 222 Va. 213, 216, 279
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S.E.2d 155, 157 (1981); Miller v. Commonwealth, 25 Va. App. 727,
738-41, 492 S.E.2d 482, 488-89 (1997). We therefore reverse the
trial court's decision and remand the case for a new trial, if
the Commonwealth be so disposed. 2
SUFFICIENCY OF THE EVIDENCE TO PROVE ATTEMPT
Because we find grounds to reverse the case on the basis of
improperly omitted evidence and remand the case for a new trial,
we address Parsons' claim that the Commonwealth failed to
present sufficient evidence of his attempt to purchase a firearm
in contravention of Code § 18.2-308.2(A)(ii). If the evidence
adduced at trial was insufficient to convict Parsons, he is
entitled to an acquittal; if he is so entitled, a remand for
retrial would violate the Constitution's prohibition against
double jeopardy. As established in Burks v. United States, 437
U.S. 1 (1978), a full sufficiency analysis is required to
satisfy the mandate of the Double Jeopardy Clause of the federal
Constitution. See Timbers v. Commonwealth, 28 Va. App. 187,
202, 503 S.E.2d 233, 240 (1998) (citing Burks, 437 U.S. at 18)
(discussion of evidentiary sufficiency required by Double
Jeopardy Clause in cases remanded for other error); see also
Lockhart v. United States, 488 U.S. 33, 40-42 (1988) (Supreme
Court reversed and remanded for trial court's error in
2
Because we cannot conclude from the record that the trial
court's failure to admit the proffered statement was harmless,
we must reverse and remand for a new trial.
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considering inadmissible evidence, and discussed the sufficiency
of evidence upon which defendant was convicted to determine
whether remand would violate Double Jeopardy Clause); United
States v. Simpson, 910 F.2d 154, 159 (4th Cir. 1990) (citing
Burks, 437 U.S. at 18) (reversed trial court's decision to admit
testimony concerning drug courier profile, and undertook full
discussion of evidentiary sufficiency to determine whether
retrial upon remand would violate Double Jeopardy Clause). 3
Parsons cites Dodson v. Commonwealth, 23 Va. App. 286, 476
S.E.2d 512 (1996), in support of his contention that the
Commonwealth's evidence that he attempted to violate Code
§ 18.2-308.2(A)(ii) was insufficient as a matter of law. In
Dodson, a convicted felon paid for a firearm but returned to the
store on a later date to take possession of it. See id. at 303,
476 S.E.2d at 521. The Court found that the defendant's act of
paying for the firearm constituted an attempt, because it
sufficiently furthered the crime of possessing a firearm. See
id. at 304, 476 S.E.2d at 521. Parsons argues that because he
3
We note that in Allen v. Commonwealth, 171 Va. 499, 198
S.E. 894 (1938), the Supreme Court of Virginia declined to
discuss the evidence under analogous circumstances, although it
acknowledged that if "no other verdict, save that of 'not
guilty,' could properly be reached" from the evidence on record,
then "the prosecution should be dismissed." Id. at 504, 198
S.E. at 897. Burks, 437 U.S. 1, makes clear, however, that
Allen's limited analysis is no longer sufficient. See Timbers,
28 Va. App. at 202, 503 S.E.2d at 240 (recognizing necessity for
discussion of evidentiary sufficiency in cases remanded for
other error).
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never paid for the firearm or accepted delivery of it, the
evidence in his case established only preparation to possess a
firearm. Our holding in Dodson does not compel the conclusion
Parsons asks us to draw.
An attempt is composed of two elements: the intent to
commit the crime, and a direct, ineffectual act done towards its
commission. See Haywood v. Commonwealth, 20 Va. App. 562, 565,
458 S.E.2d 606, 607-08 (1995) (citing Merritt v. Commonwealth,
164 Va. 653, 657, 180 S.E. 395, 397 (1935)). "[S]light acts
done in furtherance of [the criminal] design will constitute an
attempt . . . ." Sizemore v. Commonwealth, 218 Va. 980, 985,
243 S.E.2d 212, 215 (1978). "[W]hat constitutes an attempt is
often . . . difficult to determine, and . . . no general rule
can be laid down which will serve as a test in all cases. Each
must be determined on its own facts." Id.
"'A direct, ineffectual act, done toward commission of an
offense need not be the last proximate act toward completion,
but "it must go beyond mere preparation and be done to produce
the intended result."'" Siquina v. Commonwealth, 28 Va. App.
694, 701, 508 S.E.2d 350, 353 (1998) (quoting Fortune v.
Commonwealth, 14 Va. App. 225, 229, 416 S.E.2d 25, 28 (1992)
(additional citations omitted)).
Although it is impossible to adopt a
bright-line rule for distinguishing acts of
mere preparation from acts that constitute
an attempt, "it may be said that preparation
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consists [of] . . . arranging the means or
measures necessary for the commission of the
offense and that the attempt is the direct
movement toward the commission after the
preparations are made."
Id. (quoting Granberry v. Commonwealth, 184 Va. 674, 678, 36
S.E.2d 547, 548 (1946)). Moreover, when intent has been
established, "'any slight act done in furtherance of this intent
will constitute an attempt.'" Id. (quoting Fortune, 14 Va. App.
at 229, 416 S.E.2d at 28). To constitute an attempt, "the
evidence must prove that the preparation proceeded 'far enough
towards the accomplishment of the desired result to amount to
the commencement of the consummation.'" Lewis v. Commonwealth,
15 Va. App. 337, 340, 423 S.E.2d 371, 373 (1992) (quoting
Barrett v. Commonwealth, 210 Va. 153, 156, 169 S.E.2d 449, 451
(1969)). "[T]here must be some appreciable fragment of the
crime committed, it must be in such progress that it will be
consummated unless interrupted by circumstances independent of
the will of the attempter, and the act must not be equivocal in
nature." Id. (citation omitted).
Viewing the evidence in the light most favorable to the
Commonwealth, and granting to it all reasonable inferences
fairly deducible therefrom, see Hunley, 30 Va. App. at 559, 518
S.E.2d at 349, we conclude the evidence was sufficient beyond a
reasonable doubt to support Parsons' conviction. That Parsons
did not pay for the firearm is immaterial to whether he engaged
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in acts which constituted the "beginning of the completion" of
the gun purchase. See Lewis, 15 Va. App. at 340, 423 S.E.2d at
373 (citing Barrett, 210 Va. at 156, 169 S.E.2d at 451).
Submitting the required Form is a direct act done toward the
completion of a felony, which is not materially different from
the payment of the sale price of the gun. See Haywood, 20
Va. App. at 565, 458 S.E.2d at 607-08. Both acts move beyond
arranging the means to purchase the gun and effectively invoke
action on the part of the vendor, thereby commencing the
consummation of the intended unlawful act. The Commonwealth
therefore presented sufficient evidence to prove that Parsons
attempted to purchase a firearm in contravention of Code
§ 18.2-308.2(A)(ii), and we accordingly affirm the trial court's
conclusion to that effect. Because the evidence was sufficient
to support a finding of guilt, a retrial of the case taking into
account the statement of the juvenile and domestic relations
district court judge offered by Parsons will not violate the
Double Jeopardy Clause. We accordingly reverse, and remand for
a new trial.
Reversed and remanded.
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Benton, J., concurring, in part, and dissenting, in part.
I concur in the parts of the opinion styled Factual
Background and Hearsay Issue. Therefore, I concur in the
judgment remanding for a new trial.
I do not join in the discussion styled Sufficiency of the
Evidence to Prove Attempt. Given that evidence favorable to
Parsons was improperly excluded by the trial judge, we need not
analyze in detail the Commonwealth's evidence that favors guilt.
Under well established principles, we need only say that we
cannot conclude as a matter of law that the incomplete evidence
considered by the trier of fact was insufficient to support the
verdict. See Allen v. Commonwealth, 171 Va. 499, 504, 198 S.E.
894, 897 (1938) (holding that when a case must be retried
because of trial error, a "discuss[ion] [of] the [sufficiency of
the] evidence . . . would only be proper if, upon it, no other
verdict, save that of 'not guilty,' could properly be reached").
At issue in Burks v. United States, 437 U.S. 1 (1978), was
whether an appellate court's finding of insufficiency of the
evidence bars retrial of an accused. See id. at 2. The Supreme
Court held that it did. See id. at 18. Burks did not mandate,
however, that we engage in an extensive sufficiency analysis in
a case where the evidence was insufficient. In particular, we
have no need now to discuss intent on a review of evidence that
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has been improperly truncated to eliminate Parsons' evidence
concerning intent.
On remand, the evidence clearly will not be the same. In
addition to the evidence that we have held to be admissible, the
evidence likely will include additional testimony from Parsons
concerning his intent, which was precluded when the trial judge
excluded the contested evidence. Thus, the context in which
additional evidence and issues will arise on remand precludes a
detailed discussion at this stage of the proceedings concerning
the sufficiency of the evidence. Indeed, in a prosecution of
this type, whether the evidence proved mere preparation or an
attempt "is often intricate and difficult to determine, and
. . . no general rule can be laid down which will serve as a
test in all cases." Jordan v. Commonwealth, 15 Va. App. 759,
761, 427 S.E.2d 231, 233 (1993) (citation omitted). As the
Supreme Court has stated, "[e]ach case must be determined on its
own facts." Sizemore v. Commonwealth, 218 Va. 980, 985, 243
S.E.2d 212, 215 (1978).
"To prove an attempt, the Commonwealth must demonstrate a
direct, ineffectual act that 'must go beyond mere preparation
and be done to produce the intended result.'" Jordan, 15 Va.
App. at 762, 427 S.E.2d at 233 (emphasis added) (citation
omitted). Clearly, if Parsons made the application to learn
whether the advice he was given was true, the question of
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preparation becomes a more viable issue than discussed in the
majority opinion. Upon that evidence, Parsons' failure to
tender funds becomes more significant. Thus, I believe that
much of the sufficiency discussion is dicta and constitutes an
advisory opinion.
For these reasons, I concur in the reversal and remand
based on the evidentiary error. I would leave for another day,
if necessary, the detailed discussion of the sufficiency of the
evidence.
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