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State v. Ingham

Supreme Court of Kansas

November 30, 2018

State of Kansas, Appellee,
Daron Ingham, Appellant.


         1. Witnesses and counsel may use common words and phrases that accurately and correctly describe people, things, and situations, even if the words or phrases have connotations broader than the meaning intended in the trial context.

         2. Failure to submit to the jury an essential element of a crime for factual determination violates a defendant's Sixth Amendment right to trial by jury.

         3. Where there is error of a constitutional dimension, this court may find the error harmless so long as there was no reasonable possibility that it affected the outcome of the trial.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed December 4, 2015.

          Appeal from Reno District Court; Trish Rose, judge.

          Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

          Andrew R. Davidson, assistant district attorney, argued the cause, and Derek Schmidt, attorney general, was with him on the brief for appellee.


          Rosen, J.

         Daron Ingham was convicted of one count of possession or use of a commercial explosive. The Court of Appeals affirmed the conviction, and this court granted review.


         In an early afternoon in March 2013, Jake Trussell, an employee of the Reno County Sheriff's Department, received a call about an explosion at a trailer park in Nickerson, Kansas. Trussell drove to the site of the reported explosion, where a woman, followed by Ingham, met him at the door of a trailer home. When asked if he had heard or caused any explosions, Ingham stated that he was responsible for them.

         Ingham said that he had made "firecrackers" in an attempt to blow up boulders. The components were a beer can, a fuse, green tape, and gunpowder. Ingham said he set off the explosion in a cement mixer by the front door of the trailer, and Trussell found a damaged can in the mixer. Ingham then said that he was using the "fireworks" to blow up rocks inside the cement mixer in order to extract gold from them. Ingham showed Trussell the backseat of his truck, which was parked in the driveway and contained a roll of green fuse, a container of Pyrodex gunpowder, and a roll of clear tape. As he was showing Trussell the container of gunpowder, Ingham unscrewed the top and poured it onto the ground. At that point, Trussell arrested Ingham and placed him in handcuffs to preclude Ingham from destroying evidence.

         Ingham asked to speak with John Orrison, a deputy with the Reno County Sheriff's Department, who had arrived at the scene. Orrison asked him if he had actually built a bomb, and Ingham replied that he had. Ingham explained that he had recently been to Colorado, where he collected rocks that he believed contained gold. He was trying to extract the gold by blowing the rocks into smaller pieces.

         While he was investigating the scene at the trailer park, Orrison was notified of a call about someone displaying explosive devices at a gasoline station west of Nickerson. Orrison asked Ingham if had been at the station, and Ingham told him he had been there searching for shed deer antlers. He had brought a device with him to blow up some rocks by a river in the hopes of extracting silver from a vein that supposedly ran along the river. In talking with someone from out of town at the station about what there was to do in that area, Ingham tossed the device to the man and "told him to have some joy."

         Captain Steven Lutz of the Reno County Sheriff's Department was called in to help investigate the scene at the trailer park. He examined the shredded can found in the cement mixer and concluded that it was the remnant of an improvised explosive device, which he defined as "any type of device in components other than individually is not dangerous, [sic] however when combined creates a device in essence a homemade bomb, a homemade explosive." He retrieved an empty container of Pyrodex smokeless powder. The gunpowder and fuse were lawfully obtained and are not illegal to possess.

         The State charged Ingham with one count of criminal use of explosives under K.S.A. 2012 Supp. 21-5814(a)(1) which deals with commercial explosives; one count of criminal use of explosives under K.S.A. 2012 Supp. 21-5814(a)(2), which deals with simulated explosive devices; and one count of aggravated endangering of a child under K.S.A. 2012 Supp. 21-5601(b)(1). Before trial, the court dismissed the simulated explosive and child-endangerment charges. Following the presentation of evidence, a jury found Ingham guilty of one count of criminal use of explosives under K.S.A. 2012 Supp. 21-5814(a)(1), and the court sentenced him to a standard guideline sentence of 18 months, with probation. Ingham filed a timely notice of appeal. The Court of Appeals affirmed the conviction in State v. Ingham, No. 111, 444, 2015 WL 8175032 (Kan. App. 2015) (unpublished opinion). This court granted Ingham's petition for review on all issues.


         Terminology Employed to Describe the Devices

         Ingham initially contends that the district court erred when it allowed the State to use the phrases "pipe bomb" and "improvised explosive device" to describe the devices that he constructed. He contends those phrases have connotative meanings that would suggest to the jury that he was engaging in terroristic activities or had a terrorist mindset.

         Before trial, Ingham made an oral motion in limine to bar the State from using certain words in testimony or argument to the jury:

"In addition we'd like to make an oral motion that the State instruct its witnesses that they cannot use, include the term, bomb, I.E.D. or pipe bomb and in any of their testimony based on the fact that those terms specifically are more prejudicial than they are probative in nature, Judge [sic]. The State could use the word explosive device if necessary, but the terms, bomb, I.E.D. and pipe bomb are more prejudicial than probative."

         Ingham subsequently explained:

"Judge, the statement bomb, I.E.D. and pipe bomb are inherently prejudicial and the probative value is little considering the fact that the Court can instruct the State to have his witnesses testify to the fact there was an explosive device. Considering all the recent tragedies that continually occur that are constantly in the public eye, there is the concern is that Mr. Ingham could be convicted based solely on the use of those words. That this incident was something that it was not."

         The court denied the motion without explanation. Prosecution witnesses went on to refer to the device as an "improvised explosive device" or "I.E.D." as well as a "pipe bomb." In closing argument, the State repeatedly described it as an improvised explosive device, stating, for example, "He built a bomb. He built an improvised explosive device, which is a commercial explosive."

         A district court applies a two-prong test when ruling on a motion in limine. The court evaluates first whether the material or evidence in question will be inadmissible at trial and then that a pretrial ruling instead of a ruling at trial is justified (a) because the mere offer or mention of the evidence at trial may cause unfair prejudice, confuse the issues, or mislead the jury, (b) considering the issue during trial might unduly interrupt or delay the trial, or (c) a pretrial ruling may limit issues and lead to greater litigation efficiency. See Biglow v. Eidenberg, 308 Kan. 873, 891-92, 424 P.3d 515, 527-28 (2018).

         Ingham contended that the first prong, admissibility, was at issue because the use of the words "bomb," "improvised explosive device," and "pipe bomb" were inherently more prejudicial than probative. This court reviews for abuse of discretion a trial court's determination that the probative value of evidence outweighs the potential for producing undue prejudice. State v. Wilson, 295 Kan. 605, 612, 289 P.3d 1082 (2012). A trial court abuses its discretion when it makes a decision that is arbitrary, fanciful, or unreasonable; is based on an error of law; or is based on an error of fact. State v. Page, 303 Kan. 548, 555, 363 P.3d 391 (2015).

         Given the generalized nature of the argument supporting the motion Ingham made in limine, we find nothing unreasonable in the district court's decision. Ingham was on trial for concocting and detonating explosive devices. The words that he sought to suppress were, as he put it, associated with "tragedies." That is because explosives can be dangerous things, which is why he was on trial. Given the information available to the court at the time of the motion, it was not arbitrary, fanciful, or unreasonable to allow the State to use words that had some connation of harmful results.

         Even with the benefit of hindsight, Ingham does not support his claim that the State's choice of vocabulary to describe the things that he made had a prejudicial effect on his defense. He admitted to police that he made the device for the purpose of causing an explosion, and nonterrorist intentions are not a defense to possessing, manufacturing, or transporting commercial explosives. The description of the device applied not to what Ingham might do in the future but to what he had already done, and the jury was given no cause to engage in conjecture about an anti-personnel motivation for constructing a pipe bomb or I.E.D.

         Persons of common intelligence know what a bomb is. See People v. Dimitrov, 33 Cal.App.4th 18, 25, 39 Cal.Rptr.2d 257 (1995). Webster's New World College Dictionary 168 (5th ed. 2016) defines a bomb as a "container filled with an explosive, incendiary or other chemical for dropping or hurling, or for detonation by a timing mechanism." Under this and similar dictionary definitions, the devices that Ingham constructed were certainly bombs, and the court committed no error in allowing witnesses to refer accurately to the devices as "bombs."

         Witnesses and counsel may use common words and phrases that accurately and correctly describe people, things, and situations, even if the words or phrases have connotative meanings broader than the meaning intended in the trial context. Witnesses and counsel are not required to tiptoe around such language, possibly inventing euphemisms to replace ordinary English usage.

         It is also of no significance that the container was not actually a pipe. Ingham wants this court to conclude that it would make a difference to the jury if he did not pack the explosive materials into a metal tube commonly used as a conduit for liquids or gases but instead packed the explosive materials into a metal tube commonly used as a container of low-calorie beer. This distinction is trivial and was unlikely to cause prejudice in the minds of the jurors.

         In addition, Ingham urges this court to find prejudice in describing the device that he improvised in order to create an explosion an "improvised explosive device." We first note that the description was accurate. Ingham admitted that he made the contraption. It was clearly an explosive device. He improvised the device from various elements not made available for the specific purpose of creating ore-refining explosives.

         But Ingham asserts that the jury might have associated the phrase with terroristic activity, increasing the likelihood that it would convict him. It is not clear how such a nomenclature was prejudicial: there was never an allegation that he intended to use the device for terroristic purposes, and there was abundant evidence, including his own statements to investigators, that he intended to possess and manufacture an explosive. Even if the phrase "improvised explosive device" has a special meaning in popular parlance, the evidence was clear that Ingham created and detonated such a device, whether it was for geological or political purposes. We find no prejudice in the use of the phrase.

          Ingham fails to show that the use of the words at issue was improper or that it unfairly prejudiced his defense. The district court did not abuse its discretion in allowing the prosecution to use words and phrases that correctly and accurately described the explosive contraption that Ingham constructed.

         "Commercial Explosive" ...

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