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 
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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 
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"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]." 
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 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, 
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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. 
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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 
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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 
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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." 
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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). 
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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). 
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 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. 
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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 
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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.