and submitted May 31, 2018
County Circuit Court 16CR21589 Richard L. Barron, Judge.
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
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.
Armstrong, Presiding Judge, and Shorr, Judge, and Bunch,
Judge pro tempore.
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.
Or.App. 562] ARMSTRONG, P. J.
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.
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
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
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.
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.
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).
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 ...