[Cite as In re T.R., 2011-Ohio-5989.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                     CLARK COUNTY


                                            :
IN THE MATTER OF:                           :    Appellate Case No. 2011-CA-44
                                            :
        T. R.                               :    Trial Court Case No. 20110142
                                            :
                                            :
                                            :    (Juvenile Appeal from
                                            :    (Common Pleas Court)
                                            :
                                        ...........

                                        OPINION

                         Rendered on the 18th day of November, 2011.

                                        ...........

ANDREW R. PICEK, Atty. Reg. #0082121, Clark County Prosecutor’s Office, 50 East
Columbia Street, 4th Floor, Post Office Box 1608, Springfield, Ohio 45501
     Attorney for Plaintiff-Appellee

MOLLY M. WOLLET, Atty. Reg. #0085865, 147 High Street, Dayton, Ohio 45403
    Attorney for Defendant-Appellant

                                                      .............

FAIN, J.

        {¶ 1} Defendant-appellant T.R. appeals from his adjudication of delinquency

for Illegally Manufacturing or Processing Explosives. T.R. contends that the State

failed to present evidence sufficient to support the adjudication. We conclude that

the State failed to present evidence sufficient to support a finding that T.R.

manufactured or processed an explosive. Accordingly, the judgment of the Juvenile

Court is Reversed and the adjudication of delinquency by reason of violating R.C.
                                                                                    2


2923.17(B) is Vacated.



                                              I

      {¶ 2} T.R.. and three other minors were arrested by the Springfield Police

and charged with being delinquent by reason of Illegally Manufacturing or Processing

Explosives, in violation of R.C. 2923.17(B), and Inducing Panic, in violation of R.C.

2917.31(A)(3). The charges stemmed from an incident at the Family Dollar store in

Springfield during which, the State alleged, the boys set off two bottle bombs.

      {¶ 3} Three of the juveniles – T.R., W.P., and S.N. – denied the delinquency

charges. At trial, the State presented testimony from two Family Dollar Store clerks,

a Springfield Police Sergeant, and a Springfield Fire Department Lieutenant.

      {¶ 4} Cristi Paris testified that she had been working at the Family Dollar

Store on January 30, when the four juvenile boys walked into the store.            She

testified that the one boy (who was not a part of the trial below) attempted to

purchase some spray paint, but was informed that he could not do so because he

was underage. She testified that he then purchased some toilet bowl cleaner and

some aluminum foil. Paris testified that the boy claimed, upon questioning, that he

was making the purchase for his mother. Paris testified that W.P. purchased some

candy and that S.N. and T.R. had remained in the front of the store during the

transactions.

      {¶ 5} Paris testified that the boys left the store together and that five or ten

minutes later she observed them running. Specifically, Paris testified that she saw

the boy who had purchased the toilet bowl cleaner and aluminum foil            “running
                                                                                     3


towards the door, throwing a bottle of stuff.” She testified that, at the same time, she

observed the other three boys running toward the bank. According to Paris, the

bottle that had been thrown at the front door began to expand. She testified that a

patron of the store called the police, who evacuated the building while the fire

department dealt with the bottle.

          {¶ 6} Tina Lynch also testified. Lynch was working as assistant manager at

Family Dollar on the date of the incident. Her testimony corroborated that of Paris

with regard to the purchases made. However, Lynch further testified that after the

boys left the store, she was in the back of the store unloading stock when she heard

“a lot of laughter” coming from the area of the store’s outdoor loading dock. When

she looked out of the door window, she observed the four boys on the loading area.

Lynch testified that she continued to carry her stock into the main area of the store

when she observed Paris run out the front door of the store and tell the boys to “get

away from the store and stop throwing stuff.”

          {¶ 7} Springfield Police Sergeant Kimberly Standley testified that when she

responded to the scene she observed a plastic bottle filled with liquid. She testified

that the bottle was expanding. Standley testified that she went into the store and

spoke with the clerks after which she went to the back of the building where she

observed “a bottle that had exploded [on the loading dock], a plastic bottle that had

exploded. There was – the wind was very strong that day, and there was still little

balls of aluminum foil on the loading dock area, and there was a splatter of a liquid

substance on the area and on the door. There was an odor of a chemical in the air

still.”
                                                                                                                       4


       {¶ 8} Standley testified that she took one of the bottles as evidence and that

she concluded her investigation. As she was driving back to her office, Standley

observed the four boys and sent out a radio bulletin. The boys were subsequently

arrested by another officer.

       {¶ 9} Springfield Fire Department Lieutenant, Robert Smith, testified that he

responded to the scene.                    He testified that he is certified in the containment of

hazardous materials. Smith testified he observed the bottle expanding and decided

to use “scene tape” to secure the area around the bottle.                                                Smith then put on

protective gear and used an eight foot “pike pole” to pierce the bottle.

       {¶ 10} Smith testified that in his experience a bottle bomb is made by “mixing

chemicals that produce another component and gas.” He further testified that he

believed that the bottle contained a “hazardous material.” However, he admitted on

cross-examination that he does not have a degree in chemistry and he is not an

expert in chemistry. Smith testified that he did not test the substance in the bottle.1

Smith testified that combining baking soda and vinegar can “cause a gas production

and it would cause the same effect inside the bottle.” Finally, Smith testified that he

believed he classified the bottle as a “bomb, explosive device” on his official report.

But Smith did not testify that the bottle was, in fact, a bomb or explosive device,

merely that he recorded it that way on his report.

       {¶ 11} All three boys testified that they were not involved with the purchase of

the toilet cleaner and aluminum foil.                         They testified that the fourth boy pulled a


        1
            Nor is there any evidence that the substance from either bottle was tested by anyone else.
                                                                                        5


plastic bottle out of the trash and put the bomb together. According to the boys,

they did not know it was a bottle bomb and the fourth boy merely told them that the

bottle would make a loud noise. The boys testified that they ran away after the first

bottle exploded and that the fourth boy grabbed another bottle that he put together

and threw at the front door of the store.

       {¶ 12} Following trial, the Juvenile Court dismissed the charge of Inducing

Panic, but found T.R. delinquent for violating R.C. 2923.17(B). T.R. appeals.



       {¶ 13}                                 II

       {¶ 14} The sole assignment of error asserted by T.R. is as follows:

       {¶ 15} “THE     STATE     OF    OHIO        FAILED   TO    PROVE      BEYOND       A

REASONABLE DOUBT THE OFFENSE OF UNLAWFUL POSSESSION OF A

DANGEROUS ORDNANCE.”

       {¶ 16} T.R. contends that the evidence presented by the State was not

sufficient to sustain the adjudication of delinquency.

       {¶ 17} R.C. 2923.17(B), which proscribes illegally manufacturing or processing

explosives, provides as follows:

       {¶ 18} “No person shall manufacture or process an explosive at any location in

this state unless the person first has been issued a license, certificate of registration,

or permit to do so from a fire official of a political subdivision of this state or from the

office of the fire marshal.”

       {¶ 19} “Explosive” is defined in R.C. 2923.11(M) as “any chemical compound,

mixture, or device, the primary or common purpose of which is to function by
                                                                                                                              6


explosion. ‘Explosive’ includes all materials that have been classified as division 1.1,

division 1.2, division 1. 3, or division 1.4 explosives by the United States department

of transportation in its regulations and includes, but is not limited to, dynamite, black

powder, pellet powders, initiating explosives, blasting caps, electric blasting caps,

safety fuses, fuse igniters, squibs, cordeau detonant fuses, instantaneous fuses, and

igniter cords and igniters. ‘Explosive’ does not include ‘fireworks,’ as defined in

section 3743.01 of the Revised Code, or any substance or material otherwise

meeting the definition of explosive set forth in this section that is manufactured, sold,

possessed, transported, stored, or used in any activity described in section 3743.80

of the Revised Code, provided the activity is conducted in accordance with all

applicable laws, rules, and regulations, including, but not limited to, the provisions of

section 3743.80 of the Revised Code and the rules of the fire marshal adopted
                                                                           2
pursuant to section 3737.82 of the Revised Code.”

       {¶ 20} “Fireworks” are defined as any “composition or device prepared for the

purpose of producing a visible or an audible effect by combustion, deflagration, or

detonation, except ordinary matches and except as provided in section 3743.80 of

the Revised Code.” R.C. 3743.01(F).

       {¶ 21} An argument based on the sufficiency of the evidence challenges

whether the State presented adequate evidence on each element of the offense to

allow the case to go to the jury or to sustain the verdict as a matter of law. State v.

Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52. “An appellate court's function


        2
            R.C. 2923.11(M) was amended in 2008; all the cases cited by the parties involve offenses that occurred prior to the amendment.
                                                                                     7


when reviewing the sufficiency of the evidence to support a criminal conviction is to

examine the evidence admitted at trial to determine whether such evidence, if

believed, would convince the average mind of the defendant's guilt beyond a

reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the

syllabus, superseded by state constitutional amendment on other grounds as stated

in State v. Smith, 80 Ohio St.3d 89, 102, 1997-Ohio-355.

      {¶ 22} In this case no one, expert or otherwise, testified that the substances in

the bottle constituted an explosive as that term is defined by the statute. There is

nothing to indicate that toilet bowl cleaner or aluminum foil, by themselves, constitute

an explosive.   Nor is there any evidence in this record that combining the two

substances creates an explosive. It is not clear whether the ingredients must be

placed in a plastic bottle, as was done here, in order to create the explosive. In

short, the State failed to present evidence upon which to base a finding that the

substance, or the substance when placed into a plastic bottle, constituted an

explosive.

      {¶ 23} A bottle bomb consisting of a two-liter soda pop bottle into which toilet

bowl cleaner (containing hydrochloric acid) and aluminum foil were placed, when

sealed and shaken, was held to constitute an explosive device, for purposes of R.C.

2923.11(H), in In re Travis (1996), 110 Ohio App.3d 684, 690. But in that case there

was testimony in the record that the bottle could explode, and that “the explosion of

such a device can cause physical harm to persons or property.” Id. at 687 and 690.

There was no comparable testimony in the case before us.

      {¶ 24} Judicial notice can only be taken of a fact “not subject to reasonable
                                                                                       8


dispute in that it is either (1) generally known within the territorial jurisdiction of the

trial court or (2) capable of accurate and ready determination by resort to sources

whose accuracy cannot reasonably be questioned.”             Evid. R. 201(B).     By that

standard, the explosive nature of a bottle into which toilet bowl cleaner and aluminum

foil has been inserted cannot be the subject of judicial notice. Furthermore, the

taking of judicial notice requires notice to the party and an opportunity to be heard.

Evid. R. 201(E). T.R. was not provided with notice and an opportunity to be heard

with respect to judicial notice being taken of the explosive nature of the “bottle

bombs” in this case.

       {¶ 25} We conclude that the State failed to present evidence sufficient to

prove that T.R. manufactured or processed an explosive. T.R.’s sole assignment of

error is sustained.

       {¶ 26}                                III

       {¶ 27} T.R.’s sole assignment of error having been sustained, the judgment of

the trial court is Reversed and Vacated.

                                                   .............

DONOVAN and FROELICH, JJ., concur.


Copies mailed to:

Andrew R. Picek
Molly M. Wollet
Hon. Joseph N. Monnin
