State v. Osman
In State v. Osman, 21 Conn. App. 299, 573 A.2d 743 (1990), rev'd on other grounds, 218 Conn. 432, 589 A.2d 1227 (1991), two robbers entered a store, with one carrying a tire iron while the defendant possessed an unloaded pellet pistol. Id., 301. The defendant appealed from his conviction of robbery in the first degree, claiming that there was insufficient evidence. Id. The defendant had threatened to shoot the clerk, but had not threatened to use the pellet pistol as a bludgeon. Id., 307. The trial court denied his motion for a judgment of acquittal. Id., 305.
On appeal, the Court disagreed and concluded that the defendant's conviction could stand only if an unloaded pellet pistol was a dangerous instrument under 53a-134 (a) (3). Under that statute, "the state had the burden of showing that, under the circumstances in which the pellet pistol was used, it was actually capable of causing death or serious physical injury." Id., 307.
The Court concluded that there was no evidence that the defendant had used or threatened to use the unloaded gun as a bludgeon and that although he had threatened to shoot the clerk, the gun was not capable of causing death or serious physical injury in that manner. Id., 306-307. Thus, "under these circumstances, an unloaded pellet pistol is not a dangerous instrument." Id., 307.