State v. J.N.S. (In re J.N.S.)
| Decision Date | 28 August 2013 |
| Docket Number | A147805.,J13282,00406528 |
| Citation | 258 Or.App. 310,308 P.3d 1112 |
| Parties | In the Matter of J.N.S., a Youth. State of Oregon, Petitioner–Respondent, v. J.N.S., Appellant. |
| Court | Oregon Court of Appeals |
OPINION TEXT STARTS HERE
Christa Obold–Eshleman argued the cause and filed the briefs for appellant.
Shannon T. Reel, Assistant Attorney General, argued the cause for respondent. With her on the briefs were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.
Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and DUNCAN, Judge.
Youth appeals the juvenile court's delinquency judgment. For the reasons explained below, we conclude that the state failed to present sufficient evidence to support a conclusion that youth engaged in conduct that, if committed by an adult, would constitute burglary in the second degree, ORS 164.215, and that the juvenile court did not correctly apply the definition of destructive device in analyzing whether youth engaged in conduct that, if committed by an adult, would constitute unlawful possession of a destructive device, ORS 166.382, and unlawful manufacture of a destructive device, ORS 166.384. Therefore, we (1) reverse the judgment finding youth within the jurisdiction of the court for second-degree burglary and remand for entry of a judgment finding youth within the jurisdiction of the court for second-degree criminal trespass and for resentencing, (2) reverse and remand for a new trial on the allegations of unlawful possession of a destructive device and unlawful manufacture of a destructive device, and (3) otherwise affirm.
We review the juvenile court's legal conclusions for errors of law, and we are bound by the court's findings of fact so long as there is evidence in the record to support them. State v. S.T.S, 236 Or.App. 646, 655, 238 P.3d 53 (2010). If the court did not make findings on disputed issues of fact, and there is evidence to support more than one factual conclusion, we presume that the court decided the facts in a manner consistent with the court's ultimate conclusion. State v. G.L.D., 253 Or.App. 416, 418–19, 290 P.3d 852 (2012).
We begin with the relevant facts. Youth and a companion entered a vacant house after throwing a rock through a back-door window and unlocking the door. Once inside, they took a key. Officers arrived at the house in response to a report of a break-in and detained youth and his companion as they were leaving the house. Youth told one of the officers that he thought the house “would be a cool place to hang out” and that “it was okay since no one lived there and no one owned it.” Officers searched youth's bag and found a modified tennis ball and a magnesium fire starter, among other items. The tennis ball was filled with smokeless gunpowder and had an improvised fuse made from a “Pixie Stick” wrapper and black tape. Youth told the officer that he had “cut [the tennis ball] open, filled it with gunpowder and taped up the hole and the fuse” in his bedroom and “was going to set it off later outside.”
The state filed a delinquency petition alleging that youth had engaged in conduct that, if committed by an adult, would constitute burglary in the second degree (Count 1), ORS 164.215, unlawful possession of a destructive device (Count 2), ORS 166.382, unlawful manufacture of a destructive device (Count 3), ORS 166.384, criminal mischief in the third degree (Count 4), ORS 164.345, and theft in the third degree (Count 5), ORS 164.043.
During the delinquency hearing, the state called, among other witnesses, an Oregon State Police detective who worked in the agency's arson and explosives units. The detective testified that, if lit, the Pixie Stick fuse would burn until it ignited the smokeless gunpowder inside the tennis ball, which would create “an incendiary and over-pressure effect.” The detective explained that, in an over-pressure situation, “the gases build up within the container to the point where the container would breach.” In the case of the tennis ball device, that would create a “fireball” of about one to one and one-half feet. Although the tennis ball device would have created a visual and audible effect, the detective did not believe that it was a “pyrotechnic” device. The detective acknowledged that the explosion of the tennis ball device would have been on the “very low end of the scale,” relative to what he would expect for a bomb, but opined that pieces of the rubber shell could inflict serious cuts or burns on a person within a six- to eight-foot radius of the device.
After the state presented its case, youth moved to dismiss the burglary count on the ground that the state had failed to prove that he entered the house with the intent to commit a crime therein. The court denied the motion, explaining its view that a person may be convicted of burglary if the person enters a building unlawfully, even if the person does not have the intent to commit a crime in the building at the time of his or her entry:
Youth also moved to dismiss the counts for unlawful possession of a destructive device and unlawful manufacture of a destructive device count on the ground that the state had failed to prove that the tennis ball device was a “destructive device” as defined by ORS 166.382. The court denied the motion, stating that, although it believed that youth was not “intending to create something that was going to be of particular damage to somebody else,” the statutes prohibiting the possession and manufacture of destructive devices were intended to apply to “these kinds of devices * * *.”
Youth then took the stand. Regarding the alleged burglary, he testified that he entered the vacant house because he thought that “it'd just be a cool place to hang out.” He was acquainted with the former occupants of the house and had been inside the house when they had lived there. Youth believed that no one owned the house; he thought that it was “just an abandoned building.” In response to questioning from defense counsel, youth testified that the house was “totally empty,” and that, when he first entered the house, he was unaware of the existence of the key that his companion found inside.
Regarding the alleged possession and manufacture of a destructive device, youth testified that he had not decided whether he would light the tennis ball device, but if he did light it, he would have done so in an open space, “like a basketball court or tennis court,” where there are “not usually very many people around.” Youth stated that his purpose in making the tennis ball device was to show it to his companion and to create a “visual display,” “[l]ike a bright flash.” He intended the device to be “something that would be cool to look at.”
At the close of the evidence, the court first found youth within the jurisdiction of the court for committing acts that, if committed by an adult, would constitute second-degree burglary. The court stated, “[I]t's the entry or remaining in a building with the intent to commit a crime of some kind or nature, either going into it or while you're remaining in there.” The court then found youth within its jurisdiction for unlawful possession of a destructive device and unlawful manufacture of a destructive device, merging the two counts. The court reasoned that the tennis ball device was “either an explosive or incendiary device, or a component,” and remarked, “[Youth] did say that it was a pyrotechnic, which is an incendiary device.” Thus, it appears that the court believed that pyrotechnic devices are destructive devices. The court also found youth within its jurisdiction for criminal mischief in the third degree for breaking the back-door window and theft in the third degree for taking the key. After the court delivered its ruling, it told youth, “I don't think you had that intent to hurt somebody else, but you did a foolish thing.”
On appeal, youth advances three assignments of error.1 Youth's first assignment of error is directed at the burglary count. Youth argues that the juvenile court erred in concluding that youth's intent to steal the key, formed after youth unlawfully entered the vacant house, was sufficient to establish the specific intent element of burglary.
Youth's second assignment of error is directed at the counts alleging unlawful possession and manufacture of a destructive device. Youth argues that the court erred in failing to hold that the tennis ball device fell within the exclusion for “pyrotechnic” devices in ORS 166.382(2)(a).
Youth's third assignment of error is directed at the third-degree theft count. He argues that the court erred in adjudicating youth delinquent for theft in the third degree because the state failed to prove that the key had any value. We reject that assignment of error without discussion.
We begin with youth's first assignment of error. Youth argues that the state's evidence was insufficient to establish that he committed burglary in the second degree because, although the evidence established that he entered the house unlawfully, it did not establish that he entered the house with the intent to commit a crime therein. Instead, according to youth, the state's evidence established, at most, that he formed the intent to commit a crime—theft of the key—only after he entered the house. In response, the state argues that its evidence was sufficient because it established that youth formed the intent to steal the key while he unlawfully remained inside the house. In the state's view, a person commits second-degree burglary if the person enters a building unlawfully and, once inside, forms the intent to commit a crime therein.
With the issue thus...
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