dissenting. I believe that a reasonable doubt exists regarding the intended meaning of the statutes after examination of “the language and structure, legislative history, and motivating policies,” and therefore conclude that the rule of lenity should be applied. Bifulco v. United States, 447 U.S. 381, 387 (1980).
For purposes of 13 V.S.A. § 1604, “‘Destructive device5 means any: (A) explosive, incendiary or poison gas bomb . . . ,” and “‘Explosive5 . . . does not include . . . any components of ammunition for a firearm including primers, smokeless powder or black gunpowder.” 13 Y.S.A. § 1603(1)(A) & (2). It is reasonable to construe the statute such that the word “explosive” in the definition of destructive device is defined under “explosive.” Therefore, the statute supports a reasonable construction that contradicts that espoused by the majority.
Where there is an ambiguity in a statute “which admits of two reasonable and contradictory constructions, that one which operates in favor of the person accused under its provisions is to be preferred.” State v. Baldwin, 109 Vt. 143, 148, 194 A. 372, 374 (1937); cf. State v. Oliver, 151 Vt. 626, 629, 563 A.2d 1002, 1004 (1989) (penal statutes are strictly construed in manner favorable to accused). I would affirm.
I am authorized to state that Justice Johnson joins in this dissent.