State v. Grant, No. 18177.

• Decision Date: 10 November 2009
• Docket Number: No. 18177.
• Citation: 294 Conn. 151,982 A.2d 169
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Lawrence GRANT.

982 A.2d 169

294 Conn. 151

STATE of Connecticut v. Lawrence GRANT.

No. 18177.

Supreme Court of Connecticut.

Argued October 20, 2008.

Decided November 10, 2009.

Neal Cone, senior assistant public defender, for the defendant (appellant).

Adam E. Mattei, special deputy assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, former state's attorney, and Joseph J. Harry, senior assistant state's attorney, for the state (appellee).

ROGERS, C.J., and NORCOTT, KATZ, PALMER and VERTEFEUILLE, Js.

PALMER, J.

This appeal requires us to decide whether the state may establish that a BB gun is a "firearm" for purposes of General Statutes § 53-202k,¹ which provides for the imposition of a mandatory five year term of imprisonment on any person who uses or is armed with and threatens the use of a firearm in the commission of a class A, B or C felony.² Following a jury trial, the defendant, Lawrence Grant, was convicted of attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-134(a)(4)³ and 53a-49(a),⁴ commission of a class A, B or C felony with a firearm, namely, a BB gun, in violation of § 53-202k, and carrying a dangerous weapon in violation of General Statutes § 53-206.⁵ On appeal,⁶ the defendant claims that the evidence that he was armed with and threatened the use of a BB gun in the commission of a class A, B or C felony was insufficient to support his conviction under § 53-202k. In support of his claim, the defendant contends that only a weapon that discharges a shot by gunpowder constitutes a firearm under General Statutes § 53a-3(19), which defines "firearm" for purposes of our Penal Code 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," and that, because a BB gun does not discharge a shot by gunpowder, it is not a firearm as a matter of law. We reject this claim and, accordingly, affirm the judgment of the trial court.⁷

The jury reasonably could have found the following facts. At approximately noon on June 19, 2005, the victim, Eric Ruiz, was walking on Stratford Avenue in Bridgeport in the direction of his mother's house after visiting a convenience store on the corner of Stratford and Hollister Avenues (corner store). The defendant was walking ahead of him, in the same direction, wearing a large, black, Afro-style wig. As the victim walked past the defendant, the defendant stuck an object into the victim's back and demanded all of his money. Although the victim did not see the object that had been pressed into his back, the defendant told him that it was a gun. The defendant also told the victim that if he moved or attempted to run, he would shoot him. The defendant then directed the victim to an open car in a nearby parking lot. As they approached the car the victim told the defendant that he had no money and that, "[i]f you are going to shoot me, just do it; that's my house next door." At that moment, a group of people began walking toward the two men, which prompted the defendant to flee.

After the defendant fled, the victim entered his mother's house. A short time later, while looking out the window, he noticed that the defendant had returned and was kicking the back of the victim's mother's car. At this time, however, the defendant was not wearing a wig. The victim called the police, and, when the responding officer, Raymond Ryan, arrived soon thereafter, the victim gave him a description of the defendant. As Ryan was leaving the house of the victim's mother, a woman arrived and informed him that she had just seen the defendant standing near the corner store. Ryan immediately got into his patrol car and drove to the corner store. As he was exiting his vehicle, Ryan saw the defendant walking nearby. At that moment, another police officer arrived, and he and Ryan approached the defendant. While doing so, they observed the defendant bend down and grab his right leg. Concerned that he might be reaching for a gun, Ryan grabbed the defendant's right hand and the other officer grabbed the defendant's left hand. They then placed the defendant against a wall and patted him down. During the patdown, Ryan discovered a BB gun in the waistband of the defendant's pants, which Ryan seized.

The defendant then was handcuffed and placed under arrest. Before transporting him to police headquarters, however, the officers took the defendant to the victim's house, where the victim identified him as the person who had attempted to rob him. After learning that the defendant had borrowed his mother's car earlier that day, the police located the car and discovered a large, black, Afro-style wig on the front seat. Thereafter, the defendant was charged with attempt to commit robbery in the first degree, commission of a class A, B or C felony with a firearm, that is, the BB gun that the police had found in the defendant's possession at the time of his arrest, and carrying a dangerous weapon.

The defendant's case subsequently proceeded to trial. At trial, the state adduced testimony from Marshall Robinson, a firearms expert. According to Robinson, the weapon in the defendant's possession at the time of his arrest was an operable Marksman Repeater spring-loaded air gun designed to shoot .177 caliber steel BBs. Robinson further testified that the BB gun was capable of discharging a shot that could cause serious bodily injury. At the conclusion of the trial, the jury found the defendant guilty as charged. The trial court rendered judgment in accordance with the jury verdict and sentenced the defendant to a total effective term of imprisonment of seventeen years. With respect to the charge of commission of a class A, B or C felony with a firearm in violation of § 53-202k, the court sentenced the defendant to a prison term of five years, to be served consecutively to the twelve year prison sentence imposed by the court for the underlying felony, namely, attempt to commit robbery in the first degree, as § 53-202k requires.⁸ This appeal followed.

On appeal, the defendant claims that the evidence was insufficient to support his conviction under § 53-202k. Specifically, the defendant contends that the BB gun that the state proved that he had used in connection with his attempted robbery of the victim is not a firearm within the meaning of § 53-202k because, under the applicable definitional provision of the Penal Code, § 53a-3(19), a gun is not a firearm unless it uses gunpowder to discharge its shot, and it is undisputed that a BB gun does not use gunpowder. We disagree with the defendant.

Whether a BB gun constitutes a firearm under § 53a-3 (19) presents a question of statutory interpretation over which our review is plenary. See, e.g., Rivers v. New Britain, 288 Conn. 1, 10, 950 A.2d 1247 (2008). "When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply.... In seeking to determine that meaning [General Statutes] § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." (Internal quotation marks omitted.) Id., at 10-11, 950 A.2d 1247.

We turn first, therefore, to the relevant statutory language. General Statutes § 53-202k provides for a mandatory, consecutive, nonsuspendible five year prison term for "[a]ny person who commits any class A, B or C felony and in the commission of such felony uses, or is armed with and threatens the use of, or displays, or represents by his words or conduct that he possesses any firearm, as defined in section 53a-3...." General Statutes § 53a-3(19), in turn, defines "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...." Thus, § 53a-3(19) defines "firearm" as a "weapon ... from which a shot may be discharged" without reference to the use of gunpowder. Under the express terms of § 53a-3 (19), it therefore would appear that a gun capable of firing a shot is a firearm irrespective of whether the gun discharges the shot by use of gunpowder or by some other means.

Recently, in State v. Hardy, 278 Conn. 113, 130, 896 A.2d 755 (2006), this court considered identical statutory language and arrived at that very conclusion, that is, that a "weapon ... from which a shot may be discharged" includes weapons that discharge their shots without the use of gunpowder. General Statutes § 53a-3 (19). In Hardy, after a trial to the court, the court found the defendant, Raymond Hardy, guilty of robbery in the first degree in violation of § 53a-134(a)(2).⁹ State v. Hardy, supra, at 115, 896 A.2d 755. Specifically, the court found that Hardy had been involved in the robbery of a taxicab driver and that a deadly weapon, namely, an air pistol, had been used in that robbery.¹⁰ See id., at 116-17, 896 A.2d 755. The Appellate Court affirmed Hardy's conviction of first degree robbery; State v. Hardy, 85 Conn.App. 708, 719, 858 A.2d 845 (2004); and we granted his petition for certification to appeal limited to two issues, one of which was whether a gun is a "deadly weapon" within the meaning of General Statutes § 53a-3(6),¹¹ which defines "deadly weapon" in relevant part as "any weapon, whether loaded or unloaded, from which a shot may be discharged," even if the gun does not discharge its shot by gunpowder. See State v. Hardy, 272 Conn. 906, 863 A.2d 699 (2004).

On appeal to this court, Hardy...