                     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.
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
                                                          1
General to prosecute violations of Code § 32.1-27(A).          The
     1
      Code § 32.1-27(A) states:

            Any person willfully violating or refusing,
            failing, or neglecting to comply with any


                                  2
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.



                                 3
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.




                                   4
                                  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).



                                   5
         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        Collected By       Iron     Manganese
                        Location                          Content     Content
   May 1, 1989           Lot 81              Appellant   1.36 mg/L   .17 mg/L
  June 26, 1991          Lot 35            Kay Glass     1.61 mg/L   .18 mg/L
                      (kitchen tap)      (employee of
                                        the Department
                                          of Health)
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              Kay Glass   1.3 mg/L    .19 mg/L
                     (kitchen sink)
 March 25, 1992          Lot 60              Kay Glass   1.32 mg/L   .22 mg/L
                      (kitchen tap)



    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




                                         6
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.




                                   7
                              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


                                   8
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.




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