Penley v. Commonwealth
2008 Va. App. LEXIS 31, 655 S.E.2d 746, 51 Va. App. 166 (2008)
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Rule of Law:
For the purpose of determining the grade of offense for theft of utility services under Virginia Code § 18.2-187.1, the 'value of service' is limited to the fair market value of the service actually consumed by the defendant at the time of the theft. This valuation excludes consequential costs incurred by the utility company, such as investigation and disconnection fees, which are recoverable only as restitution.
Facts:
- On April 5, 2005, Dominion Virginia Power disconnected electrical service to Penley's home, at which time he owed the company $1,200.
- Sometime after April 5, Penley installed an illegal meter at his house to restore power.
- Between April 5 and April 29, 2005, Penley consumed $82.29 worth of electricity through the illegal meter.
- On April 29, 2005, a Dominion employee, Carl Wohlleb, discovered the illegal meter during a visit to Penley's house.
- Penley asked Wohlleb to 'look the other way' and, when Wohlleb refused, ordered him off the property.
- Dominion incurred several additional costs related to the incident, including fees for disconnection, investigation, and service technician visits, as well as a monthly customer fee and taxes.
Procedural Posture:
- Penley was charged with obtaining utility service by fraud, a felony, in a Virginia trial court.
- At the conclusion of the Commonwealth's case at his jury trial, Penley made a motion to strike the evidence, arguing it was insufficient to prove the value of the service obtained was $200 or more.
- The trial court denied Penley's motion, including various administrative and operational fees in its calculation of the total value, bringing the sum above the $200 felony threshold.
- The jury convicted Penley of the felony offense.
- Penley appealed his felony conviction to the Court of Appeals of Virginia, arguing the trial court erred in its valuation of the service.
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Issue:
Does the 'value of service, credit or benefit procured' under Virginia Code § 18.2-187.1 include administrative and operational costs incurred by a utility company as a result of the theft, in addition to the value of the utility itself, for the purpose of reaching the statutory felony threshold?
Opinions:
Majority - Annunziata, Judge
No. The 'value of service, credit or benefit procured' under the statute does not include consequential costs incurred by the utility provider. The offense of theft of services is a species of larceny, and therefore, its value is measured at the time of the taking. The value Penley 'took' was limited to the electrical current he used, not the subsequent costs incurred by the power company as a result of his theft. The court reasoned that the statute itself distinguishes between the 'value of service' for grading the offense and 'costs' that are recoverable through a separate order of restitution. Citing precedents like Parker v. Commonwealth, the court affirmed that value is measured at the time of the theft, and noted that the cost of producing or securing stolen items is not the proper measure of value.
Analysis:
This decision clarifies the valuation standard for theft of service offenses in Virginia, firmly aligning it with traditional larceny principles. By drawing a clear line between the 'value' of the service stolen and the consequential 'costs' incurred by the victim, the court prevents the government from elevating a misdemeanor offense to a felony by aggregating administrative and operational expenses. This holding ensures that the severity of the charge reflects the value of the benefit obtained by the defendant, rather than the victim's internal accounting or costs of investigation, thereby promoting consistency in how theft offenses are graded.
