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In re Anthony P.6/14/2005
Inbody, Chief Judge, and Sievers and Cassel, Judges.
After a hearing on August 17, 2004, in the separate juvenile court of Lancaster County, the court found that on March 12, Anthony P. had in his possession a destructive device as defined in Neb. Rev. Stat. § 28-1213(7) (Cum. Supp. 2004) in violation of Neb. Rev. Stat. § 28-1220(1) (Reissue 1995), a Class IV felony. Accordingly, the court adjudicated Anthony to be a child meeting the definition of Neb. Rev. Stat. § 43-247(1) (Reissue 2004).
This appeal presents the question of whether the homemade device which Anthony admittedly constructed is a destructive device under Nebraska statutes.
FACTUAL BACKGROUND
On March 12, 2004, Officer Jeffrey Hahne of the Lincoln Police Department was dispatched to the 3900 block of North 13th Street to investigate a report by a neighbor of a "big explosion" which was "terribly loud" and had produced a "big cloud of blue smoke." Officer Hahne discovered a grayish mark in a driveway in that block and a pill bottle wrapped in 2-inch wide, clear plastic tape lying in the street. After cutting away some of the tape, Officer Hahne could make out that the bottle originally contained a prescription for Anthony, which prescription, as it turned out, was for his acne medicine. Officer Hahne's investigation revealed that Anthony had access to a number of fireworks left over from the previous Fourth of July, which fireworks his father had purchased in Waverly and would be illegal in Lincoln under its city ordinances. Anthony had used a pencil to punch out the bottom of the artillery shells and emptied the black powder into the pill bottle. He had taped the pill bottle and inserted a fuse from one of the fireworks. On March 12, Anthony had shown the device to at least one friend at school, and while Anthony denied that he lit the device, circumstantial evidence suggests that he did, because there was evidence that he was the only youth in the street at the time the device went off. There was no damage either to person or to property.
PROCEDURAL BACKGROUND
The Lancaster County Attorney charged Anthony with count I, disturbing the peace and quiet under Neb. Rev. Stat. § 28-1322 (Reissue 1995) and with count II, possession of a device "as defined by sub[sect]ion (7) of [§] 28-1213, in violation of the provisions of [§] 28-1220(1)." As said, the separate juvenile court of Lancaster County found the allegations of count II true beyond a reasonable doubt. No issue is raised in this appeal concerning count I.
ASSIGNMENTS OF ERROR
Anthony assigns two errors: (1) The court erred in adjudicating him as a child meeting the definition of § 43-247(1), and (2) the court erred in finding sufficient evidence to conclude that Anthony had committed the offense as alleged in count II.
STANDARD OF REVIEW
[1,2] The standard of review for juvenile proceedings involving an adjudication is de novo on the record, although the findings of fact made by the juvenile court will be accorded great weight because it heard and observed the witnesses. See In re Interest of Aufenkamp, 214 Neb. 297, 333 N.W.2d 681 (1983). However, in the instant case, there are no disputed facts of consequence. When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling. State v. Bachelor, 6 Neb. App. 426, 575 N.W.2d 625 (1998).
ANALYSIS
Any person who has in his possession a destructive device as defined in § 28-1213(7) commits the offense of possession of a destructive device, a Class IV felony. § 28-1220. Section 28-1213(7) provides:
(a) Destructive devices
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