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State v. Olsen

Court of Appeals of Washington, Division 2

October 8, 2019

STATE OF WASHINGTON, Respondent,
v.
MICHAEL SHAWN OLSEN, Appellant.

          OPINION

          CRUSER, J.

         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[1] 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.

         In the unpublished portion of this opinion, we further hold that (1) Olsen has waived the prosecutorial misconduct claim because he fails to show that the alleged misconduct was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

         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.

         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.

         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

         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

         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.

         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.

         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.

         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

         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."[2] 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.

         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, [3] 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.

         C. Closing Arguments

         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.

         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.

         The jury found Olsen guilty of first degree unlawful possession of a firearm. Olsen appeals.

         ANALYSIS

         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 ...


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