IN THE MATTER OF: B.J., DELINQUENT CHILD.
CASE NO. 2013-L-091
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO
December 22, 2014
[Cite as In re B.J., 2014-Ohio-5701.]
TIMOTHY P. CANNON, P.J.
O P I N I O N
Judgment: Affirmed in part, reversed and vacated in part.
Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Appellee State of Ohio).
Neil R. Wilson, Neil R. Wilson Co., L.P.A., FirstMerit Bank Building, 56 Liberty Street, Suite 205, Painesville, OH 44077 (For Appellant B.J., a minor).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, B.J., a minor, appeals an adjudication of delinquency by the Lake County Court of Common Pleas, Juvenile Division, for unlawful possession of a dangerous ordnance, illegal manufacture or processing of explosives, and complicity to criminal mischief. We find appellant‘s second assignment of error with merit to the extent discussed below and reverse the finding of “true” by the trial court on those counts.
Count One - Unlawful Possession of a Dangerous Ordnance in violation of
R.C. 2923.17(A) ;Count Two - Illegal Manufacture or Processing of Explosives in violation of
R.C. 2923.17(B) ;Count Three - Complicity to Unlawful Possession of Dangerous Ordnance in violation of
R.C. 2923.03(A)(2) ;Count Four - Complicity to Illegal Manufacture or Processing of Explosive in violation of
R.C. 2923.03(A)(2) ;Count Five - Complicity to Criminal Mischief in violation of
R.C. 2923.03(A)(2) ;Count Six - Complicity to Criminal Mischief in violation of
R.C. 2923.03(A)(2) ; andCount Seven - Disorderly Conduct in violation of
R.C. 2917.11(A)(1) .
{¶3} Appellant entered a plea of “not true” to Counts One through Six. Appellant pled no contest to Count Seven, disorderly conduct.
{¶4} On August 16, 2013, a suppression hearing was held at which appellant sought to have his interview with Matthew Gosnik, an officer with the Madison Township Police Department, suppressed. At the hearing, the court heard the testimony of Officer Gosnik and of appellant‘s father. The court then overruled the motion to suppress, finding that appellant was not in police custody and that the questioning was a “consensual conversation.”
{¶5} Immediately after the suppression hearing, a trial was held. At trial, the state called the following as witnesses: Officer Matthew Gosnik; David Green, a
{¶6} The court ordered appellant to a minimum of six months in the legal custody of Ohio Department of Youth Services (“DYS“) and a maximum period not to exceed appellant attaining the age of 21 on Count One; a minimum of one year in the legal custody of Ohio DYS and a maximum period not to exceed appellant attaining the age of 21 on Count Two; and 90 days in the Lake County Juvenile Detention Facility on Count Five. The commitment of appellant to both Ohio DYS and the Lake County Juvenile Detention Facility was suspended on the condition that appellant “follows rules of Court and laws of the State of Ohio.”
{¶7} The facts adduced at trial are relatively undisputed. During the afternoon of March 9, 2013, three other juveniles went to the Wal-Mart on North Ridge Road and purchased the materials necessary to create a “Works Bomb.”1 A Works Bomb is typically assembled using three common household products—an empty plastic soda bottle, toilet bowl cleaner, and aluminum foil. First, aluminum foil is inserted into an
{¶8} After purchasing their necessary supplies, the three juveniles returned to one of their homes. Sometime shortly thereafter, appellant joined the other juveniles. The four juveniles rolled aluminum foil into balls, thereby beginning the process of assembling the Works Bombs. Appellant participated in rolling several pieces of foil into balls.
{¶9} At around eight or nine o‘clock that evening, the four boys drove in one of the juvenile‘s trucks to Wood Road. Once at Wood Road, one of the juveniles added toilet bowl cleaner to one of the plastic bottles that contained aluminum foil. The bottle was then sealed with a cap and thrown into an open field. The four juveniles waited in the vehicle for the Works Bomb to explode. Once the Works Bomb exploded, the juveniles drove away.
{¶10} The juveniles set off additional Works Bombs that evening, including one on Townline Road and one on Hazel Road, which were thrown into the front yards of occupied homes. No evidence was presented at trial that any of the Works Bombs discharged that evening caused any personal injury or property damage. Indeed, none of the incidents that evening were reported to the police. Police began investigating the March 9, 2013 incidents when investigating another string of Works Bomb explosions that did not implicate or otherwise involve appellant.
{¶12} Appellant‘s father drove appellant to the police station to be interviewed. Officer Gosnik, who was in full uniform, escorted appellant and his father to an interview room at the station. Once in the interview room, Officer Gosnik decided not to inform appellant of his Miranda rights. Officer Gosnik testified at the suppression hearing that he did not read appellant his Miranda rights because he did not think he was conducting a custodial interrogation.
{¶13} During the course of the interview, appellant confessed to having rolled up pieces of aluminum foil to be used in the Works Bombs as well as being in the truck when the three other juveniles threw the Works Bombs. Appellant made a written statement consistent with his verbal confession.
{¶14} Appellant timely appeals the adjudication of delinquency, raising two assignments of error. Appellant‘s first assignment of error states:
{¶15} “The trial court erred when it failed to grant the motion of the appellant to suppress statements made to a police officer while he was in custody and had not been given his Miranda warnings.”
{¶16} Under this assignment of error, appellant argues that his statement made to police should have been suppressed because appellant did not come to the police station voluntarily, was not advised of his right to remain silent, and was subject to coercive pressure to confess.
{¶18} In determining whether an individual is in custody for the purposes of Miranda, the court considers “the circumstances surrounding the interrogation” and whether, under those circumstances, “a reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave.” Thompson v. Keohane, 516 U.S. 99, 112 (1995). A non-custodial interrogation becomes custodial when there is a “formal arrest or restraint on freedom of movement” similar to that of a formal arrest. California v. Beheler, 463 U.S. 1121, 1125 (1983) (citation omitted). A determination of whether an interrogation is custodial or non-custodial depends on the objective circumstances of the interrogation, not the subjective views held by either the officer or the person being questioned. Stansbury v. California, 511 U.S. 318, 323 (1994).
{¶19} In the present case, we recognize there are factors weighing both for and against a finding that the interview was custodial. Weighing against a finding that the interview was custodial is the fact that B.J. was told he did not need to talk. However, appellant was also told that “he didn‘t want to be the only guy not telling the truth.” The fact that the interview took place in a police interview room, at a station to which appellant was brought by his father, weighs in favor of a finding that the interview was custodial. Officer Gosnik told appellant that he faced “consequences” for his actions.
{¶20} Weighing all the circumstances surrounding appellant‘s interrogation, we find that appellant was not in custody at the time of his confession.
{¶21} Appellant‘s first assignment of error is without merit.
{¶22} In his second assignment of error, appellant states:
{¶23} “The trial court erred when it made findings of true to counts 1, 2, 5, and 7, where there was no evidence or insufficient evidence to arrive at a finding of true.”
{¶24} Under this assignment of error, appellant challenges the sufficiency of the evidence supporting the findings of “true.”
{¶25} The standard of review applied in determining whether a juvenile court‘s finding of delinquency is supported by sufficient evidence is the same standard applied in adult criminal convictions. In re J.A.S., 12th Dist. Warren No. CA2007-04-046, 2007-Ohio-6746, ¶11.
{¶26} When measuring the sufficiency of the evidence, an appellate court “must consider whether the state set forth enough adequate evidence to sustain the jury‘s
{¶27} Under Count One, appellant was charged with unlawful possession of a dangerous ordnance in violation of
{¶28} As it applies in
{¶29}
{¶30} Accordingly, to prove that appellant possessed a “dangerous ordnance,” the state must prove three elements. The device must “(1) be comprised of an explosive substance or agency; (2) have a means to detonate; and (3) be ‘designed or specifically adapted’ to cause physical harm to persons or property.” In re S.R., 182 Ohio App.3d 803, 2009-Ohio-3156, ¶22 (12th Dist.), citing
{¶31} In this case, the state failed to prove that the Works Bombs in question were “designed or specifically adapted” to cause physical harm to persons or property. Accordingly, the finding of “true” for possession of a dangerous ordnance in violation of
{¶32} Our conclusion that a Works Bomb does not constitute a dangerous ordnance is based on the specific, undisputed facts of this case. Here, appellant and three other juveniles discharged multiple Works Bombs; however, the evidence does not establish that any of them were discharged in a way “designed or specifically adapted” to cause physical harm to persons or property. At least one Works Bomb was discharged in an open field, while two others were discharged in residential neighborhoods mere feet off the road. No individuals or structures were in close proximity to the locations where the Works Bombs were discharged. Had the Works Bombs been discharged in a manner that caused or created a substantial risk of
{¶33} Our conclusion that a Works Bomb does not constitute a dangerous ordnance when it is discharged in an area devoid of people or structures is consistent with that reached by the Twelfth Appellate District when deciding the issue under very similar facts. The Twelfth District stated a Works Bomb is not a dangerous ordnance when it is “neither used as a weapon nor ‘designed or specifically adapted’ to cause damage to persons or property.” In re S.R., supra, at ¶35. In that case, the “[a]ppellant went to a remote location, constructing the device on a grassy area near the parking lot at a vacant pool complex. Moreover, no actual damage resulted from the detonation of the bomb.” Id. Similarly in this case, the group of juveniles discharged the Works Bombs in areas away from where they could cause any physical harm to persons or property.
{¶34} The conclusion reached by this court and the Twelfth District departs from the one reached by the Tenth Appellate District. The Tenth District held that a Works Bomb constituted a “dangerous ordnance” when it was discharged in a public park because it “can cause physical harm to persons or property.” In re Travis, 110 Ohio App.3d 684, 690 (10th Dist.1996). The Twelfth District, in distinguishing In re S.R. from In re Travis, stated that “the Tenth Appellate District disregarded the actual elements of the offense. Instead, the court focused upon the capability of bottle bombs, the general notion that detonating a bottle bomb is ‘wrong,’ * * * rather than examine whether the bomb was ‘designed or specifically adapted’ to cause damage[.]” In re S.R., supra, at ¶38. Specifically, in In re Travis, the court did not consider whether the device in
{¶35} We agree with the conclusion reached by the Twelfth District in In re S.R., that when a Works Bomb is not designed or specifically adapted to cause damage, it does not fit within the statutory definition of “dangerous ordnance.” As statutory definitions and penalties must be “strictly construed against the state, and liberally construed in favor of the accused,” pursuant to
{¶36} Under Count Two, appellant was charged with illegal manufacture or processing of explosives in violation of
[A]ny 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.
{¶37} We initially note the Ohio Legislature made changes to the Ohio Revised Code in 2008 that greatly broadened the definition of what constitutes an explosive. Prior to that amendment, the term “explosive” did not include any explosive that was not subject to regulation under the rules of the fire marshal. The amended definition of explosive seems to include, without limit, everything that may function by explosion.
{¶39} The Works Bombs fit within the definition of explosive in
{¶40} Furthermore, sufficient evidence was presented at trial to find that appellant “manufacture[d] or process[ed]” an explosive. Neither term is defined in
{¶41} We acknowledge that under the various definitions in
{¶42} Under Count Five, appellant is charged with complicity to unlawful possession of a dangerous ordnance in violation of
{¶43} We have previously determined insufficient evidence was presented to find appellant committed the offense of Count One, unlawful possession of a dangerous ordnance. Having found the evidence failed to establish that a predicate offense was committed, the delinquency finding for complicity to the underlying offense must also be based on insufficient evidence. See
{¶44} Appellant‘s assignment of error also challenges the sufficiency of the evidence with respect to Count Seven, disorderly conduct. However, appellant entered a plea of no contest to this charge. A plea of no contest is an admission of the truth of the facts alleged in the complaint. Crim.R. 11(B)(2). There is no record of the plea
{¶45} Appellant‘s second assignment of error is well taken to the extent discussed above. As the judgment of the Lake County Court of Common Pleas, Juvenile Division, finding appellant delinquent on Counts One and Five is not supported by the evidence, appellant‘s delinquency on those two counts is reversed and vacated.
CYNTHIA WESTCOTT RICE, J., concurs in part and dissents in part, with a Concurring/Dissenting Opinion,
COLLEEN MARY O‘TOOLE, J., concurs in part and dissents in part, with a Concurring/Dissenting Opinion.
____________________
CYNTHIA WESTCOTT RICE, J., concurs in part and dissents in part, with a Concurring/Dissenting Opinion.
{¶46} I agree with the majority‘s disposition and rationale of appellant‘s first assignment of error. I also agree with the majority‘s disposition and rationale of the second assignment of error as they relate to Counts Two, and Five. I do not, however, agree with the majority‘s disposition of Count One. In this regard, I respectfully dissent.
{¶47} As the majority notes, the state was required to establish, beyond a reasonable doubt, that appellant possessed a “dangerous ordnance” to adjudicate him delinquent for violating
{¶48} The third element of “explosive device” requires a factual analysis of whether the particular device in question was “designed or specifically adapted” to cause damage. It does not necessarily require an analysis of the specific intent or destructive purpose of the individual(s) charged with creating or possessing the object. An empty two-liter plastic bottle of soda will not, by itself, explode. When toilet cleaner and aluminum foil are added and the bottle is shaken, the bottle has become specifically adapted to explode. Furthermore, the state‘s expert, David A. Green, testified that he had created Works bombs and such bombs are capable of generating tremendous pressure that can cause damage to person or property within a five- to six-foot range of the explosion. Viewing the facts as a whole, therefore, the bottles that became the vehicles for the bombs were, at the very least, specifically adapted to cause physical harm to persons or property.
{¶49} The majority‘s conclusion focuses upon the remoteness or unpopulated nature of the location where the devices were discharged. In doing so, it appears the majority emphasizes the element of “design.” Conceptually, the element of “design” not
{¶50} In this case, however, there were facts to support the conclusion that the plastic bottles were specifically adapted in such a way to cause physical harm, regardless of the bomb-builders’ end, purpose, or goal. Because the third element is disjunctive, I would hold that sufficient evidence was produced to support the conclusion that the plastic soda bottles were specifically adapted to detonate, explode and, as a result, cause physical harm to persons or property. There was therefore adequate evidence to support the conclusion the Works bombs in this case were dangerous ordnances.
____________________
COLLEEN MARY O‘TOOLE, J., concurs in part and dissents in part, with a Concurring and Dissenting Opinion.
{¶51} I concur with the majority‘s well-reasoned disposition of the second assignment of error. However, as I find the interrogation of B.J. was custodial, and he was not given Miranda warnings, I would reverse and remand based on the first assignment of error.
{¶52} The police differentiate between an “interview,” and an “interrogation.” The purposes of an interview are to “[o]btain relevant information about the situation or crime“; [e]stablish rapport with the subject“; and “to gather information and determine
{¶53} By contrast, an interrogation is used not merely to gather information relevant to an investigation, but to “establish innocence,” or to obtain information leading “to a confession or an admission.” Peace Officer Basic Training at 13. (Emphasis added.) In this case, five boys were suspects. B.J was the fourth interviewed – Officer Gosnik already knew the course of events from the prior interrogations. The only and obvious purpose of speaking to B.J. was to elicit a confession, and his part in the offenses.
{¶54} There are numerous recommended techniques for the police to use in conducting interrogations. Peace Officer Basic Training at 22-28. Several appear in this case. For “[m]ultiple subject interrogations,” the manual recommends: (1) splitting “the subjects into separate rooms“; (2) advising “one suspect the other is blaming him/her for everything“; and (3) using “each suspect‘s statement against each other as discrepancies are discovered.”
{¶56} Having reviewed the interrogation of B.J., I conclude, under the totality of the circumstances, he would not have felt free to leave, or discontinue it. As the majority notes, the fact it was conducted at the police station, and that Officer Gosnik told B.J. he did not want to be the only boy involved who did not confess, tend to show the interview was custodial.
{¶57} The majority observes the interrogation was conducted with B.J.‘s father present, and that the courts of Ohio have said this militates against a finding that an interrogation of a juvenile was custodial. I agree. However, as the majority further notes, B.J.‘s father was insistent his son tell Officer Gosnik exactly what had occurred, essentially compelling B.J. to confess. Further, B.J‘s father was his son‘s transportation to and from the police station. In effect, B.J.‘s father was used to reinforce his son‘s feeling that he could not stop the interrogation, and leave.
{¶58} It seems clear B.J.‘s father did not realize that his son‘s statements could be used as a confession, and that he was a suspect. Even though he was told he could leave, the carefully engineered environment demonstrated otherwise. Police Officer
{¶59} It is morally admirable that parents advise their children to be honest about potentially bad acts those children have committed. However, a juvenile‘s right to counsel, and to refuse to speak to police when under investigation, are constitutional rights pertaining to the juvenile, not his or her parents. The juvenile must be the one to waive these rights, not a parent. While well-intentioned, B.J.‘s father was instrumental in the boy‘s decision to confess. In order to maintain the public trust, the police must be especially mindful that a juvenile and his or her parents make knowing and voluntary decisions when under interrogation, with full knowledge of the juvenile‘s rights, and the potential consequences. And while in this case, B.J.‘s father told Officer Gosnik he doubted the boy had considered the collateral consequences flowing from his actions, I am somewhat dubious anyone other than a lawyer experienced in the juvenile justice system would understand how serious these collateral effects on a child‘s future opportunities for schooling, job training, and employment can be. Parents are generally not cognizant of these liabilities. Indeed, I must assume that B.J. and his family have finally come to realize this, since there is an appeal at all.
{¶60} A reasonable juvenile in B.J.‘s position would not have felt free to leave the interrogation, or terminate it. He was in custody, and should have received his Miranda warnings. I respectfully concur and dissent.