State v. Lopez

• Decision Date: 14 January 2022
• Docket Number: SC 20601
• Citation: 268 A.3d 67,341 Conn. 793
• Parties: STATE of Connecticut v. Ramon LOPEZ
• Court: Connecticut Supreme Court

341 Conn. 793

268 A.3d 67

STATE of Connecticut

v.Ramon LOPEZ

SC 20601

Supreme Court of Connecticut.

Argued December 15, 2021

Officially released January 14, 2022^*

Jon L. Schoenhorn, Hartford, for the appellant (defendant).

Brett R. Aiello, deputy assistant state's attorney, with whom, on the brief, were Brian Preleski, state's attorney, Elizabeth M. Moseley, senior assistant state's attorney, and Alexander Beck, assistant state's attorney, for the appellee (state).

Robinson, C. J., and McDonald, D'Auria, Mullins, Kahn, Ecker and Keller, Js.

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 possession 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 discharged" 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 convicted 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 suspended, 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 probation 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 defendant 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 pellets. The state opposed the defendant's motion, arguing that, pursuant to State v. Grant , supra, 294 Conn. at 161, 982 A.2d 169, 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 probation charge, the state adduced evidence that the defendant 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 pressurized chamber that releases and pushes the projectile out." Werner tested the airsoft pellet gun and determined that it functioned as intended by the manufacturer because it discharged an airsoft pellet from the muzzle. Although Werner was unable to verify the velocity with which the plastic pellet was propelled, he testified 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 projectile, 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 firearm," 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. at 161, 982 A.2d 169. 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 preponderance 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 determined 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 consequently had violated the standard conditions of his probation 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 criminal possession of a firearm.

After finding that the defendant was not amenable to supervised probation, the trial court revoked the defendant's probation...