Parsons v. Commonwealth

On September 10, 1997, Parsons visited the Clark Brothers Gunshop in Faquier County in order to purchase a firearm. Parsons selected the weapon he wished to purchase and completed and signed the AVirginia Criminal History Check Form@ (AForm@) required of prospective purchasers of firearms. The Virginia State Police are required by law to review and approve this form before the gun dealer may sell a firearm to a prospective customer. Parsons did not state on the Form that he had any prior convictions or juvenile adjudications. Subsequently, the state police investigated Parsons= statements on the Form and found that Parsons had pleaded guilty in a juvenile adjudication on October 3, 1994, on a charge which would have been a felony had Parsons been tried as an adult. Parsons was charged with attempting to purchase a firearm as a convicted felon, in violation of Code #18.2-308.2(A)(ii).

Parsons was found guilty as charged and was sentenced to five years in prison, with four years suspended. This appeal followed.

PROVE ATTEMPT

Parsons cites Dodson v. Commonwealth, 23 Va. App. 286, 476 S.E. 2d 512 (1996), in support of his contention that the Commonwealth=s evidence that he attempted to violate Code #18.2-308.2(A)(ii) was insufficient as a matter of law. In Dodson, a convicted felon paid for a firearm but returned to the store on a later date to take possession of it. See id. at 303, 476 S.E. 2d at 521. The Court found that the defendant=s act of paying for the firearm constituted an attempt, because it sufficiently furthered the crime of possessing a firearm. See id. at 304, 476 S.E. 2d at 521. Parsons argues that because he never paid for the firearm or accepted delivery of it, the evidence in this case established only preparation to possess a firearm. Our holding in Dodson does not compel the conclusion that Parsons asks us to draw.

An attempt is composed of two elements: the intent to commit the crime, and a direct, ineffectual act done towards its commission. See Haywood v. Commonwealth, 20 Va. App. 562, 565, 458 S.E. 2d 606, 607-08 (1995) (citing Merritt v. Commonwealth, 164 Va. 653, 657, 180 S.E. 395, 397 (1935)). A(S)light acts done in furtherance of (the criminal) design will constitute an attempt...@ Sizemore v. Commonwealth, 218 Va. 980, 985, 243 S.E. 2d 212, 215 (1978). A(W)hat constitutes an attempt is often.....difficult to determine, and .....no general rule can be laid down which will serve as a test in all cases. Each must be determined on its own facts.@ Id.

A > A direct act, done toward commission of an offense need not be the last proximate act toward completion, but Ait must go beyond mere preparation and be done produce the intended result.@ > @ Siquina v. Commonwealth, 28 Va. App. 694, 701, 508 S.E. 2d 350, 353 (1998) (quoting Fortune v. Commonwealth, 14 Va. App. 225, 229, 416 S.E. 2d 25, 28 (1992) (additional citations omitted).

Although it is impossible to adopt a bright-line rule for distinguishing acts of mere preparation from acts that constitute an attempt, Ait may be said that preparation consists (of) ... arranging the means or measures necessary for the commission of the offense and that the attempt is the direct movement toward the commission after the preparations are made.@ Id. (quoting Granberry v. Commonwealth, 184 Va. 674, 678, 36 S.E. 2d 547, 548 (1946)). Moreover, when intent has been established, A >any slight act done in furtherance of this intent will constitute an attempt.= @ Id. (quoting Fortune, 14 Va. App. at 229, 416 S.E. 2d at 28). To constitute an attempt, Athe evidence must prove that the preparation proceeded >far enough toward the accomplishment of the desired result to amount to the commencement of the consummation.= @

Lewis v. Commonwealth, 15 Va. App. 337, 340, 423 S.E. 2d 371, 373 (1992) (quoting Barrett v.

Commonwealth, 210 Va. 153, 156, 169 S.E. 2d 449, 451 (1969)). A(T)here must be some appreciable fragment of the crime committed, it must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter, and the act must not be equivocal in nature.@ Id. (citation omitted).

Viewing the evidence in the light most favorable to the Commonwealth, and granting to it all reasonable inferences fairly deductible therefrom, see Hundley, 30 Va. App. At 559, 518 S.E. 2d at 349, we conclude the evidence was sufficient beyond a reasonable doubt to support Parsons= conviction. That Parsons did not pay for the firearm is immaterial to whether he engaged in acts which constituted the Abeginning of the completion@ of the gun purchase. See Lewis, 15 Va. App. At 340, 423 S.E. 2d at 373 (citing Barrett, 210 Va. At 156, 169 S.E. 2d at 451). Submitting the required Form is a direct act done toward the completion of a felony, which is not materially different from the payment of the sale price of the gun. See Haywood, 20 Va. App. at 565, 458 S.E. 2d at 607-08. Both acts move beyond arranging the means to purchase the gun and effectively invoke action on the part of the vendor, thereby commencing the consummation of the intended unlawful act. The Commonwealth therefore presented sufficient evidence to prove that Parsons attempted to purchase a firearm in contravention of Code #18.2-308.2(A)(ii), and we accordingly affirm the trial court=s conclusion to that effect. Because the evidence was sufficient to support a finding of guilt, a retrial of the case taking into account the statement of the juvenile and domestic relations district court judge offered by Parsons will not violate the Double Jeopardy Clause. We accordingly reverse, and remand for a new trial.

Reversed and remanded.