                                                                                                     MAT OF      PE
                                                                                                          DIVISION
                                                                                                                      LS


                                                                                                  2014 APR 29 AM 8: 38
                                                                                                  STATE

                                                                                                     y
                                                                                                     a




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                    DIVISION II

STATE OF WASHINGTON,                                                              No. 43702 -3 -II


                                         Appellant,


          v.



MARK FRANCIS OWENS,                                                           PUBLISHED OPINION


                                         Respondent .




          LEE, J. —    The State appeals the superior court' s reversal of Mark Owens' s unlawful


display of a weapon conviction. A district court jury found Owens guilty of unlawful display of

a_weapon.___    On appeal,- the superior _
                                         court_reversed_Owens' s _
                                                                 conviction, _
                                                                             ruling that the trial court

erred in refusing Owens' s proposed jury instruction requiring the State to prove that he did not

commit     the   charged        crime   while "   in his   place   of   abode."   Because the "   place   of abode"



exception under RCW 9. 41. 270( 3) is inapplicable to the facts of this case, the district court did


not err   in   declining   to   give    Owens'   s proposed   jury   instruction. Furthermore, RCW 9. 41. 270 is


neither unconstitutionally vague nor unconstitutional as applied to the facts of this case.

Accordingly, we reverse the superior court' s decision and reinstate Owens' s unlawful display of

a weapon conviction.
No. 43702 -3 -II



                                                               FACTS


A.         BACKGROUND


           On the evening of September 3, 2011, Owens had an altercation with his 16- year -old son,
      1
CO,       at   their home in       rural     Jefferson   County. CO' s mother, Tammy, intervened and Owens

began arguing with her about interrupting him while he was disciplining their son. At that point,

CO went outside and called 911.


           CO told the 911 operator that Owens may have been drinking earlier in the evening and

that Owens         was   yelling       and   hitting Tammy       and      him.    CO also informed the operator that the


family     kept   a number of rifles          in the house. Owens came outside to talk with CO at some point


during     the 911     call, and   CO    put   his   phone   in his   pocket without         hanging up.          Owens told CO that


it really hurt his feelings to have his                son   disrespect him in front              of   his   wife.    Owens also said,


    You   call   the   cops?     Are   they coming here? Well,             good.   I' ll   get   the   gun."     Clerk' s Papers ( CP)


at 109.


           A     number     of   Jefferson      County      Sheriff' s deputies        responded         to the      scene.   Because a


locked gate prevented vehicular access to the house, deputies had to park a quarter mile away

and approach           the home     on   foot. As the deputies " came around the back corner of the house,"


they      saw    Owens   come out of         the back door carrying         a rifle.    CP   at   159. The deputies announced


their     presence,     yelling, " Sheriff' s     office,    drop   the   gun."    CP   at   159.      Owens ignored the request


and continued          walking toward the detached              garage,     20 to 30 feet away from the house. He then


ducked down behind a car outside the garage and, after 30 seconds or so, stood up and walked

towards the deputies with his hands in the air. The deputies arrested Owens.


1
    To provide confidentiality, we use the minor' s initials in this opinion.

                                                                      2
No. 43702 -3 -II



B.       PROCEDURE


         The State charged Owens with two counts of fourth degree domestic violence assault, one


count of obstructing a law enforcement officer, and one count of unlawfully displaying a firearm.

RCW 9A.36. 041; RCW 10. 99. 020( 5)( d);         RCW 9A.76.020; RCW 9.41. 270.2 Owens was tried by

a jury in Jefferson County District Court.

         Owens,      CO,    Tammy, and the deputies who responded to the 911 call testified

consistently with the events described above. However, CO and Tammy testified that Owens did

not   hit them   during    the incident.   In addition, CO, Tammy and Owens all testified that family

members usually carry firearms any time they walk outside on the property because they have

had   problems with     bears,   cougars, and coyotes.    Finally, Owens acknowledged that he heard the

police officer' s request that he drop his weapon, but he ignored the request because he

contemplated " suicide by cop" before peacefully surrendering. CP at 253.

         At the conclusion of testimony, the State proposed that the Washington Pattern Jury

Instruction for the     crime of unlawful      display   of a weapon   be   given.    The proposed instruction


reads:




2
    RCW 9. 41. 270 reads, in part:
           1)   It shall be unlawful for any person to carry, exhibit, display, or draw any
          firearm, dagger, sword, knife or other cutting or stabbing instrument, club, or any
          other weapon apparently capable of producing bodily harm, in a manner, under
          circumstances, and at a time and place that either manifests an intent to intimidate
          another     or    that   warrants     alarm     for   the    safety    of     other   persons.




           3)   Subsection ( 1)    of this section shall not apply to or affect the following:
                    a) Any act committed by a person while in his or her place of abode or
                    fixed place of business.



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No. 43702 -3 -II



               To convict the defendant of the crime of unlawfully displaying a weapon,
        each of the following elements of the crime must be proved beyond a reasonable
        doubt:
                    1)            That        on        or        about (           date ),             the       defendant
         carried] [exhibited] [displayed] [or] [drew] a [ firearm].. .
                    2) That the defendant [                   carried] [    exhibited] [   displayed [    or] [   drew] the
        weapon           in   a   manner,           under    circumstances,       and    at    a time    and      place   that

         manifested an intent to intimidate another] [or] [warranted alarm for the safety of
                   other persons];            and

                    3) That this             act occurred       in the [ State    of   Washington] [     City of
         County of ].
                   If you find from the evidence that each of these elements has been proved
        beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
                   On the           other     hand, if,       after   weighing     all   the    evidence,     you have a
        reasonable doubt as to any one of these elements, then it will be your duty to
                                                       31
        return a verdict of not              guilty.[


Based   on   RCW 9. 41. 270( 3)(              a),   Owens argued that a fourth element should be added to the


State' s proposed jury instruction requiring the State to prove that " the act did not occur in the

defendant'   s place of abode or              fixed   place of    business."     CP at 55.


        The district court declined to give Owens' s proposed instruction with the additional


element, stating:


         T] he   problem          that I have is,       you     know, the Supreme Court hasn' t—                  Until they
        make a decision on a WPIC to add something based on new case law, my general
        tendency is           not   to ...      go    beyond     what   the Supreme Court has indicated.                  And
        since    it' s   not an element             that is in the WPIC that the State has to             prove ...       I' m
        not   going to        add    it in    as a   jury    instruction.... [     B] ecause the WPIC 133. 41 says

        what it says, I' m going to go ahead and offer the State' s [ proposed instruction].

CP at 289 -90.


        The jury found Owens guilty of unlawful display of a weapon but acquitted him of the

other charges.       The district court sentenced Owens and, pursuant to RCW 9. 41. 098, entered an




3 11A WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 133. 41, at 612 ( 3d ed. 2008).


                                                                        4
No. 43702 -3 -II



order     forfeiting   the    rifle   Owens   carried    during   the incident.        The court stayed Owens' s sentence


pending his RALJ appeal in superior court.

           Jefferson     County        Superior Court heard Owens'             s       RALJ    appeal.   In a memorandum


decision, it ruled that " if one considers the curtilage of the home as part of [Owens' s] abode, the


State had to prove that Mr. Owens was not in his ` place of abode' when he displayed the rifle."


CP   at   355.    The    superior court reversed           Owens'     s conviction,       ruling that the "` in his place of


abode'     exception     to prosecution          under   the   statute   applies"       and   that the " District Court erred


when it failed to give the instruction proposed by Mr. Owens that included the exception as set

forth in RCW 9. 41. 270( 3)( a) as an element that the State had to disprove beyond a reasonable

doubt."      CP   at   356.     The superior court also reversed and vacated the district court' s forfeiture


order.



           The State     sought       discretionary     review    in this   court,     arguing that the " Superior Court' s


decision is in conflict with the position of the Washington Court of Appeals [ Division One] that

A backyard does              not   satisfy the   place   of abode     exception under          RCW 9. 41. 270 '   in State v.


Smith, 118 Wn.         App.     480, 485, 93 P. 3d 877 ( 2003),          review    denied, 151 Wn.2d 1014 ( 2004). See


spindle (   Mot. For     Discretionary        Review). Because " the superior court' s decision to rule that an


 abode'     includes     a   backyard    directly   conflicts with       Smith'    s   holding,"   this court granted review


under     RAP 2. 3( d)( 1).        Ruling Granting Review, State v. Owens, No. 43702 -3 - II (Wash. Ct. App.

Oct. 22, 2012).




                                                                  5
No. 43702 -3 - II



                                                                   ANALYSIS


A.       UNLAWFUL DISPLAY OF A WEAPON


         Given the facts              of   this   case,    the "   place    of abode"    exception to unlawful display of a

firearm is inapplicable.              Therefore, we hold that the district court did not err in declining to give

Owens'    s     proposed        instruction.             Moreover,         we   hold    that    RCW       9. 41. 270( 3)   is   neither


unconstitutionally vague nor unconstitutional as applied to the facts of Owens' s case.

          1.    Standard of Review


         Our      review       is   governed       by    the    standards    contained      in RALJ 9. 1.      State v. Ford, 110


Wn.2d 827, 829 -30, 755 P. 2d 806 ( 1988);                         State v. McLean, 178 Wn. App. 236, 242 -43, 313 P. 3d

1181 ( 2013),      review       denied, 179 Wn.2d 1026 ( 2014). Accordingly, we must determine whether


the district     court "     has    committed          any     errors of   law."    RALJ 9. 1(   a).    We interpret statutes and


alleged errors         of   law in    jury      instructions de       novo.     State v. Barnes, 153 Wn.2d 378, 382, 103


P. 3d 1219 ( 2005);            State       v.   Stratton, 130. Wn.           App.    760, 764,     124 P. 3d 660 ( 2005).            In


interpreting      statutory         provisions,        our "   primary objective is to ascertain and give effect to the

intent   and purpose of             the Legislature in creating the             statute."     State v. Watson, 146 Wn.2d 947,


954, 51 P. 3d 66 ( 2002).


         2. RCW 9. 41. 270.


         RCW 9. 41. 270( 3) states that unlawful display of a weapon " shall not apply to or affect

the   following: ( a) Any act committed by a person while in his or her place of abode or fixed

place of       business."       The    statute     does      not   define the term "    abode."        Therefore, " this court will


give   the term its         plain and      ordinary meaning           ascertained      from    a standard    dictionary."       Watson,


146 Wn.2d         at    954.        WEBSTER'       S    THIRD NEW INTERNATIONAL DICTIONARY 4 ( 1969) defines




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No. 43702 -3 - II



    abode"     as   the "      place     where       one    abides      or   dwells"       and       lists "   residence"        and "   home"     as


                4
synonyms.           Given this definition, we hold that, contrary to Owens' s assertions, a plain meaning

analysis dictates that the exception found in RCW 9.41. 270( 3)( a) only applies to situations where
                                                                   5
a person     is in his      or   her home          or residence.        Here, it is undisputed that Owens displayed the rifle


outside his home.


          Division Three and Division One of this court have previously addressed the scope of the

exception      to the     unlawful        display     of a weapon statute at              issue in this        case.      Owens argues that the


    disparate rulings of Divisions One and Three reveal that, at minimum, there is a factual dispute


regarding the applicability                of [RCW         9. 41. 270( 3)(       a)]."   Br.   of   Resp' t    at   22. Disparate holdings of


divisions of this court on the interpretation of statutory language do not create factual disputes.

Such disparities, if any, involve                          questions     of       legal interpretation.               However, under either


decision, Owens' s conviction for unlawful display should be reinstated.

          In State        v.   Haley,    35 Wn.        App.    96, 97 -98, 665 P. 2d 1375 ( 1983), Division Three of this


court addressed the situation where a juvenile defendant, who " was target practicing with a BB

gun    from the deck             area at     the   rear of   his   family        residence,"        scared two other children who had


inadvertently         wandered on            to the      edge of   his   family' s       property.         Noting that the legislature did

not    define the         words " place            of abode"       used      in RCW 9. 41. 270( 3)(                 a),   the court applied the


ordinary meaning                of "abode"         and   determined that "[ t] he ordinary meaning                          of abode      is:   one' s




4
    Black' s   also      defines "      place of abode"         as "[   a] person' s residence or                   domicile."    BLACK' S LAW
DICTIONARY 1266 ( 9th ed. 2009).

5
    The facts       of   this    case   do   not    implicate      a person' s right           to   bear   arms       inside   one' s    home.    We
decide only          whether       the definition           of " place       of abode"         includes Owens' s yard under RCW
9. 41. 270.



                                                                             7
No. 43702 -3 -II



home,   place of      dwelling,      residence, and/ or          domicile."     Haley, 35 Wn. App. at 98 ( citing BLACK' S

LAW DICTIONARY 20 ( 4th                  rev. ed.       1968); 1 OXFORD ENGLISH DICTIONARY 25 ( 1978)).                     It then


held that " the [       attached] deck was an extension of the dwelling and therefore a part of the

abode."      Haley, 35 Wn. App. at 98.

           In Smith, the defendant threatened tow truck workers with a gun when they were

attempting to tow             a vehicle     on     adjacent      property.      118 Wn.      App.      at   482.   At the time, the


defendant was " on the outskirts of his backyard where only a fence with breaks in it separated

him from the tow          operators."        Smith, 118 Wn. App. at 485 n. 8. After accepting the Haley court' s

definition      of " abode,"        Division One          concluded       that the "   word ` in' clearly implies inside [ the

abode],    not one' s backyard. If the Legislature wanted to enact a broader exception, it could have

used ` at'   rather     than ` in. "' Smith, 118 Wn.              App.    at   484.   Accordingly, Division One held that a

backyard does         not     satisfy the    place of abode exception under                RCW 9. 41. 270.         Smith, 118 Wn.


App. at 485.

           Here, it is undisputed that Owens was neither inside his residence nor on a structure


attached     to his     residence when         he unlawfully displayed his               rifle   to   police.   Accordingly, under

the holding in either Smith or Haley, RCW 9. 41. 270( 3)( a) is inapplicable to this case and the
                                                                                                            6
district   court   did   not err    in refusing to        give   Owens'    s proposed     instruction.




6
  Owens is correct in asserting that the district court " mistakenly characterized the WPICs as
binding recitations of the Washington Supreme Court' s position on the current state of
Washington law."              Br.   of   Resp' t   at   10.   The Washington Supreme Court has rejected this view.
See,   e. g.,   State    v.   Bennett, 161 Wn.2d 303, 307, 165 P. 3d 1241 ( 2007) ( " Just because an
instruction is approved by the Washington Pattern Jury Instruction Committee does not
necessarily mean that it is approved by this court. "). Nevertheless, the district court did not err in
refusing to give Owens' s proposed instruction and the district court' s characterization of the
WPICs as binding law was harmless.


                                                                      8
No. 43702 -3 -II



           3.   Vagueness Challenge


           Owens challenges RCW 9. 41. 270 as unconstitutionally vague because it fails to

adequately define the term " place of abode" and disparate interpretations of the term " place of

abode"      are   possible   as   evidenced    by    the decisions in          Haley        and   Smith.    This argument is


unavailing.       As explained above, both the Haley and Smith courts applied dictionary definitions

to interpret the term "       abode"    as   being    synonymous with " residence"                 or "
                                                                                                          dwelling."      That the


Haley court applied the rule of lenity to expand the definition of "place of abode" to incorporate

a deck that was attached to a dwelling does not mean that the statute is unconstitutionally vague.

           We presume that statutes are constitutional, and a defendant who challenges a statute as


unconstitutionally vague must prove vagueness beyond a reasonable doubt. State v. Watson, 160

Wn.2d 1,        11, 154 P. 3d 909 ( 2007).      A statute is void for vagueness if (1) it does not define the


criminal offense with sufficient definiteness that ordinary people can understand what conduct is

proscribed or ( 2) it does not provide ascertainable standards of guilt to protect against arbitrary

enforcement.        Watson, 160 Wn.2d at 6 ( quoting State v. Williams, 144 Wn.2d 197, 203, 26 P. 3d

890 ( 2001)).


           Here, Owens does not challenge the behavior generally proscribed by RCW 9.41. 270 —

the illegality of displaying a weapon at a time and place that " manifests an intent to intimidate
                                                                                       7
another or      that   warrants alarm   for the safety       of other persons."             Instead, he challenges only the

exception       to the   proscribed    conduct—      allowing       display    of a weapon         in   one' s   abode.    But, as


discussed       above,   the plain meaning     of    this   statute   is   clear   to the   average person:        outside of the



7
    Nor   would such a challenge succeed.             In State v. Maciolek, 101 Wn.2d 259, 269, 676 P. 2d 996
    1984), the Washington Supreme Court upheld this portion of the statute when faced with a
vagueness challenge.




                                                                9
No. 43702 -3 - II



home, weapons cannot be displayed in an intimidating manner. The language of the exception is

clear on its face. Owens' s vagueness challenge fails.

          4. Unconstitutional As- Applied Challenge


          Owens argues that RCW 9. 41. 270 is unconstitutional as- applied to the facts of his case


 because the area where he allegedly displayed his rifle is an area deserving of Fourth

Amendment privacy              protection"    and "[   t] he   right   to   keep   and   bear   arms   is   an ancient right."          Br.


of   Resp' t   at   28 -29.   Because the facts of this case do not implicate the privacy protections of the

Fourth Amendment or the right to bear arms, we disagree.

           An as- applied challenge to the constitutional validity of a statute is characterized by a

party' s allegation that application of the statute in the specific context of the party' s actions or

intended       actions   is   unconstitutional."       City of Redmond v. Moore, 151 Wn.2d 664, 668 -69, 91

P. 3d 875 ( 2004). "          Holding a statute unconstitutional as- applied prohibits future application of

the   statute   in   a similar context,      but the   statute    is   not   totally invalidated." Moore, 151 Wn.2d at

669.


          Owens' s Fourth Amendment argument is not well taken. In his brief, Owens admits that


  t]here were certainly exigent circumstances to justify the [ police' s] warrantless entry [ on his

property] due to the           report of a crime at        Mr. Owens' [ s] home."               Br.    of
                                                                                                            Resp' t   at   19   n. 4.   He


thereby also admits that this case does not implicate the Fourth Amendment' s protections against

unwarranted searches.




          Moreover, nothing in the statute implicates the Second Amendment by prohibiting

someone from protecting himself on his property from wild animals or intruders. RCW 9. 41. 270

prohibits publicly displaying dangerous weapons with the intent to intimidate or cause fear in



                                                                   10
No. 43702 -3 -II



another person. Here, Owens knew that his son had called the police, and when officers arrived,


Owens refused to obey commands to put his weapon down. The behavior proscribed by statute

was not Owens' s carrying a firearm on his property. Rather, the proscribed conduct was Owens

placing police in reasonable fear for their safety when he refused to follow their orders to put the

weapon down. The facts of this case simply do not implicate the Second Amendment. Owens' s

as- applied challenge fails.


B.        WEAPON FORFEITURE


          Owens argues that, independent of our decision concerning his unlawful display of a

firearm   conviction, we should vacate    the district   court' s   forfeiture   order.   We need not address


this issue.   The State did not appeal the superior court' s reversal of the district court' s forfeiture

order. Therefore, that order remains vacated.


          We reverse the superior court and reinstate Owens' s unlawful display of a weapon

conviction.




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