Gray v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Coleman and Bumgardner
Argued at Salem, Virginia

THOMAS ABRAM GRAY, SR.
OPINION BY
v. Record No. 2538-98-3 JUDGE SAM W. COLEMAN III
OCTOBER 19, 1999
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
George E. Honts, III, Judge

Terry N. Grimes (King, Fulghum, Snead,
Nixon & Grimes, P.C., on briefs), for
appellant.

Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General,
on brief), for appellee.

Thomas Abram Gray was convicted by a jury of conspiracy to

commit murder and attempted possession of an unregistered firearm

muffler or silencer. On appeal, Gray contends that (1) Code

§ 18.2-308.6 prohibiting possession of an unregistered firearm

silencer is unconstitutionally vague; (2) the trial court erred by

refusing to define for the jury the terms "firearm muffler or

silencer" and "National Firearms Registration and Transfer Record"

(NFRTR), as he requested; (3) the trial court erred by refusing

his proffered jury instruction that withdrawal from a conspiracy

is a defense to the conspiracy charge; (4) the evidence was

insufficient to support the conviction for attempted possession of

an unregistered firearm muffler or silencer; and (5) the evidence
was insufficient to support the conviction for conspiracy to

commit murder. Finding no error, we affirm.

BACKGROUND

In 1994, Jim and Dorothea Martin were separated but not

divorced. In 1996, Gray became romantically involved with

Dorothea Martin.

In 1997, Dorothea Martin showed Gray an advertisement for

plans to build a firearm silencer and asked him if he could make

such a device. He responded, "I can make the thing probably."

Dorothea Martin ordered the plans, which she later showed to Gray.

When Gray saw the diagram, he told Dorothea Martin that boring a

hole through an automobile fuel filter would accomplish the same

purpose. At Dorothea Martin's request, Gray had a machine shop

drill a hole in a fuel filter and he threaded two of his .22

caliber rifle barrels to fit the fuel filter.

On September 19, 1997, Gray and Dorothea Martin discussed a

recent confrontation that she had with her estranged husband, Jim

Martin. During the discussion, Gray told Dorothea Martin that he

had nearly completed the silencer. He stated, "If we fool enough

with this we will get it under control. Be something nice to

have, wouldn’t it? Maybe give it to you and you can do with it as

you wish. How's that?" She replied, "I hear you."

On November 15, 1997, Gray related his progress on the

silencer to Dorothea Martin. He said the device made the gun

- 2 -
"completely quiet, there is no sound at all. The only thing you

can hear is the trigger snap . . . and then you hear the bullet

hit, plunk." Dorothea Martin replied, "I want to hear that bullet

hit. Yee-ha." Gray 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 . . . . Well, if

you hold it just a little bit under and shoot right through the

crack you're going to hit two things a dangling." Gray admitted

at trial that in this conversation he was talking about shooting

Jim Martin.

Dorothea Martin told Gray that she wanted Jim Martin dead

before entry of their final divorce decree in order that she could

obtain maximum financial benefit from his estate. Also, Gray and

Dorothea Martin discussed killing Jim Martin while he walked at

night near the airport. Dorothea Martin told Gray, "with a phone

call and a plane ticket, [Jim] is history."

Sometime later, Dorothea Martin spurned Gray, after which

Gray contacted Jim Martin to tell him what had occurred. On one

occasion, Gray showed the rifle and silencer to Jim Martin,

stating, "I made this . . . [t]his was made for you . . . Jim, she

wants you dead." Gray told the police he took it "for granted

[the silencing device] was for [Jim Martin]."

- 3 -
 After Jim Martin contacted the police, Virginia State Police

Agent Orebaugh obtained a search warrant for Gray's home.

Orebaugh seized from Gray's home a homemade firearm silencer and

two .22 caliber rifles. The rifles were threaded to fit the

silencing device. On testing the device, Gray had found that

although it reduced the noise from the gun, it never actually

silenced the guns. Gray never applied for a permit to manufacture

a firearm silencer nor did he attempt to register the device.

Gray admitted that he knew unregistered silencers were illegal but

added that because the device did not silence the firearm to the

extent anticipated, he did not consider the device to be a

silencer. Although the silencer never worked to his satisfaction,

Gray admitted that the device was designed and intended to reduce

the sound of a gunshot.

Over Gray's objection, Donald Harris, a Special Agent with

the United States Treasury Department, testified regarding the

NFRTR. Harris explained that the Secretary of the Treasury

maintains a record of, among other things, the manufacture and

sale of firearm silencers. Harris explained the process for

obtaining a license to manufacture silencers and for obtaining a

permit to purchase such a device.

Richard Van Roberts, a firearms and tool marks examiner with

the Division of Forensic Science who testified as an expert,

- 4 -
explained the construction of a silencer and identified Gray's

device as a silencer.

The defendant proffered four jury instructions which the

trial court refused. Instructions A, B, and C defined the terms

"firearm silencer," "firearm muffler," and "National Firearm

Registration and Transfer Record." Instruction D stated that

withdrawing from a conspiracy is a defense to the charge of

conspiring to commit a crime.

ANALYSIS

Constitutionality of Code § 18.2-308.6

Gray contends the trial court erred by refusing to dismiss

his indictment for violation of Code § 18.2-308.6. 1 Gray argues

that Code § 18.2-308.6 is unconstitutionally vague because it

fails to define prohibited conduct with sufficient clarity to

provide reasonably intelligent persons with fair notice of what is

prohibited. Specifically, Gray argues that the statute does not

sufficiently define "firearm muffler," "firearm silencer," or

"National Firearms Registration and Transfer Record," to enable a

1
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.

- 5 -
person to know whether his or her conduct violates the statute.

We disagree.

When testing the constitutional validity of statutes, courts

shall presume the statute to be valid. See Bennett v.

Commonwealth, 8 Va. App. 228, 235, 380 S.E.2d 17, 21 (1989).

Consequently, the burden to show the constitutional defect is on

the challenger. See id. In reviewing a void-for-vagueness

argument, courts employ a two pronged test. See Brewster v.

Commonwealth, 23 Va. App. 354, 357, 477 S.E.2d 288, 289 (1996).

First, the language of the statute must provide a person of

average intelligence a reasonable opportunity to know what the law

expects from him or her. See id. Second, the language must not

encourage arbitrary and discriminatory selective enforcement of

the statute. See id. Because Gray makes no claim that the

prohibited conduct is protected by the First Amendment, he has

standing to challenge the constitutionality of the law only as it

applies to him under the facts of this case. See Coleman v. City

of Richmond, 5 Va. App. 459, 463, 364 S.E.2d 239, 241-42 (1988).

We hold that the prohibition in Code § 18.2-308.6 against

possessing unregistered "firearm silencers" and "firearm mufflers"

is sufficient to place a citizen of average intelligence on notice

that the statute forbids possessing all unregistered firearm

silencers or mufflers, including those that are non-commercial or

privately manufactured. Gray manufactured and intended the device

- 6 -
to be a firearms muffler or silencer. He was familiar with

firearms, knew what a silencer was, knew it was illegal to possess

an unregistered silencer, and admitted he built the device for the

purpose of silencing firearms. The fact that Gray, or any

citizen, might have had to inquire about how and where to register

the silencer with the NFRTR does not render the statute

unconstitutionally vague. Accordingly, because Code § 18.2-308.6

is constitutional, the trial court did not err in denying Gray's

motion to dismiss the indictment.

Jury Instructions

Gray contends the trial court erred by refusing to give a

jury instruction defining the terms "firearm muffler," "firearm

silencer," and "National Firearms Registration and Transfer

Record." We disagree.

A trial court is not required to define unambiguous terms for

the jury. See Roach v. Commonwealth, 251 Va. 324, 346, 468 S.E.2d

98, 111 (1996). "A word in a statute is to be given its everyday,

ordinary meaning, unless the word is a [term] of art." Stein v.

Commonwealth, 12 Va. App. 65, 69, 402 S.E.2d 238, 241 (1991); see

also, Black v. Commonwealth, 20 Va. App. 186, 192, 455 S.E.2d 755,

758 (1995) (finding that the court did not err when it declined to

define the statutory term "banking house").

The Commonwealth introduced testimony through an expert

witness explaining what a firearm silencer or muffler is and

- 7 -
explaining the NFRTR. As used in Code § 18.2-308.6, the terms

that Gray asked the court to define are not legal terms, are not

ambiguous, and did not require further definition. A firearm

muffler or silencer is not a legal term or a term of art. Whether

the device Gray had constructed qualified as a muffler or silencer

was a factual question to be resolved by the jury. Similarly, the

NFRTR is not something that might be open to differing

interpretations or definitions. Moreover, the definition of the

NFRTR was not material to the jury's deliberation. The evidence

proved that Gray knew that unregistered silencers were illegal,

that silencers had to be registered, that he had not registered

the device he was constructing, and that he did not intend to

register the device because he did not consider it to be a

silencer. Accordingly, the trial court did not err in refusing

the jury instruction.

Gray also contends the trial court erred by instructing the

jury that "[w]ithdrawal from the agreement or change of mind is no

defense to the crime of conspiracy." Instead, Gray tendered to

the trial court a proposed jury instruction stating that

withdrawal from an agreement to commit a crime is a valid defense

to a conspiracy charge. The issue is whether Virginia recognizes

withdrawal as a defense to conspiracy.

The traditional rule here "is strict and
inflexible: since the crime is complete
with the agreement, no subsequent action can
exonerate the conspirator of that crime."

- 8 -
 In those jurisdictions which have added by
statute an overt act requirement, the
defendant is not punishable as a member of
the conspiracy only if he withdraws before
the overt act has been committed.

2 Wayne R. Lafave, Substantive Criminal Law § 6.5, at 110-11

(1986) (quoting Model Penal Code § 5.03, Comment at 457 (1985));

see, 16 Am. Jur. 2d Conspiracy § 27 (1998); Developments in the

Law -- Criminal Conspiracy, 72 Harv. L. Rev. 920, 957 (1959).

No Virginia decision has expressly addressed whether

withdrawal is an affirmative defense to a conspiracy charge.

However, the law is settled that the agreement to commit a crime

in conjunction with the requisite intent constitutes the

completed offense of conspiracy without the need to prove an

overt act in furtherance of the conspiracy. See Stevens v.

Commonwealth, 14 Va. App. 238, 241, 415 S.E.2d 881, 883 (1992).

Therefore, a withdrawal and decision not to complete the crime

after the parties have agreed to commit a crime has no bearing on

the already completed conspiracy and cannot, therefore, be an

affirmative defense. 2 Accordingly, the trial court did not err by

rejecting Gray's tendered instruction or by giving the contrary

2
We note, however, that a conspirator's withdrawal after
entering the conspiracy may otherwise be relevant at trial. See
e.g., Berger v. Commonwealth, 217 Va. 332, 334, 228 S.E.2d 559,
561 (1976) (stating that extrajudicial inculpatory declarations of
a co-conspirator are inadmissible against a defendant if the
declarations were made after the defendant properly withdrew from
the conspiracy).

- 9 -
instruction that post-agreement withdrawal does not constitute a

defense to a conspiracy charge.

Sufficiency of the Evidence

When sufficiency of the evidence is challenged on appeal, we

review the evidence in the light most favorable to the

Commonwealth and accord it all inferences reasonably deducible

therefrom. See Commonwealth v. Jenkins, 255 Va. 516, 521, 499

S.E.2d 263, 265 (1998).

Gray asserts that the evidence was insufficient to support a

conviction under Code § 18.2-308.6 because he never possessed a

functional silencer and because the statute does not require

registration of a non-functioning and incomplete firearm silencer.

We find the evidence sufficient.

"[A]n attempt is composed of two elements: the intention to

commit the crime, and the doing of some direct act towards its

consummation which 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) (citation omitted).

"[T]he question of what constitutes 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. Each case must be

determined on its own facts." Id. at 985, 243 S.E.2d at 215

(citations omitted).

- 10 -
 The Commonwealth proved that Gray attempted to construct a

working firearm silencer and that he had not registered it with

the NFRTR. Additionally, on these facts the jury could conclude

that Gray had no intention of registering the device when he

completed it. Thus, the evidence was sufficient to prove beyond a

reasonable doubt an intent to violate the statute and an overt act

toward consummation of the crime. Although Gray never perfected

the device, his intent and his efforts were sufficient to support

a conviction for attempted possession of an unregistered silencer

in violation of Code § 18.2-308.6. See e.g., Purdy v.

Commonwealth, 16 Va. App. 209, 211-12, 429 S.E.2d 34, 36 (1993)

(finding evidence sufficient to convict defendant for attempted

possession of cocaine where defendant purchased wax made to

resemble crack cocaine).

Gray also contends the evidence was insufficient to support

a conviction of conspiracy to commit murder. We disagree.

"Conspiracy is defined as '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)

(quoting Falden v. Commonwealth, 167 Va. 542, 544, 189 S.E. 326,

327 (1937)). As previously stated, the crime of conspiracy is

complete when the parties agree to commit an offense; Virginia

does not require proof of an overt act in furtherance of the

conspiracy. See Stevens, 14 Va. App. at 241, 415 S.E.2d at 883.

- 11 -
The Commonwealth may prove the existence of a conspiratorial

agreement by circumstantial evidence and need not prove an

explicit agreement. See id. Furthermore, the Commonwealth may

prove the specific intent to commit the underlying crime, which is

the subject of the conspiracy, by circumstantial evidence. See

Fleming v. Commonwealth, 13 Va. App. 349, 353, 412 S.E.2d 180, 183

(1991).

"Where it is shown that [two parties] by
their acts pursued the same object, one
performing one part and the other performing
another part so as to complete it or with a
view to its attainment, the jury will be
justified in concluding that they were
engaged in a conspiracy to effect that
object."

Amato v. Commonwealth, 3 Va. App. 544, 552, 352 S.E.2d 4, 9

(1987) (quoting 16 Am. Jur. 2d Conspiracy § 42 (1979)).

The evidence proved that Gray and Dorothea Martin discussed

killing Jim Martin and that Gray attempted to construct a firearm

silencer that he knew was intended for use in killing Jim Martin.

Gray told Dorothea Martin that he would give her the silencer "to

do with" as she wished. When Dorothea Martin expressed a desire

to hear the bullet hit, Gray stated, "[y]ou don't want to do it

fast . . . [t]his is something that's got a lot of pain and

suffering in it." At trial, Gray admitted he was referring to

shooting Jim Martin. From this evidence, the jury reasonably

could have inferred that Gray intended to construct a

silencer-equipped firearm which he contemplated Dorothea Martin

- 12 -
would use to murder or have Jim Martin murdered. The jury was not

bound by Gray's self-serving assertions that he never agreed or

intended to kill Jim Martin. See Sandoval v. Commonwealth, 20 Va.

App. 133, 138, 455 S.E.2d 730, 732 (1995) ("The credibility of the

witnesses and the weight accorded the evidence are matters solely

for the fact finder who has the opportunity to see and hear that

evidence as it is presented."). Gray's part of the agreement was

to provide a silencer which Dorothea Martin would use to kill Jim

Martin.

CONCLUSION

In conclusion, the language of Code § 18.2-308.6 is not

unconstitutionally vague in its articulation of proscribed

conduct. Additionally, the trial court had no obligation to

define the unambiguous terms, "firearm silencer," "firearm

muffler," and "National Firearms Registration and Transfer

Record." Furthermore, the trial court did not err by instructing

the jury that post-agreement withdrawal does not constitute a

defense to the charge of conspiracy. Finally, the evidence is

sufficient to sustain the convictions for attempted possession of

an unregistered firearm silencer and conspiracy to commit murder.

Accordingly, we affirm Gray's convictions.

Affirmed.

- 13 -