COURT OF APPEALS OF VIRGINIA

Present: Judges Petty, Beal es and Senior Judge Coleman Argued at Richmond, Virginia

FREDDIE W. ROBINSON, JR. MEMORANDUM OPINION * BY v. Record No. 0465-09-2 JUDGE SAM W. COLEMAN III APRIL 5, 2011 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Walter W. Stout, III, Judge Shannon L. Taylor (Boone Beale, on brief), for appellant. Karen Misbach, Assistant A ttorney General (Kenneth T. Cuccinelli, II, Attorney Gene ral, on brief), for appellee.

Freddie W. Robinson, Jr. was convicted follo wing 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.
BACKGROUND 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,

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - 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 ga s 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 Pub lic Utilities, visited Robinson’s house. Shaw observed a metal flex lin e connecting Robinson’s house to the city gas line. Robinson admitted to Shaw that he had ha d 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 Apr il 21, 2005 through March 22, 2007. The documents demonstrated that from late April th rough 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 equi pped with a gas furnace. Robi nson conceded on brief and at oral argument that the furnace’s pilot light wa s lit at the time Shaw visited the property. Although Robinson denied at trial th at he told Shaw he had arrange d for the gas to be connected, he admitted he was aware of the illegal connec tion and did not contact the city regarding the

matter. Robinson presented the testimony of Mark L ee, a furnace repairman. Lee testified he responded to Robinson’s service call “in the fa ll time” of 2007 and determined the furnace’s blower was not functioning. He e xplained 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.- 3 - 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 co nviction. 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 th e residence as well as the evidence regarding past usage of gas during comparable time periods.
ANALYSIS 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 th e 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 paymen t 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, wate r, telephone, telegraph, cable- 4 - television 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 paym ent of lawful charges therefor. * * * * * * * D. Any person who violates any pr ovisions of this section, if the value of service, credit or benef it 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 clos ing: “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 an d 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 conc luded the evidence demonstrat ed Robinson either actually obtained $200 worth of gas or attempted to obtain su ch an amount of gas. It is unclear from the jury’s verdict whether the jury believed Robinson actually obtaine d that amount of gas or just attempted to obtain it. Thus, we hold that the ev idence is sufficient to support the jury’s finding that the value of the service Robinson actually received exce eded $200 or, alternatively, the value of the service that Robinson attempted a nd intended to obtain was in excess of $200. The- 5 - evidence as to value of the gas service receiv ed and that Robinson attempted to obtain was sufficient to support the jury’s verdict. “Code § 18.2-187.1 is a species of larceny. As such, the ‘value of service, credit or benefit procured’ is to be measured at the time the services were taken.” 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 at tempt to obtain the value of future service, whether the value is in excess of $200 is not li mited 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, ma y 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 prove s 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 reconne cted 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 during

1 It is noteworthy that th e General Assembly included in Code § 18.2-187.1 a provision that an “attempt” to obtain servi ces that would be valued in ex cess of $200 is a felony violation, rather than requiring the Commonwea lth to rely upon the general cr iminal attempt statute, Code § 18.2-26.- 6 - similar 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 Di vision, 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 inasmu ch as the tampering by petitioner’s household precluded an exact estimate.” Id. at 468. Similarly, in this cas e, 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] such as to permit an intelligent and probabl e estimate of the amount of damages or loss sustained.” Gertler v. Bowling , 202 Va. 213, 215, 116 S.E.2d 268, 270 (1960). Although the Commonwealth did not prove the ex act value of the services Robi nson took or attempted to take, the evidence of his prior gas us age demonstrated the value of th e services necessary to operate his furnace during cold weather wo uld necessarily far exceed $200.
“There is no distinction in the law between the weight or value to be given to either dir ect or circumstantial evidence.” Muhammad v. Commonwealth , 269 Va. 451, 479, 619 S.E.2d 16, 31-32 (2005), cert. denied , 547 U.S. 1136 (2006). Our Supreme Court has held that “‘circumstantial evidence is competent and is entitled to as much weight as di rect evidence[,] provided that the circumstantial evidence is suffici ently convincing to exclude every reasonable hypothesis except that of guilt.’” Finney v. Commonwealth , 277 Va. 83, 89, 671 S.E.2d 169, 173 (2009) (quoting Dowden v. Commonwealth , 260 Va. 459, 468, 536 S.E.2d 437, 441 (2000)). Furthermore, circumstantial evidence “is not viewed in isolation.” Muhammad , 269 Va. at 479, 619 S.E.2d at 32. “While no single piece of evidence may be sufficient, the combined force of many concurre nt and related circumstances, each insufficient in itself, may lead a reasonable mind irresistibly to a conclusion.” Id. (citation omitted). Brown v. Commonwealth , 54 Va. App. 107, 119, 676 S.E.2d 326, 332 (2009).- 7 - This Court employs a deferential standard of review “not only to the historical facts themselves, but the inferences from those facts as well.” Cooper v. Commonwealth , 54 Va. App. 558, 572, 680 S.E.2d 361, 368 (2009) (internal quotation marks and citation omitted). “The inferences to be drawn from proven facts, so long as they are reasonable, are within the province of the trier of fact.” Hancock v. Commonwealth , 12 Va. App. 774, 782, 407 S.E.2d 301, 306 (1991). Here, based upon the evidence of Robinson’ s behavior and past us age of the utility, the jury reasonably inferred Robinson di verted the gas to his residence in order to continue to use the gas as he had done in the past. Due to a delinquency in his account ex ceeding $3,000, Robinson’s gas service was
disconnected in March of 2007. He admitted that sometime thereafter his gas line was reconnected without authoriz ation but with his knowledge and without him paying the delinquency. The evidence further proved that as of January 9, 2008, gas “was entering the residence,” thus indicating that Robinson was actually consuming gas at his house on that date. Furthermore, although the factfi nder was entitled to disregard the testimony of Lee that the furnace’s blower was not working, Lee confirmed th at gas was available to the furnace at the time he examined it, proving that the illegal connecti on had been made, at the latest, in the fall of 2007. The fact that Robinson had a furnace repair man look at the furnace several months after his gas had been disconnected is further evidence in support of the jury’s verdict that he intended to continue to use the illegally obtained services, as it suggests Robinson sought to heat the residence during the winter months with the gas-powered furnace. In fact, Robinson admitted at trial that he was aware of the illegal connection and explained he sought to repair the furnace because his tenant recently had “complained abou t how chilly it was” in the residence, thus indicating the baseboard heat he claimed he was using to heat the house was inadequate. Furthermore, in order to heat the house with th e same furnace he had used in the past, Robinson- 8 - would necessarily have to consume a similar amount of gas and the cost or value of such service would be comparable to his prior usage. Therefore, the circumstantial evidence in its entirety, includi ng the evidence of Robinson’s past gas usage, his admissions, and the evidence rega rding when gas was available and actually being used at the re sidence, adequately demonstrated Robinson used or attempted to use over $200 of gas. Thus, we find the evidence was sufficient to prove the actual valu e of the gas that Robinson used or attempted to use after reconne cting the servi ce after it had been disconnected in March of 2007 and January 9, 2008 was far in excess of $200. For the foregoing reasons, we find the Co mmonwealth’s evidence was competent, was not inherently incredible, and was sufficient to prove beyond a reasonable doubt that appellant was guilty of obtaining or, at a minimum, attemp ting to obtain at least $200 worth of utility service by fraud. Accordingly, the decision of the trial court is affirmed. Affirmed.- 9 - Petty, J., concurring. The majority concludes that “the evidence is sufficient to support the jury’s finding that the value of the service Robinson actually rece ived exceeded $200 or, alternatively, the value of the service that Robinson attempted and in tended to obtain was in excess of $200.” Supra at 4. I agree with the latter conclusion, but disagree with the former. Therefore, for the reasons I discuss below, I concur only in the judgment of the opinion. In this case, the Commonwealth unquestionabl y established that th e City of Richmond disconnected Robinson’s gas service on March 2 2, 2007, and that Robinson reconnected the gas line on some unknown date prior to January 9, 2008. The Commonwealth also unquestionably established that between April 2005 and March 2007, Robinson’s monthly gas bills from the City of Richmond ranged from a high of $655.26 in March 2007 to a low of $22.90 in September 2006 and averaged $418.75 for the five months prior to the term ination of service. 2 It is from this evidence the Commonwealth argues that th e jury properly inferred that Robinson obtained natural gas from the City of Richmond having a va lue of $200 or more. Because I find this to be an inference built upon a speculative inference, I belie ve that it is simply an inference too far. To be sure, “[i]nferences and presumptions are a staple of our adversary system of factfinding.” Cnty. Court v. Allen , 442 U.S. 140, 156 (1979). Logic dictates that it should be permissible for “the trier of fact to determine th e existence of an elemen t of the crime—that is,

2 The only other evidence relevant to the va lue of the gas Robinson consumed after he reconnected his service came from Marvin Lee, a heating and air cond itioning repairman. Lee testified that sometime in the fall of 2007, Robinson called him out to repair his gas furnace. Lee found that “gas was available” for the furnace to operate, but that the blower motor was not functioning and thus the furnace was inoperable. Lee left without replacing the motor because Robinson could not afford to have it replaced. Wh ile the majority states Robinson conceded that “the furnace pilot light was lit at the time Shaw vi sited the property ,” supra at 2 (emphasis added), I do not believe that th e statement by appellant’s counsel was anything more than a simple slip of the tongue. Shaw testified unequivoca lly that he did “not en ter the address at all” (J.A. at 43) and that “[f]rom the evidence that [h e] saw, [he] didn’t feel the need was necessary” to go inside and check to see if gas was being used (J.A. at 103).- 10 - an ‘ultimate’ or ‘elemental’ fact—from the exis tence of one or more ‘e videntiary’ or ‘basic’ facts.” Id. “Thus, a factfinder may ‘draw reasonable in ferences from basic facts to ultimate facts,’ unless doing so woul d push ‘into the realm of non sequitur .’” Holloway v. Commonwealth , 57 Va. App. 658, 664, __ S.E.2d __, __ (2011) (en banc) (quoting Haskins v. Commonwealth , 44 Va. App. 1, 10, 602 S.E.2d 402, 406 (2004), and Thomas v. Commonwealth , 48 Va. App. 605, 608, 633 S.E.2d 229, 231 (2006)). However, “[a]n inference loses its rationality . . . when it becomes so attenuated as to appear to stand alon e, deriving none of its probative strength from the proven basic facts.” Thomas , 48 Va. App. at 608, 633 S.E.2d at 231. While courts have often discussed inferences in the context of the constitutionality of statutory inferences, the rationale used a pplies equally to the reasonablene ss of inferences flowing from the evidence presented. Thus, in evaluating whet her an inference is pe rmissible, “‘there are limits. It is essential that ther e shall be some rational connection between the fact proved and the ultimate fact [inferred], and that the inference of one fact from proof of another shall not be so unreasonable as to be . . . purely arbitrary . . . .’” Jennings v. Commonwealth , 155 Va. 1075, 1080, 156 S.E. 394, 396 (1931) (quoting McFarland v. Am. Sugar Ref. Co. , 241 U.S. 79, 86 (1916)). I believe that an inference “must be rega rded as ‘irrational’ or ‘arbitrary,’ and hence [unreasonable], unless it can at least be said with substantial assuran ce that the [inferred] fact is more likely than not to flow from the pr oved fact on which it is made to depend.” Leary v. United States , 395 U.S. 6, 36 (1969). Here, while the Commonwealth did establish th e cost of the gas Robinson consumed in prior months, it did not provide any evidence to establish that the variables inherent in the calculation of that cost remained relatively constant during the period in question. Specifically, the Commonwealth did not offer any evidence to esta blish that the price of the gas per cubic foot or the volume of the gas consum ed, the two factors that determine the monthly bill, remained- 11 - comparable. The volume of gas consumed is its elf a variable, determined both by the number of gas appliances in use and, in the case of a furnace, the need for heat. The Commonwealth did not establish either of these determinative facts. There was no evidence that the gas appliances in use from April 2005 through March 2007 were in use after the gas line was reconnected. In fact, the evidence was just to the contrary. Th e furnace, the only gas appliance proven to be in the house, was not operational at the beginning of the 2007–2008 heating season. Additionally, the Commonwealth presented no evidence that the need for heat, as determined by, inter alia , the outside temperatures during the relevant period, was comparable to what it had been in previous years. Finally, the price of natural gas, like all commodities, fluctuates, 3 and the Commonwealth did not present any evidence to es tablish its range of fluctuation during the months in question. While I agree with the majority that evidence of past use of utilitie s can be probative of the amount and value of utilities stolen dur ing similar periods, it is incumbent on the Commonwealth to establish that th e periods were, in fact, similar. 4 Here, in order to reach that

3 In a report presented to the Richmond City Council, the City Audito r stated the obvious: “The price of natural gas is a ffected by numerous factors such as weather, economic activity, and availability of supplies. Depe nding upon the timing and the strength of these factors, the price of natural gas can increase or d ecrease significantly.” Dep’t of Pub. Utils., Audit Report No. 2007-05, Natural Gas Hedging Practices Review 7 (2006).

4 The majority cites Illinois v. Kraus , 37 N.E.2d 182 (Ill. 1941); Woods v. Illinois , 78 N.E. 607 (Ill. 1906); City of Kalamazoo v. Standard Paper Co. , 148 N.W. 743 (Mich. 1914); and Timm v. New York State Public Service Commission , 534 N.Y.S.2d 466 (N.Y. App. Div. 1988), to support its conclusion that “[ e]vidence of past use of utiliti es can demonstrate the amount and value of utilities stolen during similar time periods.” Supra at 5-6. I do not believe that any of these opinions are instructive on how the Commonw ealth can establish that the time periods are in fact similar. Timm involved a civil administrative appeal of a utility company’s billing of a customer for un-metered electrical service. 534 N.Y.S.2d at 467. Without analysis, the court simply stated that an extrapolation based on prior usage was “the most accurate [method of computation] inasmuch as the tampering by pet itioner’s household preclude d an exact estimate.” Id. at 468. Standard Paper Co. likewise involved a civil case in which the utility company claimed damages “for the highest amount of wate r which could possibly have been used by the defendant.” 148 N.W. at 747. Ther e the court simply stated, “Taking the water in the way it did, the defendant must bear the risk of uncertainty thus produced.” Id. In Woods , the only issue regarding the value of the gas stolen was whet her the amount of gas illegally obtained each day- 12 - conclusion, the jury would have had to speculate as to exactly when Robinson reconnected the gas line, speculate that the same gas appliances remained in use, speculate that the outside temperatures were approximately the same, and speculate that the price of gas remained relatively constant. This, I beli eve, stretches the inference re lied on by the Commonwealth into the realm of non sequitur . As a result, I disagree with the ma jority’s apparent conclusion that the Commonwealth’s evidence was sufficient to pr ove that the value of natural gas Robinson actually consumed met the statutory threshold of $200. That having been said, I believe that when Robinson reconnected his gas supply, he did so in an attempt to obtain $200 or more worth of gas. Thus, I believe the evidence does support the jury’s alternative finding that Robins on attempted to steal that amount of gas. Robinson was indicted for “unlawfully and feloniously obtain[ing] or attempt[ing] to obtain . . . gas . . . having a value of $200 or more . . . with intent to avoid payment of lawful charges therefor.” (Emphasis added). In his closing argument to the jury, the Commonwealth’s attorney argued: “The evidence before you is cl ear, 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 obt ain gas services and benefits valued at, at least, in the thousands of dollars . . . .” The jury, in its verdict, found Robinson “guilty of knowingly obtaining or attempting to obtain with the intent to defraud gas service” worth more than $200.

could be treated as a continuous taking for purposes of establishing value. 78 N.E. at 608. Finally, in Kraus , the defendant was convicted of petit la rceny of less than $15 worth of water. 37 N.E.2d at 183. The issue of the precise value of the water was not before the court. The defendant contended that there was no proof as to what, if a ny, amount of water was stolen. Id. at 186. The court simply noted that (1) the wate r department records showed that water bills decreased approximately $150 a month six months prior to the discovery of the theft, and (2) there was evidence that the water pipes were clogged with fish that stopped the meter from registering. Id. The court then concluded, “To show that water was stolen, the People had to show water went through the tapp ing pipe. They did make such a showing and the question as to the value of the water thus taken was one for the jury.” Id.- 13 - “[A]n attempt to commit a crime consists of two elements: ‘(1) [t]he intent to commit a crime; and (2) a direct act done towards its comm ission, but falling short of the execution of the ultimate design.’” Jay v. Commonwealth , 275 Va. 510, 525, 659 S.E.2d 311, 319 (2008) (second alteration in original) (quoting Glover v. Commonwealth , 86 Va. 382, 385, 10 S.E. 420, 421 (1889)). Here, the evidence clearl y supports the inference that R obinson reconnected the gas line in order to heat his house. 5 Based on his prior gas bills, Robi nson surely must have known that had the City not discovered the reconnected line and had the dive rsion gone on indefinitely, he would have obtained well in excess of $200 worth of natural gas. Thus, I conclude that when Robinson reconnected the gas line —a direct act done towards the commission of the offense—he did so with the intent to obtain natural gas wo rth $200 or more. Accordingly, I concur in the holding of the majority that the evidence was su fficient to support Robinson’s conviction under Code § 18.2-187.1 for an attempt to illegally obtai n gas worth $200 or more from the City of
Richmond.

5 The fact that Robinson was unable to expl oit his illegal source of gas because the furnace was not working is irrelevant. While it mi ght have been factually impossible for him to use over $200 worth of gas, that does not prev ent his conviction for an attempt to do so. See Hix v. Commonwealth , 270 Va. 335, 342, 619 S.E.2d 80, 84 (2005) (“ ‘[W]hat is usually referred to as “factual impossibility” is no defense to a charge of attempt. That is, if what the defendant intends to accomplish is proscribed by the criminal law, but he is unable to bring about that result because of some circumstances unknown to him when he engaged in the attempt, then he may be convicted.’” (quoting 2 Wayne R. La Fave & Austin W. Scott, Jr., Substantive Criminal Law § 11.5(a)(2) (2d ed. 2003))).