Linda Russell Lamb v. Commonwealth of Virginia ( 2013 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Chafin and Senior Judge Bumgardner
UNPUBLISHED
Argued at Salem, Virginia
LINDA RUSSELL LAMB
MEMORANDUM OPINION ∗ BY
v. Record No. 0710-12-3 JUDGE WILLIAM G. PETTY
FEBRUARY 5, 2013
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
Malfourd W. Trumbo, Judge
Wayne D. Inge (Law Office of Wayne D. Inge, on brief), for
appellant.
Michael T. Judge, Senior Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General; Aaron J. Campbell, Assistant
Attorney General, on brief), for appellee.
Linda Russell Lamb appeals her conviction of obtaining utility service without payment
in violation of Code § 18.2-187.1. On appeal, Lamb argues that the trial court erred in denying
her motion to strike because the evidence was insufficient to prove that she received notice that
her utility service was disconnected, as required by Code § 18.2-187.1(A). For the reasons set
forth below, we affirm the judgment of the trial court.
I.
Because the parties are fully conversant with the record in this case and this
memorandum opinion carries no precedential value, we recite below only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of
this appeal. “On appeal, ‘we review the evidence in the light most favorable to the
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Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.’” Archer v.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v.
Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)).
II.
Lamb argues that the evidence was insufficient to prove that she received notice of the
disconnection of her utility service. In advancing this argument, Lamb contends that Code
§ 18.2-187.1(C) requires a utility disconnect notice to be sent by registered or certified mail with
a return receipt requested, and absent proof of such notice, she cannot be convicted under Code
§ 18.2-187.1. We disagree.
“‘When reviewing the sufficiency of the evidence to support a conviction, [this] Court
will affirm the judgment unless the judgment is plainly wrong or without evidence to support
it.’” Mayfield v. Commonwealth, 59 Va. App. 839, 850, 722 S.E.2d 689, 695 (2012) (alteration
in original) (quoting Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008)).
Thus, an “‘appellate court does not ask itself whether it believes that the evidence at the trial
established guilt beyond a reasonable doubt.’” Id. (quoting Britt v. Commonwealth, 276 Va.
569, 573-74, 667 S.E.2d 763, 765 (2008)). Instead, “‘the relevant question is whether any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.’” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “‘This familiar standard
gives full play to the responsibility of the trier of fact . . . to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.’” Id.
(quoting Brown v. Commonwealth, 56 Va. App. 178, 185, 692 S.E.2d 271, 274 (2010)).
This appeal also involves a question of statutory construction. “‘Statutory construction is
a question of law which we review de novo on appeal.’” Lynchburg Div. of Soc. Servs. v. Cook,
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276 Va. 465, 480, 666 S.E.2d 361, 368 (2008) (quoting Parker v. Warren, 273 Va. 20, 23, 639
S.E.2d 179, 181 (2007)). In construing statutes, we “‘apply the plain language of a statute unless
the terms are ambiguous.’” Id. (quoting Boynton v. Kilgore, 271 Va. 220, 227, 623 S.E.2d 922,
926 (2006)). Our “‘primary objective . . . is to ascertain and give effect to legislative intent.’”
Commonwealth v. Amerson, 281 Va. 414, 418, 706 S.E.2d 879, 882 (2011) (quoting Conger v.
Barrett, 280 Va. 627, 630, 702 S.E.2d 117, 118 (2010)). Legislative intent is discovered “‘by
giving to all the words used their plain meaning, and construing all statutes in pari materia in
such manner as to reconcile, if possible, any discordant feature which may exist, and make the
body of the laws harmonious and just in their operation.’” Thomas v. Commonwealth, 59
Va. App. 496, 500, 720 S.E.2d 157, 159-60 (2012) (quoting Lucy v. Cnty. of Albemarle, 258 Va.
118, 129-30, 516 S.E.2d 480, 485 (1999)). Finally, “‘[W]e . . . presume that the legislature
chose, with care, the words it used when it enacted the relevant statute.’” Seabolt v. Cnty. of
Albemarle, 283 Va. 717, 720, 724 S.E.2d 715, 717 (2012) (quoting Addison v. Jurgelsky, 281
Va. 205, 208, 704 S.E.2d 402, 404 (2011)).
Code § 18.2-187.1(A) provides:
It shall be unlawful for any person knowingly, with the intent to
defraud, to obtain or attempt to obtain, for himself or for another,
oil, electric, gas, water, telephone, telegraph, cable television or
electronic communication service by the use of any false
information, or in any case where such service has been
disconnected by the supplier and notice of disconnection has been
given.
Lamb’s argument hinges on the last conjunctive clause: “or in any case where such
service has been disconnected by the supplier and notice of disconnection has been given.” Code
§ 18.2-187.1(A). Specifically, Lamb argues that she was not given sufficient notice of the
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disconnection of the utility service. In so arguing, Lamb points to Code § 18.2-187.1(C), which
provides a definition of notice as used in subsection A:
The word “notice” as used in subsection A shall be notice given in
writing to the person to whom the service was assigned. The
sending of a notice in writing by registered or certified mail in the
United States mail, duly stamped and addressed to such person at
his last known address, requiring delivery to the addressee only
with return receipt requested, and the actual signing of the receipt
for such mail by the addressee, shall be prima facie evidence that
such notice was duly received.
Lamb argues that the statute requires notice to be given in writing by registered or
certified mail, return receipt requested. This reading of the statute is vitiated by the plain
language of the statute. In order to give proper notice under the statute, the utility service is only
required to give the notice “in writing to the person to whom the service was assigned.” Code
§ 18.2-187.1(C) (emphasis added). The second part of the statute concerning registered and
certified mail is not a requirement. Instead, the term “prima facie evidence,” as used in the
statute, is merely an evidentiary rule that provides the Commonwealth with a rebuttable
presumption. See Charles E. Friend & Kent Sinclair, The Law of Evidence in Virginia § 5-5 (7th
ed. 2012) (stating that “statutes often utilize the term prima facie” and that “[t]hese are usually
construed to create a rebuttable presumption, thereby shifting the burden of producing evidence
to the defendant” (citing Huntt v. Commonwealth, 212 Va. 737, 739, 187 S.E.2d 183, 186
(1972))).
Here, the evidence was sufficient to establish that Lamb was given, and received, the
required written notice under Code § 18.2-187.1(C). Lamb and her husband lived in a house in
Eagle Rock, Virginia. The electric service, which was provided by Craig-Botetourt Electric
Cooperative (CBEC), was listed in Lamb’s name but not her husband’s name. In early 2011,
Lamb had an overdue balance on her electric bill. Lamb and her husband made an agreement
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with CBEC to pay the bill but subsequently breached that agreement. CBEC began the process
of disconnecting Lamb’s electric service.
CBEC sent Lamb four disconnect notices by regular mail. The first disconnect notice
had a disconnect date of February 10, 2011. The second disconnect notice had a disconnect date
of March 10, 2011. However, due to the State Corporation Commission’s (SCC) policy of not
allowing electricity disconnects during winter months, the electricity service was not
disconnected by CBEC. The third disconnect notice had a disconnect date of April 10, 2011, but
CBEC disconnected the electric service on April 3, 2011. As a result, the SCC ordered the
service restored. The fourth disconnect notice was sent on May 10, 2011—after Lamb’s electric
service was disconnected on April 13, 2011 pursuant to the April 10, 2011 notice.
In summation, a total of four written notices were mailed to Lamb’s address, which was
the same address listed on Lamb’s CBEC account. None of these notices were returned to
CBEC as undeliverable. Moreover, Lamb had received past bills at the same address, and those
bills had been paid. Beyond this, the record suggests that Lamb’s husband contacted the SCC
concerning the April 2011 notice, and the SCC forced CBEC to turn the electric service back on
because it had been disconnected prior to the date listed on the notice. The totality of the
evidence is such that a rational trier of fact could have found, beyond a reasonable doubt, that
Lamb received adequate notice of the disconnection of the electric service. Therefore, we hold
that the evidence was sufficient to establish that Lamb received the required written notice under
Code § 18.2-187.1(C), and we affirm the judgment of the trial court.
III.
For the foregoing reasons, we affirm Lamb’s conviction.
Affirmed.
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