Gray v. Commonwealth

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

2
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.

3
 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,

4
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

5
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

6
(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

7
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.

8
 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."

9
 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

10
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.

11