STATE v. MEIER, 120 Wn. App. 1011 (2004)

No. 51890-9-I.The Court of Appeals of Washington, Division One.
Filed: February 9, 2004. UNPUBLISHED OPINION

Appeal from Superior Court of Snohomish County. Docket No: 02-1-02057-1. Judgment or order under review. Date filed: 02/11/2003.

Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.

Nancy P Collins, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.

Da Meier — Informational Only (Appearing Pro Se), 1418 East Casino Road, Everett, WA 98203.

Counsel for Respondent(s), Thomas Marshal Curtis, Snohomish County Pros Ofc, 3000 Rockefeller Ave # 504, Everett, WA 98201-4060.

PER CURIAM.

David Meier appeals from a conviction for unlawful possession of a firearm in the second degree, arguing that the evidence was insufficient to prove that the weapon was capable of being fired. Testimony of an experienced police officer identifying the weapon as a `fully loaded Smith Wesson .38 special revolver’[1] was sufficient to establish that it was a firearm. We affirm.

Meier was a passenger in a pickup truck stopped by Everett police officer Jason Jones for a traffic infraction. The driver was taken into custody because she had an outstanding warrant for her arrest. When Officer Jones searched the extended cab of the truck, he found the loaded gun inside a zippered bag that also contained a glass drug pipe and mail addressed to Meier. A search of the truck also uncovered other items used in the manufacture of methamphetamine. At trial, Officer Jones identified the weapon by its make and caliber, noted that it was fully loaded, and indicated that it had a serial number. The officer had nine years of experience as a police officer and had also been trained as a military police officer. Sergeant Mark Richardson described the weapon as a revolver and said that ammunition was also found. Although the weapon was seized by the police, only a photograph rather than the weapon itself was admitted as an exhibit. It was not test fired.

Viewed in the light most favorable to the State, the testimony established that the weapon was a real gun, not a toy or a replica.[2]
RCW 9.41.010(1) defines `firearm’ as `a weapon or device from which a projectile or projectiles may be fired by an explosive such as gunpowder.’ Even if a weapon is inoperable, it is a firearm within the meaning of RCW 9.41.010(1) as long as it is a real gun. State v. Faust, 93 Wn. App. 373, 375, 967 P.2d 1284 (1998). Circumstantial evidence can prove that a weapon is a real gun even if it is not test fired. State v. Anderson, 94 Wn. App. 151, 162-63, 971 P.2d 585 (1999). Although in Anderson the actual gun was admitted as an exhibit, the existence of a firearm can be established through testimony of witnesses even if no weapon is ever recovered. State v. Bowman, 36 Wn. App. 798, 803, 678 P.2d 1273 (1984); State v. Mathe, 35 Wn. App. 572, 581-82, 668 P.2d 599 (1983).

In this case, the evidence showed that the weapon was readily identifiable by an experienced police officer as a .38 caliber Smith Wesson; it was loaded; the officer asked dispatch to check the serial number on it to identify its owner; a second officer also identified it as a revolver. The fact that the gun was loaded and that it had a serial number strongly suggest that it was a real gun. Substantial evidence supports the jury’s determination that the weapon was a firearm as defined by RCW 9.41.010(1).

Affirmed.

AGID and BAKER, JJ., concur.