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. 
 2 

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).1 The 

 

 1Code § 32.1-27(A) states: 

 Any person willfully violating or refusing, 

failing, or neglecting to comply with any 
 3 

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. 
 4 

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. 
 5 

 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). 
 6 

 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 
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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. 
 8 

 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.