Diane C. CARTER v. COMMONWEALTH of Virginia

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
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.

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