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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