Robinson v. Com.

Present: All the Justices

CLIFFORD ROBINSON
OPINION BY CHIEF JUSTICE LEROY R. HASSELL, SR.
v. Record No. 061911 June 8, 2007

COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider whether the driver of a

vehicle was involved in an accident within the intendment of

Code § 46.2-894, a penal statute. This statute states in

relevant part:

"The driver of any vehicle involved in an
accident in which a person is killed or injured or
in which an attended vehicle or other attended
property is damaged shall immediately stop as close
to the scene of the accident as possible without
obstructing traffic . . . and report his name,
address, driver's license number, and vehicle
registration number forthwith to the State Police or
local law-enforcement agency, to the person struck
and injured if such person appears to be capable of
understanding and retaining the information, or to
the driver or some other occupant of the vehicle
collided with or to the custodian of other damaged
property. The driver shall also render reasonable
assistance to any person injured in such accident,
including taking such injured person to a physician,
surgeon, or hospital if it is apparent that medical
treatment is necessary or is requested by the
injured person.

. . . .

"Any person convicted of a violation of this
section is guilty of (i) a Class 5 felony if the
accident results in injury to or the death of any
person, or if the accident results in more than
$1000 of damage to property or (ii) a Class 1
misdemeanor if the accident results in damage of
$1000 or less to property."
 Clifford Robinson, Jr., was indicted by a Spotsylvania

County grand jury for reckless driving and for the felony

failure to stop and provide certain information in violation

of Code § 46.2-894. At a bench trial, the circuit court

convicted Robinson of reckless driving and fixed his

punishment at six months in jail. The circuit court convicted

Robinson of violating Code § 46.2-894 and fixed his punishment

at two years imprisonment, which was suspended, and a fine of

$1,000. The Court of Appeals affirmed the judgment of the

circuit court. Robinson v. Commonwealth, 48 Va. App. 623, 633

S.E.2d 737 (2006). We awarded Robinson an appeal limited

solely to a review of his conviction based upon the violation

of Code § 46.2-894.

The following evidence was adduced at trial. On June 2,

2004, around noon, Robinson was driving a sports utility

vehicle on Gordon Road in Spotsylvania County. He stopped his

vehicle to comply with a traffic control signal at the

intersection of Gordon Road and Harrison Road. Christine

Antonuccio, who was driving a Mustang automobile, stopped her

car beside Robinson's vehicle, at the same intersection. The

traffic light was red. Justin Antonuccio, who was four years

old, was seated in the rear of Christine Antonuccio's car.

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 Gordon Road consists of four lanes; two lanes permit

motor vehicle operators to travel north, and the other two

lanes permit motor vehicle operators to travel south. The

posted speed limit is 40 miles per hour. Approximately one-

tenth of a mile immediately south of the intersection where

Robinson and Antonuccio had stopped their vehicles, the two

lanes of travel on Gordon Road gradually merge into a single

lane. Two traffic signs contain the following warnings:

"Single Lane Ahead" and "Merge Right." Robinson's vehicle was

situated in the right lane, and he had the right-of-way.

Antonuccio's vehicle was situated in the left lane, which

merged into Robinson's lane, and she was required to yield the

right-of-way.

There were no imperfections on the surface of the road.

The road was dry; the sun was shining; and visibility was

clear.

Once the traffic control signal changed to green,

Robinson and Antonuccio began to drive their respective

vehicles south on Gordon Road. As Robinson began to drive his

vehicle, Antonuccio accelerated her car, and the two vehicles

were "side by side." Franklin McNeal Fleming, a deputy

sheriff with the Spotsylvania County Sheriff's Office,

testified about the following facts Robinson had provided

during Fleming's investigation of the accident.

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 "[Robinson] was sitting at the light at Harrison
Road on Gordon Road. He was in the curb lane at the
traffic signal, and the signal was red. He looked
to his left and he saw a red car pull up alongside
of him. He couldn't see who was driving the
vehicle.
"When the light turned green, [Robinson]
started to drive off. At that time the red car
started to accelerate and was keeping steady with
him, side by side. [Robinson] was in the proper
lane. The red car had to merge in front of him.
The red car kept coming at the same speed. Mr.
Robinson stated, having lived in the area for 17
years, he had seen other cars in the left lane cut
off drivers in that right lane, referring to the
lane that he was in.
"[Robinson] did say, quote, after 30 years in
the Marine Corps, I wasn't backing down. He
continued to drive at the same time the red car
continued to speed up. As they approached the spot
where the two lanes merge he backed down. The red
car had too much horsepower for his vehicle, and if
he hadn't slowed down [Robinson] would have crashed.
"After the red car was in front of [Robinson],
it started – went out of control and the car hit
some trees. [Robinson] drove past the crash and
then turned around and drove back to the – to the
driveway nearest the crash.
"And there was a . . . gentleman – he didn't
know the gentleman's name – that was trying to pull
some tree branches off of the car. [Robinson]
exited his vehicle and met the . . . man at the car
and he, himself, pulled limbs off of the vehicle and
attempted to, to get to the female who was still
inside the car. At that point he noticed she was
moving and she was making some sounds, but he
couldn't tell what sounds that they were.
"A short time later a trooper appeared. And at
that time the trooper allowed a gentleman in a van
to leave, and that's when [Robinson] left the scene.
He stated he did not want any part of what had
happened."

Fleming testified that he asked Robinson why he had not

permitted Antonuccio to drive her car in front of his vehicle

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and thereby merge. Robinson responded that "he was frustrated

about people cutting others off all the time when they tried

to merge at that location." Robinson told Fleming that

Robinson was traveling between 45 and 50 miles per hour when

Antonuccio tried to enter into his lane of travel. There was

no physical contact between Antonuccio's car and Robinson's

vehicle.

Robinson testified that when the traffic control light

turned green, he "inten[ded] to lead in such a way that

[Antonuccio] could come in behind [his vehicle]." Robinson

accelerated his vehicle "briskly," thereby preventing

Antonuccio from merging her car in front of his vehicle. When

Antonuccio refused to reduce the speed of her car, Robinson

"backed down because both lives were endangered [and] the cars

would have collided."

Fleming concluded, based upon his examination of

Antonuccio's speedometer after the accident, that she was

traveling 76 miles per hour when she lost control of her car.

Fleming testified that Antonuccio's car "went into a yaw."

According to Fleming, a yaw occurs "when the tires are still

rotating as the rubber is scrubbing against the roadway

pavement. Unlike a skid mark where you have a heavy black

line, with a yaw you actually [have] striations of the tire

and the tire tread as it's still in motion."

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 Antonuccio's car created 150 feet of yaw marks on the

road surface, and she never applied her brakes. After her car

left the roadway, the car traveled 38 feet and "crashed" into

a tree. The car struck another tree, and the car was "almost

cut in half." Antonuccio and her child died as a result of

injuries they incurred from the accident.

Fleming testified without objection that after Antonuccio

drove her car "totally inside" the merged lane, she had ample

opportunity to slow down. There were approximately "a hundred

fifty to two hundred feet from the end of the merge, or the

end of the left lane, to the point where [the] yaw mark

begins."

The day after the accident, sheriff's deputies, who had

received an anonymous tip, visited Robinson at his home. They

discussed the accident with him. They examined his sports

utility vehicle. They observed "pits and . . . cracks" in the

windshield and damage caused by gravel and rock debris when

Antonuccio's car left the roadway and traveled on the gravel

shoulder.

Robinson argued in the Court of Appeals, and argues in

this Court, that he was not involved in the accident within

the intendment of Code § 46.2-894. He contends that

Antonuccio lost control of her vehicle after he had reduced

the speed of his car to allow her to merge into his lane of

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travel, although he had the right-of-way. He argues that

Antonuccio lost control of her car because of her rapid

acceleration or excessive speed. Continuing, Robinson states

that the circuit court found that he was not responsible for

the accident and that he did not cause the deaths of

Antonuccio and her child. Responding, the Commonwealth

asserts that Robinson was involved in the accident.

This Court has not had an occasion to discuss the meaning

of the word "involved" within the intendment of Code § 46.2-

894. "Involved" is not defined within Code § 46.2-894 or

elsewhere in the Code of Virginia.

The construction of a statute is a question of law that

we review de novo upon appeal. Farrakhan v. Commonwealth, 273

Va. 177, 180, 639 S.E.2d 227, 229 (2007); Dowling v. Rowan,

270 Va. 510, 519, 621 S.E.2d 397, 401 (2005). When construing

penal statutes, a court must not add to the words of the

statute, nor ignore its actual words, and must strictly

construe the statute and limit its application to cases

falling clearly within its scope. Farrakhan, 273 Va. at 181,

639 S.E.2d at 230; Turner v. Commonwealth, 226 Va. 456, 459,

309 S.E.2d 337, 338 (1983). Additionally, "every part of a

statute is presumed to have some effect and no part will be

considered meaningless unless absolutely necessary." Hubbard

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v. Henrico Ltd. Partnership, 255 Va. 335, 340, 497 S.E.2d 335,

338 (1998).

The Commonwealth urges this Court to apply the

definitions of "involve" that the Court of Appeals utilized.

The Court of Appeals relied upon numerous dictionary

definitions of the word "involve" and concluded that

Robinson's conduct was within the intendment of Code § 46.2-

894. The Court of Appeals stated in its opinion:

" 'Involve' is defined, in pertinent part, as
'to draw in as a participant,' to 'implicate,' 'to
relate closely,' to 'connect,' 'to have an effect
on,' to 'concern directly,' to 'affect.' "
Webster's Third New International Dictionary 1191
(1993). Nothing in these definitions suggests that,
for purposes of determining criminal liability under
Code § 46.2-894, a driver must have legally caused
an accident in order to be considered 'involved' in
the accident."

48 Va. App. at 635-36, 633 S.E.2d at 743.

Upon our review of the language in Code § 46.2-894, we

note that the word "involved" is used as a participle

modifying a noun. There are 19 definitions of the word

"involved" and the word "involve" in Webster's Third New

International Dictionary, the source upon which the Court of

Appeals relied in its opinion. The use of such expansive

definitions of a word in a penal statute is contrary to our

well-established principle that when a statute "is penal in

nature, it must be strictly construed against the state and

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limited in application to cases falling clearly within the

language of the statute." Turner, 226 Va. at 459, 309 S.E.2d

at 338.

We explained this principle in McKay v. Commonwealth, 137

Va. 826, 830, 120 S.E.2d 138, 139 (1923):

"A penal statute cannot be extended by
implication or construction. It cannot be made to
embrace cases not within the letter though within
the reason and policy of the law.
"To constitute the offense the [defendant's
conduct] must be both within the letter and spirit
of the statute defining it. Those who contend that
a penalty is imposed must show that the words of the
act distinctly cover the case. No conviction can be
had if the words are merely equally capable of a
construction that would, and one that would not,
inflict the penalty.
"If a penal statute be so ambiguous as to leave
reasonable doubt of its meaning, it is the duty of
the court to refuse to impose the penalty."

Accord Berry v. Chesapeake, 209 Va. 525, 526, 165 S.E.2d 291,

292 (1969); Price v. Commonwealth, 209 Va. 383, 385-86, 164

S.E.2d 676, 678-79 (1968); McKinney v. Commonwealth, 207 Va.

239, 243, 148 S.E.2d 829, 831-32 (1966).

The numerous definitions of the word "involve" used by

the Court of Appeals would permit a fact finder to find a

driver guilty of a felony violation of Code § 46.2-894 even

though that driver was lawfully in his or her lane of travel,

obeyed all traffic laws, did not have any physical contact

with any other vehicle, person, or object, and was not a

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proximate cause of the accident. Surely, the General Assembly

did not contemplate such an expansive and far-reaching result.

Upon application of the rule of strict construction and

the language contained in Code § 46.2-894, including the word

"involved," we conclude that in order for a driver of a

vehicle to be involved in an accident within the intendment of

the statute, there must be physical contact between the

driver's vehicle and another vehicle, person, or object, or

the driver of a motor vehicle must have been a proximate cause

of an accident. And, we note, that in the application of

legal principles pertinent to a finding of proximate

causation, we have held that "[t]hese principles are constant

whether considered in a civil or criminal context." Gallimore

v. Commonwealth, 246 Va. 441, 447, 436 S.E.2d 421, 425 (1993).

This definition of the word "involved" within the intendment

of Code § 46.2-894 is consistent with the requirement that

penal statutes provide clear guidance to the public of the

specific conduct that is commanded or proscribed. We have

repeatedly held that a statute that creates a criminal offense

"must specify with reasonable certainty and definiteness the

conduct which is commanded or prohibited . . . so that a

person of ordinary intelligence may know what is thereby

required of him." Swisher v. Commonwealth, 256 Va. 471, 486,

506 S.E.2d 763, 771 (1998) (quoting Caldwell v. Commonwealth,

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198 Va. 454, 458, 94 S.E.2d 537, 540 (1956)); McCutcheon v.

Commonwealth, 224 Va. 30, 35, 294 S.E.2d 808, 811 (1982).

Applying this definition, we hold that Robinson was not

involved in the accident within the intendment of Code § 46.2-

894. The vehicle Robinson was operating did not have any

physical contact with Antonuccio's vehicle. The circuit court

expressly found that Robinson was not a cause of the accident.

Indeed, Robinson reduced the speed of his vehicle, which did

not exceed 50 miles per hour, and ultimately allowed

Antonuccio to enter into his lane of travel. Deputy Fleming,

who testified without objection as an expert witness on the

subject of accident reconstruction, stated that Antonuccio had

"ample opportunity to slow . . . down once merging in that

hundred fifty to two hundred feet" of roadway before she lost

control of her car, left the road, and collided into two

different trees.

Accordingly, we will reverse the judgment of the Court of

Appeals, and we will dismiss Robinson's conviction for

violation of Code § 46.2-894.

Reversed and dismissed.

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