Zambrana v. State

118 A.3d 773, 2015 Del. LEXIS 319, 2015 WL 3980458
CourtSupreme Court of Delaware
DecidedJune 30, 2015
Docket620, 2014
StatusPublished
Cited by7 cases

This text of 118 A.3d 773 (Zambrana v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zambrana v. State, 118 A.3d 773, 2015 Del. LEXIS 319, 2015 WL 3980458 (Del. 2015).

Opinions

VAUGHN, Justice,

for the Majority:

Defendant-Below/Appellant Mark Zam-brana was convicted by the Superior Court following a bench trial on two counts of Sexual Solicitation of a Child under 11 Del C. § 1112A. On appeal, he contends that his admitted misconduct of soliciting his 15 year old neighbor, S.Z., to remove her shirt and bra while he surreptitiously watched her did not qualify as sexual solicitation. He argues that § 1112A requires a defendant to create a physical “depiction” of the victim’s nudity in order to be convicted, and that he created no such “depiction” here. We disagree. Although the term “depiction” has multiple definitions, we find that for the purposes of § 1112A, “depiction” encompasses not only tangible manifestations such as photographs and videos, but also includes live conduct. This definition best accords with the statute as a whole and the legislative purpose in enacting it. Applying this definition to the facts before us, we conclude that Zambrana’s actions constituted Sexual Solicitation of a Child. Accordingly, we affirm.

I. FACTS AND PROCEDURAL HISTORY

S.Z., the child victim in this case, lived next door to Zambrana and his family. S.Z. was close to the Zambrana -family:' she was a frequent visitor to their home, was friends with Zambrana’s stepson who was only one year younger than her, and occasionally accompanied them on family trips. The Zambranas and S.Z.’s family also attended the same Congregation of Jehovah’s Witnesses. S.Z. described Zam-brana’s wife as her best friend and likened her to a surrogate mother.

In August 2012, Zambrana, then 26 years old, sent S.Z. a text message asking her to come to his house to try on a shirt he planned to give to his wife as a present. In the message, Zambrana instructed S.Z. to change in the bathroom and remove her bra when trying on the shirt. S.Z. walked next door to Zambrana’s house, and into the bathroom where Zambrana told her the shirt would be waiting for her. She then took off her own shirt and bra before putting on the shirt Zambrana had purchased for his wife. Before leaving the bathroom, S.Z. saw a leg behind the shower curtain. She asked several times, “Mark, is that you?” before Zambrana revealed himself, using the curtain to cover most of his naked body.1 S.Z. asked him what he was doing lurking behind the shower curtain. Zambrana told S.Z. that he had fantasies about her, and that he wanted to see her breasts.

S.Z. ran out of the bathroom and into a bedroom to change back into her clothing. When she tried to leave the house, Zam-brana grabbed her and apologized, but also urged her not to tell anyone what had happened. Zambrana warned S.Z. that nobody would believe her accusations, but it would hurt his wife and destroy his marriage. Zambrana sent S.Z. additional text messages that evening, apologizing and again urging her not to tell anyone.

The August 2012 incident was apparently not the first time Zambrana had attempted to view S.Z, naked; he asked her in July 2012, also via text message, to try on a shirt for his wife. But that time, S.Z. [775]*775did not take off her bra, and she did not see Zambrana while she was changing. S.Z. did not report either incident at first, but waited several months before she told Zambrana’s stepson what had transpired. She then told her parents, who called the police.

Zambrana was arrested and indicted on two counts of Sexual Solicitation of a Child. He requested a bench trial, which took place on September 4, 2013. Zam-brana did not testify at the trial, but the State introduced a video of Zambrana’s interview with the police, in which he readily admitted to spying on S.Z. while she was in the bathroom trying on clothes during the two incidents. He also readily admitted during questioning that he spied on S.Z. because he was obsessed with seeing her breasts so that he could masturbate and would fantasize about her. Zam-brana stated in his police interview that he had “an obsession with breasts,” and his intention was to “see her breasts so I could masturbate after she left.”2

In his closing statement, Zambrana’s attorney admitted that his client’s intention was “to get sexual gratification” from seeing S.Z. topless.3 Nevertheless, he argued that Zambrana’s viewing S.Z. in the nude for his own sexual pleasure did not fall within the statutory definition of a “prohibited sexual act.”4 The Superior Court rejected .Zambrana’s statutory interpretation -and found him guilty of both counts of Sexual Solicitation of a Child. He was sentenced to eight years and six months imprisonment at Level V, suspended after one year for six months of home confinement at Level IV and two years of probation at Level III. This appeal followed.

II. ANALYSIS

On appeal, Zambrana concedes that his conduct was “deviant and shameful,” but contends that it did not constitute sexual solicitation under 11 Del. C. § 1112A.5 Although Zambrana did not raise this precise claim before the Superior Court, the State does not argue that our review should be subject to a plain error standard of review and instead asks us to address this issue on its merits.6 Accordingly, we will consider Zambrana’s claim of statutory interpretation de novo.7

“In the construction of a statute, this Court has established as its standard the search for legislative intent. Where the intent of the legislature is clearly reflected by unambiguous language in the statute, the language itself controls.”8 “It is well established that [cjourts have no authority to vary the terms of a statute of clear meaning or ignore mandatory provisions.”9 “The application of the plain meaning rule, however, often varies from [776]*776case to case.10 If there is more than one reasonable interpretation, “the Court must apply accepted standards of statutory interpretation to arrive at what the legislature intended.”11 “To that end, the statute must be viewed as a whole, and literal or perceived interpretations which yield mischievous or absurd results are -to be avoided.”12 We must read each section in light of all others to produce a harmonious whole and. achieve a “sensible result.” 13 “We also ascribe a purpose to the General Assembly’s use of particular statutory language and construe it against sur-plusage if reasonably possible.”14 -

When interpreting criminal statutes, this Court is further governed by 11 Del. C. §§ 20315 and 221(c).16 § 203 mandates that criminal statutes are not to be strictly construed, but rather construed “according to the fair import of their terms to promote justice and effect the purposes of the law, [according to the general purposes of the Criminal Code].”17 § 221(c) mandates that when a word used in the Criminal Code is not defined therein, it is to be given “its commonly accepted meaning, and may be defined as appropriate” to fulfill the general purposes of the. Criminal Code.18

11 Del. C.

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Bluebook (online)
118 A.3d 773, 2015 Del. LEXIS 319, 2015 WL 3980458, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zambrana-v-state-del-2015.