In re S.N. , 2011 Ohio 5983 ( 2011 )

[Cite as In re S.N., 2011-Ohio-5983.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
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IN THE MATTER OF: : Appellate Case No. 2011-CA-43
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S. N. : Trial Court Case No. 20110139
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:
: (Juvenile Appeal from
: (Common Pleas Court)
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:
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OPINION
Rendered on the 18th day of November, 2011.
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ANDREW R. PICEK, Atty. Reg. #0082121, Clark County Prosecutor’s Office, 50 East Columbia
Street, 4th Floor, Post Office Box 1608, Springfield, Ohio 45501
Attorney for Plaintiff-Appellee
JAMES N. GRIFFIN, Atty. Reg. #0015917, 8 North Limestone Street, Suite D, Springfield, Ohio
45502
Attorney for Defendant-Appellant
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FAIN, J.
{¶ 1} Defendant-appellant S.N. appeals from his adjudication of delinquency for Illegally
Manufacturing or Processing Explosives. S.N. contends that the State failed to present evidence
sufficient to support the adjudication. We conclude that the State failed to present evidence
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sufficient to support a finding that S.N. manufactured or processed an explosive. Accordingly, the
judgment of the Juvenile Court is Reversed and the adjudication of delinquency by reason of
violating R.C. 2923.17(B) is Vacated.
I
{¶ 2} S.N. and three other minors were arrested by the Springfield Police and charged with
being delinquent by reason of Illegally Manufacturing or Processing Explosives in violation of R.C.
2923.17(B), and Inducing Panic in violation of R.C. 2917.31(A)(3). The charges stemmed from an
incident at the Family Dollar store in Springfield during which, the State alleged, the boys set off
two bottle bombs.
{¶ 3} Three of the juveniles – S.N., his brother W.P., and T.R. – denied the delinquency
charges. At trial, the State presented testimony from two Family Dollar Store clerks, a Springfield
Police Sergeant, and a Springfield Fire Department Lieutenant.
{¶ 4} Cristi Paris testified that she had been working at the Family Dollar Store on January
30, when the four juvenile boys walked into the store. She testified that the one boy (who was not a
part of the trial below) attempted to purchase some spray paint, but was informed that he could not
do so because he was underage. She testified that he then purchased some toilet bowl cleaner and
some aluminum foil. Paris testified that the boy claimed, upon questioning, that he was making the
purchase for his mother. Paris testified that W.P. purchased some candy and that S.N. and T.R. had
remained in the front of the store during the transactions.
{¶ 5} Paris testified that the boys left the store together and that five or ten minutes later
she observed them running. Specifically, Paris testified that she saw the boy who had purchased the
toilet bowl cleaner and aluminum foil “running towards the door, throwing a bottle of stuff.” She
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testified that, at the same time, she observed the other three boys running toward the bank.
According to Paris, the bottle that had been thrown at the front door began to expand. She testified
that a patron of the store called the police, who evacuated the building while the fire department
dealt with the bottle.
{¶ 6} Tina Lynch also testified. Lynch was working as assistant manager at Family Dollar
on the date of the incident. Her testimony corroborated that of Paris with regard to the purchases
made. However, Lynch further testified that after the boys left the store, she was in the back of the
store unloading stock when she heard “a lot of laughter” coming from the area of the store’s outdoor
loading dock. When she looked out of the door window, she observed the four boys on the loading
area. Lynch testified that she continued to carry her stock into the main area of the store when she
observed Paris run out the front door of the store and tell the boys to “get away from the store and
stop throwing stuff.”
{¶ 7} Springfield Police Sergeant Kimberly Standley testified that when she responded to
the scene she observed a plastic bottle filled with liquid. She testified that the bottle was
expanding. Standley testified that she went into the store and spoke with the clerks after which she
went to the back of the building where she observed “a bottle that had exploded [on the loading
dock], a plastic bottle that had exploded. There was – the wind was very strong that day, and there
was still little balls of aluminum foil on the loading dock area, and there was a splatter of a liquid
substance on the area and on the door. There was an odor of a chemical in the air still.”
{¶ 8} Standley testified that she took one of the bottles as evidence and that she concluded
her investigation. As she was driving back to her office, Standley observed the four boys and sent
out a radio bulletin. The boys were subsequently arrested by another officer.
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{¶ 9} Springfield Fire Department Lieutenant, Robert Smith, testified that he responded to
the scene. He testified that he is certified in the containment of hazardous materials. Smith
testified he observed the bottle expanding and decided to use “scene tape” to secure the area around
the bottle. Smith then put on protective gear and used an eight foot “pike pole” to pierce the bottle.
{¶ 10} Smith testified that in his experience a bottle bomb is made by “mixing chemicals
that produce another component and gas.” He further testified that he believed that the bottle
contained a “hazardous material.” However, he admitted on cross-examination that he does not
have a degree in chemistry nor is he an expert in chemistry. Smith testified that he did not test the
substance in the bottle.1 Smith testified that combining baking soda and vinegar can “cause a gas
production and it would cause the same effect inside the bottle.” Finally, Smith testified that he
believed he classified the bottle as a “bomb, explosive device” on his official report. But Smith did
not testify that the bottle was, in fact, a bomb or explosive device, merely that he recorded it that
way on his report.
{¶ 11} All three boys testified that they were not involved with the purchase of the toilet
cleaner and aluminum foil. They testified that the fourth boy pulled a plastic bottle out of the trash
and put the bomb together. According to the boys, they did not know it was a bottle bomb and the
fourth boy merely told them that the bottle would make a loud noise. The boys testified that they
ran away after the first bottle exploded and that the fourth boy grabbed another bottle that he put
together and threw at the front door of the store.
{¶ 12} Following trial, the Juvenile Court dismissed the charge of Inducing Panic, but found
1
Nor is there any evidence that the substance from either bottle was tested by anyone else.
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S.N. delinquent for violating R.C. 2923.17(B). S.N. appeals.
II
{¶ 13} The sole assignment of error asserted by S.N. is as follows:
{¶ 14} “THE STATE OF OHIO FAILED TO PROVE BEYOND A REASONABLE
DOUBT THE OFFENSE OF UNLAWFUL POSSESSION OF A DANGEROUS ORDNANCE.”
{¶ 15} S.N. contends that the evidence presented by the State was not sufficient to sustain
the adjudication of delinquency.
{¶ 16} R.C. 2923.17(B), which proscribes illegally manufacturing or processing explosives,
provides as follows:
{¶ 17} “No person shall manufacture or process an explosive at any location in this state
unless the person first has been issued a license, certificate of registration, or permit to do so from a
fire official of a political subdivision of this state or from the office of the fire marshal.”
{¶ 18} “Explosive” is defined in R.C. 2923.11(M) as “any chemical compound, mixture, or
device, the primary or common purpose of which is to function by explosion. ‘Explosive’ includes
all materials that have been classified as division 1.1, division 1.2, division 1. 3, or division 1.4
explosives by the United States department of transportation in its regulations and includes, but is
not limited to, dynamite, black powder, pellet powders, initiating explosives, blasting caps, electric
blasting caps, safety fuses, fuse igniters, squibs, cordeau detonant fuses, instantaneous fuses, and
igniter cords and igniters. ‘Explosive’ does not include ‘fireworks,’ as defined in section 3743.01 of
the Revised Code, or any substance or material otherwise meeting the definition of explosive set
forth in this section that is manufactured, sold, possessed, transported, stored, or used in any activity
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described in section 3743.80 of the Revised Code, provided the activity is conducted in accordance
with all applicable laws, rules, and regulations, including, but not limited to, the provisions of
section 3743.80 of the Revised Code and the rules of the fire marshal adopted pursuant to section
3737.82 of the Revised Code.”2
{¶ 19} “Fireworks” are defined as any “composition or device prepared for the purpose of
producing a visible or an audible effect by combustion, deflagration, or detonation, except ordinary
matches and except as provided in section 3743.80 of the Revised Code.” R.C. 3743.01(F).
{¶ 20} An argument based on the sufficiency of the evidence challenges whether the State
presented adequate evidence on each element of the offense to allow the case to go to the jury or to
sustain the verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52.
“An appellate court's function when reviewing the sufficiency of the evidence to support a criminal
conviction is to examine the evidence admitted at trial to determine whether such evidence, if
believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt.”
State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, superseded by state
constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102,
1997-Ohio-355.
{¶ 21} In this case no one, expert or otherwise, testified that the substance in the bottle
constituted an explosive as defined by statute. There is nothing to indicate that toilet bowl cleaner
or aluminum foil, by themselves, constitute an explosive. Nor is there any evidence in this record
that combining the two products creates an explosive. It is not clear whether the ingredients must
be placed in a plastic bottle, as was done here, in order to create the explosive. In short, the State
2
R.C. 2923.11(M) was amended in 2008; all the cases cited by the parties involve offenses that occurred prior to the amendment.
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failed to present evidence upon which to base a finding that the substance, or the substance when
placed into a plastic bottle, constituted an explosive.
{¶ 22} A bottle bomb consisting of a two-liter soda pop bottle into which toilet bowl cleaner
(containing hydrochloric acid) and aluminum foil were placed, when sealed and shaken, was held to
constitute an explosive device, for purposes of R.C. 2923.11(H), in In re Travis (1996), 110 Ohio
App.3d 684, 690. But in that case there was testimony in the record that the bottle could explode,
and that “the explosion of such a device can cause physical harm to persons or property.” Id. at 687
and 690. There was no comparable testimony in the case before us.
{¶ 23} Judicial notice can only be taken of a fact “not subject to reasonable dispute in that it
is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of
accurate and ready determination by resort to sources whose accuracy cannot reasonably be
questioned.” Evid. R. 201(B). By that standard, the explosive nature of a bottle into which toilet
bowl cleaner and aluminum foil has been inserted cannot be the subject of judicial notice.
Furthermore, the taking of judicial notice requires notice to the party and an opportunity to be heard.
Evid. R. 201(E). S.N. was not provided with notice and an opportunity to be heard with respect to
judicial notice being taken of the explosive nature of the “bottle bombs” in this case.
{¶ 24} We conclude that the State failed to present evidence sufficient to prove that S.N.
manufactured or processed an explosive. S.N.’s sole assignment of error is sustained.
III
{¶ 25} S.N.’s sole assignment of error having been sustained, the judgment of the trial court
is Reversed and Vacated.
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DONOVAN and FROELICH, JJ., concur.
Copies mailed to:
Andrew R. Picek
James N. Griffin
Hon. Joseph N. Monnin