ROBINSON v. Commonwealth of Va., Record No. 0465-09-2
| Decision Date | 05 April 2011 |
| Docket Number | Record No. 0465-09-2 |
| Court | Court of Appeals of Virginia |
| Parties | FREDDIE W. ROBINSON, JR. v. COMMONWEALTH OF VIRGINIA |
OPINION TEXT STARTS HERE
Present: Judges Petty, Beales and Senior Judge Coleman
Argued at Richmond, Virginia
MEMORANDUM OPINION* BY
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Shannon L. Taylor (Boone Beale, on brief), for appellant.
Karen Misbach, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
Freddie W. Robinson, Jr. was convicted following a jury trial of felony obtaining or attempting to obtain utility service by fraud in violation of Code § 18.2-187.1. On appeal, Robinson contends the Commonwealth failed to demonstrate the value of the services he stole or tried to steal was at least $200. For the reasons that follow, we disagree and affirm the trial court's decision.
On appeal, we review the evidence in the "light most favorable" to the Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003) (citation omitted). That principle requires us to "'discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences that may be drawn therefrom.'" Kelly v. Commonwealth, 41 Va. App. 250,254, 584 S.E.2d 444, 446 (2003) (en banc) (quoting Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998)).
So viewed, the evidence proved that the gas meter at Robinson's residence was removed on March 22, 2007 because his account was delinquent in an amount in excess of $3,000. On January 9, 2008, Carl Shaw, an investigator for the Department of Public Utilities, visited Robinson's house. Shaw observed a metal flex line connecting Robinson's house to the city gas line. Robinson admitted to Shaw that he had had someone connect the line for him. Shaw noted that the service valve was activated, indicating gas was flowing into the house.
The Commonwealth introduced documents detailing Robinson's monthly gas consumption and billing history from April 21, 2005 through March 22, 2007. The documents demonstrated that from late April through December 2005, Robinson consumed over $1,300 worth of gas. From April through December 2006, he consumed over $1,000 worth of gas. The record reveals the house was equipped with a gas furnace. Robinson conceded on brief and at oral argument that the furnace's pilot light was lit at the time Shaw visited the property. Although Robinson denied at trial that he told Shaw he had arranged for the gas to be connected, he admitted he was aware of the illegal connection and did not contact the city regarding the matter.
Robinson presented the testimony of Mark Lee, a furnace repairman. Lee testified he responded to Robinson's service call "in the fall time" of 2007 and determined the furnace's blower was not functioning. He explained that when he examined the furnace, gas was available to it, but that without a functioning blower, the furnace would not produce heat or use any gas. He did not repair the equipment while there. Robinson testified the furnace stopped working in March 2007 before his gas service was cut off and that he had not consumed any gas during the relevant time period.
In his motion to set aside the jury's guilty verdict, Robinson argued the Commonwealth had failed to demonstrate the value of any gas consumed was $200 or more and, thus, the evidence was insufficient to support the felony conviction. The trial court overruled the motion, noting there was testimony regarding the amount of money Robinson would have needed to pay in order to restore service to the residence as well as the evidence regarding past usage of gas during comparable time periods.
In reviewing the sufficiency of the evidence, the jury's verdict "shall not be set aside unless it appears from the evidence that [the verdict] is plainly wrong or without evidence to support it." Code § 8.01-680; see Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988). "The credibility of a witness and the inferences to be drawn from proven facts are matters solely for the fact finder's determination." Marable v. Commonwealth, 27 Va. App. 505, 509, 500 S.E.2d 233, 235 (1998) (internal citation omitted). "This Court does not substitute its judgment for that of the trier of fact." Hunley v. Commonwealth, 30 Va. App. 556, 559, 518 S.E.2d 347, 349 (1999) (citing Cable v. Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218, 220 (1992)). The only relevant inquiry is "whether . . . any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original).
The indictment charged that Robinson "did unlawfully and feloniously obtain or attempt to obtain . . . gas . . . having a value of $200 or more, by the use of any scheme, device, means [or] method . . . with intent to avoid payment of lawful charges therefor," citing Code § 18.2-187.1(B).
Code § 18.2-187.1 provides, in relevant part:
B. It shall be unlawful for any person to obtain or attempt to obtain oil, electric, gas, water, telephone, telegraph, cabletelevision or electronic communication service by the use of any scheme, device, means or method, or by a false application for service with intent to avoid payment of lawful charges therefor.
* * * * * * *
D. Any person who violates any provisions of this section, if the value of service, credit or benefit procured is $ 200 or more, shall be guilty of a Class 6 felony; or if the value is less than $ 200, shall be guilty of a Class 1 misdemeanor.
The Commonwealth's attorney argued in closing: "The evidence before you is clear, based on the conducts [sic] of the parties, that the defendant did, indeed, attempt to obtain - [w]e don't know if absolutely obtained, but through his conduct, attempted to obtain gas services and benefits valued at, at least, in the thousands of dollars . . . ." The jury returned the following verdict: "We the jury, find the defendant guilty of knowingly obtaining or attempting to obtain, with the intent to defraud, gas service with the value of such service, credit, or benefit procured or attempted was $200 or more." (Emphasis added).
On appeal, Robinson asserts "there was no evidence of the actual cost incurred during the period alleged in the indictment; there was no evidence of the value of the gas used during the time period between March 2007 and January 9, 2008 . . . ." (Emphasis added). Robinson argues the Commonwealth's evidence needed to prove beyond a reasonable doubt that the value of the gas service that appellant actually obtained was at least $200.
As noted above, the jury concluded the evidence demonstrated Robinson either actually obtained $200 worth of gas or attempted to obtain such an amount of gas. It is unclear from the jury's verdict whether the jury believed Robinson actually obtained that amount of gas or just attempted to obtain it. Thus, we hold that the evidence is sufficient to support the jury's finding that the value of the service Robinson actually received exceeded $200 or, alternatively, the value of the service that Robinson attempted and intended to obtain was in excess of $200. Theevidence as to value of the gas service received and that Robinson attempted to obtain was sufficient to support the jury's verdict.
Penley v. Commonwealth, 51 Va. App. 166, 169, 655 S.E.2d 746, 747 (2008). To sustain a conviction for attempted larceny, the evidence must demonstrate 1) the intent to commit the underlying crime, and 2) an overt, yet ineffectual, act towards the completion of that crime. See Jay v. Commonwealth, 275 Va. 510, 525, 659 S.E.2d 311, 319-20 (2008). Here, because the larceny offense, as defined under the statute, is both (1) a continuing offense for which actual value will accumulate with each day's usage, and (2) an attempt to obtain the value of future service, whether the value is in excess of $200 is not limited to the value of gas consumed but also includes the value of the gas services that Robinson attempted to obtain.1
Value, like any other fact in a case, may be proved by circumstantial evidence. See Veney v. Commonwealth, 212 Va. 805, 806, 188 S.E.2d 80, 81 (1972). "[D]irect proof of a fact is not essential if circumstantial evidence proves the same fact and at the same time excludes every reasonable hypothesis to the contrary." Id.
Evidence of Robinson's past use of gas at his residence during the corresponding times of the year was relevant and material to prove the value of the gas services Robinson fraudulently took or attempted to take during the comparable period after he reconnected the service and, accordingly, proved the value of the gas Robinson took or attempted to take was well over $200. Evidence of past use of utilities can demonstrate the amount and value of utilities stolen duringsimilar time periods. See, e.g., Woods v. Illinois, 78 N.E. 607 (Ill. 1906); Kalamazoo v. Standard Paper Co., 148 N.W. 743 (Mich. 1914); Illinois v. Kraus, 37 N.E.2d 182 (Ill. 1941). In Timm v. New York State Public Service Commission, 534 N.Y.S.2d 466 (N.Y. App. Div. 1988), the Supreme Court of New York, Appellate Division, accepted evidence of Timm's utility usage prior to the date he diverted the utility to calculate the amount of utility service he stole, finding that "method to be the most accurate inasmuch as the tampering by petitioner's household precluded an exact estimate." Id. at 468. Similarly, in this case, by bypassing the gas meter, Robinson prevented an exact computation of the amount of gas he illegally obtained.
When the value of goods taken is at issue, "the facts and circumstances proven [must be]...
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