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COOPER v. COMMONWEALTH OF VIRGINIA


COOPER v. COMMONWEALTH
OF VIRGINIA

(unpublished)


DECEMBER 23, 1997
Record No. 2777-96-3

D. J. COOPER

v.

COMMONWEALTH OF VIRGINIA

MEMORANDUM OPINION[1]
BY JUDGE LARRY G. ELDER
FROM THE CIRCUIT COURT OF BEDFORD COUNTY

William W. Sweeney, Judge
Present: Judges Coleman, Elder and Senior Judge Cole
Argued at Salem, Virginia

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 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 General to prosecute
violations of Code ?
32.1-27(A).[2]
The 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 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.

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).

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 Location

Collected By

Iron Content

Manganese Content

May 1, 1989

Lot 81 Appellant 1.36 mg/L .17 mg/L
June 26, 1991

Lot 35
(kitchen tap)

Kay Glass
(employee of the Department of Health)

1.61 mg/L

.18 mg/L

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
(kitchen sink)

Kay Glass

1.3 mg/L

.19 mg/L

March 25, 1992

Lot 60
(kitchen tap)

Kay Glass

1.32 mg/L

.22 mg/L

 

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
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.

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
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.

 

 

 

FOOTNOTES:

[1] Pursuant to Code ? 17-116.010 this opinion is
not designated for publication.

[2]
Code ? 32.1-27(A)
states:

Any person willfully violating or refusing, failing, or
neglecting to comply with any 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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