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 

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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. 

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 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, 

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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 

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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 

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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 

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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. 

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