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Attempted Possession of Improvised Explosive Device, § 941.31(2)(b): Sufficiency of Evidence

State v. Dennis C. Strong, 2011 WI App 43; for Strong: Steven D. Grunder, SPD, Madison Appellate; case activity

Evidence that Strong possessed pails filled with methyl ethyl ketone (i.e., acetone, or paint thinner), with bare electrical wires running through the pails and attached to a wall outlets, held sufficient to establish guilt for possessing improvised explosive device, § 941.31(2)(b). The court rejects the arguments that the material was flammable rather than “explosive,” and that it didn’t contain a means of detonation, both being elements of the offense, Wis JI—Criminal 1351A.

Explosive material. The dictionary defines an explosive substance as one that undergoes very rapid decomposition upon ignition. Expert testimony showed that methyl ethyl ketone burns up rapidly on ignition, therefore the substance meets this elemental definition, ¶12. The witness also established that this substance expands to at least some degree when ignited, thus satisfying the definition of “explosive,” ¶13.

Means of detonation.

¶22      However, Wis. Stat. § 941.31(2)(a) states that an improvised explosive device must contain “a means of detonating the explosive material, directly, remotely, or with a timer either present or readily capable of being inserted or attached[.]”  (Emphasis added.)  Thus, a device qualifies as an improvised explosive even if it lacks a functioning detonator, as long as a means of detonation can be readily inserted or attached.  Strong’s devices meet this requirement because Strong could have made the detonators operable with the insertion of two readily available parts.  As the State points out, “It would have been no problem to insert batteries in the remote controller, and to attach a resistant conductor to the exposed ends of the electrical cord.  The police did that simply by putting an aluminum foil chewing gum wrapper on the wires.”

Attempt. Though charged with and convicted of attempted possession of an explosive device, Strong was proven guilty of actual possession; therefore, the fact that he never intended to detonate the devices (he displayed them simply to scare off  intruders) is legally insignificant:

¶25      However, the jury could conclude Strong intended to possess an improvised explosive device based on the evidence showing that he actually did possess improvised explosive devices.  “[P]roof of a completed crime does not foreclose the possibility of conviction of the attempt to commit the crime[.]”  See Berry v. State, 90 Wis. 2d 316, 328-29, 280 N.W.2d 204 (1979).  To require acquittal of an attempt because the completed offense was proved would result in the “anomalous situation of a defendant going free ‘not because he was innocent, but for the very strange reason, that he was too guilty.’”  Id. at 328 (quoting United States v. Fleming, 215 A.2d 839, 840-41 (D.C. App. 1966)).  Sufficient evidence supports Strong’s conviction because, based on Hammen’s testimony, the jury could have concluded beyond a reasonable doubt that Strong actually possessed improvised explosives.  See Poellinger, 153 Wis. 2d at 501.

Attempt requires that  “(1) the defendant’s actions in furtherance of the crime clearly demonstrate, under the circumstances that he [or she] had the requisite intent to commit the crime . . .; and (2) that having formed such intent the defendant had taken sufficient steps in furtherance of the crime so that it was improbable that he [or she] would have voluntarily terminated his [or her] participation in the commission of the crime,” State v. Henthorn, 218 Wis.2d 526, 581 N.W.2d 544 (1998). If Strong didn’t intend to possess an explosive device (because he never intended it to “explode”), then how could he be guilty of attempted possession? Berry, it is true, was deemed guilty of attempted theft in light of proof he completed the act. But there is a difference: Berry clearly intended to commit a theft; Strong clearly did not intend to possess a device that would explode.

Intent is hardly irrelevant. E.g., State v. Melvin, 49 Wis.2d 246, 250, 181 N.W.2d 490 (1970): “one cannot attempt to commit a crime which only requires reckless conduct and not a specific intent,” citing State v. Carter, 44 Wis. 2d 151, 170 N. W. 2d 681 (1969). Possession of explosive materials, then, requires specific intent, else Strong could not have been charged with attempted possession – his conviction for same would be an offense unknown to law, a nullity. Moreover, the statutory language requires “intent to assemble any improvised explosive device,” so it’s clear that specific intent is an element. The court doesn’t explicitly discuss the issue of specific intent. From the result, it appears that the element is watered down: it is enough that the defendant intend to assemble a device that could be rendered functional, even if that is not the actual intent. But even so, questions remain. Must the State prove that the defendant knew the device was close enough to functionality? And, would a defense of mistake, § 943.43(1), lie? (“Not only didn’t I not intend to construct an explosive device, I honestly didn’t know I’d constructed something readily capable of accommodating a timer.”)

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