COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Fitzpatrick and Annunziata 

Argued at Richmond, Virginia 

DIANE C. CARTER 

 OPINION BY 

v. Record No. 2169-96-2 JUDGE ROSEMARIE ANNUNZIATA 

 NOVEMBER 4, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Donald W. Lemons, Judge 

 Matthew T. Paulk, Assistant Public Defender 

(David J. Johnson, Public Defender, on 

brief), for appellant. 

 Thomas D. Bagwell, Senior Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Following a bench trial, Diane C. Carter was convicted of 

cable television fraud in violation of Code § 18.2-187.1. On 

appeal, she contends that 47 U.S.C. § 553 preempts Virginia Code 

§ 18.2-187.1 and, alternatively, that the evidence was 

insufficient to support her conviction. We affirm. 

 Appellant had resided at 2320 Ambrose Street since July 

1990. Continental Cablevision last provided authorized cable 

television service at that address in May 1990. In February 

1996, Timothy Stotler, a Continental representative, investigated 

the possible unlawful receipt of cable service at appellant's 

residence. During the course of his investigation, Stotler 

discovered that the cable line serving appellant's residential 

complex had been impermissibly spliced to direct service into 

appellant's residence. Appellant admitted to Stotler that she 
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had been receiving cable service since July 1990 and that she had 

not paid for service. She told Stotler that an unknown "cable 

person" installed service at her residence in 1990 and that this 

person had provided the cable converter box she used to receive 

service. Stotler's records indicated, however, that Continental 

had issued the converter box to another individual, a Continental 

customer at another address, who was last authorized to use the 

box in March 1994 and who had not returned it to Continental. 

Stotler testified that the value of service provided to 

appellant's address exceeded $200. The trial court found: 

 what I have is a disconnect at [appellant's 

residence]. And I have testimony from the 

person who is a custodian of [Continental's] 

records. I have ongoing receipt of cable 

television service every month, presumably, 

from the evidence. I think it's easy enough 

for me to determine from the evidence that 

this hookup has been there for some time [and 

that the value of the service exceeded $200]. 

 I. 

 Appellant first contends that Code § 18.2-187.1 is preempted 

by 47 U.S.C. § 533 and, thus, that her prosecution and conviction 

under § 18.2-187.1 is barred. 

 The Supremacy Clause of Art. VI of the 

Constitution provides Congress with the power 

to pre-empt state law. Pre-emption occurs 

when Congress, in enacting a federal statute, 

expresses a clear intent to pre-empt state 

law, Jones v. Rath Packing Co., 430 U.S. 519 

(1977), when there is outright or actual 

conflict between federal and state law, e.g.,

Free v. Bland, 369 U.S. 663 (1962), where 

compliance with both federal and state law is 

in effect physically impossible, Florida Lime 

& Avocado Growers, Inc. v. Paul, 373 U.S. 132 

(1963), where there is implicit in federal 
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law a barrier to state regulation, Shaw v. 

Delta Air Lines, Inc., 463 U.S. 85 (1983), 

where Congress has legislated 

comprehensively, thus occupying an entire 

field of regulation and leaving no room for 

the States to supplement federal law, Rice v. 

Santa Fe Elevator Corp., 331 U.S. 218 (1947), 

or where the state law stands as an obstacle 

to the accomplishment and execution of the 

full objectives of Congress. Hines v. 

Davidowitz, 312 U.S. 52 (1941). 

Louisiana Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 368-69 (1986); 

see also Pennsylvania v. Nelson, 350 U.S. 497, 503-09 (1956) 

(applying preemption to criminal statute). 

 Code § 18.2-187.1 provides in part: 

 It shall be unlawful for any person 

knowingly, with the intent to defraud, to 

obtain or attempt to obtain . . . cable 

television 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. 

If the value of service procured is $200 or more, the crime is 

punishable as a Class 6 felony, Code § 18.2-187.1, and, thus, 

carries a term of imprisonment of between one and five years or 

confinement in jail for not more than twelve months and a $2,500 

fine. Code § 18.2-10(f). The United States Congress has also 

proscribed the unauthorized reception of cable television 

service. See 47 U.S.C. § 553. The relevant federal crime, 

however, is punishable by a fine of not more than $1,000 or 

imprisonment for not more than six months, or both. 47 U.S.C. 

§ 553(b)(1). 47 U.S.C. § 553(c)(3)(D) provides in part, "Nothing 

in this subchapter shall prevent any State . . . from enacting or 
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enforcing laws, consistent with this section, regarding the 

unauthorized interception or reception of any cable service." 

 Appellant contends that 47 U.S.C. § 553 expressly preempts 

Code § 18.2-187.1 because the two statutes are not consistent as 

to the level of punishment each respectively carries. Appellant 

cites no authority, and we have found none, to support such a 

contention. 

 Moreover, to the extent that the intention of Congress to 

preempt Code § 18.2-187.1 must be implied from 47 U.S.C. § 553, 

appellant's argument fails. There is no conflict between the 

substance of the activity proscribed by the federal and state 

law, only its penalty. As such, compliance with both federal and 

state law is not impossible, and Code § 18.2-187.1 stands not as 

an obstacle to the accomplishment and execution of the full 

objectives of Congress, but as a supplement. The federal law 

does not implicitly contain a barrier to state regulation, and 

Congress has not legislated comprehensively, thus occupying an 

entire field of regulation and leaving no room for the States to 

supplement federal law. To the contrary, Congress expressly 

provided that the States may proscribe the unauthorized receipt 

of cable service. 

 Finally, while both the federal and Virginia statutes 

proscribe the unauthorized reception of cable television service, 

they are premised on different principles of substantive criminal 

law. Code § 18.2-187.1 defines a crime of fraud, while 47 U.S.C. 
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§ 553 defines a crime of theft. To the extent the statutes 

proscribe different conduct, the Supremacy Clause is not 

implicated. See generally 1 Wayne R. LaFave & Austin W. Scott, 

Substantive Criminal Law § 2.15(b) (1986). 

 II. 

 Appellant next challenges the sufficiency of the evidence to 

support her conviction under Code § 18.2-187.1. 

 When considering the sufficiency of the evidence on appeal 

in a criminal case, this Court views the evidence in a light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom. Higginbotham v. 

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). The 

trial court's judgment will not be set aside unless it appears 

that the judgment is plainly wrong or without supporting 

evidence. Code § 8.01-680; Martin v. Commonwealth, 4 Va. App. 

438, 443, 358 S.E.2d 415, 418 (1987). 

 In the present case, service had been disconnected at 2320 

Ambrose Street in May 1990. Appellant moved into the residence 

in July 1990 and began receiving cable service thereafter. The 

evidence showed that appellant received service for over five and 

one-half years without paying for it. The evidence further 

established that the cable line to appellant's residential 

complex had been impermissibly spliced to provide service to 

appellant's residence and that appellant had been receiving 

service by using an unauthorized converter box. Appellant's 
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explanation of the circumstances to Stotler was wholly 

discredited by Stotler's testimony. Appellant stated she had the 

converter box installed in 1990. However, the evidence proved 

that the condition of the copper conductor was inconsistent with 

exposure to the weather for that period of time. It further 

established that, although significant interference with 

television reception in the remaining units of appellant's 

residential building would have been caused by the type of 

hook-up used to install appellant's converter box, no complaints 

from other subscribers had been received. Finally, Stotler 

testified and business records admitted on the issue 

corroborated, that the converter box appellant stated she had 

installed in 1990 was in the possession of another customer until 

1994. We find the evidence supports beyond a reasonable doubt 

the trial court's finding that appellant knowingly and with the 

intent to defraud, made false communications to Stotler in an 

attempt to obtain or continue obtaining cable service, valued in 

excess of $200. We accordingly affirm the conviction. 

 Affirmed.