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In re Anthony P.6/14/2005
e State v. Casados, 193 Neb. 28, 225 N.W.2d 267 (1975) (in prosecution for possession of combination of parts intended to be converted into destructive device, jury should have been instructed that intent is material element and that it was necessary for State to prove beyond reasonable doubt that defendant intended to convert various items found in his possession into destructive device).
In the instant case, Anthony did not testify, nor did any other witness recount anything Anthony said which shows his intent in configuring the pill bottle as he did by using explosive powder from fireworks. This leaves us with the rule that the intent with which an act is done is a mental process and, as such, generally remains hidden within the mind where it is conceived and is rarely if ever susceptible of proof by direct evidence, but may be inferred or gathered from the outward manifestations-- by the words or acts of the party and the facts or circumstances surrounding the crime. See State v. McDaniels, 145 Neb. 261, 16 N.W.2d 164 (1944).
While a number of Nebraska statutes discuss and criminalize the possession or use of certain weapons, no statute is really on point for this case. For example, Neb. Rev. Stat. § 28-1202 (Reissue 1995) criminalizes the carrying of a "weapon or weapons concealed on or about [one's] person such as a revolver, pistol, bowie knife, dirk or knife with a dirk blade attachment, brass or iron knuckles, or any other deadly weapon." Neb. Rev. Stat. § 28-109 (Cum. Supp. 2004) defines a deadly weapon as "any firearm, knife, bludgeon, or other device, instrument, material, or substance . . . which in the manner it is used or intended to be used is capable of producing death or serious bodily injury." The common meaning of the word "weapon" from Black's Law Dictionary 1587 (7th ed. 1999) is " n instrument used or designed to be used to injure or kill someone."
We have no doubt that the taped pill bottle containing both explosive powder and a fuse from fireworks is susceptible of being a weapon. Thus, we return to the matter of Anthony's intent. The issue is simply whether the State proved beyond a reasonable doubt that the pill bottle was designed for use as a weapon to be used against person or property. This is a conjunctive test. First, the item must be designed as a weapon and, second, to be used against person or property. Anthony's pill bottle, as he redesigned it, could indeed be a weapon. However, there is no evidence that it was designed or redesigned to be used against a person or property. This conclusion comes from the absence of any affirmative evidence of his intent and the inferences which can be drawn from his conduct. He made no threats against any person, and he placed it in an open area on a driveway away from persons and property so that its percussive effect would be minimized. Had the device been placed against an object such as a house, one could readily infer the intent to cause property destruction. Likewise, had it been placed near a person, an intent to injure could be inferred. Moreover, the container used--a plastic pill bottle--is not likely to cause such personal injury or property destruction as would be likely with a metal container, i.e., a pipe. Arguably, the taping of the pill bottle was designed to prevent fragments from flying about when the device was detonated. Therefore, given these facts, we cannot say the State has proved beyond a reasonable doubt that the pill bottle was a destructive device, because by statute, such a device does not include any device which is neither designed nor redesigned for use as a weapon to be used against person or property. The State's proof on this point is insufficient.
Anthony assign
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