State v. Johnson, Cr. N

• Decision Date: 29 December 1987
• Docket Number: Cr. N
• Citation: 417 N.W.2d 365
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Gary Lee JOHNSON, a/k/a Sam Johnson, Defendant and Appellant. o. 870097.
• Court: North Dakota Supreme Court

Page 365

417 N.W.2d 365

STATE of North Dakota, Plaintiff and Appellee, v. Gary Lee JOHNSON, a/k/a Sam Johnson, Defendant and Appellant.

Cr. No. 870097.

Supreme Court of North Dakota.

Dec. 29, 1987.

Michael C. O'Neel, Fargo, for defendant and appellant.

John Tainter Goff, Asst. State's Atty., Fargo, for plaintiff and appellee.

GIERKE, Justice.

Gary Lee Johnson (Johnson) appeals from a jury verdict convicting him of possession of explosives, a class C felony, in violation of Section 62.1-02-11, N.D.C.C. We affirm.

On September 16, 1986, there was an explosion in Johnson's South Fargo apartment. Johnson was taken to Dakota Hospital by F-M Ambulance. Johnson was suffering from a cut on his shoulder, a burn on his arm, an injury to two fingers, blown-out eardrums and a lacerated right eye.

The Fargo Fire Department responded to the blast. After it was determined that the fire was the result of an explosion, the Fargo Fire Department requested the assistance of the Fargo Police Department Bomb Squad. Police officers obtained a search warrant and seized several materials from Johnson's apartment. ¹ These materials were subsequently sent to the Department of Treasury, Bureau of Alcohol, Tobacco and Firearms, Forensic Science Laboratory for analysis. Thereafter, the results of the laboratory analysis were reviewed by an explosives enforcement officer of the Explosives Technology Branch.

Johnson was arrested and charged with possession of explosives in violation of Section 62.1-02-11 of the North Dakota Century Code.

On October 28, 1986, Johnson filed a motion to suppress an allegedly incriminating statement contending that the statement was made in violation of his Sixth Amendment right to counsel. A motion to dismiss the charge against him on the basis that the statute under which he is charged, Section 62.1-02-11, N.D.C.C., is unconstitutionally vague, overbroad and is inapplicable to the possession of low-explosive fireworks was also filed at this time.

On November 19, 1986, an evidentiary hearing was held on these motions. Following this hearing a decision was rendered on December 4, 1986, granting the motion to suppress all statements made by Johnson after being advised of his Miranda rights and after requesting the presence of counsel. It was further ordered on December 12, 1986, that Johnson's motion to dismiss be denied. A jury trial was held on January 27-30, 1987.

At trial, Johnson testified that he was making fireworks for his own aesthetic pleasure. Johnson further testified that he was making firecrackers which he called M-80s. These firecrackers consisted of fused cylinders of hollow craft paper which varied in diameter and length. ² Johnson stated that at the time of the explosion he was grinding potassium nitrate, charcoal, sulfur and copper sulfate with a mortar and pestle. Johnson inadvertently failed to keep the ingredients damp and the friction created between the ingredients and the mortar and pestle caused the materials to explode. The explosion threw off sparks onto a nearby box which caught fire. The box which contained saltpeter, potassium nitrate and an oxidizing agent burned rapidly and caused a flash burn up the wall of the apartment.

There was also testimony at trial from Willard Washington, a forensic chemist of the Bureau of Alcohol, Tobacco and Firearms. Mr. Washington testified that in the materials sent to the laboratory he discovered the presence of nitrates and nitrites which are oxidizers, as well as the presence of fine grade aluminum metal powder which is a common fuel found in incendiary and explosive mixtures. Mr. Washington further testified that such materials could produce an explosion as powerful as dynamite.

On January 30, 1987, the jury returned a verdict finding Johnson guilty of possession of explosives in violation of Section 62.1-02-11 of the North Dakota Century Code. On March 16, 1987, judgment was entered and Johnson was sentenced to one year in the State Penitentiary with the entire sentence suspended and supervised probation for one year. This appeal followed.

Johnson raises three issues on appeal. Initially, Johnson contends that the statute under which he was convicted, Section 62.1-02-11 of the North Dakota Century Code, is unconstitutionally vague. Next, Johnson asserts that Section 62.1-02-11 of the North Dakota Century Code is inapplicable to the materials which he possessed. Finally, Johnson contends that the trial court erred in refusing to give certain jury instructions requested by Johnson.

Johnson asserts that the statute under which he was convicted, Section 62.1-02-11 of the North Dakota Century Code, is unconstitutionally vague. Johnson argues that the meaning of Section 62.1-02-11 is not fairly ascertainable and that the statute allows too much discretion in its application.

The due process clauses of the State and Federal Constitutions require definiteness of criminal statutes so that the language, when measured by common understanding and practice, gives adequate warning of the conduct proscribed and marks boundaries sufficiently distinct for judges and juries to fairly administer the law. Olson v. City of West Fargo, 305 N.W.2d 821, 828 (N.D.1981); State v. Woodworth, 234 N.W.2d 243, 245 (N.D.1975).

The vagueness doctrine was stated by the United States Supreme Court in Kolender v. Lawson, 461 U.S. 352, 357-358, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903, 909 (1983), as follows:

"As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement."

Accordingly, the vagueness doctrine has two requirements: (1) that the statute provide adequate warning as to the conduct proscribed, and (2) that the statute establish minimal guidelines to govern law enforcement. Kolender v. Lawson, supra; State v. Woodworth, supra; State v. Hagge, 211 N.W.2d 395, 397 (N.D.1973); see also 21 Am.Jur.2d Criminal Law Sec. 17.

In the instant case, Johnson was convicted of possession of explosives in violation of Section 62.1-02-11 of the North Dakota Century Code which provides:

"Possessing explosives prohibited--Exception--Penalty. No person may have in custody, possession, or control, any nitroglycerin, dynamite, or any other dangerous or violent explosive unless the explosive is carried in the prosecution of or to affect a lawful and legitimate purpose. Any person violating this section is guilty of a class C felony."

Johnson claims that Section 62.1-02-11 of the North Dakota Century Code does not give adequate warning of the conduct proscribed and also that the statute provides no guidelines to govern law enforcement. Johnson contends that he had no notice that his possession of certain material was in violation of Section 62.1-02-11. Further, Johnson contends that law enforcement personnel had complete and arbitrary discretion in determining what constitutes a violation under Section 62.1-02-11.

In State v. Woodworth, supra, this Court stated that "[t]he test of definitiveness of a statute is met if the meaning of the statute is fairly ascertainable by reference to similar statutes or to the dictionary, or if the questioned words have a common and generally accepted meaning." Furthermore, in determining whether the meaning of the statute is fairly ascertainable or adequate warning is given, this Court must view the statute from the standpoint of the reasonable man who might be subject to its terms. State v. Woodworth, supra; State v. Hagge, supra.

Section 62.1-02-11, which prohibits the possession of explosives, is reasonably clear and definite such that it sufficiently sets forth the conduct proscribed. Also, the statute contains language which limits its application to the possession of any "dangerous or violent" substance which might explode.

Accordingly, we do not believe that Section 62.1-02-11, the possession of explosives statute, is so vague that a person of ordinary intelligence must necessarily guess at its meaning. Also, we do not believe that the possession of explosives statute is so vague and standardless that it leaves the judges and jurors free to decide what is or is not prohibited by the statute in each particular case. Therefore, we conclude that Section 62.1-02-11 satisfies the requirements of "due process".

Johnson's next contention is that he did not possess an explosive within the meaning of Section 62.1-02-11 of the North Dakota Century Code. Johnson claims that a clear reading of the statute does not dictate the inclusion of the materials which he possessed as dangerous or violent explosives.

Words and phrases used in any statute are to be understood in their ordinary sense, but any words or phrases explained or defined by statute must be construed as thus explained or defined. Sections 1-02-02, and 1-02-03, N.D.C.C. Thus, the meaning of Section...