State v. Durgin, 67475
| Decision Date | 19 January 1983 |
| Docket Number | No. 67475,67475 |
| Citation | 328 N.W.2d 507 |
| Parties | STATE of Iowa, Appellee, v. Robert Lawrence DURGIN, Jr., Appellant. |
| Court | Iowa Supreme Court |
Charles L. Harrington, Asst. Appellate Defender, Des Moines, for appellant.
Thomas J. Miller, Atty. Gen., John Messina, Asst. Atty. Gen., and Lew Eells, Asst. County Atty., for appellant.
Considered by HARRIS, P.J., and McGIVERIN, LARSON, SCHULTZ and CARTER, JJ.
Defendant Robert Lawrence Durgin, Jr., appeals his conviction of possession of an explosive device under Iowa Code section 712.6 (1981). That statute provides:
Any person who shall possess any incendiary or explosive device or material with the intent to use such device or material to commit any public offense shall be guilty of a class "C" felony.
Defendant contends there was insufficient evidence to establish, as an essential element of the charge, his intent to use such device to commit a public offense. At trial the State claimed he intended to use the device to violate the fireworks statute. Iowa Code § 727.2 (1981) (). Defendant points out the punishment for possessing an explosive device (class "C" felony) would be more severe than using or exploding the device under the fireworks statute. The State now concedes it was error to prosecute defendant under section 712.6 by so utilizing the fireworks statute but questions whether error in that regard was preserved by defendant. We believe it was preserved, and, accordingly, we reverse the conviction. Reversal of defendant's conviction precludes the need of addressing a second issue raised by defendant: whether the court erred in overruling his motion to suppress.
A plain clothes police officer observed defendant and a juvenile companion leave a Cedar Rapids bar and remove several items, including a Tupperware container, from the trunk of defendant's car, which was in a parking lot. The officer's suspicions were aroused; he parked his unmarked car and walked over to the defendant and his companion who were then seated in defendant's car. The officer required them to place their hands on the dashboard. With the aid of the illumination of a flashlight, the officer observed a box of .22 caliber cartridges, a red box, blasting fuses, a Tupperware container, some roles of black tape and wirecutters inside the car. Defendant and his friend were ordered out of the car, and the officer removed the items he had seen. Inside the Tupperware container the officer found blasting caps wired together with a fuse attached.
Defendant was arrested and taken to the police station where he allegedly admitted that he and his companion had detonated some blasting caps on Mount Vernon Road in Linn County. Defendant was charged under section 712.6 with possession of an explosive device with intent to commit a public offense.
At trial defendant made a timely motion for a judgment of acquittal, contending that there was "no evidence to indicate any public offense which was committed ... or intended to be committed by the defendant." We hold he preserved for review the question of whether it was error to prosecute and convict defendant by using the fireworks statute, section 727.2, to satisfy the intent element of section 712.6.
I. We agree with the State that the issue before us involves the harmonization of Iowa Code sections 727.2 and 101A.1(1). Both sections were part of the revision of the Iowa Criminal Code, effective January 1, 1978. We also consider these sections in relation to section 712.6, "possession of explosive or incendiary devices or materials."
Section 101A.1(1) provides:
"Explosive" or "explosives" means any chemical compound, mixture or device, the primary or common purpose of which is to function by explosion, i.e., with substantially instantaneous release of gas and heat, unless such compound, mixture, or device is otherwise specifically classified by the United States department of transportation. The term "explosives" includes all material which is classified as class A, class B, and class C explosives by the United States department of transportation, and includes, but is not limited to, dynamite, black powder, pellet powders, initiating explosives, blasting caps, electric blasting caps, safety fuse, fuse lighters, fuse igniters, squibs, cordeau detonative fuse, instantaneous fuse, igniter cord, igniters, smokeless propellant, cartridges for propellant-actuated power devices and cartridges for industrial guns, but shall not include "fireworks" as defined in section 727.2 nor ammunition or small arms primers manufactured for use in shotguns, rifles, and pistols. Commercial explosives are those explosives which are intended to be used in commercial or industrial operations.
(Emphasis added.)
Section 727.2 provides in part:
The term "fireworks" shall mean and include any explosive composition, or combination of explosive substances, or article prepared for the purpose of producing a visible or audible effect by combustion, explosion, deflagration or detonation, and shall include blank cartridges, firecrackers, torpedoes, skyrockets, roman candles, or other fireworks of like construction and any fireworks containing any explosive or inflammable compound, or other device containing any explosive substance....
The revision of the Iowa Criminal Code consisted of the enactment of a myriad of corrective and substantive amendments. Due to the extensive scope of this revision, it occasionally is necessary for us to harmonize apparently conflicting sections. See Iowa Code § 4.11; State v. Peterson, 327 N.W.2d 735 (Iowa 1982). In so doing, our ultimate goal is to ascertain, and, if possible, give effect to legislative intent. Iowa Beef Processors, Inc. v. Miller, 312 N.W.2d 530, 532 (Iowa 1981); State v. Harrison, 325 N.W.2d 770, 772 (Iowa App.1982).
The statutes before us concern the definition of explosive materials and substances. These statutes also illustrate the legislature's power to define crime. See State v. Welton, ...
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