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State v. Bluel

Court of Appeals of Oregon

May 10, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
RODNEY KEITH BLUEL, II, Defendant-Appellant.

          Submitted February 26, 2014

         Marion County Circuit Court 11C48666; Lindsay R. Partridge, Judge.

          Peter Gartlan, Chief Defender, and Daniel C. Bennett, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Jona J. Maukonen, Assistant Attorney General, fled the brief for respondent.

          Before Duncan, Presiding Judge, and DeVore, Judge, [*] and Haselton, Senior Judge.

         Case Summary:

         Defendant appeals a judgment of conviction for two counts of unlawful manufacture of a destructive device. ORS 166.384. Defendant argues that the trial court erred in convicting defendant because the objects at issue were not "destructive devices, " but rather, "pyrotechnic devices, " which are excluded from the definition of "destructive device" under ORS 166.382. Held: Under the statutes that apply to this case, a "destructive device" does not include "any device which is designed primarily or redesigned primarily for use as a * * * pyrotechnic" device, ORS 166.382(2)(a), and a "pyrotechnic device" is a "firework, " which is defined as "any combustible or explosive composition or substance, or any combination of such compositions or substances, or any other article which was prepared for the purposes of providing a visible or audible effect, " former ORS 480.110(1), repealed by Or Laws 2013, ch 24, § 13. Because the trial court's express factual findings establish that the devices were designed primarily for the purposes of providing an audible effect, the trial court erred in convicting defendant of manufacturing destructive devices.

         Reversed.

          DUNCAN, P. J.

         In this criminal case, the state charged defendant with two counts of unlawful manufacture of a destructive device. ORS l66.384(1)(a). Defendant waived his right to a jury, and the trial court found defendant guilty of both counts. Defendant appeals. As explained below, we conclude that the trial court failed to apply the correct definition of "destructive device, " which excludes any device that "is designed primarily or redesigned primarily for use as a * * * pyrotechnic" device. ORS l66.384(1)(a); ORS 166.382(2)(a). We further conclude that, because the trial court's express factual findings establish that the devices at issue were designed primarily for use as pyrotechnic devices, the trial court erred in convicting defendant of manufacturing destructive devices. Accordingly, we reverse.

         We begin with the facts, which are undisputed. During a traffic stop in 2011, officers found two objects in defendant's truck. Defendant told the officers that the objects were firecrackers or fireworks and that he wanted to hear them "go boom." The first object was a small plastic container that held 28 grams of smokeless powder and 11 "snap pop" fireworks. The container had a hole with a four-inch fuse. The second object was similar, but it contained 24 grams of smokeless powder, seven "snap pop" fireworks, and it did not have a fuse.

         At trial, the state called a hazardous device technician, Blank, as a witness. Blank testified that if a person threw or stepped on the objects, the "snap pop" fireworks could ignite the smokeless powder, which would create heat and pressure that could cause the container to explode and send out plastic fragments. According to Blank, if a person stepped on one of the objects and it exploded, the person could be burned. In addition, if the object exploded and sent out plastic fragments, the fragments could injure a person.

         At the close of the state's case, defendant moved for a judgment of acquittal. Defendant argued that the objects at issue did not fall within the statutory definition of "destructive device" because that definition excludes any device that "is designed primarily or redesigned primarily for use as a *** pyrotechnic" device, ORS l66.382(2)(a), and that, under State ex rel Juv. Dept. v. Garrett. 193 Or.App. 629, 91 P.3d 830 (2004), "pyrotechnic devices" are "fireworks, " and "fireworks" are "combustible or explosive substances, including bombs, that are prepared for the purpose of providing a visual or audible effect." Specifically, defense counsel argued:

"[ORS l66.382(2)(a)] indicates that a pyrotechnic device is excluded from the definition of a destructive device, and * * * the Garrett case *** indicates that a pyrotechnic device is not denned by statute but the term generally refers to what we know as fireworks, and fireworks are defined as combustible or explosive substances, including bombs, that are prepared for the purpose of providing a visual or audible effect. * * * [ W] e are arguing that it clearly falls within the statute as one of the exclusions that it was a firework. By my client's own admission, he created it as a firework. He didn't knowingly create a destructive device, and if Your Honor finds that he did knowingly create a destructive device, that if it was considered a bomb, that it falls within the exclusions or what are kept out of the statute as a pyrotechnic device or a firework, by what he indicated it was."

         The trial court denied defendant's motion. Defendant did not present any evidence, and the case proceeded to closing arguments.

         In his closing argument, defense counsel again argued that the objects at issue were not "destructive devices" because they were "pyrotechnic devices, " that is, "fireworks." Specifically, defense counsel argued:

"I would like to point out specifically to [ORS] l66.382(2)(a) which defines destructive device. It says it does not include any device which is designed primarily or redesigned primarily-and I'm focusing on the word redesigned, showing that we can have one design for something but if we redesign it as a pyrotechnic device, and it says pyrotechnic device, we don't have a definition of pyrotechnic device by statute but in the Garrett case it says that we commonly refer to it as a firework. Now, that's what my client called it when he was stopped and arrested. He referred to it as a firework and that it would go boom, like a firework. So that is what he redesigned the materials that he had for, for a primary use of being a pyrotechnic device. We have the definition from Garrett of a firework. It's defined as combustible or explosive substance, and it says including bombs, that are prepared for the purpose of providing a visible or audible effect. And that goes further with what my client admitted to the officer that he made the device and that it was for to be a boom, like a firework. So we're advocating that it would be a pyrotechnic device."

(Emphasis added.)

         The trial court rejected defendant's arguments. At the outset of its ruling, the trial court found that defendant's intent in creating the devices "was to make some display or hear something go boom, or I can't remember what the words were. *** [T]he intent wasn't to create a device that was going to be used in some terrorist activity or something of that nature." But, the court concluded ...


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