561
Argued and submitted May 31, 2018; reversed October 2, 2019
STATE OF OREGON,
Plaintiff-Respondent,
v.
DONALD EDWARD NICKLES,
Defendant-Appellant.
Coos County Circuit Court
16CR21589; A163384
451 P3d 624
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.
Reversed.
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, Office 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.
ARMSTRONG, P. J.
Reversed.
562 State v. Nickles
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 P3d 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 P3d
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 Sheriff’s 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 CO2 cartridge with reloading powder and
Cite as 299 Or App 561 (2019) 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 P3d 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 P2d 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
564 State v. Nickles
and (2) that this injury or harm was caused by someone’s
criminal activity.” State v. Moreno,
276 Or App 102, 108,
366
P3d 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 introduced evidence tending to prove that
defendant’s injuries were caused by criminal activity.
ORS 166.382 prohibits possession of a “destructive
device.”1 Although the offense includes bombs and grenades, the statutory definition excludes “any device which is
designed primarily or redesigned primarily for use as a …
pyrotechnic … device.” ORS 166.382(1), (2)(a). “Pyrotechnic
device” is not defined in the statute, but we have held that
it refers to what are commonly known as “fireworks.” State
ex rel Juv. Dept. v. Garrett, 193 Or App 629, 631,
91 P3d
830 (2004). “ ‘Fireworks’ are defined as combustible or explosive substances, including ‘bombs,’ that are ‘prepared for the
purpose of providing a visible or audible effect.’ ”
Id. (quoting former ORS 480.110(1)). In other words, a bomb—which
would normally be unlawful to possess—can nonetheless be
permissible to possess if it was prepared for the primary purpose of producing a visible or audible effect. State v. Bluel,
285 Or App 358, 369-70,
397 P3d 497 (2017) (“Whether the
objects fell within the definition of ‘fireworks,’ and therefore
were excluded from the definition of ‘destructive devices,’
was dependent upon defendant’s primary purpose in designing or redesigning them. … [I]f his primary purpose was
to use the objects to ‘provid[e] a visual or audible effect,’ then
they were ‘fireworks.’ ”).
1
ORS 166.382 provides, as relevant:
“(1) A person commits the crime of unlawful possession of a destructive
device if the person possesses:
“(a) Any of the following devices with an explosive, incendiary or poison
gas component:
“(A) Bomb;
“(B) Grenade.”
Cite as 299 Or App 561 (2019) 565
The state contends that the extent of defendant’s
injuries and Floyd’s testimony both corroborate defendant’s
confession. We start with defendant’s injuries. Although
his injuries are consistent with something exploding in his
hand, defendant’s injuries do not assist the state in establishing that the injury was caused by criminal conduct
rather than by one of the myriad noncriminal causes of traumatic hand injuries. Without relying on defendant’s confession for additional information about the explosion, a jury
would be left to speculate as to the cause of his hand injury
and whether it had resulted from the explosion of an illegal
device or, instead, something else, such as a firework or a
highly pressurized device that defendant lawfully could possess. Therefore, defendant’s injuries standing alone do not
tend to show that the harm was caused by criminal activity
and do not independently corroborate the confession.
Turning to the trial testimony, Floyd testified that
defendant’s device was not a pyrotechnic device because
it was too dangerous to be sold as a firework. Specifically,
Floyd testified that the device was a destructive device
because the metal casing rendered it unsafe for pyrotechnic
use. Floyd also testified that he did not consider the device
a pyrotechnic because the powder that defendant used to
make it would not create any visible effects when burned.
However, none of Floyd’s testimony provides any
independent evidence that criminal conduct caused defendant’s injuries, because Floyd’s description of the device was
derived solely from defendant’s confession. Floyd’s characterization of the device as a destructive device—not a firework—rested principally on the fact that defendant had
described it as having a metal casing. According to Floyd,
that metal casing rendered the device too dangerous to be
used as a pyrotechnic. Although that testimony would tend
to show that defendant had possessed a destructive device,
Floyd’s statements do not serve to corroborate defendant’s
confession, because his description of the device came solely
from the confession itself. Testimony that depends on a confession for the ostensibly corroborating facts in the testimony
cannot serve to corroborate the confession, because the testimony depends on the confession and, therefore, does not
provide independent, corroborating facts. See Hauskins, 251
566 State v. Nickles
Or App at 41 (“[A] fact cannot corroborate itself.”). There is
no independent evidence in the record to corroborate defendant’s description of the device, and, without that evidence,
the state failed to meet its burden to corroborate defendant’s
confession by introducing evidence other than the confession
that tends to show that criminal conduct caused defendant’s
injuries.
Because there is no evidence independent of defendant’s confession that tends to show that defendant’s injuries were caused by his unlawful possession of a destructive
device, the state failed to adequately corroborate defendant’s
confession. Defendant’s uncorroborated confession cannot
be considered when determining whether a rational trier of
fact could find that the state had proved defendant’s guilt
beyond a reasonable doubt. See Simons, 214 Or App at 677.
Without defendant’s confession, the state did not introduce
sufficient evidence from which the jury could have found
that defendant possessed a destructive device. Accordingly,
the trial court erred in denying defendant’s motion for judgment of acquittal.
Reversed.
