Zhurbin v. State , 104 A.3d 108 ( 2014 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
ANDREY ZHURBIN, §
§ No. 681, 2013
Defendant-Below, §
Appellant, § Court Below: Superior Court
§ of the State of Delaware in
v § and for New Castle County
§
STATE OF DELAWARE, §
§
Plaintiff-Below, §
Appellee. §
Submitted: October 8, 2014
Decided: October 17, 2014
Before STRINE, Chief Justice, HOLLAND, and RIDGELY, Justices.
Upon appeal from the Superior Court. AFFIRMED.
Nicole M. Walker, Esquire, Office of the Public Defender, Wilmington, Delaware, for
Appellant.
Karen V. Sullivan, Esquire, Department of Justice, Wilmington, Delaware, for Appellee.
STRINE, Chief Justice:
I. INTRODUCTION
Andrey Zhurbin appeals from a conviction by a jury for leaving the scene of a
collision, in violation of 21 Del. C. § 4201, following an accident that took place in the
Delaware Park Casino parking lot. Zhurbin alleges on appeal that his conviction should
be vacated because the collision occurred on private property, and he contends that a
collision must occur on a public highway to give rise to an offense under 21 Del. C.
§ 4201. But Zhurbin misreads the Delaware Code; a collision can occur on public or
private property for purposes of § 4201, based on the plain language of the statute and the
General Assembly’s express purpose in amending a previous version that did have such a
limitation. Further, because Zhurbin did not raise this issue before the Superior Court,
any failure of the court to grant a judgment of acquittal because of this issue must be
plain error, which it was not. Zhurbin’s appeal is therefore without merit.
II. BACKGROUND
The relevant facts from the record are undisputed. On the evening of October 9,
2012, Zhurbin was playing blackjack at the Delaware Park Casino when he was asked to
leave for engaging in “disorderly conduct.” Because he appeared to be intoxicated, the
casino’s security guard did not want Zhurbin to drive himself. Another patron, who did
not appear to know Zhurbin, volunteered to take him home. The security guard watched
the two exit the casino parking lot in the other patron’s car. But a short time later,
another patron saw Zhurbin’s Pontiac Firebird crash in the casino’s parking lot, hitting
multiple median guards and spinning into a ditch, before exiting onto the public street.
That patron called 911 for assistance, then followed the car to a Denny’s restaurant off of
l
parties themselves to frame the statutory issues if there is a concern that a statute does not
fairly apply.
As it was, although the Superior Court did err in instructing the jury, it did so in a
way that favored Zhurbin. In enumerating the elements of the charge of leaving the
scene, the Superior Court instructed the jury that it needed to find that the State had
proven beyond a reasonable doubt that: “The Defendant drove a motor vehicle on a
public roadway; the Defendant was involved in a collision; the collision resulted in
apparent damage to property of someone other than the Defendant; and the Defendant
failed to stop the vehicle at the scene of the collision.”23 Because driving on a public
roadway when the collision occurred was not actually an element of the crime, any error
in including it in the jury charge was harmless. There is no contention that the jury did
not have sufficient evidence to conclude beyond a reasonable doubt that Zhurbin
committed a violation of the statutorily required elements. Zhurbin thus suffered no
“manifest injustice” warranting reversal.
For the foregoing reasons, the judgment of the Superior Court is hereby
AFFIRMED.
23 App. to Opening Br. at 40 (emphasis added).
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Route 273. When the police arrived, the patron identified Zhurbin as the person exiting
the vehicle. Zhurbin at first told the responding police officer that the Firebird was not
his, but he had the keys to the car in his pocket, and he was injured in a manner consistent
with the accident described by the casino patron and the damage to the vehicle. Zhurbin
later insisted to the police officer that his friend “Bob” had been driving, but he could not
describe Bob or where he had gone after parking the car.
Zhurbin was indicted on four counts related to the accident: driving under the
influence, leaving the scene of an accident, removal of a vehicle from an accident scene,
and no proof of insurance. He was acquitted by a jury of driving under the influence, and
the state dismissed the fourth count after Zhurbin provided evidence of insurance at trial.
Zhurbin was convicted of the remaining charges.1 His only argument on appeal is that
his conviction for leaving the scene should be vacated, because the collision occurred on
private property, and he alleges that an accident giving rise to a conviction for leaving the
scene under § 4201 must occur on public property based on § 4101.
IH. ANALYSIS
As noted, Zhurbin’s argument regarding § 4201 was not presented below. Even if
it was, and the Superior Court had ruled upon it, we review legal rulings, including the
interpretation of statutes, de novo.2 Our analysis of the parties’ arguments begins with
the plain language of the statute: “Where a statute contains unambiguous language that
1 Zhurbin contends that his conviction for removal of a vehicle was likewise improper, but the
fine assessed ($75) was beneath the jurisdictional amount required to challenge it on appeal.
Opening Br. at 10, n.6. He does not challenge his conviction for careless driving, which also
resulted in a $75 fine.
2 See, e.g., CML V, LLC v. Bax, 28 A.2d 1037, 1040 (Del. 2011).
2
clearly reflects the intent of the legislature, then the language of the statute controls.”3
We also “‘read each [relevant] section [of the statute] in light of all the others to produce
a harmonious whole.’”4 But when a statute is ambiguous, the legislative record may be
helpful to resolve the ambiguity. Thus, “this Court may refer to parts of the legislative
record to establish the purpose of legislation where the record reveals more information
about the enactments.”5
Here, we must interpret 21 Del. C. § 4201(a), which establishes the duty of a
driver involved in a collision resulting in property damage or injury. The statute provides
in relevant part:
The driver of any vehicle involved in a collision resulting in apparent
damage to property shall immediately stop such vehicle at the scene of the
collision. Said stop should be made as close to the scene of the collision as
possible without obstructing traffic more than necessary. . . . If such
collision resulted in injury or death, the driver shall comply with § 4203 of
this title. . . . If the damage resulting from such collision is to the property
of the driver only, with no damage to the person, property of another, or the
environment, the driver need not stay at the scene of the collision but shall
immediately make a report of the damage resulting as required by § 4203 of
this title.6
Zhurbin admits that on its face, § 4201 is not limited to collisions that occur on
public roadways, nor can he find any such restriction in Chapter 42, which generally
3 Hoover v. State, 958 A.2d 816, 820 (Del. 2008) (citing Sandt v. Del. Solid Waste Auth, 640
A.2d 1030, 1032 (Del. 1994)).
4 Progressive N. Ins. Co. v. Mohr, 47 A.3d 492, 496 (Del. 2012) (citing CML V, LLC, 28 A.3d at
1041). See also United Savings Ass ’n v. Timbers of Inwood Forest Associates, 484 U.S. 365,
371 (1988) (“A provision that may seem ambiguous in isolation is ofien clarified by the
remainder of the statutory scheme — because the same terminology is used elsewhere in a context
that makes its meaning clear, or because only one of the permissible meanings produces a
substantive effect that is compatible with the rest of the law.”) (citations omitted).
5 Progressive N. Ins. Co., A.3d at 496 (citing Stiflel v. Malarkey, 378 A.2d 133, 138 (Del. Ch.
1 977)).
6 21 Del. C. §4201(a).
governs accident reporting. But he argues nonetheless that § 4201 is modified by 21 Del.
C. § 4101(a), which states that “[t]he provisions of this title [21] relating to the operation
of vehicles refer exclusively to the operation of vehicles upon highways except . . .
[w]here a different place is specifically referred to in a given section.” A highway is
defined elsewhere in Title 21 as “the entire width between boundary lines of every way
or place of whatever nature open to the use of the public as a matter of right for purposes
of vehicular travel, but does not include a road or driveway upon grounds owned by
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private persons . . . or other institutions. Because § 4201 is not specifically mentioned
as exempt in § 4101, and § 4201 does not explicitly refer to a “different place,” Zhurbin
contends that violations of § 4201 can only occur “upon highways,” not private
driveways or parking lots.
Notwithstanding Zhurbin’s argument, a plain reading of § 4201 itself and Chapter
42 more generally suggests that “the driver of any vehicle involved in an accident” means
any vehicle, not only one on a public highway.8 Moreover, § 4201 references § 4203,
which deals with the duty of a driver to report an accident to the police. Section 4203
requires a driver first to comply with § 4201 or § 4202, the related provision that deals
721 Del. C. § 101(22).
8 The State argues that Zhurbin’s argument is incorrect because § 4201 does not “relat[e] to the
operation of vehicles” within the meaning of § 4101. But by its plain terms, § 4201 clearly refers
to the “operation” of a vehicle, including its requirement that the driver stop the vehicle afier the
collision takes place and then move the vehicle if needed to prevent obstructing traffic.
Collisions, by definition, tend to involve at least one vehicle in operation, and the statute refers to
the duty of a “driver” to stop at the scene, likely for that obvious reason. As we have previously
held, “operation” is a broader term than driving, but driving a vehicle automatically constitutes
operating one: “while all driving is necessarily operation of a motor vehicle, not all operation is
necessarily driving.” McDuell v. State, 231 A.2d 265, 267 (Del. 1967).
4
with collisions resulting in death or injury to a person, and then mandates reporting to the
police only when:
(1) When the collision results in injury or death to any person [i.e., when
§ 4202 applies]; (2) When the collision occurs on a public highway and
results in property damage to an apparent extent of $500 or more; or
(3) When it appears that any collision involving a driver whose physical
ability is impaired as a result of the use of alcohol or drugs or any
combination thereof.9
If, as Zhurbin claims, § 4101 applies to § 4201 and requires a collision to occur on
a public highway for the driver to be liable for not stopping, the specific reference in
§ 4203 to “public highway” would not make sense. “We presume that the General
Assembly purposefully chose particular language and therefore construe statutes to avoid
surplusage if reasonably possible.”10
Most important, § 4201 was amended in 1988 to remove explicit language
requiring that an accident occur “on the public highways.”ll That is, before 1988, the
first sentence of § 4202(a) read:
The driver of any vehicle involved in an accident on the public highways
resulting in apparent damage to property shall immediate stop such vehicle
at the scene of the accident.12
After the 1988 amendment, that section changed to:
The driver of any vehicle involved in an accident resulting in apparent
damage to property shall immediately stop such vehicle at the scene of the
accident.13
9 21 Del. C. §4203(a) (emphasis added).
10 Sussex County Dept. of Elections v. Sussex County Republican Comm, 58 A.3d 418, 422 (Del.
2013).
“ See 66 Del. Laws. ch. 238, § 1 (1988).
‘2 21 Del. C. § 4201(a) (1987) (emphasis added).
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“In interpreting a statute, our primary job is to honor its apparent purpose based on
a sensible reading of the text. . . 3’14 In the context of drafting complex agreements, even
highly paid scriveners will often fail to write with perfect clarity. That is also true of a
state legislature, such as our General Assembly, charged with the difficult task of crafting
a comprehensive criminal code governing a wide range of human behavior.15
In advancing his argument, Zhurbin contends that we may consider other parts of
the Code in interpreting § 4201, but not the form of the statute itself as it has evolved
over time. We disagree. It would be disrespectful of our General Assembly for us to
blind ourselves to the fact that § 4201 used to contain an express limitation to public
roadways that was specifically deleted. Without referring to any statement at a legislative
hearing or even the synopsis of the amending bill, the obvious import of that amendment
was to eliminate any requirement that a collision involving injury to property has to occur
on public roadways in order for the obligations in § 4201 to apply. It is not a
13 66 Del. Laws. ch. 238, § 1 (1988). The sentence was altered again by a 2008 amendment,
substituting the word “collision” for “accident.” 76 Del. Laws, ch. 401, §§ 1-2 (2008).
‘4 Nationwide Mut. Ins. Co. v. Korngold, 318 A.2d 606, 609 (Del. 1974) (citation omitted); see
also 73 AM. J UR. 2d Statutes § 146 (1974) (“To apply a statute the fiindamental rule is to
ascertain and give effect to the intent of the legislature”); ROBERT A. KATZMANN, JUDGING
STATUTES 4 (2014) (“Our constitutional system charges Congress, the people’s branch of
representatives, with enacting laws. So, how Congress makes its purposes known, through text
and reliable accompanying materials constituting legislative history, should be respected, lest the
integrity of legislation be undermined”).
15 See, e.g., E. I. Du Pont De Nemours & Co. v. Clark, 88 A.2d 436, 532 (Del. 1952) (“The court
must necessarily be guided by the presumption that the Legislature did not intend an
unreasonable, absurd or unworkable result. If from the statute as a whole the object sought to be
attained or the general intent underlying the statutory language can be ascertained, it will be
given effect by the courts”).
controversial exercise of statutory interpretation to determine that legislative amendments
have meaning and to give them effect.16
If the General Assembly’s intent in deleting the public roadway limitation in
§ 4201 was solely to avoid surplusage from § 4101 for the sake of Code-drafting purity,
one would expect Zhurbin to point to legislative history to that effect. But he cannot, and
there is an important reason why that would be an odd way to understand the purpose of
the 1988 amendment. Before 1988, the same as it does today, § 4202 did not contain any
requirement for a collision to occur on public roadways.17 Section 4202 deals with the
category of collisions that might be thought to be the most important: those involving
injuries or death to human beings and not merely property damage. Yet § 4202 does not
mention § 4101. Zhurbin’s argument logically means that a driver could collide with a
pedestrian in a shopping center parking lot, and seriously injure or even kill the
pedestrian, and then flee the scene without consequence. That is, because § 4202, like
§ 4201, is silent on whether it applies to collisions on private property but is written to
suggest it applies to any collision, Zhurbin’s argument about § 4201 would apply to
§ 4202 as well.
‘6 See, e.g., 1A SUTHERLAND STATUTORY CONSTRUCTION § 22.30 (5th ed. 1992) (“[T]he mere
fact that the legislature enacts an amendment indicates that it thereby intended to change the
original act by creating a new right or withdrawing an existing one”). In two unanimous
decisions, the US. Supreme Court has also quoted Stone v. INS, 514 US. 386, 397, 115 S. Ct.
1537, 131 (1995), for the proposition that “[w]hen Congress acts to amend a statute, we presume
it intends its amendment to have real and substantial effect.” See US. v. Quality Stores, Inc., 134
S. Ct. 1395 (2014); Pierce County, Wash. v. Guillen, 537 US. 129, 145 (2003).
‘7 See 54 Del. Laws. ch. 160, § 1 (1963).
Courts should strive to give effect to the apparent intention of the legislature when
that yields a sensible result.18 The apparent intent of the General Assembly in removing
the words “on the public highways” was to do just that: eliminate the previous limitation
on the application of § 4201 beyond public highways. The General Assembly plainly
intended to put collisions involving property on a more equal footing with collisions
involving injury or death for the purposes of requiring drivers to stop, not, as Zhurbin
would have us hold, that drivers involved in collisions resulting in death or injury on
private roadways are also not required to stop.
To the extent that Zhurbin attempts to blind us to the specific deletion of words by
the legislature, we decline to do so. That would be disrespectful of the General
Assembly. Moreover, because Zhurbin must reach outside of the statutory provision at
issue, and even the chapter dealing with the duty of drivers to stop, it is appropriate for us
to widen our own lens. The obvious effect of the deletion is as we have said. But to the
extent that Zhurbin has any doubts, the synopsis to the amending bill literally underlines
the intent behind the proposed change: “This Act addresses changes as to required
procedures in traffic accidents: 1. Drivers would be required to stop at the scene of a_ll
accidents. At the present time, drivers are not required to stop at the scene of property
‘8 See, e.g., Application ofPenny Hill Corp, 154 A.2d 888, 891-92 (Del. 1959) (“To determine
the significance of these clauses as they appear in this statute, we must look into the purpose and
intention of the Legislature and ascertain its meaning from an examination of every section of
the statute which in any way deals with the question raised. They must be given a reasonable
and sensible meaning, having in mind such intent and purpose”) (citations omitted).
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damage accidents on private property.”19
Thus, the only relevant legislative history is
consistent with the obvious intent of the amendment.
For these reasons, Zhurbin’s argument that he was not validly convicted of an
offense under § 4201 is without merit. Moreover, Zhurbin did not make any claims about
the appropriateness of charging him with a § 4201 offense for an accident that occurred
on private property during the trial in the Superior Court. “We generally decline to
review contentions not raised below and not fairly presented to the trial court for
decision.”20 To warrant review on appeal when the issue has not been fairly presented,
there must be “plain error.” That is, the error complained of must be “so clearly
prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial
process.”21 “[T]he doctrine of plain error is limited to material defects which are
apparent on the face of the record; which are basic, serious and fundamental in their
character, and which clearly deprive an accused of a substantial right, or which clearly
show manifest inj ustice.”22
Zhurbin has not met this standard. Even if Zhurbin’s reading of § 4201 was
plausible, a trial judge cannot be faulted for plain error when he attempts, without
objection, to apply a seemingly applicable statute in a reasonable fashion. Plain error
must be that — plain and obvious — and trial judges are generally entitled to rely upon the
19 App. to Answering Br. at 4 (emphasis in original).
2° Turner v. State, 5 A.3d 612, 614 (Del. 2010).
2‘ Id. (quoting Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986); Dutton v. State, 452 A.2d
127, 146 (Del. 1982)) (internal quotations omitted).
22 Wainwright, 504 A.2d at 1100 (citing Bromwell v. State, 427 A.2d 884, 893 n.12 (Del. 1981)).
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