PUBLISHED OPINION
Case No.: 95-1687-CR
†Petition for
Review Filed
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
THOMAS B. BRULPORT,
Defendant-Appellant.†
Submitted on Briefs: February 16, 1996
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: May 15, 1996
Opinion Filed: May
15, 1996
Source of APPEAL Appeal from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Kenosha
(If
"Special", JUDGE: S. MICHAEL WILK
so indicate)
JUDGES: Anderson, P.J., Nettesheim and Snyder, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of the defendant-appellant, the cause was
submitted on the briefs of John Allen Pray of the Legal Assistance
Program University of Wisconsin Law School.
Respondent
ATTORNEYSOn behalf of the plaintiff-respondent, the cause was
submitted on the brief of James E. Doyle, attorney general, and Daniel
J. O'Brien, assistant attorney general.
COURT OF
APPEALS DECISION DATED AND
RELEASED May
15, 1996 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-1687-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
THOMAS
B. BRULPORT,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Kenosha County: S. MICHAEL WILK, Judge. Affirmed.
Before
Anderson, P.J., Nettesheim and Snyder, JJ.
NETTESHEIM,
J. Thomas B. Brulport appeals from a judgment of
conviction for one count each of possession of explosives, damage to property
by explosives and second-degree reckless endangerment of safety pursuant to §§
941.31(1), 943.02(1)(c) and 941.30(2), Stats.,
all as a party to the crime.
Brulport
raises sufficiency of evidence issues as to all three convictions. With respect to the possession of explosives
charge, Brulport contends that the material he possessed was not an “explosive
compound” within the meaning of § 941.31(1), Stats. With respect to the damage to property by
means of an explosive charge, Brulport contends that the material was not an
“explosive” within the meaning of § 943.02(1)(c), Stats. With respect
to the reckless endangerment charge, Brulport contends that the State did not
establish that he created an unreasonable and substantial risk of death or
great bodily harm or that he was aware of such risks.
Brulport
also contends that § 941.31(1), Stats., barring the possession of explosives, is
unconstitutionally vague because the statute does not provide sufficient notice
that the materials used in this case would be considered an “explosive
compound.”
We
reject Brulport's arguments and affirm the judgment of conviction.
Background
On
November 1, 1992, Brulport, Glenn Luzar and Paul Garcia gathered at Luzar's
home. One of them suggested that the
three go to a store to purchase some aluminum foil and drain cleaner to produce
a device that would burst.[1] Testimony at the trial described this device
as a “MacGyver bomb.” Brulport
purchased the items with money Luzar gave him.
After returning to Luzar's house with these items, the group put strips
of foil and drain cleaner into two plastic soda bottles and shook them. According to Brulport, either Luzar or
Garcia placed one bottle in the mailbox of the neighbor across the street, and
Luzar placed the other bottle in the neighbor's car which was parked in the
driveway next to the house. The group
then returned to Luzar's house to observe the outcome.
Approximately
ten minutes later, the bottle in the car exploded. Hearing the explosion, the neighbors went outside to see what had
happened. Finding nothing, they went
back inside. Just after closing the
door, the second bottle exploded, causing the mailbox to shatter and partially
detach from the side of the house.
The
State charged Brulport as a party to the crimes of: (1) possession of explosives for an unlawful purpose in violation
of § 941.31(1), Stats.; (2)
intentionally damaging the property of another by means of explosives in
violation of § 943.02(1)(c), Stats.;
and (3) second-degree reckless endangerment of safety, contrary to § 941.30(2),
Stats. Brulport waived a jury trial.
The
evidence at the bench trial established that the combination of aluminum foil
and drain cleaner produces a hydrogen gas which gradually heats, expands and
ultimately explodes. The device did not
require a detonating or ignition mechanism to trigger the explosion.
At
the close of the evidence, the trial court found Brulport guilty of all three
charges. Brulport was sentenced to
concurrent five-year probation terms for each count. In addition, he was ordered to serve concurrent terms of ninety
days in the county jail as a condition of probation on each count. Brulport appeals.
Discussion
Sufficiency of the
Evidence
1. “Explosive Compound” and “Explosive.”
Brulport
first contends that the combination of aluminum foil and drain cleaner in a
two-liter soda bottle cannot be considered an “explosive compound” or an
“explosive” pursuant to §§ 941.31(1) and 943.02(1)(c), Stats. The statutes,
in relevant part, read as follows:
Possession
of explosives. (1) Whoever makes, buys, transports,
possesses, or transfers any explosive compound or offers to do the same,
either with intent to use such explosive to commit a crime or knowing that
another intends to use it to commit a crime, is guilty of a Class C
felony.
Section 941.31(1) (emphasis added).
Arson
of buildings; damage of property by explosives. (1) Whoever does any of the following is guilty of a Class
B felony:
¼.
(c) By means of explosives,
intentionally damages any property of another without the other's consent.
Section 943.02(1)(c) (emphasis added).
Brulport argues that the individual
components of aluminum foil and drain cleaner encased in a plastic soda bottle
do not constitute either an explosive compound or an explosive within the
meaning of these statutes. Instead,
Brulport contends that the materials are harmless household products which are
not primarily designed to explode. In
support, Brulport points to the evidence showing that: (1) the hydrogen gas produced by the mixture
did not instantaneously react, (2) the devices were not ignited or detonated by
any triggering mechanism, and (3) the devices took ten to fifteen minutes to
burst.
Brulport
contends that the statutes in question are intended to address the unauthorized
possession or use of inherently dangerous or volatile compounds such as
dynamite, nitroglycerin or TNT.
Brulport claims that the devices in this case are more akin to the
pressure produced by shaking a soda container.
As such, Brulport contends that the devices are beyond the purview of
the statute. Thus, Brulport concludes
that the evidence was insufficient to demonstrate that the devices were either
“explosives” or an “explosive compound.”
Although
Brulport brings the issues to us on sufficiency of evidence grounds, the
threshold question is one of statutory construction—the meaning of “explosive
compound” and “explosives” in §§ 941.31(1) and 943.02(1)(c), Stats., respectively. Issues of statutory interpretation are
questions of law which we review de novo.
State v. Mattes, 175 Wis.2d 572, 578, 499 N.W.2d 711, 713
(Ct. App. 1993).
Section
941.31(1), Stats., does not
define the phrase “explosive compound,” nor does § 943.02(1)(c), Stats., define the term
“explosives.” The State urges that we
adopt the definition of “explosive” as set out in the Wisconsin Administrative
Code for purposes of these statutes. See
Wis. Adm. Code ch. ILHR 7. We may look to the Wisconsin Administrative
Code for guidance in defining terms used in the statutes where the terms used
in the statute and the code are sufficiently similar. See Sullivan Bros. v. State Bank, 107 Wis.2d
641, 648, 321 N.W.2d 545, 548-49 (Ct. App. 1982).
Chapter
7 of the rules of the Department of Industry, Labor and Human Relations is
entitled “Explosive Materials.” See
Wis. Adm. Code ch. ILHR 7. The purpose of this chapter is to “establish minimum safeguards
to life, health and property by the adoption of reasonable and effective
standards relating to explosive materials.”
Id. § ILHR
7.01. Similarly, ch. 941, Stats., is entitled “Crimes Against
Public Health and Safety.” And,
although ch. 943, Stats., is not
similarly titled,[2] we think it
obvious that § 943.02(1)(c), Stats.,
barring the damage of property by the use of explosives, is also designed to
protect the public safety. Therefore,
we properly look to the administrative code for assistance in defining the term
“explosive” and the phrase “explosive compound.”
The
administrative code defines “explosive” as “any chemical compound, mixture or
device, the primary or common purpose of which is to function by
explosion.” Wis. Adm. Code § ILHR 7.04(18). The code goes on to define “explosion” as a “substantially
instantaneous release of both gas and heat.”
Id. § ILHR 7.04(17).
We adopt these definitions for purposes of both §§ 943.02(1)(c) and
941.31(1), Stats.[3]
Applying
these definitions to the instant case, we conclude that the “MacGyver bombs”
fit the definitions of an “explosive compound” and an “explosive[]” for
purposes of §§ 941.31(1) and 943.02(1)(c), Stats. The devices were made of compounds,[4]
the purpose of which was to create an explosion by the substantially
instantaneous release of gas and heat.
Brulport
further argues that the devices fall outside the statutes because they did not
include a detonating or ignition mechanism.
However, the administrative code's definitions do not require such an
apparatus. Rather, the code requires
only the necessary “chemical compound, mixture or device,” Wis. Adm. Code § ILHR 7.04(18), and the
resulting explosion, id. subsec. (17). Both of these components are satisfied by the evidence in this
case.
Brulport
also argues that the devices are not included under the statutes because the
explosions were not instantaneous.
However, the administrative code does not require an instantaneous
explosion, but rather a “substantially instantaneous” explosion. We conclude that the ten- to fifteen-minute
interval between the capping and shaking of the devices and the ensuing
explosions was not so lengthy as to remove the question from the realm of the
fact finder. This is especially so in
light of the expert testimony that such devices are “unpredictable” and can
explode in anywhere from five seconds to several minutes.
Brulport
also argues that the statutes are aimed at the use of those explosive materials
or compounds which are inherently dangerous or volatile, such as dynamite,
nitroglycerin or TNT, not the harmless kinds of materials involved in this
case. However, as we have noted, the
goal of the statutes is to protect persons and property from the dangers produced
by an explosion. That goal would be
frustrated if we construed the statute to exclude materials which, although
harmless standing alone, when combined produce the very result at which the
legislation is aimed.
Brulport
argues that our definition of “explosive compound” and “explosive” will take in
various forms of innocent conduct (for example, the spray resulting from
shaking a can of soda). We first
observe that this argument has nothing to do with the sufficiency of evidence
in this case. Second, we bear in mind
that the crime created by § 941.31(1), Stats.,
is not merely the possession of an “explosive compound,” but rather such
possession with intent to commit a crime or with knowledge that another
intends to use the substance to commit such crime. Id. Similarly, the crime covered by § 943.02(1)(c), Stats., is not merely the use of
explosives, but rather such use with intent to damage the property of another
without the other's consent. It is
these additional elements which transform otherwise innocent conduct into
criminal conduct.[5]
We
hold that the evidence was sufficient to show that Brulport possessed an
“explosive compound” for purposes of § 941.31(1), Stats., and that he damaged property by means of an “explosive[]”
for purposes of § 943.02(1)(c), Stats.
2. Proof of Risk and Knowledge of Risk.
Brulport's
next issue concerns his conviction for second-degree reckless endangering
safety pursuant to § 941.30(2), Stats. Brulport contends that the evidence was insufficient
to show that he created an unreasonable and substantial risk of death or great
bodily harm and that he was aware of such risks. See Wis
J I—Criminal 1347.
“In
reviewing the sufficiency of the evidence to support a conviction, an appellate
court may not substitute its judgment for that of the trier of fact unless the
evidence, viewed most favorably to the state and the conviction, is so lacking
in probative value and force that no trier of fact, acting reasonably, could
have found guilt beyond a reasonable doubt.”
State v. Holtz, 173 Wis.2d 515, 518, 496 N.W.2d 668, 669
(Ct. App. 1992).
Section
939.22(14), Stats., defines
“great bodily harm” as “bodily injury which creates a substantial risk of
death, or which causes serious permanent disfigurement, or which causes a
permanent or protracted loss or impairment of the function of any bodily member
or organ or other serious bodily injury.”
The State introduced the testimony of Raymond Lenz, a forensic scientist
with the State of Wisconsin Crime Laboratory in Milwaukee. Lenz performed an analysis of the compounds
in the damaged bottles. He testified
that the combination of the acids or drain cleaner with aluminum foil in the
bottles reacted to create a hydrogen gas which caused the explosion. He also testified that there is no way to
determine precisely how much time will pass before a reaction and explosion will
occur. Lenz stated that the acid sprayed
as a result of the explosion can cause burns.
Here, the explosives were placed in a
family's car and mailbox. The bottles
could have exploded and sprayed the acids on a person's face or skin when
opening the mailbox or while present in the car. The victims in this case investigated the explosion in the car
just minutes before the bottle in the mailbox exploded. When the bottle in the mailbox exploded, it
did so with enough pressure and force to shatter and partially detach the metal
mailbox from the victims' house.
Clearly, this created a substantial risk of great bodily harm.
The
State was not required to prove that Brulport's conduct actually caused
serious harm to another—just that the conduct created an unreasonable and
substantial risk of such harm. See
State v. Johnson, 184 Wis.2d 324, 347, 516 N.W.2d 463, 470-71
(Ct. App. 1994). We conclude that the
trial court's determination that Brulport created such a risk is reasonably
supported by the evidence.
We
also reject Brulport's contention that he was not aware of the potential risk
to others because of his diminished intellectual capability. Brulport maintains that although he is in
his thirties, he is a “high school dropout with a fifth grade reading level”
and that he “has a mental age of 12 years and 2 months and an [I.Q.] of 71.”
However,
Brulport's own testimony revealed that he was aware that the devices were
specifically and deliberately made to explode.
Brulport testified on direct examination that he was aware that Luzar
placed the devices in the neighbor's mailbox and car to “get even” with the
neighbors for something. Brulport
testified that Luzar had stated that a friend of his had shown him “how to make
an M-80” and that Brulport, himself, purchased the items from a convenience
store to intentionally create such a device.
Brulport also stated that he understood an M-80 to be “[s]omething like
a fire cracker.” Brulport also admitted
in response to the State's questioning on cross-examination that he knew that
the items he purchased were “going to be used to make [the] M-80 device or
whatever that was going to explode” at Luzar's neighbor's house. This evidence allowed the trial court to
reasonably infer that Brulport knew of the concomitant risk.
While
other portions of Brulport's testimony suggest that he thought the devices were
not likely to cause harm, it was for the trial court as the fact finder to
assess any conflicting aspects in Brulport's testimony and to draw the
appropriate inferences therefrom. We
cannot say that the evidence was so lacking in probative value and force as to
Brulport's state of mind such that no trier of fact, acting reasonably, could
conclude that Brulport understood the likely consequences of his conduct.
We
are satisfied that the record supports the trial court's finding that Brulport
created an unreasonable and substantial risk of great bodily harm and that he
was aware that his conduct created such a risk.
Constitutionality of § 941.31(1), Stats.
Brulport
argues that § 941.31(1), Stats.,
barring the possession of explosives, is unconstitutionally vague because it
did not provide sufficient notice that the “MacGyver bombs” would be considered
explosives.[6] As noted earlier, the statute makes it
illegal to “possess[] ¼ any explosive compound ¼ either with intent to use such explosive to commit a
crime or knowing that another intends to use it to commit a crime.” Id.
Before
a statute will be invalidated as unconstitutionally vague, we must be convinced
beyond a reasonable doubt that there is some ambiguity or uncertainty in the
description of the conduct prohibited that either: (1) prevents a person of
ordinary intelligence who wants to obey the statute from determining what is
prohibited conduct, or (2) prevents the trier of fact from ascertaining guilt
or innocence and forces the trier of fact to create and apply its own standards
of conduct. State v. Corcoran,
186 Wis.2d 616, 632, 522 N.W.2d 226, 232 (Ct. App. 1994). We answer constitutional questions
independently of the trial court. Id.
at 628, 522 N.W.2d at 231.
The
definitions which we have ascribed to the statutory terms are those which
reasonable persons would ordinarily associate with “explosive” or “explosive
compound.” We properly construe all
words and phrases according to common and approved usage. Section 990.01(1), Stats. These
definitions are fully comprehensible to the average person. It is not necessary for the legislature to
list the plethora of chemical or household ingredients that could possibly be
used to create such an explosive. The
statutory language is specific enough to provide notice to a person seeking to
abide by the law not to mix chemicals with an intent to perform a criminal act,
and it does not require finders of fact to create their own standards of
conduct. See Corcoran,
186 Wis.2d at 632, 522 N.W.2d at 232.
CONCLUSION
We
hold that the evidence was sufficient as to all the charges. We further hold that § 941.31(1), Stats., is not unconstitutionally
vague. Accordingly, we affirm the
judgment of conviction.
By
the Court.—Judgment affirmed.
[3] Our analysis is
similar to that of the Superior Court of Pennsylvania in Commonwealth v.
Bristow, 138 A.2d 156, 158 (Pa. Super. Ct. 1958). There, the defendant was charged under a law
which made it illegal to sell fireworks in which “explosives are used for the purpose
of producing a visible or an audible effect by ¼ explosion.” Id. The statute further defined “fireworks” as
“[including] any combustible or explosive composition ¼ prepared for the purpose of producing a visible or an
audible effect by combustion, explosion ¼ and shall include ¼ toy cannons in which explosives are used.” Id. However, the statute did not define “explosive composition,”
“explosion” or “explosives.” The trial
court had ruled that the statute was unconstitutional on grounds of vagueness,
overbreadth and an improper exercise of the police power, and the state
appealed. Id.
In addressing
the state's appeal, the Superior Court of Pennsylvania first found it necessary
to define the term “explosives.” Id.
at 159. The court relied on the common
understanding of the word, holding that it is “a substance (or a combination of
substances) which upon rapid decomposition or combustion causes an explosion,
that is, a violent bursting or expansion with noise.” Id. The
court concluded that the fireworks device in that case qualified under this
definition.
[4] Section 941.31, Stats., uses the term “explosive
compound” rather than just “explosive.”
“Compound” is defined as “something (as a substance, idea, creation)
that is formed by a union of elements, ingredients, or parts.” Webster's
Third New International Dictionary 466 (1976). We also adopt this dictionary definition.
[5] Brulport's
conduct in this case may well be less egregious than that which we might
normally see prosecuted under these statutes.
However, Brulport raises no issue regarding the prosecutor's discretionary
decision to charge three felonies against him in this case.
[6] Besides
answering Brulport's vagueness challenge, the State also responds that the
statute is not overly broad. However,
we do not read Brulport's brief to raise this latter constitutional issue. Moreover, such an overbreadth challenge
requires a showing that the statute's sanctions apply to constitutionally
protected conduct which the state is not permitted to regulate. State v. Neumann, 179 Wis.2d
687, 711, 508 N.W.2d 54, 63 (Ct. App. 1993).
Brulport does not address this requirement.