## Facts

- Dominion Virginia Power disconnected Eckle Gladey Penley, Jr.’s electric service for nonpayment on April 5, 2005, and removed his meter.
- On April 29, 2005, a Dominion employee inspected the property to determine whether electricity was still being used and found an illegally installed meter supplying power to the residence.
- A police officer responded and arrested Penley; evidence included Penley’s statements acknowledging his service had been cut off and that he had continued receiving power.
- Dominion’s evidence at trial placed the value of electricity consumed during the relevant period at $82.29.
- Dominion also presented additional “associated” charges totaling $155.27 tied to disconnection, inspection, and related activity.
- The trial court aggregated the $82.29 electricity value and $155.27 in associated charges to exceed $200, and the jury convicted Penley of felony obtaining utility service by fraud under Va. Code § 18.2-187.1.

## Issues

1. Whether, under Va. Code § 18.2-187.1, the “value of the service, credit or benefit procured” includes the utility’s ancillary charges incurred in detecting and terminating the theft.
2. Whether the evidence was sufficient to prove the $200 value threshold required for a felony conviction when the electricity obtained was valued at $82.29.

## Decision

- The Court of Appeals of Virginia reversed the felony conviction.
- The court held the statutory valuation for grading the offense is limited to the value of the utility service actually procured (the electricity), not the utility’s investigative or disconnection-related costs.
- Because the evidence showed only $82.29 in electricity was obtained, the Commonwealth failed to prove the felony threshold of $200 or more.
- The court remanded for resentencing on the lesser-included misdemeanor offense, finding the evidence sufficient to prove obtaining utility service by fraud below the felony threshold.

## Legal Principles

- For Va. Code § 18.2-187.1, “value of the service, credit or benefit procured” means the value of the utility service obtained by the defendant at the time it was taken.
- Costs incurred by the utility in responding to the theft (e.g., disconnection fees, inspection visits, administrative charges) are not part of the valuation used to determine felony versus misdemeanor liability.
- The statute’s restitution authorization may permit recovery of both the value of services unlawfully obtained and associated costs, but only the former governs offense classification.
- When proof fails as to the felony value element but establishes the remaining elements of the offense, the proper remedy is reversal of the felony conviction and remand for sentencing on the misdemeanor lesser-included offense.

## Conclusion

The court held that felony utility fraud under Va. Code § 18.2-187.1 requires proof that the value of electricity actually procured by fraud meets the statutory threshold, and that the utility’s ancillary costs may support restitution but cannot be used to elevate the offense to a felony.


Penley v. Commonwealth, 51 Va. App. 166, 655 S.E.2d 746 (Va. Ct. App. 2008)