D. J. Cooper v. Commonwealth of Virginia ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Senior Judge Cole
Argued at Salem, Virginia
D. J. COOPER
MEMORANDUM OPINION * BY
v. Record No. 2777-96-3 JUDGE LARRY G. ELDER
DECEMBER 23, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF BEDFORD COUNTY
William W. Sweeney, Judge
Evans B. Jessee for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellee.
D. J. Cooper (appellant) appeals his conviction of
exceeding water quality for contaminants in a public water supply
in violation of Code § 32.1-27(A) and VR 355-18-004.06 (now 12
VAC 5-590-390). He contends (1) that the trial court erred when
it denied his motion to dismiss the charge against him, (2) that
the evidence was insufficient to support his conviction, and
(3) that the trial court erred when it admitted evidence that he
violated the waterworks regulations after the time period for
which he was charged. For the reasons that follow, we affirm.
I.
MOTION TO DISMISS
Appellant contends that the trial court erred when it denied
his motion to dismiss. He argues that Code § 32.1-28 required
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the Attorney General of Virginia to conduct the prosecution
against him and that the trial court erroneously ruled that the
prosecution by the Commonwealth's attorney did not render the
criminal proceeding against him illegal and invalid. We
disagree.
"In construing statutes, courts are charged with
ascertaining and giving effect to the intent of the legislature."
Crown Cent. Petroleum Corp. v. Hill, 254 Va. 88, 91, 488 S.E.2d
345, 346 (1997) (citing City of Winchester v. American Woodmark
Corp., 250 Va. 451, 457, 464 S.E.2d 148, 152 (1995)). "That
intention is initially found in the words of the statute itself,
and if those words are clear and unambiguous, we do not rely on
rules of statutory construction or parol evidence, unless a
literal application would produce a meaningless or absurd
result." Id. (citations omitted).
We hold that the trial court did not err when it denied
appellant's motion to dismiss. The trial court correctly applied
Code § 32.1-28 when it reasoned that this code section did not
prohibit the Commonwealth's attorney from conducting the
prosecution of appellant under Code § 32.1-27(A).
The clear and unambiguous language of Code § 32.1-28
indicates that the General Assembly did not intend the Attorney
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General to prosecute violations of Code § 32.1-27(A). The
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Code § 32.1-27(A) states:
Any person willfully violating or refusing,
failing, or neglecting to comply with any
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relevant part of Code § 32.1-28 states:
The Attorney General shall represent the
[State Board of Health] or the [State Health
Commissioner] in all actions and proceedings
for the enforcement of regulations or orders
of the Board or Commissioner or the
provisions of this title . . . .
(Emphasis added). The statutory provisions regarding the
"actions and proceedings" that may be brought by the State Board
of Health (board) and the State Health Commissioner
(commissioner) indicate that instituting criminal proceedings to
prosecute violations of Code § 32.1-27(A) is not among them.
First, the statutes establishing the powers of the board and
commissioner do not expressly reference the authority of either
to institute criminal proceedings. See Code §§ 32.1-12, -13,
-27, -169, -170, -172 to -174, -175 (stating the relevant powers
of the board), and Code §§ 32.1-19, -20, -27 (stating the
relevant powers of the commissioner). In addition, the language
in Code § 32.1-27, which sets forth the criminal penalties and
civil remedies for violations of health-related statutes,
regulations and orders, clearly indicates that the General
Assembly did not intend either the board or the commissioner to
handle prosecutions under Code § 32.1-27(A). In all of the legal
remedies established in Code § 32.1-27 except for the criminal
penalty, the General Assembly used language empowering the board
regulation or order of the Board or
Commissioner or any provision of this title
shall be guilty of a Class 1 misdemeanor
unless a different penalty is specified.
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or commissioner to act. See Code § 32.1-27(B) and (C) (stating
that a court may issue an injunction, mandamus, or civil penalty
"in a proceeding instituted . . . by the Board or Commissioner to
obey [health-related statutes, regulations, or orders]" (emphasis
added)); Code § 32.1-27(D) (stating that "the Board may provide,
in an order issued by the Board" for the payment of civil charges
with the consent of the violating party (emphasis added)). Code
§ 32.1-27(A), however, merely states that violating a
health-related statute or regulation is a "Class 1 misdemeanor."
Unlike the other subsections in Code § 32.1-27, subsection (A)
does not include any reference to either the board or
commissioner instituting these prosecutions.
Based on our reading of the statutory provisions regarding
the powers of the board and commissioner, we conclude that the
General Assembly has not authorized either to prosecute criminal
violations of Code § 32.1-27(A). Because the board and
commissioner are without this power, prosecutions under Code
§ 32.1-27(A) are not among the "actions and proceedings" that the
Attorney General is required to undertake on behalf of the board
and commissioner pursuant to Code § 32.1-28. As such, the trial
court did not err when it denied appellant's motion to dismiss.
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II.
SUFFICIENCY OF THE EVIDENCE
Appellant contends that the evidence was insufficient to
support his conviction. We disagree.
When considering the sufficiency of the evidence on appeal
to support a criminal conviction, this Court views the evidence
in the light most favorable to the Commonwealth. Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). On
review, this Court does not substitute its judgment for that of
the trier of fact. Cable v. Commonwealth, 243 Va. 236, 239, 415
S.E.2d 218, 220 (1992). Instead, the jury's verdict will not be
set aside unless it appears that it is plainly wrong or without
supporting evidence. Code § 8.01-680; Traverso v. Commonwealth,
6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988).
In a prosecution under Code § 32.1-27(A), the Commonwealth
is required to prove beyond a reasonable doubt that the defendant
"willfully violat[ed] or refus[ed], fail[ed] or neglect[ed] to
comply with any regulation or order of the Board or Commissioner
or any provision of [Title 32.1 of the Code]." Code
§ 32.1-27(A). Under regulations promulgated by the board that
were in effect at all times relevant to this case, appellant was
required to provide water "from the source of supply to the
customer's service connection" that did not contain more than .3
mg/L of iron and .05 mg/L of manganese. See VR 355-18-004.03,
-004.06 (now 12 VAC 5-590-360, -390).
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We hold that the evidence was sufficient to support
appellant's conviction. The evidence in the record
overwhelmingly supports the jury's conclusion that appellant
failed to comply with the waterworks regulations regarding iron
and manganese during the period of time from May 1989 through
March 1992. Chemical analysis of six samples of water taken from
various locations in section two of the trailer park on five
dates during this time period indicated that the water contained
levels of iron and manganese that exceeded the amounts allowed by
the waterworks regulations. The following chart is a summary of
the evidence regarding these tests:
Collection Date Collection Collected By Iron Manganese
Location Content Content
May 1, 1989 Lot 81 Appellant 1.36 mg/L .17 mg/L
June 26, 1991 Lot 35 Kay Glass 1.61 mg/L .18 mg/L
(kitchen tap) (employee of
the Department
of Health)
December 11, 1991 Well No. 5 Kay Glass 1.37 mg/L .2 mg/L
December 11, 1991 Well No. 4 Kay Glass .74 mg/L .2 mg/L
January 28, 1992 Lot 60 Kay Glass 1.3 mg/L .19 mg/L
(kitchen sink)
March 25, 1992 Lot 60 Kay Glass 1.32 mg/L .22 mg/L
(kitchen tap)
In addition, on July 21, 1989 and March 13, 1992, Michael E.
Painter, who participates in the enforcement of the waterworks
regulations by the Department of Health, sent letters to
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appellant informing him that the levels of iron and manganese in
the water he supplied to his tenants exceeded the maximum amount
allowed by the waterworks regulations. This evidence established
that appellant failed to comply with the waterworks regulations
during the time period charged in the warrant.
Appellant argues that all of the samples taken from inside
trailers were incompetent to establish violations of the
waterworks regulations because they were taken from pipes that
were outside appellant's area of responsibility. We disagree.
Barry Thomas Dunkley testified that, in order to minimize the
possibility that a sample of water taken from inside a trailer
was contaminated with iron and manganese from in-trailer sources
rather than from a source in the trailer park's waterworks,
Health Department employees are trained to take "flush samples."
He testified that "the plumbing really in this particular
analysis doesn't make any difference because . . . we take flush
samples . . . ." Dunkley testified that Kay Glass, the employee
of the Department of Health who collected four of the five
samples in question, told him that all of the samples she
collected from lots 35 and 60 were flush samples. In addition,
the sample tested in 1989 was submitted by appellant as a
representative sample of the water he provided to tenants in
section two of his trailer park. Thus, we conclude that all of
the samples tested by the Department of Health were sufficiently
reliable to support the jury's verdict.
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III.
ADMISSIBILITY OF WATERWORKS VIOLATIONS THAT OCCURRED
AFTER THE TIME PERIOD CHARGED IN THE WARRANT
Assuming without deciding that the trial court erred when it
admitted Painter's testimony that appellant was not in compliance
with the waterworks regulations on the date of his trial, we hold
that it was harmless.
A nonconstitutional error is harmless if "it plainly appears
from the record that the error did not affect the verdict."
Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910,
911 (1991) (en banc). "An error does not affect a verdict if a
reviewing court can conclude, without usurping the jury's fact
finding function, that had the error not occurred, the verdict
would have been the same." Id.After reviewing the record, we conclude that the jury's
verdicts of guilt and punishment would have been the same even if
the evidence of appellant's 1996 violation had not been admitted.
Although not contemporaneous with Painter's erroneously admitted
testimony, the jury was instructed at the conclusion of the
evidence to disregard "evidence of anything [appellant] may have
done or not done after . . . April 18, 1992" when considering its
verdict. In addition, as previously discussed, the evidence of
appellant's guilt was overwhelming. Finally, we conclude that
the jury's determination of punishment was unaffected by the
erroneously admitted evidence. Violation of Code § 32.1-27(A) is
a Class 1 misdemeanor, which is punishable by "confinement in
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jail for not more than twelve months and a fine of not more than
$2,500, either or both." Code § 18.2-11(a). The jury fined
appellant $2,500 and did not sentence him to any time in jail.
In light of the evidence regarding appellant's multi-year
noncompliance with the waterworks regulations, we cannot say that
appellant's punishment would have been less had Painter's
testimony regarding the 1996 violation been excluded from
evidence.
For the foregoing reasons, we affirm the conviction of
exceeding water quality for contaminants in a public water supply
in violation of Code § 32.1-27(A) and VR 355-18-004.06.
Affirmed.
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