                  COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bumgardner and Frank
Argued at Richmond, Virginia


DOROTHEA CHISOM MARTIN
                                         MEMORANDUM OPINION * BY
v.   Record No. 1296-99-3            JUDGE RUDOLPH BUMGARDNER, III
                                            AUGUST 22, 2000
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
                   George E. Honts, III, Judge

          Christopher K. Kowalczuk for appellant.

          Donald E. Jeffrey, III, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     A jury convicted Dorothea Chisom Martin of conspiracy to

murder her husband, James Martin.   On appeal, she contends the

trial court erred in admitting statements of her co-conspirator

and in ruling the evidence was sufficient to convict her.

Finding no error, we affirm.

     Conspiracy is "'an agreement between two or more persons by

some concerted action to commit an offense.'"    Cartwright v.

Commonwealth, 223 Va. 368, 372, 288 S.E.2d 491, 493 (1982)

(citation omitted).   The hearsay statements of a co-conspirator

can be used as substantive evidence against the defendant if the

Commonwealth first establishes that a conspiracy existed from

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
other evidence.    "Once the Commonwealth has made out a prima

facie case of conspiracy by circumstantial evidence, an

out-of-court statement of a conspirator is admissible to prove

the conspiracy."   Roger D. Groot, Criminal Offense and Defenses

in Virginia 104 (4th ed. 1999) (citing Poole v. Commonwealth, 7

Va. App. 510, 375 S.E.2d 371 (1988)).   The defendant concedes

that the burden to establish prima facie proof of a conspiracy

is proof by a preponderance of the evidence.

     At trial, the co-conspirator, Thomas "Butch" Gray, invoked

his Fifth Amendment right and refused to testify.   After the

trial court ruled the Commonwealth had established a prima facie

case of conspiracy by other evidence, it admitted Gray's prior

out-of-court statements as evidence against the defendant.

Gray's statements admit that he and the defendant conspired to

murder the defendant's husband.   If the trial court properly

admitted the statements, they provided sufficient evidence to

permit a conviction.

     The defendant and James Martin were involved in an

acrimonious and prolonged divorce that began in 1995.   In 1997

Gray told Martin that he had been having an affair with the

defendant, and later he told Martin that he and the defendant

had plotted to murder him.   Gray gave Martin tape recordings of

Gray and the defendant talking about sex and even having sexual

relations.   He showed Martin a rifle with a silencer and said,

"this was made for you."   In July 1998, a jury convicted and

                                - 2 -
sentenced Gray to three years in the penitentiary for conspiracy

to murder Martin.   The defendant was not charged at that point.

     While waiting for the judge to impose sentence, Gray

continued plotting to kill Martin.     Gray confided in another

inmate housed in his cellblock, who feigned interest, but

informed the Sheriff of Gray's intentions.    The Sheriff

instructed the inmate to offer to put Gray in touch with a hired

killer, "Jack Brisco," and to furnish Gray a telephone number

for the fictitious hired killer.   The inmate gave Gray that

information, and Gray acted on it.     The telephone number would

actually connect to the Sheriff, who pretended to be "Jack

Brisco" whenever Gray called that number.    After a series of

calls, while thinking he was dealing with a hired killer, Gray

arranged to have Martin killed.    He arranged for the hired

killer first to get Martin to recant his testimony in hopes the

trial judge would not impose the jury sentence and then to make

the murder look like a suicide.    Gray furnished a map of

Martin's house and sent a payment of $50 on August 7 and of $450

the following week.

     Despite Gray's conviction in July 1998, the defendant

maintained continual contact by telephone and mail.

Investigators found nineteen letters in Gray's cell written by

the defendant.   One dated July 14, 1998 stated that he would

have to "read between the lines" because she would not write

much in a letter that he could use against her.    The day Gray

                               - 3 -
first contacted his hired killer, she wrote that she could be in

jail above him the following week.       In letters dated August 5

and 6, 1998, the defendant professed her love for Gray, noted

that she received the bills he wanted her to pay, and asked him

to destroy her letters.    Just before Gray mailed $450 to his

hired killer, the defendant mailed him $450 with a note saying

"hope this helps" and "Would you do the same for me?"

        The defendant received several hundred telephone calls from

Gray.    Gray placed numerous calls to her place of work, the

Fincastle post office.    A postal employee testified that Gray

called the defendant "almost daily."      During July and August

1998, the post office received a large number of hang-up collect

calls, but during one such call, the employee recognized Gray's

voice "rambling on for a quick moment."      Telephone records for

Gray's cellblock showed that 270 collect calls were placed to

the post office, but none were accepted.

        The cellblock records showed that 316 calls were placed to

the defendant's home between July 7 and August 19, 1998.      Of

those, 114 were completed.    Many of the calls to the defendant's

home coincided with calls from the cellblock to the hired

killer's telephone number.

        Around 8:40 p.m. on August 18, 1998, State Police Agent

Michael Bass went to the defendant's home pretending to be the

killer Gray had hired.    Agent Bass advised the defendant that

Gray had sent him and that Martin "was going to be done

                                 - 4 -
tonight."    He explained that he expected her to give him a gun

or $300 to purchase one.    The defendant denied knowing of any

plot to kill Martin.    The agent asked if it was all right that

Martin "was going to be killed tonight."    The defendant

responded that it was not all right, but she never called the

police or warned Martin after the agent left.

        At 1:12 a.m., a second state police agent, Doug Orebaugh,

went to the defendant's house.    He posed as an investigator and

told her about discovering a plot to murder her husband.    The

defendant denied that anyone had come to see her that evening.

She twice denied sending Gray cash in jail asking, "where would

I get $450?"    After Orebaugh told her police found evidence in

Gray's cell that she had sent him $450, the defendant admitted

sending that amount but claimed Gray needed it to pay taxes and

rent.    Asked if she would advise the police if she learned of a

plot to kill Martin, she responded, "oh, God, yes."

        The evidence supports the trial court's finding that the

Commonwealth proved a prima facie case of conspiracy independent

of the out-of-court statements of the co-conspirator, Butch

Gray.    Gray thought he hired someone to kill Martin and sent

$500 as advance payment.    Evidence linked the defendant to

Gray's actions in hiring the assassin.    The defendant sent Gray

$450 cash right before he sent the $450 payment.    The defendant

sent Gray love letters in jail and received hundreds of

telephone calls from him after he was convicted of conspiracy to

                                 - 5 -
murder her husband.    Many of the calls to the defendant's home

coincided with Gray's calls to the hired killer.

     The defendant acknowledged only a two-day relationship with

Gray and claimed she fell in love with him after he was arrested

in February 1998.    Recorded conversations between them showed

intimate relations in 1997.    The defendant and Gray talked about

the gun and silencer.    During one of the many recordings of

conversations between Gray and the defendant, she said, "I want

to hear that bullet hit.    Yee ha."     Then Gray explained that you

do not want to do it too fast because there should be "a lot of

pain and suffering."

     The defendant denied that anyone had visited her the night

the agent posed as a hired killer.       She did not call the police

or Martin about the plot, even though she later proclaimed she

would.    The defendant denied owning any guns but then admitted

Gray had given her two.    The silencer found in Gray's residence

fit both guns.

         Excluding the out-of-court statements by the

co-conspirator, the evidence and the reasonable inferences

arising from it established the conspiracy to murder by a

preponderance of the evidence.    "'A common purpose and plan may

be inferred from a collocation of circumstances.'"       Amato v.

Commonwealth, 3 Va. App. 544, 552, 352 S.E.2d 4, 9 (1987)

(citation omitted).    The Commonwealth may prove the existence of

the conspiracy through circumstantial evidence and need not

                                 - 6 -
prove an explicit agreement.    See Stevens v. Commonwealth, 14

Va. App. 238, 241, 415 S.E.2d 881, 883 (1992); Harris v. United

States, 433 F.2d 333, 335 (4th Cir. 1970) ("The existence of an

unlawful and inherently covert agreement can be inferred from

the overt conduct of the parties.").

     Some of the evidence that supported the finding of a

prima facie case of conspiracy was admitted after the trial

court ruled.   Nonetheless, that evidence can be considered in

evaluating whether the evidence supported such a finding.    "The

order of presentation of evidence . . . is usually a matter left

to the discretion of the trial court and, absent an abuse of

discretion, will not be disturbed" on appeal.    Floyd v.

Commonwealth, 219 Va. 575, 582, 249 S.E.2d 171, 175 (1978).      The

trial court did not err in permitting the jury to consider

Gray's extensive statements implicating the defendant.

     When a defendant challenges the sufficiency of the

evidence, we examine the evidence that tends to support the

conviction and allow it to stand unless it is plainly wrong or

unsupported by the evidence.   Where the evidence supports the

conviction, "an appellate court is not permitted to substitute

its own judgment for that of the fact-finder, even if the

appellate court might have reached a different conclusion."

Commonwealth v. Presley, 256 Va. 465, 466, 507 S.E.2d 72, 72

(1998) (citations omitted).    We also view the evidence and all



                                - 7 -
reasonable inferences fairly deducible therefrom in the light

most favorable to the Commonwealth.     See id.

     Gray showed Martin a rifle with a silencer and said, "this

was made for you."   Gray said that the defendant wanted Martin

killed and had ordered the plans for the silencer so that Gray

could build it.   He told Martin the defendant advised him to

shoot Martin when he took his walk near the airport.    The

defendant and a friend had been scouting Martin's habits for

months.

     An inmate housed in Gray's cellblock testified that each

time Gray spoke with the hired killer, he would call someone

whom Gray identified as the defendant.    On August 18, after

speaking with "Jack Brisco," Gray called the defendant, and the

inmate overheard him tell her the money arrived and her "divorce

problems were going to be taken care of."    He overheard Gray

tell someone that "they were going to kill James Martin and make

it look like an accident."   Gray told the inmate that he was

going to receive $450 from the Fincastle post office.   The next

day, the money arrived with a handwritten note from the

defendant.

     Gray told the police that he and the defendant had a plot

to kill her husband using a "silencer."    Recorded conversations

revealed discussions between the defendant and Gray about the

gun and silencer.    Gray told the defendant that if she wanted



                                - 8 -
someone to "set up" Martin, he would find someone to do it.     She

responded, "I know."

     The defendant's explanation for incriminating evidence

against her was questionable.   When drawing reasonable

inferences from the facts, the fact finder "was entitled to

weigh the defendant's contradictory statements," Toler v.

Commonwealth, 188 Va. 774, 781, 51 S.E.2d 210, 213 (1949), and

to infer that she was attempting to conceal her guilt.    See

Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d

233, 235 (1998).

     When the evidence of the co-conspirator's out-of-court

statements is added to the other evidence of the conspiracy, it

was sufficient to prove beyond a reasonable doubt that the

defendant conspired to murder James Martin.   Accordingly, we

affirm the conviction.

                                                   Affirmed.




                                - 9 -
Benton, J., dissenting.

     The evidence at trial proved that Dorothea Chisom Martin

and her husband endured several separations during their

marriage until Martin's husband left their marital home in 1995.

Martin filed for a divorce in November 1995, a month after her

husband last left their home.    A year later, Martin met Thomas

Gray and began a relationship with him.   In 1998, Gray was

indicted and convicted by a jury of conspiracy to murder

Martin's husband.   After Gray's conviction and while he was in

the county jail, the grand jury indicted Martin and Gray for

conspiracy to commit capital murder of Martin's husband in

violation of Code § 18.2-31.    Although the indictment does not

specify the precise violation of Code § 18.2-31, the jury

instructions and verdict pertain to "murder for hire" a

violation of Code § 18.2-31(2).

     At Martin's jury trial, the prosecutor called Gray as the

Commonwealth's witness.   Gray, however, invoked his Fifth

Amendment right not to testify.    Later, during the presentation

of the Commonwealth's evidence, the prosecutor sought to offer

hearsay statements made by Gray, whom the Commonwealth alleged

to be Martin's co-conspirator.    Martin's counsel objected that a

proper foundation did not exist.

          "The general rule is that . . . a prima
          facie case of conspiracy [must be
          established] before the declarations of a
          co-conspirator, made out of the defendant's
          presence, may be admitted into evidence."

                                - 10 -
          "Otherwise hearsay would lift itself by its
          own bootstraps to the level of competent
          evidence."

Poole v. Commonwealth, 7 Va. App. 510, 513, 375 S.E.2d 371, 373

(1988) (citations omitted).

     The trial judge initially denied the prosecutor's motion to

use Gray's hearsay statements.   He thoroughly analyzed the

evidence as follows:

          [JUDGE]: All right. These things are
          established, Number One, Mr. Gray apparently
          wants [Martin's husband] dead, but we
          already knew that. We had a Jury that told
          us so.

             Mr. Gray called Mrs. Martin numerous
          times. I also note that in these 19
          letters, all of which I have not read, but I
          read the majority of them, she writes to him
          to stop calling here, particularly at work.

             The question of the denial to Mike Bass
          posing as Jack Brisco could -- as I
          understood the evidence, he goes to the door
          and says, "Butch sent me and you are to give
          me a gun or give me $300 to buy a gun."

             The evidence that I have of what was
          going on with Mr. Gray was whoever was going
          to do this was going to use [Martin's
          husband's] own gun to make it appear to be a
          suicide.

             Her denial then amounts to one of two
          things. One, she knew that was not part of
          the plan and she was not going to buy into
          it; or she really did not know what was
          going on.

             Let's look at the money. She sent $450
          and she sent it with a letter, the envelope
          which was postmarked the 12th and it got
          here on the 13th.



                              - 11 -
   The letter said, "Hi Sport, hope this
helps. It is what you asked for. Let me
know if you get it. Call work and say that
you got it so that I will be at ease. Would
you do the same for me?"

   Well, pretty broad phrasing in there.
Look at that the background of that.

   The letter of August 5th, it is a long
rambling letter, but in the middle of the
page she writes, "I got the bills today. I
wish that you would tell me what you expect
of me. I feel responsible for you being in
there, so I should help with the outside
work. I'm here for you, you know that I
will do what I can."

   Then she talks about having to space out
her checks for a month and she rambles on
then for a considerable length.

   At the bottom of the third page she says,
"take care, my love, and try to stay out of
trouble and be a good boy, don't start
anything. I love you and Buff wants out."
She is talking about the cat wanting to go
out.

   Throughout the letters there is an
emotional affection on her part toward Mr.
Gray. Mr. Gray is hardly in a position to
reciprocate it by this time.

   On August 10th, the letter to [Martin's
attorney] had referenced to, "As I told you
on the phone several times, let me know what
you want me to do."

   If I had that statement by itself that
sounds interesting, but the paragraph goes
on. "I do intend to get another job with
the Postal Service until 2001, but shit
happens. If you don't have a place to go,
well, yes, you will, but if you don't think
you will, you will always have one with me
if I save my money, unless you want me to
keep you from bankruptcy and I can get a
down payment on us a nice home, both boys
will be welcome."

                   - 12 -
   Now, with Special Agent Orebaugh, I'm
persuaded that he is reasonably well known
to [Martin] from the previous trial.

   My recollection is   that he at least
interrogated her -- I   do not remember the
details, but he comes   at one o'clock in the
morning and she gives   him what is clearly a
false answer.

   I don't condone that, but I do not know
what significance to attach to it.

   She is either lying to cover up a
conspiracy, she is lying to cover up that
she is having contact with Gray or she is
lying because she just does not want to
cooperate with Investigator Orebaugh because
they were down that road once before.

   She lies about sending him money, she
says something about $20 later, but then she
does admit it and she says that it is for
the payment of rent and taxes. That is the
way that it came down for the Investigator.

   The letter says, "I hope this helps. It
is what you asked for." And we have in two
prior letters talking about the bills that
came in. She talks about maintaining his
credit.

[PROSECUTOR]: In the August 10th letter she
talks about paying the bills that he sends
her and that is always what is it.

   It is not her sending money to him.   It
is him sending the bills to her.

   Mr. Fulcher testified that they do not
have checkbooks in jail.

[JUDGE]:   I understand that.

[DEFENSE COUNSEL]:   You can send the money
somewhere else.

[PROSECUTOR]: He sent her the bills and she
pay them. That is throughout the letters.


                     - 13 -
             [JUDGE]: She says in that paragraph and I
             will get it back out if I need to, she says,
             "I got the bills today" and then "tell me
             what you want to do. I need to space my
             checks out for a month."

                Now, one can infer from that that she is
             paying the bills, but I don't know.

                The bottom line is this evidence is in
             equal balance at this point. I cannot say
             that a prima facie case is made out, but I
             cannot say that it is totally void, either,
             but the burden is on your side, Mr.
             [prosecutor].

                The ball is not over the fifty yard line,
             the scales are not tipped one way or the
             other, use whatever metapho[r] that you want
             to use. Do you have other evidence to
             present?

        During the testimony of Martin's husband, the trial judge

reconsidered his ruling and granted the prosecutor's motion.

Nothing in Martin's husband's testimony, however, tended to

prove Martin was engaged in a conspiracy to commit murder for

hire.    The trial judge's initial analysis of the evidence

accurately reflected the state of the relevant evidence and the

prosecutor's failure to prove a prima facie case of conspiracy.

        For these reasons, I would hold that the trial judge erred

in admitting the hearsay statements.     Accordingly, I dissent.




                                - 14 -
