COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatr ick, Judges Colema n 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 COUR T OF BOTETOURT COUNTY George E. Hont s, 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 wa s convicted by a jury of conspiracy to commit murder and atte mpted possessionof an unregi stered firearm muffler or silencer. On appeal, Gray cont ends that (1) Code § 18.2-308.6 prohibitin g possession of an unregistered firearm silencer is unco nstitutionally va gue; (2) the tria l court erred by refusing to define for the jury the terms "firea rm muffler or silencer" and "Nat ional Firearms Registrati on and Transfer Record" (NFRTR), as he reques ted; (3) the trial cour t erred by refusing his proffered juryinstruction that withdrawal from a conspiracy is a defense to the conspiracy charge; (4 ) the evidence was insufficient to support the convic tion for attempte d possession of an unregistered firear m muffler or silencer; and (5) the evidence- 2 - was insufficie nt to support th e conviction for conspiracy to commit murder. Finding no error, we affirm. BACKGROUND In 1994, Jim and Do rothea Martin were separated but not divorced. In 19 96, Gray became romant ically involved with Dorothea Martin. In 1997, Dorothea Martin showed Gray an advertis ement for plans to build a firear m silencer and asked hi m if he could make such a device. He re sponded, "I ca n make the thin g probably." Dorothea Martin or dered the plans, which she later sh owed to Gray. When Gray saw the diagram, he told Dorothea Martin that boring a hole through an automo bile fuel filter woul d accomplish the same purpose. At Dorothea Martin's request, Gr ay had a machine shop drill a hole in a fuel filter and he th readed two of his .22 caliber rifle barr els to fit the fu el filter. On September 19, 19 97, Gray and Dorothea Martin discussed a recent confrontation th at she had with her es tranged husb and, Jim Martin. During the disc ussion, Gray to ld Dorothea Martin that he had nearly completed th e silencer. He stated, "If we fool enough with this we will ge t it under control. Be something nice to have, wouldn’t it? Maybe give it to you an d you can do with it as you wish. How's that?" Sh e replied, "I hear you." On November 15, 19 97, Gray related hi s progress on the silencer to Doro thea Martin. He said the device ma de the gun- 3 - "completely quie t, there is no so und at all. Th e only thing you can hear is the trigger snap . . . and th en you hear the bullet hit, plunk." Dorothea Martin replied, "I want to hear that bullet hit. Yee-ha." Gray then said: "You do n't want to do it fast . . . . This is some thing that's got a lot of pain an d suffering in it. Slowly, gr adually. 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 li ttle bit under and sh oot right th rough the crack you're going to hit two things a dangli ng." Gray admitted at trial that in this conversation he was talking about shooting Jim Martin. Dorothea Martin toldGray that she want ed Jim Martin dead before entry of their final divorce de cree in order that she could obtain maximum financia l benefit from his esta te. Also, Gray and Dorothea Martin discus sed killing Jim Martin while he walked at night near the airport. Dorothea Martin to ld Gray, "with a phone call and a plane ticket , [Jim] is history." Sometime later, Do rothea Martin spurne d Gray, af ter which Gray contacted Jim Mart in to tell him what had occurred . On one occasion, Gray showedthe rifle and silenc er 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 de vice] was for [Jim Martin]."- 4 - After Jim Martin contacted the police, Virginia State Police Agent Orebaugh obtain ed a search warrant for Gray's home. Orebaugh seized from Gray's home a homemade firear m silencer and two .22 caliber ri fles. The rifles were threaded to fit the silencing devi ce. On testing the device, Gray had found that although it redu ced the noise from the gun, it never actually silenced the guns. Gray never ap plied for a permit to manufacture a firearm silencer nor did he attempt to register the device. Gray admitted that he knew unregistered sile ncers were illegal but added that because the device did not silenc e the firearm to the extent anticipated, he did not consider the device to be a silencer. Although th e silencer never workedto his sa tisfaction, Gray admitted that the device was designed an d intended to reduce the sound of a gunshot. Over Gray's object ion, Donald Harris, a Special Ag ent with the United States Tr easury Department, te stified rega rding the NFRTR. Harris expl ained that the Secret ary of the Treasury maintains a reco rd of, among other thin gs, the manu facture and sale of firearm silencers. Ha rris explained the process for obtaining a licens e to manufactur e silencers and for obtaining a permit to pu rchase such a device. Richard Van Robe rts, a firearms and tool marks examiner with the Division of Forensic Science who te stified as an expert,- 5 - explained the cons truction of a si lencer and identified Gray's device as a silencer. The defendant proffered four jury instructions which the trial court refuse d. Instructions A, B, and C de fined the terms "firearm silencer," "firearm muffler," an d "National Firearm Registration and Transf er Record." Instru ction D stated that withdrawing fr om a conspiracy is a de fense to the charge of conspiring to co mmit a crime. ANALYSIS Constitutional ity of Code § 18.2-308.6 Gray contends the trial court erre d by refusing to dismiss his indictment for violatio n of Code § 18.2-308.6. 1 Gray argues that Code § 18.2 -308.6 is uncons titutionally vague because it fails to define prohib ited conduct with su fficient clarity to provide reasonab ly intelligent pers ons with fair noti ce of what is prohibited. Specifical ly, Gray argues that the statute does not sufficiently define "f irearm muffler," "fir earm silencer," or "National Firear ms Registration and Transf er 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.- 6 - person to know whethe r his or her conduct vi olates the statute. We disagree. When testing the cons titutional validity of statutes, courts shall presume th e statute to be valid. See Bennett v. Commonwealth , 8 Va. App. 228, 235, 380 S.E.2d 17, 21 (1989). Consequently, th e burden to show the cons titutional defect is on the challenger. See id. In reviewing a void-for-v agueness argument, courts employ a two pronged test. See Brewster v. Commonwealth , 23 Va. App. 354, 357, 47 7 S.E.2d 288, 289 (1996). First, the language of the statute must provide a pe rson of average intellig ence a reasonable opportun ity to know what the law expects from hi m or her. See id. Second, the la nguage must not encourage arbi trary and discrimi natory selective enforcement of the statute. See id. Because Gray make s no claim that the prohibited conduct is protected by the Firs t Amendment, he has standing to chal lenge the constitu tionality 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, 46 3, 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 intellig ence on notice that the statute forb ids possessing all un registered firearm silencers or mufflers, including those that are non-co mmercial or privately manufa ctured. Gray manu factured and inte nded the device- 7 - to be a firearms muff ler or silencer. He was familiar with firearms, knew what a silencer was, knew it was il legal to possess an unregistered silenc er, and admitted he built the device for the purpose of silencing firearms. The fact that Gray, or any citizen, might have ha d to inquire ab out how and wher e to register the silencer with the NFRTR does not render the statute unconstitutional ly vague. Accord ingly, because Co de § 18.2-308.6 is constitutional , the trial court did not err in denying Gray's motion to dismis s the indictment. Jury Instructions Gray contends the trial court erre d by refusing to give a jury instruction defini ng the terms "firearm muffler," "firearm silencer," and "Natio nal Firearms Registra tion and Transfer Record." We disagree. A trial court is not required to define unambi guous terms for the jury. See Roach v. Commonwealth , 251 Va. 324, 34 6, 468 S.E.2d 98, 111 (1996). "A word in a stat ute is to be gi ven its everyday, ordinary meaning, un less 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, 19 2, 455 S.E.2d 755, 758 (1995) (finding that the court did not err when it declined to define the statutory te rm "banking house"). The Commonwealth introduced testimony throug h an expert witness explai ning what a fire arm silencer or muffler is and- 8 - 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 definiti on. A firearm muffler or silencer is not a legal term or a term of art. Whether the device Gray had co nstructed qualif ied as a muffler or silencer was a factual qu estion to be resolved by the jury. Similarly, the NFRTR is not someth ing that might be open to differing interpretation s or definitions. Moreover, the de finition of the

NFRTR was not mate rial to the jury 's deliberation. The evidence proved that Gray knewthat unregistered si lencers were illegal, that silencers had to be registered, that he had no t registered the device he wa s constructing, an d that he did not intend to register the device because he did not co nsider 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]ithd rawal from the agreement or change of mind is no defense to the crime of conspiracy." Instead, Gray tendered to the trial court a pr oposed jury instru ction stat ing that withdrawal from an ag reement to commit a cr ime is a valid defense to a conspiracy charge . The issue is whethe r 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."- 9 - 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, 41 5 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 comple ted conspiracy and cann ot, therefor e, be an affirmativ e defense. 2 Accordingly, the tria l court did not err by rejecting Gray 's tendered instru ction or by givi ng the contrary

2 We note, however, that a co nspirator's with drawal 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 th at extrajudicia l inculpatory de clarations of a co-conspirator are inadmissib le against a de fendant if the declarations were made after the defendant pr operly withdrew from the conspira cy).- 10 - instruction th at post-agreement withdraw al does not constitute a defense to a conspi racy charge. Sufficiency of the Evidence When sufficiency of the evidence is challenged onappeal, we review the evidence in the light most favorable to the Commonwealth and accord it all inferences reason ably deducible therefrom. See Commonwealth v. Jenkins , 255 Va. 516, 521, 499 S.E.2d 263, 26 5 (1998). Gray asserts that th e evidence was insuff icient to support a conviction under Code § 18.2-308.6 because he never possessed a functional silencer and because th e statute does not require registration of a non-function ing and incomp lete firearm silencer. We find the evid ence sufficient. "[A]n attempt is composed of tw o elements: th e intention to commit the crime, and the doing of some di rect act towards its consummation which is more than mere prepar ation but fa lls short of execution of the ultimate purpose." Sizemore v. Commonwealth , 218 Va. 980, 983, 243 S.E.2d 212, 21 3 (1978) (citat ion omitted). "[T]he question of wh at constitutes an atte mpt is often intricate and difficult to determ ine, and . . . no gene ral rule can be laid down which will serve as a test in all cases. Each case must be determined on it s own facts." Id. at 985, 243 S.E.2d at 215 (citations omitted).- 11 - The Commonwealth pr oved that Gray atte mpted to construct a working firearm si lencer and that he had not registeredit with the NFRTR. Addi tionally, on these facts the jury could conclude that Gray had no inte ntion of registering the device when he completed it. Thus, th e evidence was sufficie nt to prov e beyond a reasonable doubt an in tent to violat e the statute an d an overt act toward consummation of the crime. Although Gray never perfected the device, his in tent and his efforts were sufficient to support a conviction for attemp ted possession of an unregist ered silencer in violation of Co de § 18.2-308.6. See e.g. , Purdy v. Commonwealth , 16 Va. App. 209, 211-12, 429 S.E.2d34, 36 (1993) (finding evidence suff icient to conv ict defendant for attempted possession of cocaine where de fendant purchase d wax made to resemble crack cocaine). Gray also contends the eviden ce was insufficie nt to support a conviction of conspiracy to co mmit murder. We disagree. "Conspiracy is define d as 'an agreement be tween two or more persons by some conc erted action to commit an offense.'" Wright v. Commonwealth , 224 Va. 502, 50 5, 297 S.E.2d 71 1, 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 th e parties agree to commit an offe nse; Virginia does not require proo f of an overt act infurtherance of the conspiracy. See Stevens , 14 Va. App. at 241, 415 S.E.2d at 883.- 12 - The Commonwealth may prove the existence of a conspiratorial agreement by circumstantial ev idence and neednot prove an explicit agreement. See id. Furthermore, th e Commonwealth may prove the specif ic intent to commit the un derlying crim e, 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 Doroth ea Martin discussed killing Jim Martin and that Gray attempted to cons truct a firearm silencer that he knew was intended for use inkilling Ji m Martin. Gray told Dorothea Mart in that he would give her the si lencer "to do with" as she wished . When Dorothea Mart in expresse d 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 admittedhe was re ferring to shooting Jim Martin. From this evidence, the ju ry reasonably could have inferredthat Gray intend ed to construct a silencer-equip ped firearm which he contemplated Dorothea Martin- 13 - would use to murder or have Jim Martin murder ed. The jury was not bound by Gray's self-s erving 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 credibil ity of the witnesses and the weight accorded the evid ence are matters solely for the fact finder wh o has the opport unity to see and hear that evidence as it is presented."). Gray's part of the agreement was to provide a sile ncer which Dorothea Martinwould use to kill Jim Martin. CONCLUSION In conclusion, the language of Code § 18.2-308.6 is not unconstitutional ly vague in its articu lation of proscribed conduct. Additi onally, the tria l court had no obligation to define the unambiguou s terms, "firearm si lencer," "firearm muffler," and "N ational Firearms Registration and Transfer Record." Furthe rmore, the trial court di d not err by instructing the jury that po st-agreement withdrawal does not constitute a defense to the charge of conspiracy. Finall y, the evidence is sufficient to su stain the convictions for attempted possession of an unregistered firearm silencer and conspiracy to commit murder. Accordingly, we affirm Gray's convictions. Affirmed.