                                                                FILED 

                                                            NOVEMBER 19,2015 

                                                          In the Office of the Clerk of Court 

                                                        W A State Court of Appeals, Division III 




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


STATE OF WASHINGTON,                          )        No. 32227-1-111
                                              )
                     Respondent,              )
                                              )
              v.                              )        UNPUBLISHED OPINION
                                              )
PETER JOHN OSIADACZ,                          )
                                              )
                     Appellant.               )

      LAWRENCE-BERREY, J. - Peter Osiadacz appeals his conviction for unlawful

possession of a fire ann in the second degree. He argues that the definition of "fireann" in

fonner RCW 9.41.01 O( 1) (2009)1 criminalizes a substantial amount of constitutionally

protected conduct, and is therefore unconstitutionally overbroad. We disagree and affinn.

                                         FACTS

       Shortly after midnight on April 11, 2012, Cle Elum Police Officer Nicholas

Burson saw Peter Osiadacz's car run a stop sign. Officer Burson stopped Mr. Osiadacz

and asked for his driver's license, registration, and insurance. Officer Burson noticed a


      1 We note that fonner RCW 9.41.010(1) was renumbered RCW 9.41.010(9) per
the Laws of2013, chapter 183, section 2.
No. 32227-I-II1
State v. Osiadacz


small white tub behind Mr. Osiadacz's driver's seat, which Officer Burson recognized as

a black powder container. Officer Burson gave Mr. Osiadacz a verbal warning and let

him go. Mr. Osiadacz merged back onto the road.

      After Mr. Osiadacz had driven away, Officer Burson performed a driver's check

on his computer, which revealed Mr. Osiadacz's driver's license was suspended. Officer

Burson then drove after Mr. Osiadacz, stopped him again, and walked up to his car. This

time, Officer Burson shined his flashlight on the floorboard behind Mr. Osiadacz's seat

and saw the butt of a pistol next to the canister of black powder. Based on his prior

interactions with Mr. Osiadacz, Officer Burson believed Mr. Osiadacz was a convicted

felon and was not allowed to have the handgun. Officer Burson returned to his patrol car

and ran Mr. Osiadacz's information through dispatch, which confirmed Mr. Osiadacz's

license was suspended and Mr. Osiadacz was a convicted felon.

       Officer Burson returned to Mr. Osiadacz's car to discuss the handgun and

discovered that while he was gone, Mr. Osiadacz had taken a box of doughnuts from the

front floorboard of his car and used the doughnut box to conceal the black powder

container. Officer Burson told Mr. Osiadacz it was illegal for him to have a handgun.

Mr. Osiadacz told Officer Burson it was not a real gun, but a cap gun made by a toy

company. Officer Burson removed the gun from Mr. Osiadacz's car, and he and Mr.



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No. 32227-1-111
State v. as iadacz


Osiadacz both examined the gun. Mr. Osiadacz insisted it was a toy cap gun, and Officer

Burson then fired caps on the scene after making sure the gun was unloaded. Officer

Burson believed the cap gun had been modified from a toy gun into a real gun, as

       it had an initial ram rod added to it for loading. It had a channel where the
       cap goes into the barrel for [sic] where it could combust the black powder
       so it had all of the elements of being able to fire a propellant.

Report of Proceedings (RP) at 98-99. Officer Burson also believed someone actually

used the gun to shoot projectiles, "because the end ofthe barrel was mushroomed and

cracked as if it had been over pressurized and then there was also a residue inside which

was consistent with black powder." RP at 99. Mr. Osiadacz told Officer Burson he had

added the ramrod and done the modifications himself. Officer Burson told Mr. Osiadacz

his cap gun "really looked like a real gun," and Mr. Osiadacz responded, '" [Y]eah, it

does look like a real gun ... 1 fucked up ... I'm sorry about that. '" RP at 10 L Officer

Burson seized the modified cap gun, gave Mr. Osiadacz a citation for driving with a

suspended driver's license, and let Mr. Osiadacz go.

       The State charged Mr. Osiadacz with second degree unlawful possession of a

firearm under RCW 9.41.040(2)(a)(i). Among its witnesses, the State called Officer

Burson and Kathy Geil.




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No. 32227-1-II1
State v. Osiadacz


       Ms. Geil is a fireann and tool marker examiner at the Washington State Patrol

Crime Laboratory in Seattle. She examined the modified gun in 2012 and again in April

2013. She testified that the gun in question was a toy cap gun originally designed to

shoot a cork, but was modified so it could be loaded with black powder and shoot a pellet.

Ms. Geil's testimony was supported by tests she conducted on the actual modified gun,

and additional tests on a similar toy cap gun she purchased on eBay and modified to

resemble the gun in question. She testified that the two modified toy guns were

substantially similar, and the reason she built the replica was so not to destroy the gun in

question by testing its capacity to fire a projectile by using incremental amounts of

gunpowder. She concluded that the modified cap gun fell within the definition she would

use in her field to define what a fireann is, "[b]ecause you can place an explosive material

black powder in the weapon, place a projectile in there[,] give it a primer material system

[Le.,] percussion caps[,] pull a trigger and it will discharge a projectile." RP at 188. On

cross-examination, Ms. Geil admitted that the toy gun, prior to any modification, also

qualified as a '~fireann" under her definition because the cork was a projectile which

could be fired by a cap, a type of explosive.




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No. 32227-I-III
State v. Osiadacz


       Mr. Osiadacz also testified. He testified he found the cap gun in a car's trunk in

the wrecking yard he owned. Mr. Osiadacz also testified he never modified the cap gun

or fired black powder from the cap gun, and only used it as a toy.

       At the end of the trial, the superior court and the parties discussed proposed jury

instructions. Jury instruction 8 stated, "A 'firearm' is a weapon or device from which a

projectile may be fired by an explosive such as gun powder." Clerk's Papers at 111. Mr.

Osiadacz objected to jury instruction 8's definition ofa firearm "on the basis it's

overbroad, constitutionally overbroad." RP at 294. The superior court noted Mr.

Osiadacz's objection and gave the instruction. The jury found Mr. Osiadacz guilty. This

appeal followed.

                                        ANALYSIS

       The constitutionality ofa statute is reviewed de novo. State v. Abrams, 163 Wn.2d

277,282, 178 P.3d 1021 (2008) (quoting State v. Watson, 160 Wn.2d 1, 5-6, 154 P.3d

909 (2007)). "A statute is presumed to be constitutional, and the party challenging the

constitutionality of a statute must prove its unconstitutionality beyond a reasonable

doubt." City ofBellevue v. Lee, 166 Wn.2d 581,585,210 PJd 1011 (2009) (internal

quotation marks omitted). "The overbreadth claimant bears the burden of demonstrating,

'from the text of [the law] and from actual fact,' that substantial overbreadth exists."


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No. 32227-1-III
State v. Osiadacz


Virginia v. Hicks, 539 U.S. 113, 122, 123 S. Ct. 2191, 156 L. Ed. 2d 148 (2003)

(alteration in original) (quoting NY. State Club Ass'n v. City o/New York, 487 U.S. 1, 14,

108 S. Ct. 2225, 101 L. Ed. 2d 1 (1988)).

       Mr. Osiadacz contends the statutory definition of a firearm criminalizes a

substantial amount of constitutionally protected conduct and is, therefore, overbroad.

Former RCW 9.41.010(1) defines a "firearm" as "a weapon or device from which a

projectile or projectiles may be fired by an explosive such as gunpowder." Mr.Osiadacz

further contends that because former RCW 9.41.01 O( 1) is overbroad, the jury instruction

based on that statute was improper.

       "Overbreadth is a question of substantive due process-whether the statute is so

broad that it prohibits constitutionally protected activities as well as unprotected

behavior." State v. McBride, 74 Wn. App. 460, 464, 873 P.2d 589 (1994). Overbreadth

doctrine creates a limited exception to the general rule that a party "will not be heard to

challenge [a] statute on the ground that it may conceivably be applied unconstitutionally

to others, in other situations not before the Court." Broadrick v. Oklahoma, 413 U.S.

601,610,93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973). Washington courts apply federal

overbreadth analysis to these challenges. State v. Talley, 122 Wn.2d 192,210,858 P.2d

217 (1993). While overbreadth challenges usually invoke First Amendment to the United


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No. 32227-1-111
State v. Osiadacz


States Constitution rights, Washington courts have applied overbreadth analysis to other

constitutionally protected rights as well. See State v. Lee, 135 Wn.2d 369, 389-90, 957

P.2d 741 (1998) (applying overbreadth analysis to an anti-stalking statute and detennining

that the statute did not improperly infringe on the constitutional right to travel and move

freely in public places); McBride, 74 Wn. App. at 465 (applying overbreadth analysis to a

statute prohibiting drug traffickers from frequenting areas known for drug activity and

noting that such an analysis applies regardless of whether the constitutional right involved

is free speech or the right to move about freely and travel).

       The first step in overbreadth analysis is detennining if a statute reaches

constitutionally protected conduct. ld. at 464. "Statutes which regulate behavior and not

purely speech will not be overturned unless the overbreadth is both real and substantial in

relationship to the conduct legitimately regulated by the statute." ld. Even if a statute is

substantially overbroad, it "will be overturned only if the court is 'unable to place a

sufficiently limited construction upon the standardless sweep of [the] legislation.'" ld.

(alteration in original) (internal quotation marks omitted) (quoting City ofSeattle v.

Webster, 115 Wn.2d 635,641,802 P.2d 1333 (1990)).

       Mr. Osiadacz concedes his modified toy gun "fit into the definition of a fireann

under the challenged statutes and instruction 8." Br. of Appellant at 8..Mr. Osiadacz's



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No. 32227-1-111
State v. Osiadacz


argument, then, is that the statutory definition of firearm is constitutionally overbroad

because this provision criminalizes other people from possessing toy guns, and "[a] father

or grandfather cannot be a criminal for possessing or being around a toy gun." Br. of

Appellant at 9.

       Here, Mr. Osiadacz fails to identify any constitutionally protected conduct that

former RCW 9.41.01 O( 1) prohibits. A father or grandfather does not have a

constitutional right to possess a toy gun. Because the definition of a firearm does not

criminalize constitutionally protected speech or conduct, it is not overbroad.

       We have held that former RCW 9.41.010(1) and RCW 9.41.040 do not criminalize

possessing toy guns. These statutes prohibit certain persons from possessing a "gun in

fact." See State v. Raleigh, 157 Wn. App. 728, 734,238 PJd 1211 (2010) (stating that

the relevant issue is whether the firearm was a "gun in fact," capable after simple repairs

of inflicting violence, rather than a toy gun). Mr. Osiadacz's real issue with jury

instruction 8 was not one of constitutional overbreadth, but that the instruction did not

sufficiently distinguish between a toy cap gun that fired a projectile unlikely to inflict

violence, and a gun in fact that could fire a projectile likely to inflict violence. Had Mr.

Osiadacz proposed an instruction that distinguished toy guns from a gun in fact,




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No. 32227-1-III
State v. Osiadacz


consistent with the holding in Raleigh, the true issue would have been preserved. As the

true issue was not preserved below or argued on appeal, it will not be addressed.

       Affirm.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.


                                          Lawrence-Berrey, 1.

WE CONCUR:



                                           ~.                   :r
Klorsmo, J.   P                           FearinY.'d )




                                             9

