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State v. Nickles

Court of Appeals of Oregon

October 2, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
DONALD EDWARD NICKLES, Defendant-Appellant.

          Argued and submitted May 31, 2018

          Coos County Circuit Court 16CR21589 Richard L. Barron, Judge.

          Kyle Krohn, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Jamie K. Contreras, Assistant Attorney General, argued the cause for respondent. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Armstrong, Presiding Judge, and Shorr, Judge, and Bunch, Judge pro tempore.

         Case Summary: Defendant appeals a judgment of conviction for unlawful possession of a destructive device, ORS 166.382, assigning error to the trial court's denial of his motion for judgment of acquittal on the ground that the state failed to adequately corroborate his confession, and, therefore, the confession was not sufficient to warrant conviction. ORS 136.425. The state argues that defendant's confession was adequately corroborated by the extent of defendant's injuries and a police officer's description of the device. Held: The trial court erred in denying defendant's motion for judgment of acquittal. Defendant's injuries did not tend to establish that defendant had unlawfully possessed an explosive device because those injuries could have been caused by either an unlawful explosive device or a lawful firework. Furthermore, the officer's description of the device was not corroborating evidence of defendant's confession because the description was derived from the confession itself; testimony that is based solely on a confession cannot serve to corroborate the confession because such testimony is dependent on the confession, and therefore does not constitute an independent, corroborating fact.

         [299 Or.App. 562] ARMSTRONG, P. J.

         Defendant appeals a judgment of conviction for unlawful possession of a destructive device, ORS 166.382, assigning error to the trial court's denial of his motion for judgment of acquittal. Defendant contends on appeal that the state failed to adequately corroborate his confession and, therefore, that the confession was not sufficient to warrant conviction. ORS 136.425(2). We conclude that the state failed to corroborate the confession with evidence that a crime had occurred, and, accordingly, we reverse defendant's conviction.

         When reviewing the denial of a motion for judgment of acquittal, we view the evidence in the light most favorable to the state and determine whether a rational factfinder could have inferred that the state had proven all of the essential elements of the charged crime beyond a reasonable doubt. See, e.g., State v. Hernandez, 256 Or.App. 363, 364, 300 P.3d 261, rev den, 353 Or. 868 (2013). However, we may include evidence of a defendant's confession in our consideration of whether the state has met that burden only if the confession is supported by legally sufficient corroborating evidence. State v. Simons, 214 Or.App. 675, 677, 167 P.3d 476 (2007), rev den, 344 Or. 43 (2008).

         Defendant and his girlfriend had been drinking when defendant decided to throw a homemade explosive device into a nearby lake. Defendant held onto the device after lighting the fuse because he wanted to time his throw so that the device would explode at the moment that it hit the water. However, defendant mistimed his throw, and the device detonated in his hand, causing severe injuries. Defendant was rushed to the hospital.

         Officer Floyd of the Coos County Sheriffs Department was dispatched to interview defendant at the hospital. When he arrived, Floyd knew only that someone in the hospital had suffered an injury from an explosive. Floyd found defendant in a room with a "very, very traumatic injury to his left hand." Floyd noted that defendant was alert but in serious pain. Floyd asked defendant what had happened, and defendant told him that he had constructed a device by filling an empty C02 cartridge with reloading powder and [299 Or.App. 563] attaching a fuse to it. At trial, Floyd described the device that defendant had created as a "field expedient hand grenade." According to Floyd, defendant said that he had created the device "with the intent of throwing it in the water and watching it explode." When asked if the device could possibly be a firework, Floyd testified that no firework would be constructed with a metal casing because such a design would be unsafe. Floyd also testified that the device would not have any significant visible effects when ignited.

         Defendant was charged with one count of unlawful manufacture of a destructive device and one count of unlawful possession of a destructive device. After the state presented its case-in-chief, defendant moved for a judgment of acquittal on both counts. The trial court granted defendant's motion with respect to the manufacturing count but denied it on the possession count. The trial court relied on Floyd's description of the device and his testimony regarding defendant's confession to conclude that the state had presented sufficient evidence from which the jury could infer that the state had proven all necessary elements of the crime of possession of a destructive device. The jury subsequently convicted defendant of that crime.

         As noted, defendant contends on appeal that the state failed to corroborate his confession. Generally, "a confession alone is not sufficient to warrant the conviction of the defendant without some other proof that the crime has been committed." ORS 136.425(2); see, e.g., State v. Hauskins, 251 Or.App. 34, 40, 281 P.3d 669 (2012) (to corroborate a confession, the state must introduce "proof of facts, independent of the confession itself, that the defendant committed the underlying crime"). The phrase "some other proof in the statute indicates that the legislature did not intend to require "full or complete" proof that a crime has been committed, but merely to require the introduction of evidence that tends to establish that a crime was committed. State v. Lerch, 296 Or. 377, 397, 677 P.2d 678 (1984). In determining whether the state adequately established that a crime occurred, we consider "whether, absent defendant's confession, there was legally sufficient corroborating evidence from which the jury could draw an inference that tends to prove that (1) the injury or harm specified in the crime occurred [299 Or.App. 564] and (2) that this injury or harm was caused by someone's criminal activity." State v. Moreno, 276 Or.App. 102, 108, 366 P.3d 839, rev den, 359 Or. 525, cert den, 137 S.Ct. 342 (2016) (internal quotation marks omitted).

         Here, there is no disagreement that defendant suffered the injury or harm implicated in the crime of possessing a destructive device. Defendant suffered severe injuries to his hand consistent with those caused by the explosion of a destructive device. The parties disagree over whether the state adequately ...


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