Opinion
No. 51531-8-II
10-08-2019
STATE of Washington, Respondent, v. Michael Shawn OLSEN, Appellant.
Marie Jean Trombley, Attorney at Law, Po Box 829, Graham, WA, 98338-0829, for Appellant. Jason Fielding Walker, Grays Harbor Prosecuting Attorney, 102 W Broadway Ave. Rm. 102, Montesano, WA, 98563-3621, for Respondent.
Marie Jean Trombley, Attorney at Law, Po Box 829, Graham, WA, 98338-0829, for Appellant.
Jason Fielding Walker, Grays Harbor Prosecuting Attorney, 102 W Broadway Ave. Rm. 102, Montesano, WA, 98563-3621, for Respondent.
PUBLISHED IN PART OPINION
Cruser, J. ¶1 Michael Shawn Olsen appeals his conviction and sentence for first degree unlawful possession of a firearm. In the published portion of this opinion, we expressly reject our prior decision in State v. Pierce and hold that the jury was not required to find that the gun Olsen possessed was operable for it to be considered a "firearm" under former RCW 9.41.010(9) (2015). Because of this holding, we also reject Olsen’s argument that the evidence was insufficient to support the conviction.
155 Wash. App. 701, 230 P.3d 237 (2010).
¶2 In the unpublished portion of this opinion, we further hold that (1) Olsen has waived the prosecutorial misconduct claim because he fails to show that the alleged misconduct was so flagrant and ill intentioned that an instruction could not have cured the resulting prejudice and (2) the trial court did not err when it required Olsen to register as a felony firearm offender. Accordingly, we affirm Olson’s conviction and the trial court’s requirement that Olsen register as a felony firearm offender.
FACTS
I. CHARGES AND PRETRIAL MATTERS
¶3 On June 15, 2017, Olsen, who had prior felony convictions, attempted to sell a gun at a local gun shop. After rejecting the gun shop employee’s offer, Olsen left the shop with the gun. The gun shop employee contacted the police to verify that the gun was not stolen.
¶4 After determining that Olsen was prohibited from possessing firearms, the police contacted and arrested Olsen. The gun was never recovered. The State charged Olsen with first degree unlawful possession of a firearm.
¶5 Before trial, while discussing jury instructions, the State alerted the trial court that the focus of the case was going to be whether the gun "was in perfect, working order when the defendant tried to sell it." Verbatim Report of Proceedings (VRP) (Oct. 31, 2017) at 23. The State argued that it had to prove that the unrecovered gun was only a "gun in-fact" and that it could be rendered operational quickly and easily. Id. at 26. The trial court deferred ruling on how to instruct the jury on this matter.
II. TRIAL
¶6 At trial, the State presented testimony from Steven Vetter, the gun shop employee to whom Olsen had tried to sell the gun. Olsen’s sole witness was a firearms expert, Marty Hayes.
A. TESTIMONY
¶7 Vetter testified that he worked at the gun shop and was responsible for purchasing used guns. Olsen came into the gun shop and attempted to sell a .22 caliber Ruger revolver that he had been carrying in a shoulder holster for $250. Olsen did not say there was anything wrong with the gun.
¶8 Olsen told Vetter that the gun was loaded. After unloading the gun, Vetter, who was very familiar with this type of gun, visually inspected the gun "to make sure that all the parts were intact in the firearm, that there was no visible missing components, springs, hammer, transfer bar, things that could be removed." Id. at 16. Concluding that the gun was in "[p]retty good" condition and not observing any problems with the gun, Vetter offered Olsen $125. Id. at 14. Olsen rejected this offer, reloaded and holstered the gun, and left.
¶9 In addition to testifying about his encounter with Olsen, Vetter testified that he had extensive experience with guns, that he was trained to "tear guns down" and able to clean and fix them, and that although he did not work as a gunsmith, he regularly worked on his own guns. Id. at 7-8. Vetter said that he would not have considered purchasing the gun unless he was satisfied that it was in working condition. Vetter also described his examination of the gun in detail, but he stated that he did not test fire the gun because he did not have the ability to do so at the shop. ¶10 Hayes, president and director of the Firearms Academy of Seattle, testified on Olsen’s behalf. He reviewed the video from the store, the police report and statements, and the photograph of the gun that Olsen had attempted to sell. Hayes confirmed that the gun was a real gun rather than a toy or replica and opined that test firing the gun was the only way to determine for sure whether the gun would fire.
B. JURY INSTRUCTIONS
¶11 After the parties rested, they discussed the proposed jury instructions addressing the definition of the term "firearm." Olsen proposed a jury instruction stating that in order to find a device to be a "firearm," the jury needed to find that the "device" in question was "capable of being fired either instantly or with reasonable effort and within a reasonable time." Clerk’s Papers (CP) at 43. He also proposed an instruction that required the jury to find that the State had presented "sufficient evidence to find a firearm operable under this definition." Id . Olsen acknowledged, however, that he was unsure whether these proposed instructions should be given because whether the firearm had to be operational was "muddy water." VRP (Oct. 31, 2017) at 109.
Olsen cited our decision Pierce , 155 Wash. App. at 714, 230 P.3d 237, as the source of this instruction.
¶12 The following day, the trial court announced that it had reviewed the case law regarding whether the State had to prove that the firearm was operable and that this case law was unclear. The trial court chose to give an instruction following WPIC 2.10, which stated, "A firearm is a weapon or device from which a projectile may be fired by an explosive such as gunpowder." CP at 48.
11 Washington Practice: Washington Pattern Jury Instructions: Criminal 2.10, at 60 (4th ed. 2016) (WPIC).
C. CLOSING ARGUMENTS
¶13 In its closing argument, the State focused on whether it was required to prove that the gun was operational. The State argued that the evidence established that the gun met the definition of "firearm" in the jury instruction.
¶14 Olsen’s argument focused on whether or not the gun met the definition of "firearm." Olsen referred the jury to the instruction defining the term "firearm" and told the jury that although the State argued about what this instruction meant, it was the jury’s job "to go back and decide what you believe this specific language [in the instruction] means." VRP (Nov. 1, 2017) at 152. Olsen then argued that the phrase "[m]ay be fired by an explosive such as gun powder" required the jury to determine whether the gun would actually fire. Id . In rebuttal, the State again argued that the evidence demonstrated that the firearm was "legally a firearm" based on the jury instructions. Id. at 158.
¶15 The jury found Olsen guilty of first degree unlawful possession of a firearm. Olsen appeals.
ANALYSIS
¶16 Olsen contends that the trial court erred when it failed to instruct the jury that it had to find that the gun he possessed was operable in order to find that it was a "firearm" and asserts that the evidence was insufficient to prove that the gun was operable. We reject these claims.
Olsen raises this issue in his statement of additional grounds for review (SAG). RAP 10.10.
FIREARM DEFINITION
¶17 Citing State v. Recuenco , 163 Wash.2d 428, 180 P.3d 1276 (2008), and Pierce , Olsen contends that the jury instructions relieved the State of the burden of proving every element of the offense because the instructions did not require the State to prove that the gun was operable and that the State failed to prove the unlawful possession of a firearm charge because the evidence was insufficient to prove the gun he attempted to sell was operable. The premise underlying both of these claims is that the State was required to prove that the gun was operable to meet the statutory definition of a firearm under former RCW 9.41.010(9), which defines "firearm." We hold that Olsen fails to show that he is entitled to relief on these grounds.
A. LEGAL PRINCIPLES
¶18 Whether the State was required to prove that Olsen’s gun was "operational" is a question of law that we review de novo. State v. Raleigh , 157 Wash. App. 728, 734, 238 P.3d 1211 (2010).
B. CONFLICTING CASE LAW
¶19 In April 2010, we issued Pierce , in which we held that in order to prove a firearm enhancement, the State had to present evidence that the defendant’s weapon was an "operable" gun to establish that the weapon met the legal definition of a firearm. 155 Wash. App. at 714, 230 P.3d 237. In reaching this conclusion, Pierce relied on Recuenco , 163 Wash.2d at 437, 180 P.3d 1276, which, in turn, relied on State v. Pam , 98 Wash.2d 748, 659 P.2d 454 (1983), overruled in part on other grounds by State v. Brown , 111 Wn.2d 124, 154-55, 761 P.2d 588 (1988).
Although Pierce addressed a sentencing enhancement rather than an unlawful possession of a firearm charge, it addressed the same definition that is at issue here.
¶20 A few months later, in September 2010, we issued Raleigh , 157 Wash. App. at 734-36, 238 P.3d 1211. In Raleigh , which addressed an unlawful possession of a firearm conviction, we rejected the argument that under Recuenco , a gun must be operable during the commission of the crime to qualify as a firearm within the meaning of former RCW 9.41.010 (2001). Raleigh , 157 Wash. App. at 734-36, 238 P.3d 1211. Although Raleigh did not acknowledge Pierce , Raleigh expressly distinguished Recuenco , holding that the language in Recuenco referring to the operability of the firearm was "nonbinding dicta." Raleigh , 157 Wash. App. at 735, 238 P.3d 1211.
¶21 In Raleigh , we also held that the controlling law was State v. Faust , 93 Wash. App. 373, 967 P.2d 1284 (1998), which held that "[a] firearm need not be operable during the commission of a crime to constitute a ‘firearm’ within the meaning of former RCW 9.41.010(1)" and that the relevant inquiry was "whether the firearm is a ‘gun in fact’ rather than a ‘toy gun.’ " 157 Wash. App. at 734, 238 P.3d 1211.
Despite the conflict between Pierce and Raleigh , our Supreme Court denied review of Raleigh . State v. Raleigh , 170 Wash.2d 1029, 249 P.3d 624 (2011).
¶22 More recently, in State v. Tasker , 193 Wash. App. 575, 581-82, 373 P.3d 310 (2016), Division Three of this court followed Raleigh . As we did in Raleigh , Tasker acknowledged that the language in Recuenco relied on in Pierce was nonbinding dicta. Tasker , 193 Wash. App. at 592, 373 P.3d 310 (citing Raleigh , 157 Wash. App. at 735-36, 238 P.3d 1211 ). Acknowledging Raleigh , Division Three stated, "[W]e disagree with the suggestion in Pierce that the State must always present evidence specific to operability at the time of the crime." Tasker , 193 Wash. App. at 593-94, 373 P.3d 310.
Tasker is the only published case addressing whether a firearm has to be operational that cites Raleigh or Pierce .
C. DISCUSSION
¶23 Both Division Three in Tasker and this court in Raleigh have "characterized Recuenco ’s statement about the requirement of ‘sufficient evidence to find a firearm operable’ as nonbinding dictum," emphasizing that this statement was intended " ‘merely to point out that differences exist between a deadly weapon sentencing enhancement and a firearm sentencing enhancement.’ " Tasker , 193 Wash. App. at 591, 373 P.3d 310 (quoting Raleigh , 157 Wash. App. at 735-36, 238 P.3d 1211 ). We agree that the language in Recuenco was dicta. Recuenco was not examining whether operability was required. It was, instead, examining "whether Washington law requires a harmless error analysis where a sentencing factor, such as imposition of a firearm enhancement based on a deadly weapon finding, was not submitted to the jury." 163 Wash.2d at 431, 180 P.3d 1276. And Recuenco relied on Pam , which merely used the term "operability" in passing when evaluating whether there was evidence establishing that a device was more than a "gun-like object." Pam , 98 Wash.2d at 754, 659 P.2d 454.
¶24 Additionally, former RCW 9.41.010(9) (2015), which was the statute in effect at the time of the crime, defined "firearm" as "a weapon or device from which a projectile or projectiles may be fired by an explosive such as gunpowder." The plain language of the statute does not require that the gun be "operational" at the time of the offense.
¶25 Thus, we agree with Tasker and Raleigh and hold that the State was not required to prove that the firearm was operable at the time of the offense. In doing so, we expressly reject the analysis in Pierce . As Olsen’s sufficiency claim and his jury instruction challenge both rest on this failed premise, he is not entitled to relief on these grounds.
¶26 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2.06.040, it is so ordered.
We concur:
MAXA, C.J.
LEE, J.