State v. Alverson

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integrity of this document
New Mexico Compilation
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'00'04- 09:52:42 2013.09.20

Certiorari Granted, August 16, 2013, No. 34,235

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMCA-091

Filing Date: June 6, 2013

Docket No. 32,046

STATE OF NEW MEXICO,

Plaintiff-Appellant,

v.

KEVIN ALVERSON,

Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
James Waylon Counts, District Judge

Gary K. King, Attorney General
Pranava Upadrashta, Assistant Attorney General
Santa Fe, NM

for Appellant

The Law Offices of Nancy L. Simmons, P.C.
Nancy L. Simmons
Albuquerque, NM

for Appellee

OPINION

SUTIN, Judge.

{1} Owing to his possession of what the State characterized as “dry ice bombs,”
Defendant Kevin Alverson was charged with possession of an explosive or incendiary
device, contrary to NMSA 1978, Section 30-7-19.1 (1990), a fourth degree felony. The
district court dismissed the charge as a matter of law. The State appeals. We hold that the
device was neither an “explosive” nor an “explosive device” under New Mexico law.

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Accordingly, we affirm.

BACKGROUND

{2} In September 2011, Officer Karl Becker of the Alamogordo Department of Public
Safety made “public contact” with Defendant, who was seated in his car. Officer Becker
recognized Defendant to be a person whose driver’s license was suspended or revoked, a fact
that he later confirmed with dispatch. Defendant consented to a vehicle search. During the
search, Officer Becker found, in pertinent part, two bottles with dry ice and two partially full
gallon jugs of water. Officer Becker recognized that the jugs of water were “a precursor to
make the dry ice generate explosive gases in the bottles.” According to Officer Becker,
Defendant stated that “he and a friend were going to go to a desert area [to] detonate them.”
Defendant was arrested and charged with possession of an explosive or incendiary device
based on allegedly “knowingly and unlawfully possess[ing], manufactur[ing,] or
transport[ing an] explosive device, incendiary device[,] or complete combination of parts
needed to make such a device, a fourth degree felony, contrary to Section 30-7-19.1[.]”

{3} Defendant filed a motion to dismiss the charge of possession of an explosive or
incendiary device. He argued that, as a matter of law, the items found in Defendant’s
possession did not meet the definition of an “explosive device” as defined in NMSA 1978,
Section 30-7-18(B) (1990) of the Explosives Act, NMSA 1978, §§ 30-7-17 to -22 (1981, as
amended through 1990). He further argued that pursuant to the principles of statutory
construction the items were not contemplated by the Legislature to be encompassed within
the definitions of a “destructive device” in NMSA 1978, Section 30-7-16(C)(1) (2001), or
“explosive device” in Section 30-7-18(B).

{4} In opposition, the State argued, among other things, that Defendant, by his own
admission, intended to make dry ice bombs1 and that his intent combined with the fact that
he possessed the necessary components to assemble such “bombs” rendered Section 30-7-
18(B) applicable in this case. Alternatively, the State argued that Defendant’s argument
raised a question of fact and that the charge should not be dismissed as a matter of law.

{5} After a hearing on Defendant’s motion to dismiss, the district court entered an order
granting the motion as a matter of law. The court explained that Sections 30-7-18 and 30-7-
19.1 refer to explosives and explosive devices that are caused by “chemical reactions caused

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“Dry ice is carbon dioxide . . . in solid form. . . . At normal temperatures, dry ice
changes from a solid to gas rapidly and, increasingly so when placed in water and agitated.
In the transition from solid to gas, its volume increases 500 times, and, when confined, as
in a bottle, the pressure exerted naturally increases, and, if the container cannot withstand
the expansion, it must burst.” N.Y. Eskimo Pie Corp. v. Rataj, 73 F.2d 184, 185 (3d Cir.
1934). This is commonly referred to as a “dry ice bomb.” See, e.g., In re Joseph S., 698
N.W.2d 212, 226-27 (Neb. Ct. App. 2005).

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by burning or by fire rather than by expansion of gases under pressure.” The court found
that because dry ice bombs result from the expansion of gases, rather than by fire or burning,
they are not prohibited by Section 30-7-19.1. The court further found that our Legislature
could have added certain language that exists in other states’ statutes that addresses dry ice
bombs, but chose not to include such language. Accordingly, the court found that “the dry
ice bombs possessed by Defendant [were] not made illegal by . . . [Section] 30-7-19.1,” and
it dismissed the charge against Defendant with prejudice. The State appeals from that ruling.

DISCUSSION

{6} The issue is whether a dry ice bomb comes within the definition of an explosive
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device as contemplated by Section 30-7-19.1. “Interpretation of a statute is a matter of law,
which we review de novo.” State v. Rivera, 2004-NMSC-001, ¶ 9, 134 N.M. 768, 82 P.3d
939 (internal quotation marks and citation omitted). The appellate courts endeavor to
determine and give effect to the intent of the Legislature. See State v. Johnson, 2009-
NMSC-049, ¶ 10, 147 N.M. 177, 218 P.3d 863. In doing so, we look first to the statute’s
plain language and interpret statutes as a whole. State v. Davis, 1998-NMCA-148, ¶ 19, 126
N.M. 297, 968 P.2d 808. Where the statutory language “is clear and unambiguous, we must
give effect to that language and refrain from further statutory interpretation.” Rivera, 2004-
NMSC-001, ¶ 10 (internal quotation marks and citation omitted). Often, however, an
analysis of the statutory language or its “plain meaning” does not end the analysis, and we
must rely on other principles of statutory construction. Id. ¶¶ 12-14.

{7} Under Section 30-7-19.1(A) of the Explosives Act,

[p]ossession of an explosive device or incendiary device consists of
knowingly possessing, manufacturing[,] or transporting any explosive device
or incendiary device or complete combination of parts thereof necessary to
make an explosive device or incendiary device. This subsection shall not
apply to any fireworks as defined in Section 60-2C-2 NMSA 1978 or any
lawfully acquired household, commercial, industrial[,] or sporting device or
compound included in the definition of explosive device or incendiary device
in Section 30-7-18 NMSA 1978 that has legitimate and lawful commercial,
industrial[,] or sporting purposes or that is lawfully possessed under Section
30-7-7 NMSA 1978.

{8} Section 30-7-18 provides definitions of terms used in the Explosives Act. Section
30-7-18(A) states that the term “ ‘explosive’ means any chemical compound or mixture or
device, the primary or common purpose of which is to explode and includes but is not
limited to dynamite and other high explosives, black powder, pellet powder, initiating
explosives, detonators, safety fuses, squibs, detonating cord, igniter cord[,] and igniters[.]”

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The State concedes that Defendant did not possess an “incendiary device.”

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In pertinent part, Section 30-7-18(B) defines “explosive device” as “(1) any explosive bomb,
grenade, missile[,] or similar device; [or] (2) any device or mechanism used or created to
start a fire or explosion with or without a timing mechanism except cigarette lighters and
matches[.]”

The Applicability of Section 30-7-18(B)(1)

{9} The State argues that a dry ice bomb is an “explosive bomb” or “similar device”
under Section 30-7-18(B)(1). The State acknowledges that because “explosive” modifies
“bomb” in Section 30-7-18(B)(1), the definition of “explosive” provided in Section 30-7-
18(A) applies to Subsection (B)(1). Thus, whether a dry ice bomb is an “explosive bomb”
depends on whether it is an “explosive” as defined by Section 30-7-18(A), and if so, whether
it is also a “bomb,” which is a term that is undefined in the Explosives Act.

{10} The State argues that “[a] dry ice bomb falls within [Section 30-7-18(A)] because it
is a mixture of two chemical compounds (dry ice (solid CO2) and water (liquid H2O)) in a
closed container, and the primary or common purpose of this mixture is to create an
explosion.” Relying on the principle of ejusdem generis, Defendant argues that the physical
expansion of compressed gas that characterizes a dry ice bomb is inconsistent with
“explosive” as defined by, and exemplified in, Section 30-7-18(A). The parties also disagree
about whether a dry ice bomb is a “bomb” as that term is commonly understood.

{11} “The rule of ejusdem generis requires[] that where general words follow an
enumeration of persons or things of a particular and specific meaning, the general words are
not construed in their widest extent but are instead construed as applying to persons or things
of the same kind or class as those specifically mentioned.” State v. Office of Pub. Defender
ex rel. Muqqddin, 2012-NMSC-029, ¶ 29, 285 P.3d 622 (internal quotation marks and
citation omitted); see NMSA 1978, § 12-2A-20(A) (1997) (codifying the principle of
ejusdem generis as an aid to statutory construction). From the definition in Section 30-7-
18(A), there is no indication that the Legislature intended “explosive” to cover the dry ice
and water combination that leads to the explosion of a jug or a bottle by virtue of the
physical change of CO2 from a solid to a gaseous state. The list of enumerated examples of
“explosive” in Section 30-7-18(A) share in common the element of combustion. Thus, the
potential harm caused by “dynamite and other high explosives, black powder, pellet powder,
initiating explosives, detonators, safety fuses, squibs, detonating cord, igniter cord, and
igniters” all result from or cause fire. Id. It is undisputed that a dry ice bomb does not
involve the use of nor does it cause fire. Because a dry ice bomb does not fit within the class
of devices enumerated in Section 30-7-18(A), the principle of ejusdem generis compels a
conclusion that the Legislature did not intend the term “explosive” to cover the combination
of dry ice and water in a closed container.

{12} We need not consider whether a dry ice bomb is a “bomb” as that term is commonly
understood. The Legislature chose to modify the term “bomb” in Section 30-7-18(B)(1)
with the adjective “explosive.” Even assuming, without deciding, that a dry ice bomb is a

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“bomb,” it nevertheless does not come within the definition of Subsection (B)(1) because
it is not also an “explosive.” See State v. Jackson, 2010-NMSC-032, ¶ 28, 148 N.M. 452,
237 P.3d 754 (“It is fundamental that a statute should be so construed that no word, clause,
sentence provision[,] or part thereof shall be rendered surplusage or superfluous.” (internal
quotation marks and citation omitted)).

{13} Nor do we believe that a dry ice bomb falls within the scope of Section 30-7-18(B)(1)
as a “similar device” to an explosive bomb, grenade, or missile. Like explosive bombs,
grenades and missiles are associated with fire or combustion. Moreover, explosive bombs,
grenades, and missiles are similar to one another insofar as they are commonly associated
with large scale explosions and military combat. The same would not be said of a dry ice
bomb. Because a dry ice bomb would not rationally be characterized as “similar” to an
explosive bomb, a grenade, or a missile in terms of its components, its destructive force, or
its use, the principle of ejusdem generis precludes a conclusion that it comes within the
ambit of “similar device” under Section 30-7-18(B)(1). In sum, Subsection (B)(1) is
inapplicable to this case.

The Applicability of Section 30-7-18(B)(2)

{14} The State argues, in the alternative, that a dry ice bomb is an explosive device as set
out under Section 30-7-18(B)(2) because it “is a device or mechanism created to start an
explosion.” The State argues that unlike Subsection (B)(1), Subsection (B)(2) does not
employ the use of the modifying adjective “explosive.” Therefore, the State argues, in
interpreting the scope of the definition provided in Subsection (B)(2), “there is no need to
refer back to the meaning of the term [‘]explosive.[’] ”

{15} The ordinary definition of “explosion” invokes the concept of bursting as the result
of the expansion of gases and/or internal pressure, which, as Defendant concedes, is the
reaction sought from and expected of a dry ice bomb. See Merriam-Webster Dictionary,
http://www.merriam-webster.com/dictionary/explosion (last visited May 30, 2013) (defining
“explosion” as “1: the act or an instance of exploding . . . 2: a large-scale, rapid, or
spectacular expansion or bursting out or forth”); Merriam-Webster Dictionary,
http://www.merriam-webster.com/dictionary /explode (last visited May 30, 2013) (defining
“explode” or “exploding” as “1: to burst forth with sudden violence or noise from internal
energy: as [(a)]: to undergo a rapid chemical or nuclear reaction with the production of noise,
heat, and violent expansion of gases . . . [or (b)]: to burst violently as a result of pressure
from within”); see also The American Heritage Dictionary of the English Language,
http://ahdictionary.com/word/search.html?q=explode (last visited May 30, 2013) (providing
the definition of “explode,” to include, “[t]o release mechanical, chemical, or nuclear energy
by the sudden production of gases in a confined space” or “[t]o burst violently as a result of
internal pressure”); cf. Johnson, 2009-NMSC-049, ¶ 12 (turning to the dictionary definition
of the term “employee” to glean its “ordinary meaning”). Thus, the ordinary definitions of
the terms “explosion,” “explode,” and “exploding” could be construed to cover a dry ice
bomb. Nevertheless, examining the foregoing meanings does not end our inquiry in this

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case.

{16} We will not rely upon the literal meaning of the words chosen by the Legislature
“when such an application would be absurd, unreasonable, or otherwise inappropriate.”
Rivera, 2004-NMSC-001, ¶ 13. To read Section 30-7-18(B)(2) in the manner advocated by
the State would lead to an absurd result. As indicated earlier in this Opinion, a dry ice bomb
is not “explosive” as defined in Section 30-7-18(A). Thus, to rely exclusively on the plain
meaning of “explosion” to conclude that a dry ice bomb fits within Subsection (B)(2) would
be to conclude that the device at issue, though not explosive, is nevertheless an “explosive
device.”

{17} Moreover, we reject the State’s suggestion that Section 30-7-18(B)(2) may be read
without reference to Section 30-7-18(A). “[A] statutory subsection may not be considered
in a vacuum, but must be considered in reference to the statute as a whole[.]” Rivera, 2004-
NMSC-001, ¶ 13 (internal quotation marks and citation omitted). Reading Sections 30-7-
18(A) and 30-7-18(B) in reference to one another as parts of a “harmonious” whole, we
cannot conclude that the Legislature intended the definition of “explosive device” to be
considered wholly unrelated to its definition of “explosive.” See Rivera, 2004-NMSC-001,
¶ 13 (“[W]henever possible . . . we must read different legislative enactments as harmonious
instead of as contradicting one another.” (omission in original) (internal quotation marks
and citation omitted)). Had the Legislature intended to omit the concept or the definition of
“explosive” from Section 30-7-18(B), it could have chosen different language. That the
Legislature chose to modify “device” in Section 30-7-18(B) with the earlier defined term,
“explosive,” cannot be ignored. See Jackson, 2010-NMSC-032, ¶ 28 (“It is fundamental that
a statute should be so construed that no word, clause, sentence provision[,] or part thereof
shall be rendered surplusage or superfluous.” (internal quotation marks and citation
omitted)).

{18} Similarly, viewed in the context of Section 30-7-18 as a whole, it is rational to
conclude that the term “explosion” in Subsection (B)(2) was intended to be construed as a
derivative of or in relationship to the term “explosive.” That is, in addition to the dictionary
definitions of “explosion” provided earlier, the term “explosion” might also be used in
ordinary parlance to describe what occurs as a result of the combustion of an explosive
device. Thus, viewed in context of the statute and section as a whole, we do not believe that
Subsection (B)(2) encompasses a dry ice bomb.

{19} We are not persuaded by the State’s additional arguments or authority regarding the
scope of Section 30-7-18. The State argues that we should follow the lead of the Ohio Court
of Appeals which determined, in two separate cases, that a bottle bomb was an “explosive
device,” but that it was not an “explosive.” See State v. Dommer, 162 Ohio App. 3d 404,
2005-Ohio-4073, 833 N.E.2d 796, at ¶ 12 (concluding that a bottle bomb “was not an
‘explosive’ as defined” by the Ohio Revised Code); In re Travis, 675 N.E.2d 36, 37-40
(Ohio Ct. App. 1996) (concluding that a bottle bomb was an explosive device under the Ohio
Revised Code). In concluding that a bottle bomb was an explosive device, the Travis court

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interpreted a statutory definition of such a device that differed significantly from the
definitions provided in Section 30-7-18(B). In relevant part, the Ohio Revised Code defined
“explosive device” as a “device designed or specially adapted to cause physical harm to
persons or property by means of an explosion” and it included “any pressure vessel which
has been knowingly tampered with or arranged so as to explode.” Travis, 675 N.E.2d at 39
(internal quotation marks and citation omitted). Thus, the Ohio statute at issue in Travis was
broader than Section 30-7-18(B), and its applicability depended, in part, on the purpose of
the device. Owing to the lack of similarity between the Ohio statute and Section 30-7-18(B),
Travis does not provide persuasive authority for the State’s argument. Additionally, the
State warns against the danger of a ejusdem generis analysis in this case by arguing that
limiting the definitions of Section 30-7-18 to “reactions caused by burning or fire” cannot
have been the Legislature’s intent because, under that interpretation, “the possession of
atomic bombs” would be legal under Section 30-7-19.1. We do not find this line of
reasoning persuasive. We do not believe that the New Mexico Legislature intended the
Explosives Act to cover the “possession” of atomic weaponry. It is unlikely that possession
of an atomic bomb would be the subject of a state-level prosecution. Atomic energy is the
purview of the federal government. See 42 U.S.C.A. § 2271(c) (West 2013) (stating that the
Attorney General of the United States has the exclusive authority to bring any action against
any individual or person for a violation of the Atomic Energy Act).

{20} The State also argues that the Legislature did not need to include specific language
about dry ice bombs in the Explosives Act to indicate that such a device was prohibited. The
appellate courts recognize that, when drafting a statute, the Legislature cannot predict all of
its possible applications. Cf. Martinez v. Pub. Emps. Ret. Ass’n of N.M., 2012-NMCA-096,
¶ 11, 286 P.3d 613 (recognizing that “legislatures cannot predict all possible applications
when drafting a statute” (internal quotation marks and citation omitted), cert. quashed, 2013-
NMCERT-003, ___ P.3d ___ (No. 33,759). It is for that reason that we rely on principles
of statutory construction. And as earlier indicated in this Opinion, we do not believe that dry
ice bombs fall within the definitions provided in Section 30-7-18.

{21} Further, the State argues that the Legislature was not alerted to the need to
specifically include dry ice bombs within the purview of the Explosives Act because, at the
time that the statute was drafted, other state legislatures had yet to expressly prohibit such
devices. We see no rational basis for this argument. The Legislature is free to draft and to
amend statutes as it sees fit. Dry ice bombs are not a new concept. See e.g., Rataj, 73 F.2d
at 184-85 (describing, in 1934, the makings of what would be considered a dry ice bomb
today). Nor do we believe that our Legislature would depend upon statutory amendments
from other states to alert them to the concept or to the danger of such devices. We have
concluded that the Legislature did not intend to include dry ice bombs within the purview
of the Explosives Act. Cf. Muqqddin, 2012-NMSC-029, ¶ 37 (declining to expand the
statutory definition of “prohibited space,” as that term is used in the burglary statute, absent
the Legislature’s clear intent to do so).

CONCLUSION

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{22} For the foregoing reasons, we affirm the district court’s dismissal of the charge
against Defendant for possession of an explosive or incendiary device.

{23} IT IS SO ORDERED.

____________________________________
JONATHAN B. SUTIN, Judge

WE CONCUR:

____________________________________
JAMES J. WECHSLER, Judge

____________________________________
M. MONICA ZAMORA, Judge

Topic Index for State v. Alverson, No. 32,046

APPEAL AND ERROR
Standard of Review

CRIMINAL LAW
Explosive Device

CRIMINAL PROCEDURE
Dismissal of Charges

STATUTES
Interpretation
Legislative Intent
Rules of Construction

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