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.
unpublished portion of this opinion, we further hold that (1)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.
Charges and Pretrial Matters
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.
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.
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
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.
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.
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.
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
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.
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.
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.
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.
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
jury found Olsen guilty of first degree unlawful possession
of a firearm. Olsen appeals.
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 ...