State v King, (04-826) 04/05/2005

Appeal by defendant from judgment entered 3 December 2003 by Judge Ronald K. Payne in Henderson County Superior Court. Heard in the Court of Appeals 14 March 2005.

Attorney General Roy Cooper, by Special Deputy Attorney General Gary R. Govert, for the State.

Mercedes O. Chut, for defendant-appellant.

CALABRIA, Judge.

     On 27 May 2003, William Harold King (“defendant”) was indicted for possession of a weapon of mass destruction . The case was tried at the 1 December 2003 Criminal Session of Henderson County Superior Court.
    The evidence presented at trial tended to show the following: In December 2002, Sharon King (“King”) and defendant were married and living at the Etowah Trailer Park in Henderson County, North Carolina. One night, defendant approached King, invited her to “[l]ook at what [he] made” and showed her a pipe bomb. Defendant told King he “made the bomb to put on Jimmy Stafford's truck.” According to King, Stafford sold marijuana. King and defendantargued about the device, and defendant put it in the top drawer of the dresser in their bedroom. King was “concerned about the piece of metal coming out of it and he told me he would take it out; so therefore it wouldn't do anything and I wouldn't worry.” On 2 December 2002, King took defendant to work and then called the police. In response to her call, officers arrived at the mobile home King shared with defendant, and she gave them written permission to search the premises.
    Officers began searching the residence and found a spool of trip wire on top of the dresser in the bedroom. Officers then found what they believed to be an explosive device in the top dresser drawer. Special Agent Todd Lockhart (“Agent Lockhart”) of the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”), a certified explosives specialist, was contacted and traveled to the scene with other ATF personnel. ATF agents searched the home and found: (1) a can of Pyrodex muzzle-loading propellant, commonly used in the construction of pipe bombs; (2) trip wire; (3) a plastic bag containing a coil of yellow shock tube, an expended blasting cap, and electrician's wire, all of which can be used to initiate an explosive device; (4) a timer from a Quartz alarm clock, which can be used as initiators in explosive devices; (5) a plastic flip-flop container containing 22-caliber rounds and split shot, items often used to augment explosive devices; (6) smokeless powder; (7) a device used to measure explosive powders; and (8) the explosive device found in the top drawer of the dresser. After examining the device, it was removed to a field near the home whereit was destroyed by remotely firing a fragmented projectile at it. Agent Lockhart testified that the device “detonated high order” or resulted in “a fully involved explosion.”
     Defendant was convicted of possession of a weapon of mass destruction and sentenced to a term of twenty-one to twenty-six months' imprisonment. Defendant appeals, asserting there was insufficient evidence to sustain the conviction. Specifically, defendant asserts (a) the device was merely a pyrotechnic, not a pipe bomb, and (b) the device was inoperable. After careful review of the record, briefs and contentions of the parties, we find no error.
     To survive a motion to dismiss, the State must present substantial evidence of each essential element of the charged offense. State v. Cross, 345 N.C. 713, 716-17, 483 S.E.2d 432, 434 (1997). “'Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.'” Id. at 717, 483 S.E.2d at 434 (quoting State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992)). When reviewing the sufficiency of the evidence, “[t]he trial court must consider such evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom.” State v. Patterson, 335 N.C. 437, 450, 439 S.E.2d 578, 585 (1994) (citing State v. Vause, 328 N.C. 231, 237, 400 S.E.2d 57, 61 (1991)) .
     Pursuant to N.C. Gen. Stat. § 14-288.8(a) (2003),
        it is unlawful for any person to manufacture, assemble, possess, store, transport, sell,offer to sell, purchase, offer to purchase, deliver or give to another, or acquire any weapon of mass death and destruction.

Weapons of mass destruction include both explosive and incendiary bombs. N.C. Gen. Stat. § 14-288.8(c)(1)(a) (2003). Here, defendant admits possessing the device but disputes its characterization as a weapon of mass destruction. However, Agent Lockhart opined the device was a pipe bomb. Agent Lockhart based his opinion on the fact that “[i]t would have taken very little” to detonate the device in the condition it was found and would have created a large explosion. In fact, the device exploded when the ATF agents attempted to neutralize it with a PAN disrupter. Agent Lockhart further stated that “if this device detonated near people, it would certainly maim and kill.”
    Agent Lockhart also rejected the possibility that the device was a pyrotechnic or flare. Agent Lockhart testified that the device's copper tubing prevented it from operating like a flare, because the powder inside “contained too much strength and would have buil[t] up pressure and detonated[.]” Furthermore, King testified that defendant told her he made the bomb to put on Stafford's truck. Thus, in the light most favorable to the State, a jury could properly conclude that the device was a bomb.
    Finally, defendant argues that the device could not be a weapon of mass destruction because it was inoperable. However, our Supreme Court has stated that “a weapon of mass death and destruction clearly does not have to be 'operable' at the time of arrest, as the pieces themselves can constitute a 'weapon of massdeath and destruction.'” State v. Jackson, 353 N.C. 495, 499, 546 S.E.2d 570, 572 (2001) . The Supreme Court further opined that “inoperability is a[n] [affirmative] defense to the extent that the defendant can prove the pieces seized were not 'designed or intended for use in converting any device' into a weapon of mass death and destruction.” Id., 353 N.C. at 499, 546 S.E.2d at 572 (quoting N.C. Gen. Stat. § 14-288.8(c)(4) (2003)) . Defendant failed to make the required showing that the items seized were not designed for use in converting them into a weapon of mass destruction or that such a weapon could not “readily be assembled” form the items seized. N.C. Gen. Stat. § 14-288.8(c) (4). Accordingly, we find no error.
    No error .
    Chief Judge MARTIN and Judge McCULLOUGH concur.
     Report per Rule 30(e).

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