State v. Lopez ( 2022 )

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STATE OF CONNECTICUT v. RAMON LOPEZ
(SC 20601)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Kahn, Ecker and Keller, Js.
Syllabus
The defendant appealed from the judgment of the trial court revoking his
probation. The defendant previously had been convicted of two felony
offenses and received a suspended sentence and five years of probation.
The conditions of the defendant’s probation prohibited him from vio-
lating any state or federal criminal law and from possessing any ‘‘fire-
arm,’’ as that term was defined by statute (§ 53a-3 (19)). While the
defendant was serving his term of probation, he was arrested and
charged with criminal possession of a firearm after the police found an
airsoft pellet gun in his residence while executing a search warrant. In
light of that arrest, the defendant was charged with violating the condi-
tions of his probation. The court held an evidentiary hearing, at which
a detective, W, testified that the airsoft pellet gun functioned as intended
by its manufacturer in that it used air to push round, plastic projectiles
out of the barrel. In response to a question from the court, however,
W could not say whether it was capable of discharging a projectile with
enough velocity to ‘‘put a person’s eye out.’’ At the close of evidence,
defense counsel moved for, inter alia, a finding of no violation of proba-
tion, claiming that the state had failed to establish that the airsoft pellet
gun was a firearm within the meaning of § 53a-3 (19), which defines
‘‘firearm’’ in relevant part as ‘‘any . . . weapon . . . from which a shot
may be discharged . . . .’’ The court denied that motion and, instead,
found that the airsoft pellet gun was a firearm under § 53a-3 (19) because
it was capable of discharging a shot, namely, a six millimeter pellet.
Accordingly, the court concluded that the defendant had violated the
conditions of his probation prohibiting him from violating the law and
possessing a firearm, and rendered judgment revoking the defendant’s
probation, from which the defendant appealed. Held that the evidence
was insufficient to support the trial court’s factual finding that the airsoft
pellet gun found in the defendant’s residence was a firearm within the
meaning of § 53a-3 (19), and, accordingly, this court reversed the trial
court’s judgment and remanded the case with direction to find no viola-
tion of probation and to render judgment in accordance with that finding:
pursuant to this court’s previous construction of the phrase ‘‘weapon
. . . from which a shot may be discharged,’’ as used in § 53a-3, the state,
in order to prove that an instrument is a weapon capable of discharging
a shot, must produce sufficient evidence to establish that it was designed
for violence and that it was capable of inflicting death or serious bodily
harm; in the present case, there was no evidence establishing the purpose
for which the airsoft pellet gun was designed, and, in the absence of
such evidence, it was pure speculation as to whether it was a toy
designed for recreational use or an instrument designed for violence;
moreover, the state failed to present any evidence from which it reason-
ably could be inferred that the airsoft pellet gun in this case was capable
of inflicting death or serious bodily harm, especially in light of W’s
inability to say whether it discharged its pellets at a velocity sufficient
to injure a person by, for example, putting his or her eye out; accordingly,
the trial court’s factual finding that the airsoft pellet gun was a weapon
capable of discharging a shot for the purpose of the definition of ‘‘fire-
arm’’ under § 53a-3 (19) was clearly erroneous.
Argued December 15, 2021—officially released January 14, 2022*
Procedural History
Substitute information charging the defendant with
violation of probation, brought to the Superior Court
in the judicial district of New Britain, geographical area
number fifteen, and tried to the court, C. Taylor, J.;
judgment revoking the defendant’s probation, from
which the defendant appealed; thereafter, the court,
Keegan, J., dismissed in part and denied in part the
defendant’s motion to correct an illegal sentence, and
the defendant filed an amended appeal. Reversed; judg-
ment directed.
Jon L. Schoenhorn, for the appellant (defendant).
Brett R. Aiello, deputy assistant state’s attorney, with
whom, on the brief, were Brian Preleski, state’s attor-
ney, Elizabeth M. Moseley, senior assistant state’s attor-
ney, and Alexander Beck, assistant state’s attorney, for
the appellee (state).
Opinion
ECKER, J. The primary issue in this appeal is whether
the state presented sufficient evidence at a violation of
probation hearing to establish that an airsoft pellet gun
is a firearm within the meaning of the criminal posses-
sion of a firearm statute, General Statutes § 53a-217.1
The defendant, Ramon Lopez, claims that the airsoft
pellet gun seized from his residence is not a ‘‘firearm,’’
as defined by General Statutes § 53a-3 (19),2 because it
is not a ‘‘weapon . . . from which a shot may be dis-
charged’’ but, rather, a recreational toy that dispenses
plastic pellets. The state responds that an airsoft pellet
gun is a firearm pursuant to State v. Grant, 294 Conn.
151, 161, 982 A.2d 169 (2009), which held that a BB gun
is a firearm for purposes of § 53a-3 (19). We conclude
that the evidence in the present case was insufficient
to establish that the airsoft pellet gun found in the
defendant’s residence is a firearm, as defined by § 53a-
3 (19), and, therefore, we reverse the judgment of the
trial court.
The trial court found the following facts, which we
supplement as needed with undisputed facts in the
record. On November 7, 2003, the defendant was con-
victed of two counts of risk of injury to a child in
violation of General Statutes (Rev. to 2003) § 53-21 (a)
(1), a class C felony, and sentenced to two concurrent
terms of eight years of incarceration, execution sus-
pended, and five years of probation. The defendant’s
sentence was imposed consecutively to a seventeen
year sentence he already was serving in a separate case
for two counts of assault in the first degree in violation
of General Statutes § 53a-59 (a) (5). The defendant was
ordered to comply with the following relevant standard
conditions of probation: (1) ‘‘Do not violate any criminal
law of the United States, this state or any other state
or territory.’’ And (2) ‘‘If you are on probation for a
felony conviction . . . you must not possess, receive
or transport any firearm or dangerous instrument as
those terms are defined in [§] 53a-3 . . . .’’ As a special
condition of the defendant’s probation, the trial court
also ordered that he must ‘‘[o]bey all laws of this state,
any other state and all federal laws.’’
On October 27, 2017, the defendant was released from
the custody of the Department of Correction and began
serving his five year term of probation. Upon release,
the defendant was informed of, and indicated that he
understood, the conditions of his probation, including
the standard condition prohibiting him, ‘‘as a convicted
felon, from possessing, receiving, or transporting any
firearm, as defined by . . . § 53a-3.’’ Additionally, the
defendant signed a firearm acknowledgment form,
which provided: ‘‘I, [Ramon Lopez], acknowledge and
understand that I am currently under a period of proba-
tion supervision, and in accordance with a specific
[c]ourt order and/or . . . General Statutes [§§] 29-33,
29-36f, 29-36k, 53a-30, 53a-217, and/or 53a-217c, I am
ineligible to possess a firearm as a condition of
my probation.’’ (Emphasis in original.)
On March 13, 2019, the Bristol Police Department
received a report that the defendant was in possession
of a gun at his place of employment. As part of their
investigation, officers obtained a search warrant for the
defendant’s residence, where they seized the following
items: (1) one black KWC airsoft pellet gun; (2) one
silver Bearcat River .177 caliber BB gun; (3) a small
plastic cup containing BBs; and (4) a letter addressed
to the defendant at his residence. Thereafter, the defen-
dant was arrested and charged with criminal possession
of a firearm in violation of § 53a-217.3
In light of the defendant’s arrest for alleged criminal
conduct committed while on probation, the defendant
was charged in the present case with a violation of
the conditions of his probation under General Statutes
§ 53a-32, ‘‘in that he engaged in conduct constituting
criminal possession of a firearm . . . .’’4 The defendant
moved to dismiss the violation of probation charge, and
the trial court heard oral argument on the defendant’s
motion at a violation of probation hearing. During oral
argument, defense counsel claimed that the guns seized
from the defendant’s residence do not fall ‘‘under the
definition of a firearm’’ because they shoot plastic pel-
lets. The state opposed the defendant’s motion, arguing
that, pursuant to State v. Grant, supra, 294 Conn. 161,
a BB gun is a firearm under § 53a-3 (19). The trial court
denied the defendant’s motion on the basis of the authority
established in Grant.
At the evidentiary hearing on the violation of proba-
tion charge, the state adduced evidence that the defen-
dant was on probation, the conditions of which included
refraining from breaking the law or possessing firearms,
when the airsoft pellet gun and the BB gun were seized
from his residence. Scott Werner, a detective employed
by the Bristol Police Department, testified as to the
operability of the seized items. Werner explained that
the airsoft pellet gun uses ‘‘air to push a [ball shaped]
plastic projectile out of a barrel . . . .’’ Specifically,
‘‘the slide racks back and forth,’’ creating ‘‘a small pres-
surized chamber that releases and pushes the projectile
out.’’ Werner tested the airsoft pellet gun and deter-
mined that it functioned as intended by the manufac-
turer because it discharged an airsoft pellet from the
muzzle. Although Werner was unable to verify the veloc-
ity with which the plastic pellet was propelled, he testi-
fied that ‘‘it did leave with a velocity. It did not simply
fall out [of] the barrel.’’
With respect to the BB gun, Werner explained that
it ‘‘did not have all the pieces necessary’’ to fire a projec-
tile, so he had to ‘‘contact the manufacturer, [which]
then sent [him] the pieces . . . needed in order to
make th[e] firearm fire.’’ Specifically, the BB gun was
missing a carbon dioxide canister and a cartridge to
hold the BBs, both of which are proprietary in nature
and necessary ‘‘to actually function th[e] gun.’’
On cross-examination, Werner explained that airsoft
pellet guns differ from BB guns because they use a
different type of ammunition. A BB gun, such as the
one seized from the defendant’s residence, can fire both
plastic pellets and metal BBs, whereas an airsoft pellet
gun can fire only airsoft pellets, which are ‘‘plastic
round ball[s].’’ After redirect examination, the trial
court asked Werner if he knew whether the airsoft
pellet gun or the BB gun was capable of discharging
‘‘a projectile . . . with enough velocity . . . [to] be
able to put a person’s eye out . . . .’’ Werner
responded: ‘‘I think that’s a hard determination for me
to make, to say put somebody’s eye out. I can’t say
that, to be honest.’’ Neither the state nor the defendant
followed up on this line of questioning.
At the close of the state’s evidence, defense counsel
moved for a judgment of acquittal or a finding of no
violation of probation, arguing that the state had failed
to establish that the airsoft pellet gun or the BB gun
seized from the defendant’s residence was a firearm,
as defined by § 53a-3 (19). Counsel contended that the
BB gun ‘‘was not operable [and], therefore, not a fire-
arm,’’ and, with respect to the airsoft pellet gun, ‘‘that
a pellet gun is not a firearm.’’ Alternatively, counsel
argued that the evidence was insufficient to establish
that the defendant was in possession of the items seized
because he resided in a multifamily dwelling, and ‘‘the
doctrine of nonexclusive possession would cast serious
doubt as to whether . . . any firearm that was found
in the house at that time exclusively was in the actual or
constructive possession of [the defendant].’’ The state
opposed the motion, claiming that it had met its burden
of establishing, by a preponderance of the evidence, that
the defendant was in criminal possession of a firearm
pursuant to State v. Grant, supra, 294 Conn. 161. The
trial court denied the defendant’s motion.
At the conclusion of the evidence on the violation of
probation charge, the trial court found ‘‘that the prepon-
derance of the evidence in this matter show[ed] that
the defendant did possess the seized items within his
residence’’ and that the airsoft pellet gun ‘‘was, in fact,
a firearm pursuant to § 53a-3 [19] and was capable of
discharging a shot, specifically, six millimeter pellets.’’
The trial court arrived at a different conclusion with
respect to the BB gun, which the court found was not
a firearm because it ‘‘was not capable of firing a shot,
as required by statute, due to the fact that the weapon
did not have the necessary cartridge . . . capable of
holding a BB . . . .’’ Accordingly, the trial court deter-
mined that the defendant had engaged ‘‘in felonious
conduct, criminal conduct while he was on probation by
possessing a firearm [that] was capable of discharging
a shot.’’ The court concluded that the defendant conse-
quently had violated the standard conditions of his pro-
bation requiring him to refrain from violating the law
or possessing a firearm, as defined by § 53a-3 (19), as
well as the special condition that required him to obey
all the laws of this state. The trial court’s conclusion
that the defendant had violated the special and standard
conditions of his probation rested entirely on its finding
that the defendant engaged in conduct constituting crimi-
nal possession of a firearm.
After finding that the defendant was not amenable
to supervised probation, the trial court revoked the
defendant’s probation and sentenced him to 8 years of
incarceration, execution suspended after 56 months,
and 1273 days of probation. In addition to the preex-
isting conditions of probation, the trial court imposed
the additional condition that the defendant is ‘‘not to
possess any pellet guns, BB guns, zip guns, cap guns,
or anything of that nature, or any firearm replicas, [or]
anything that looks like a pistol, handgun, rifle, shotgun,
assault weapon or the like.’’ The defendant appealed
from the judgment of the trial court to the Appellate
Court, and we transferred the appeal to this court pursu-
ant to General Statutes § 51-199 (c) and Practice Book
§ 65-2.5
On appeal, the defendant raises four claims: (1) the
trial court’s factual finding that the defendant possessed
a firearm in violation of § 53a-217 was clearly erroneous
because the evidence was insufficient to establish that
(a) the airsoft pellet gun seized from his residence was
a ‘‘weapon . . . from which a shot may be discharged,’’
as defined by § 53a-3 (19), and (b) he was in constructive
possession of the airsoft pellet gun; (2) the defendant’s
probation was revoked on the basis of uncharged crimi-
nal conduct in violation of the due process clause of
the fourteenth amendment because he was charged
with possessing a firearm at his workplace but found
guilty of possessing one at his residence; (3) § 53a-
217 is unconstitutionally vague ‘‘because no reasonable
person [would think] that a toy pellet gun that dis-
charges six millimeter plastic pellets is, in fact, a ‘fire-
arm’ ’’; and (4) the trial court abused its discretion in
imposing an unduly harsh sentence because the defen-
dant’s conduct ‘‘fell far outside the ‘heartland’ of the
offense of criminal possession of a firearm and was de
minimis . . . .’’ For the reasons that follow, we agree
with the defendant’s claim that the evidence was insuffi-
cient to support the trial court’s factual finding that
the airsoft pellet gun seized from his residence was a
‘‘firearm,’’ as defined by § 53a-3 (19), and we reverse
the trial court’s judgment on that ground.
The principles governing a trial court’s factual finding
regarding a violation of probation are well settled. ‘‘[A]ll
that is required in a probation violation proceeding is
enough to satisfy the court within its sound judicial
discretion that the probationer has not met the terms
of his probation. . . . It is also well settled that a trial
court may not find a violation of probation unless it
finds that the predicate facts underlying the violation
have been established by a preponderance of the evi-
dence at the hearing—that is, the evidence must induce
a reasonable belief that it is more probable than not
that the defendant has violated a condition of his or
her probation. . . . In making its factual determina-
tion, the trial court is entitled to draw reasonable and
logical inferences from the evidence. . . . Accord-
ingly, [a] challenge to the sufficiency of the evidence
is based on the court’s factual findings. The proper
standard of review is whether the court’s findings were
clearly erroneous based on the evidence. . . . A court’s
finding of fact is clearly erroneous and its conclusions
drawn from that finding lack sufficient evidence when
there is no evidence in the record to support [the court’s
finding of fact] . . . or when although there is evidence
to support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mis-
take has been committed. . . . In making this determi-
nation, every reasonable presumption must be given
in favor of the trial court’s ruling.’’ (Citation omitted;
internal quotation marks omitted.) State v. Maurice M.,
303 Conn. 18, 26–27, 31 A.3d 1063 (2011).
To determine whether the evidence was sufficient to
establish that the defendant violated the conditions of
his probation by possessing a firearm, we must examine
the statutory definition of the term ‘‘firearm’’ in § 53a-
3 (19). Statutory construction is a question of law over
which we exercise plenary review. See, e.g., State v.
Grant, supra, 294 Conn. 157; see also General Statutes
§ 1-2z.
Section 53a-3 (19) provides that ‘‘ ‘[f]irearm’ means
any sawed-off shotgun, machine gun, rifle, shotgun, pis-
tol, revolver or other weapon, whether loaded or
unloaded from which a shot may be discharged . . . .’’
(Emphasis added.) Similarly, § 53a-3 (6) provides in
relevant part that a ‘‘deadly weapon’’ is ‘‘any weapon,
whether loaded or unloaded, from which a shot may
be discharged, or a switchblade knife, gravity knife,
billy, blackjack, bludgeon or metal knuckles. . . .’’
(Emphasis added.)
We have previously construed the meaning of the
phrase ‘‘weapon . . . from which a shot may be dis-
charged’’ in § 53a-3 and are guided by that precedent.
See, e.g., Kasica v. Columbia, 309 Conn. 85, 93–94, 70
A.3d 1 (2013) (observing that, when construing statutes,
‘‘we . . . are bound by our previous judicial interpreta-
tions of the language and the purpose of the statute’’).
In State v. Hardy, 278 Conn. 113, 896 A.2d 755 (2006),
we addressed whether a ‘‘weapon . . . from which a
shot may be discharged,’’ as used in subdivision (6) of
§ 53a-3, requires ‘‘that a shot be discharged by gunpow-
der . . . .’’ (Internal quotation marks omitted.) Id., 115.
In that case, the defendant, Raymond Hardy, was con-
victed of robbery in the first degree in violation of
General Statutes § 53a-134 (a) (2), an essential element
of which is that the perpetrator or another participant
in the robbery be ‘‘armed with a deadly weapon . . . .’’
Id., 119. ‘‘Evidence presented at trial established that
the air pistol found in [Hardy’s] apartment used carbon
dioxide cylinders as a propellant and was designed to
shoot .177 caliber pellets. . . . The state also submit-
ted as a full exhibit the pistol’s operating manual, which
stated that the pistol was ‘NOT A TOY. . . . MISUSE
OR CARELESS USE MAY CAUSE SERIOUS INJURY
OR DEATH. MAY BE DANGEROUS UP TO 400 YARDS
. . . .’ ’’ (Emphasis in original.) Id., 117–18. The
operating manual further specified ‘‘that the gun has
an ‘8 Shot Revolver’ mechanism that shoots .177 caliber
‘Lead Airgun Pellet’ ammunition. The gun is designed
to shoot its ammunition at a muzzle velocity of at least
430 feet per second.’’ Id., 118 n.4.
On appeal, Hardy challenged his conviction on the
ground that the air gun used during the robbery was
not a deadly weapon, as defined by § 53a-3 (6), because
it was not a weapon from which a shot may be dis-
charged. Id., 119. Hardy did ‘‘not claim that the air gun
was not a weapon or that it did not fire shots. Instead,
he claim[ed] that the ‘discharge’ of the weapon, as used
in § 53a-3 (6), must take place through the use of gun-
powder.’’ Id., 120. We rejected Hardy’s claim for two
reasons. First, we observed that the plain language of
the statute ‘‘does not require that the shot be discharged
by gunpowder.’’ Id. Second, we relied on out-of-state
case law concluding that ‘‘an air or pellet gun is both
designed for violence and capable of causing death or
serious bodily injury.’’ Id., 122. We ‘‘recognize[d] that
§ 53a-3 (6) does not expressly define deadly weapons
as instruments that are designed or intended to cause
death or serious bodily injury, as the statutes in many
other states do,’’ but pointed out that ‘‘§ 53a-3 (6) was
intended to encompass ‘items designed for violence.’ ’’
(Emphasis in original.) Id., 126. ‘‘We therefore con-
clude[d] that, if a weapon from which a shot may be
discharged is designed for violence and is capable of
inflicting death or serious bodily harm, it is a deadly
weapon within the meaning of § 53a-3 (6), regardless of
whether the shot is discharged by gunpowder.’’ (Footnote
omitted.) Id., 127–28. In arriving at this conclusion,
‘‘[w]e recognize[d] that not all items capable of dis-
charging a shot are weapons or designed for violence’’
and ‘‘that many guns that are capable of causing death
or serious bodily injury were not designed for violence
against persons. Nevertheless, such guns are designed
for violence in the sense that they are intended to cause
damage or injury to their intended target.’’ Id., 127 n.12.
Because the evidence adduced at trial was sufficient
to establish ‘‘that the air pistol used by [Hardy] was
designed for violence and was capable of causing death
or serious bodily injury’’; id., 128; we upheld Hardy’s
conviction. Id., 133.
Three years later, in State v. Grant, supra, 294 Conn.
151, we considered whether a BB gun was a ‘‘ ‘weapon,
whether loaded or unloaded, from which a shot may
be discharged’ ’’ for the purpose of the definition of a
‘‘firearm’’ in § 53a-3 (19). Id., 158. The sentence of the
defendant, Lawrence Grant, was enhanced under Gen-
eral Statutes § 53-202k for using, or being armed with
and threatening the use of, a firearm in the commission
of a felony on the basis of his use of a BB gun during
an attempted robbery. Id., 152–53. At trial, the state
produced evidence that the BB gun was ‘‘an operable
Marksman Repeater spring-loaded air gun designed to
shoot .177 caliber steel BBs’’ and ‘‘capable of discharg-
ing a shot that could cause serious bodily injury.’’ Id.,
156.
On appeal, Grant did not dispute that the BB gun
was a ‘‘weapon’’ that fired a ‘‘shot’’ but claimed that it
was not a firearm because it did ‘‘not discharge a shot
by gunpowder . . . .’’ Id., 154. In light of ‘‘our analysis
and construction of § 53a-3 (6) in Hardy,’’ we rejected
Grant’s claim, reasoning that the ‘‘language defining
‘deadly weapon’ for purposes of § 53a-3 (6) . . . is
identical to the language of § 53a-3 (19), [and] the legis-
lature readily could have restricted the term ‘firearm’
in § 53a-3 (19) to those guns that use gunpowder to
discharge their shots’’ but did not. Id., 160. Furthermore,
the definitional language in § 53a-3 (6) and (19) is identi-
cal, and, ‘‘ordinarily, the same or similar language in
the same statutory scheme will be given the same mean-
ing.’’ Id. We therefore held ‘‘that a BB gun does not fall
outside the definitional purview of § 53a-3 (19) merely
because it operates without gunpowder’’ and that Grant
could not ‘‘prevail on his claim that the evidence
adduced by the state was insufficient to establish that
the BB gun . . . was a firearm for purposes of § 53a-
3 (19) . . . .’’ Id., 161.
Although our case law establishes that an operable
BB gun is a ‘‘weapon . . . from which a shot may be
discharged’’ under § 53a-3 (6) and (19), it does not stand
for the broad proposition that ‘‘all pellet guns are fire-
arms as a matter of law.’’ (Emphasis in original.) State
v. Hart, 118 Conn. App. 763, 774, 986 A.2d 1058, cert.
denied, 295 Conn. 908, 989 A.2d 604 (2010). Indeed,
in Hardy, we explicitly recognized that ‘‘not all items
capable of discharging a shot are weapons or designed
for violence.’’ State v. Hardy, supra, 278 Conn. 127 n.12,
citing State v. Coauette, 601 N.W.2d 443, 446–47 (Minn.
App. 1999), review denied, Minnesota Supreme Court,
Docket No. C4-98-2286 (Minn. December 14, 1999); see
State v. Coauette, supra, 447 (paintball gun is not dan-
gerous weapon). To prove that an item capable of dis-
charging a shot is a ‘‘weapon’’ under § 53a-3 (6), the
state must produce evidence to establish that it is
‘‘designed for violence’’ and ‘‘capable of inflicting death
or serious bodily harm . . . .’’6 State v. Hardy, supra,
127–28; see id., 132 (‘‘both deadly weapons and firearms
are designed for violence and are capable of inflicting
death or serious bodily injury’’); Merriam-Webster’s Col-
legiate Dictionary (10th Ed. 1993) p. 1338 (defining
‘‘weapon’’ as ‘‘something (as a club, knife, or gun) used
to injure, defeat, or destroy’’ or ‘‘a means of contending
against another’’); Webster’s Third New International
Dictionary (1961) p. 2589 (defining ‘‘weapon’’ as ‘‘an
instrument of offensive or defensive combat: something
to fight with: something (as a club, sword, gun, or gre-
nade) used in destroying, defeating, or physically injur-
ing an enemy’’).
In the present case, there is no evidence in the record
establishing either prong of this definition. There is no
evidence of the purpose for which the airsoft pellet gun
was designed. For example, the state did not introduce
into evidence the operating manual, statements of pur-
pose from the manufacturer’s website, or expert testi-
mony describing the use for which the airsoft pellet
gun was intended.7 Compare State v. Hardy, supra, 278
Conn. 118–19 (BB gun was deadly weapon in light of
evidence that it was not toy and could cause serious
injury or death), with State v. Coauette, supra, 601
N.W.2d 446–47 (paintball gun was not firearm because
it was ‘‘designed for use in a game and . . . its projec-
tiles are [liquid paint] capsules designed to burst on
impact, rather than to pierce’’). In the absence of such
evidence, it is pure speculation whether the airsoft pel-
let gun is a toy designed for recreational use, as the
defendant contends, or a weapon designed for violence
and, therefore, a ‘‘firearm’’ under § 53a-3 (19). See, e.g.,
State v. Bemer, 340 Conn. , , A.3d (2021)
(without evidence, fact finder ‘‘would have to resort to
impermissible speculation’’).
Additionally, the state failed to present any evidence
from which it reasonably could be inferred that the
airsoft pellet gun in this case was capable of inflicting
death or serious bodily harm. Although Werner testified
that the airsoft pellet gun could discharge a six millime-
ter plastic pellet with velocity, there was no evidence
as to the nature or degree of that velocity, or whether
it was sufficient to cause physical injury, much less
serious bodily harm. Cf. State v. Grant, supra, 294 Conn.
156 (state introduced evidence that BB gun ‘‘was capa-
ble of discharging a shot that could cause serious bodily
injury’’); State v. Hardy, supra, 278 Conn. 118 (state intro-
duced evidence that BB gun ‘‘ ‘may cause serious injury
or death’ ’’ (emphasis omitted)); State v. Guzman, 110
Conn. App. 263, 275–76, 955 A.2d 72 (2008) (state intro-
duced evidence that ‘‘ ‘misuse or careless use [of the BB
gun] may cause serious injury or death’ ’’), cert.denied,
290 Conn. 915, 965 A.2d 555 (2009). Indeed, in response
to a direct question from the trial court on this precise
point, Werner was unable to say whether a projectile
fired from the airsoft pellet gun could injure a person
by, for example, ‘‘put[ting] [an] eye out.’’ Given the
lack of evidence, we are compelled to conclude on
this record that the trial court’s factual finding that the
airsoft pellet gun was a ‘‘weapon’’ capable of firing a
shot for the purpose of the definition of a ‘‘firearm’’
under § 53a-3 (19) was clearly erroneous.
The judgment is reversed and the case is remanded
with direction to find no violation of probation and to
render judgment accordingly.
In this opinion the other justices concurred.
* January 14, 2022, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
General Statutes § 53a-217 (a) (1) provides in relevant part that ‘‘[a]
person is guilty of criminal possession of a firearm, ammunition or an
electronic defense weapon when such person possesses a firearm, ammuni-
tion or an electronic defense weapon and . . . has been convicted of a
felony committed prior to, on or after October 1, 2013 . . . .’’
2
General Statutes § 53a-3 (19) defines the term ‘‘firearm’’ as ‘‘any sawed-
off shotgun, machine gun, rifle, shotgun, pistol, revolver or other weapon,
whether loaded or unloaded from which a shot may be discharged . . . .’’
3
In February, 2020, the defendant pleaded guilty to one count of breach
of the peace in the second degree in violation of General Statutes § 53a-181
and was sentenced to six months of incarceration.
4
The defendant was charged by long form information with one count
of violating his probation, as follows: ‘‘Elizabeth Moseley, assistant state’s
attorney, accuses [the defendant] of violation of probation and charges that,
on or about March 11, 2019, at around 12 [p.m.], in the area of 210 Redstone
Hill Road in the city of Bristol . . . [the defendant] did violate the conditions
of his probation, in that he engaged in conduct constituting criminal posses-
sion of a firearm and that this [led] to his arrest on March 14, 2019, in
violation of . . . § 53a-32.’’
5
After filing the present appeal, the defendant filed a motion to correct
an illegal sentence pursuant to Practice Book § 43-22, claiming that the
sentence imposed by the trial court was illegal because § 53a-217 is pre-
empted by 15 U.S.C. § 5001, which defines airsoft pellet guns as ‘‘look-alike
. . . firearm[s] . . . .’’ 15 U.S.C. § 5001 (c) (2018). The trial court dismissed
the defendant’s motion in part for lack of subject matter jurisdiction on the
ground that the defendant’s ‘‘argument [was] fully centered on the basis of
the violation of probation [finding] and not the sentence.’’ To the extent
that defense counsel claimed during oral argument ‘‘that the defendant’s
sentence was disproportionate under the circumstances . . . and excessive
in violation of the eighth amendment to the United States constitution,’’ the
trial court denied the defendant’s motion because he had ‘‘failed to articulate
and demonstrate that violation . . . .’’ The defendant thereafter amended
the present appeal to include the dismissal in part and denial in part of his
motion to correct an illegal sentence. In his briefs submitted to this court,
however, the defendant does not challenge the disposition of his motion to
correct an illegal sentence.
6
Similarly, in Nealy v. State, Docket No. 01-18-00334-CR, 2019 WL 6869337(Tex. App. December 17, 2019), the Court of Appeals of Texas held that
‘‘[a]n airsoft pistol is [neither] a ‘firearm’ nor . . . a ‘deadly weapon’ per
se. . . . The [s]tate, however, may prove that an airsoft pistol is a deadly
weapon by presenting evidence concerning its capabilities or use.’’ (Citation
omitted.) Id., *4. In Nealy, the state adduced evidence ‘‘that plastic pellets
discharged from spring-loaded airsoft pistols like the ‘black ops’ [airsoft
pellet gun possessed by the defendant] travel at 330 feet per second or
[more than] 200 miles per hour, and . . . can cause serious bodily injury
because the pellets they discharge can put someone’s eye out.’’ Id. Addition-
ally, the ‘‘black ops airsoft pistol’’ contained a warning label ‘‘on its side
[that read] ‘warning—not a toy. Wear eye protection to prevent serious
injury to eye.’ ’’ Id. On the basis of this evidence, the court held that the
jury reasonably could have found that ‘‘the ‘black ops’ airsoft pistol was
. . . capable of causing seriously bodily injury . . . .’’ Id.
The state cites Nealy in the present case in support of its claim that an
airsoft gun is a firearm, but the case illustrates why, on this record, the
state cannot prevail. As explained in the text of this opinion, the state failed
to adduce any evidence of the capability, use, or intended purpose of the
airsoft pellet gun seized from the defendant’s residence.
7
Werner testified that the airsoft pellet gun ‘‘functioned as it is intended
[by] the manufacturer’’ because it ‘‘discharge[d] an airsoft pellet from the
muzzle,’’ but he did not explain the intended purpose for which an airsoft
pellet is discharged.