COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Chafin and Senior Judge Bumgardner
UNPUBLISHED
Argued at Salem, Virginia
DAVID EDDIE LAMB
MEMORANDUM OPINION * BY
v. Record No. 0688-12-3 JUDGE TERESA M. CHAFIN
FEBRUARY 5, 2013
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
Malfourd W. Trumbo, Judge
Wilson C. Pasley for appellant.
Michael T. Judge, Senior Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General; Aaron J. Campbell, Assistant
Attorney General, on brief), for appellee.
David Eddie Lamb (“Lamb”) was convicted of fraudulently obtaining electric service in
violation of Code § 18.2-187.1(A). 1 On appeal, Lamb argues that the evidence presented was
insufficient to prove that he obtained electric service by fraud, or that he had the specific intent to
defraud when he obtained electric service. Finding the evidence sufficient to support Lamb’s
conviction, we affirm the trial court’s decision. 2
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Lamb’s wife, Linda Russell Lamb, was tried and convicted with Lamb for the same
charge arising from the same conduct. She appeals her conviction in Lamb v. Commonwealth,
Case No. 0710-12-3.
2
Lamb also argues that the trial court erred by holding that Code § 18.2-187.1(A) does
not require proof of some affirmative attempt to fraudulently obtain utility services following a
notice of disconnection of the service from the service provider. Assuming without deciding that
Code § 18.2-187.1(A) does require proof of an affirmative attempt to fraudulently obtain utility
services, we find that the evidence presented is sufficient to establish that Lamb fraudulently
obtained electric service through affirmative attempts in this case. As the evidence presented is
sufficient to support Lamb’s conviction under both the Commonwealth’s and Lamb’s
interpretation of the statute, we decline to address this argument at this time.
Background
“On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.
438, 443, 358 S.E.2d 415, 418 (1987)). So viewed, the evidence establishes that in 2011, Lamb
and his wife lived in a residence located in Eagle Rock, Virginia. They were the only individuals
that lived at this residence. Craig-Botetourt Electric Cooperative (“Craig-Botetourt”) provided
the Lambs’ electric service. Although Lamb’s wife was the listed account holder of the
Craig-Botetourt account, Craig-Botetourt also considered Lamb an account holder.
In early 2011, the Lambs owed a large balance on their electric bill. After the Lambs
broke an agreement to pay their overdue bill, Craig-Botetourt began the process of disconnecting
the service. Craig-Botetourt sent the Lambs four disconnect notices by regular mail addressed to
Lamb’s wife. The first and second disconnect notices contained disconnect dates of February 10,
2011 and March 10, 2011. The electric service, however, was not disconnected at those times
due to the State Corporation Commission’s policy of not permitting disconnection during the
winter months. The third notice had a disconnect date of April 10, 2011. When the electric
service was disconnected before that date, the State Corporation Commission ordered the service
restored. Although Craig-Botetourt sent a final disconnect notice with a disconnect date of May
10, 2011, it had already disconnected the Lambs’ electric service on April 13, 2011.
Craig-Botetourt disconnected the Lambs’ electric service by placing “boots” over their
meter’s bottom terminals. The boots achieved the disconnection by interrupting the flow of
electricity through the meter and into the residence. Once the boots were placed over the meter’s
bottom terminals, Craig-Botetourt placed the meter back onto its meter hub. Craig-Botetourt
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then placed a locked clasp over the meter hub that prevented anyone from removing the meter
without first removing the clasp.
Approximately six months later, Craig-Botetourt received an anonymous call about
suspected power theft at the Lamb residence. Although Craig-Botetourt used a monitoring
system that was capable of measuring electricity usage at a particular residence remotely from its
main office, this system only received data from remote meters drawing electricity continuously
for approximately seventy-two hours. 3 This system did not indicate that any electricity was
being used at the Lamb residence.
On October 7, 2011, Craig-Botetourt sent a crew to the Lamb residence to investigate.
Troy Duncan (“Duncan”), a supervising technician with Craig-Botetourt, examined the Lambs’
electric meter. Upon arriving at the residence, Duncan observed the Lambs’ meter disc turning.
When he removed the meter from its hub, Duncan found that the boots had been removed and
that the locked clasp had been cut. He also found a piece of scrap metal in the meter that he
recognized could be used for bridging circuits together in order to steal electricity. Based on a
meter reading taken by Duncan during this investigation, Craig-Botetourt determined that
$796.35 of electricity had been used from April 13, 2011 to October 7, 2011.
On October 17, 2011, Investigator John Mandeville (“Mandeville”) of the Botetourt
County Sheriff’s Department went to the Lamb residence and spoke to Lamb’s wife about the
power theft. Mandeville returned and interviewed Lamb on October 25, 2011. Both Lambs
denied turning the power back on or having knowledge as to who had done so. Lamb claimed
that one day he and his wife returned from the grocery store and the electricity was back on.
3
This seventy-two-hour period is necessary for an information packet to develop and
travel to the monitoring system. If the flow of electricity to a meter is disrupted during this time
period, the meter will never report a packet of information.
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Both Lambs told Mandeville that they thought that someone had paid their electric bill,
but neither had knowledge of their benefactor’s identity. Lamb told Mandeville that he had
contacted the Botetourt County Department of Social Services seeking assistance paying his
electric bill. Although the Department could not offer him assistance, Lamb said that they
directed him to other organizations that could help him. Lamb, however, failed to contact any of
those organizations or ask anyone else for help with the bill. Lamb never contacted
Craig-Botetourt about the payment of his electric bill after the reestablishment of his electric
service.
Analysis
The circumstantial evidence presented in this case is sufficient to support Lamb’s
conviction. Circumstantial evidence may be more compelling and persuasive than direct
evidence, and it is entitled to as much weight as direct evidence when convincing. See Britt v.
Commonwealth, 276 Va. 569, 573, 667 S.E.2d 763, 765 (2008). “Circumstantial evidence is not
viewed in isolation. While no single piece of evidence may be sufficient, the ‘combined force of
many concurrent and related circumstances, each insufficient in itself, may lead a reasonable
mind irresistibly to a conclusion.’” Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d
781, 786 (2003) (quoting Derr v. Commonwealth, 242 Va. 413, 425, 410 S.E.2d 662, 669
(1991)). “[D]irect proof of a fact is not essential if circumstantial evidence proves the same fact
and at the same time excludes every reasonable hypothesis to the contrary.” Veney v.
Commonwealth, 212 Va. 805, 806, 188 S.E.2d 80, 81 (1972).
The circumstantial evidence in this case establishes that Lamb intentionally obtained
electric service through an elaborate scheme to defraud Craig-Botetourt. Although no direct
evidence was presented establishing that Lamb personally altered his meter or arranged for
someone else to do so, this inference is implied by the evidence. In this case, Lamb’s electric
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meter was altered allowing him to obtain free electricity after Craig-Botetourt disconnected the
service, and Duncan found a piece of scrap metal in Lamb’s electric meter resembling those
commonly used to bypass meters to obtain free electricity. Lamb directly benefited from
receiving the free electricity obtained from Craig-Botetourt.
Further, the evidence in this case suggests that someone had to disrupt the flow of
electricity into the Lamb residence every seventy-two hours to avoid detection of the electricity
use by Craig-Botetourt’s monitoring system. 4 Duncan testified that a packet of information
develops during seventy-two hours of continuous electricity use that allows Craig-Botetourt to
monitor electricity use remotely. Another individual employed by Craig-Botetourt testified that
their monitoring system did not indicate that the Lamb residence was using any electricity during
the time period in question. When Duncan went to the Lamb residence to investigate the alleged
power theft, however, the Lambs’ electric meter was running. If electricity had run through the
meter for a continuous seventy-two-hour period at this time, Craig-Botetourt’s monitoring
system would have detected this electricity use.
The failure of Craig-Botetourt’s monitoring system to indicate electricity use by the
Lamb residence at a time period when the Lambs’ meter was observed to be running and
functioning properly implies that the meter had not been running continuously for seventy-two
hours at the time of observation. Thus, the meter had been disconnected or reconnected within
seventy-two hours of Duncan’s inspection. As Lamb’s electric service had been restored for an
extended period at this time, this disconnection and reconnection process must have occurred at
4
“When a defendant challenges on appeal the sufficiency of the evidence to sustain his
conviction, the appellate court has a duty to examine all the evidence that tends to support the
conviction. . . . [T]his examination is not limited to the evidence mentioned by a party in trial
argument or by the trial court in its ruling.” Bolden v. Commonwealth, 275 Va. 144, 147, 654
S.E.2d 584, 586 (2008) (emphasis added) (citations omitted). As this evidence is included in the
record and supports Lamb’s conviction, this Court must consider this evidence despite the fact
that it was not expressly argued at trial or mentioned by the circuit court.
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least once during every seventy-two-hour period of electricity use. Otherwise, the electricity use
would have been detected by Craig-Botetourt’s monitoring system. These implied frequent
disruptions in electric service suggest that Lamb actively participated in a calculated scheme to
fraudulently obtain electricity from Craig-Botetourt.
Although Lamb claimed that he believed that his electric service was restored because an
unknown benefactor paid his electric bill, the trial court was free to disbelieve this self-serving
testimony. “The credibility of the witnesses and the weight accorded the evidence are matters
solely for the fact finder who has the opportunity to see and hear that evidence as it is presented.”
Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995). “In its role of
judging witness credibility, the fact finder is entitled to disbelieve the self-serving testimony of
the accused and to conclude that the accused is lying to conceal his guilt.” Marable v.
Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998).
In the present case, Lamb could not identify his benefactor, and admitted that the only
agency that he had asked for help with this matter did not provide assistance. Lamb never
contacted Craig-Botetourt about the resumption of electric service, even though he knew that the
service had been disconnected for nonpayment. He made no efforts to verify that his delinquent
bills had been paid, or that the bills he incurred after resumption of the service were being paid.
These facts support the trial court’s disbelief of Lamb’s testimony in this case.
Conclusion
The evidence presented is sufficient to prove that Lamb fraudulently obtained electricity
from Craig-Botetourt. As the elaborate scheme utilized by Lamb to obtain this free electricity
was designed to avoid detection, the evidence presented also establishes that Lamb obtained this
electricity with fraudulent intent. For these reasons, the judgment of the circuit court is affirmed.
Affirmed.
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