State v. Overstreet

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State v. Overstreet

STATE OF CONNECTICUT v. ROBERT OVERSTREET
(AC 46253)
Elgo, Clark and Westbrook, Js.

Syllabus

Convicted of illegal possession of a weapon in a motor vehicle, the defendant
appealed to this court. The defendant claimed, inter alia, that the trial court
improperly denied his motion to suppress the evidence seized from his
vehicle. Held:

This court declined to review the defendant’s unpreserved claim that the
trial court should have suppressed the machete that had been seized from
his vehicle because the record was not adequate for review, and, accordingly,
the claim failed under the first prong of the test for reviewing a claim of
constitutional error not preserved at trial set forth in State v. Golding (213
Conn. 233).

This court declined to review the defendant’s unpreserved claim that his
conviction of illegal possession of a weapon in a motor vehicle in violation
of statute (§ 29-38) violated his right to bear arms under the second amend-
ment to the United States constitution because the claim was unreviewable
under the first prong of Golding.

The defendant’s unpreserved claim that § 29-38 was unconstitutionally vague
as applied to him in violation of his due process rights failed under the
third prong of Golding because the defendant failed to meet his burden of
establishing that an alleged constitutional violation existed.

This court declined to review the defendant’s unpreserved claim that § 29-38
was unconstitutionally overinclusive in violation of his right to due process
because the record was inadequate to review the claim, and, accordingly,
it failed under the first prong of Golding.
Argued January 13—officially released April 29, 2025

Procedural History

Two part substitute information charging the defen-
dant, in the first part, with two counts of the crime of
possession of narcotics with intent to sell and one count
of the crime of illegal possession of a weapon in a motor
vehicle, and, in the second part, with being a persistent
serious felony offender, brought to the Superior Court
in the judicial district of Waterbury, geographical area
number four, where the first part of the information
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State v. Overstreet

was tried to the jury before Schuman, J.; verdict of
guilty of illegal possession of a weapon in a motor
vehicle; thereafter, the defendant was presented to the
court, Iannotti, J., on a plea of guilty to the second
part of the information; judgment in accordance with
the verdict and the plea, from which the defendant
appealed to this court. Affirmed.
Nicole Van Lear, deputy assistant public defender,
for the appellant (defendant).
James A. Killen, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Maria A. Arroyo, assistant state’s attor-
ney, for the appellee (state).
Opinion

WESTBROOK, J. The defendant, Robert Overstreet,
appeals from the judgment of conviction, rendered after
a jury trial, of illegal possession of a weapon in a motor
vehicle in violation of General Statutes § 29-38.1 On
1
General Statutes § 29-38 provides in relevant part: ‘‘(a) Any person who
knowingly has, in any vehicle owned, operated or occupied by such person,
any weapon . . . shall be guilty of a class D felony, and the presence of
any such weapon . . . in any vehicle shall be prima facie evidence of a
violation of this section by the owner, operator and each occupant thereof.
The word ‘weapon’, as used in this section, means . . . any knife the edged
portion of the blade of which is four inches or more in length . . . .
‘‘(b) The provisions of this section shall not apply to . . . (5) any person
having a knife, the edged portion of the blade of which is four inches or
more in length, in a vehicle if such person is (A) any member of the armed
forces of the United States, as defined in section 27-103, or any reserve
component thereof, or of the armed forces of the state, as defined in section
27-2, when on duty or going to or from duty, (B) any member of any military
organization when on parade or when going to or from any place of assembly,
(C) any person while transporting such knife as merchandise or for display
at an authorized gun or knife show, (D) any person while lawfully removing
such person’s household goods or effects from one place to another, or
from one residence to another, (E) any person while actually and peaceably
engaged in carrying any such knife from such person’s place of abode or
business to a place or person where or by whom such knife is to be repaired,
or while actually and peaceably returning to such person’s place of abode
or business with such knife after the same has been repaired, (F) any person
holding a valid hunting, fishing or trapping license issued pursuant to chapter
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State v. Overstreet

appeal, the defendant claims that (1) the trial court
improperly denied his motion to suppress evidence
seized from his vehicle, (2) § 29-38 violates his right to
bear arms under the second amendment to the United
States constitution,2 (3) § 29-38 is unconstitutionally
vague as applied to him, in violation of his due process
rights, and (4) § 29-38 is unconstitutionally overinclu-
sive in violation of his due process rights.3 We affirm
the judgment of the trial court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to our
resolution of the defendant’s claims. On March 5, 2019,
four Waterbury police officers were patrolling the city
in two unmarked patrol cars. Officers Christopher Car-
pentieri and Garrett Pagel were in the lead patrol car
and Officers John Stankus and Keith Shea followed
behind them in the second car. Around 9:45 a.m., Car-
pentieri and Pagel observed the defendant’s vehicle
make a turn without using a turn signal, so they initiated
a traffic stop by turning on the patrol car’s lights and
siren. Before the defendant’s vehicle pulled over, Car-
pentieri and Pagel observed items being thrown from
the driver’s side window onto the street. When the
defendant’s vehicle came to a stop, Carpentieri went
to investigate the discarded items, and Pagel, joined by
Stankus and Shea, approached the defendant’s vehicle.
490 or any saltwater fisherman while having such knife in a vehicle for
lawful hunting, fishing or trapping activities, or (G) any person participating
in an authorized historic reenactment . . . .’’
Although § 29-38 (b) was amended by No. 21-31, § 1, of the 2021 Public
Acts, that amendment has no bearing on the merits of this appeal. In the
interest of simplicity, we refer to the current revision of the statute.
2
The second amendment to the Unites States constitution provides: ‘‘A
well regulated Militia, being necessary to the security of a free State, the
right of the people to keep and bear Arms, shall not be infringed.’’
3
In the defendant’s principal appellate brief, he asserts that § 29-38 is
vague and overinclusive under a single due process claim. Because ‘‘overin-
clusiveness and vagueness are distinct concepts’’; State v. Jodi D., 340 Conn.
463, 467 n.1, 264 A.3d 509 (2021); we address these claims separately.
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State v. Overstreet

When Pagel peered through the driver’s side window
of the vehicle, he saw two occupants. He recognized the
defendant, who was in the driver’s seat, from previous
encounters. He also saw a ‘‘machete that was in a fixed
position between the [driver’s] seat and the center con-
sole’’ and asked the defendant to step out of the vehicle.
Pagel placed the defendant under arrest for illegal pos-
session of a weapon in a motor vehicle and searched
him, finding $133 in his pocket. Stankus searched the
passenger and found a ‘‘clear glass tube with burned
ends,’’ which he suspected to be a crack pipe. He
arrested the passenger for possession of drug parapher-
nalia. Once both occupants were out of the vehicle,
Shea searched the vehicle and found a ‘‘clear plastic
bag containing a white, rock like substance,’’ which he
suspected was crack cocaine.
While Pagel and Stankus were conducting the arrests,
Carpentieri searched the street where the discarded
items landed and found forty-three glassine bags con-
taining ‘‘a tan powder substance,’’ which he suspected
was heroin, and a Ziplock bag containing smaller
Ziplock bags. He seized the items and returned to the
traffic stop. Later testing confirmed that the glassine
bags found on the street contained heroin, fentanyl,
and tramadol, and the bag found in the defendant’s car
contained crack cocaine.
The state charged the defendant with illegal posses-
sion of a controlled substance in violation of General
Statutes (Rev. to 2019) § 21a-279 (b),4 illegal possession
4
General Statutes (Rev. to 2019) § 21a-279 provides in relevant part: ‘‘(a)
(1) Any person who possesses or has under such person’s control any
quantity of any controlled substance, except less than one-half ounce of a
cannabis-type substance and except as authorized in this chapter, shall be
guilty of a class A misdemeanor. . . .
‘‘(b) Any person who violates subsection (a) of this section in or on, or
within one thousand five hundred feet of, the real property comprising a . . .
public or private elementary or secondary school and who is not enrolled
as a student in such school . . . shall be guilty of a class A misdemeanor
and shall be sentenced to a term of imprisonment and a period of probation
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State v. Overstreet

of a weapon in a motor vehicle in violation of § 29-
38, tampering with physical evidence in violation of
General Statutes § 53a-155,5 possession of narcotics
with intent to sell in violation of General Statutes § 21a-
277 (a) (1) (A),6 and failure to use a turn signal in
violation of General Statutes § 14-101.7
On August 1, 2022, the defendant filed a motion to
suppress the items seized from his vehicle. On August 2,
2022, the court, Schuman, J., conducted an evidentiary
hearing on the motion to suppress. At the hearing,
defense counsel informed the court that she was seek-
ing to suppress only the bag of crack cocaine found in
the defendant’s vehicle, and not the machete.
That same day, the state filed a substitute information
charging the defendant with three counts. Counts one
and two charged the defendant with possession of nar-
cotics with intent to sell in violation of General Statutes
during which such person shall perform community service as a condition
of such probation, in a manner ordered by the court. . . .’’
5
General Statutes § 53a-155 (a) provides in relevant part: ‘‘A person is
guilty of tampering with . . . physical evidence if, believing that a criminal
investigation conducted by a law enforcement agency or an official proceed-
ing is pending, or about to be instituted, such person . . . [a]lters, destroys,
conceals or removes any record, document or thing with purpose to impair
its verity or availability in such criminal investigation or official proceed-
ing . . . .’’
6
General Statutes § 21a-277 provides in relevant part: ‘‘(a) (1) No person
may manufacture, distribute, sell, prescribe, dispense, compound, transport
with the intent to sell or dispense, possess with the intent to sell or dispense,
offer, give or administer to another person, except as authorized in this
chapter, any controlled substance that is a (A) narcotic substance . . . .’’
7
General Statutes § 14-101 provides: ‘‘Any person who operates on any
highway any motor vehicle so constructed or so loaded that the operator is
unable to clearly indicate by hand signals to both approaching and following
traffic his intention of stopping or turning, unless such motor vehicle is
equipped with a turn signal or signalling device, or fails to cause such turn
signal or device to be maintained, at all times, in good and sufficient working
order, or fails to use the same when making any stop or turn, or the owner
of any such motor vehicle who allows it to be so operated, shall be fined
the amount designated for such infraction.’’
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State v. Overstreet

§ 21a-278 (b), alleging that he possessed and intended
8

to sell heroin and cocaine, respectively. Count three
charged the defendant with illegal possession of a
weapon in a motor vehicle in violation of § 29-38, alleg-
ing that he possessed a machete knife in his car. Addi-
tionally, the state filed a part B information charging the
defendant with one count of being a persistent serious
felony offender pursuant to General Statutes § 53a-40
(c).9 The defendant waived a jury trial as to the part B
information only and pleaded not guilty as to all other
charges.
On August 3, 2022, the court orally denied the defen-
dant’s motion to suppress on the record. The court
rejected the defendant’s argument that the bag of crack
cocaine should be suppressed, finding that the officers
had probable cause to search his vehicle pursuant to
the automobile exception to the warrant requirement.10
8
General Statutes § 21a-278 (b) (1) provides in relevant part: ‘‘No person
may manufacture, distribute, sell, prescribe, dispense, compound, transport
with the intent to sell or dispense, possess with the intent to sell or dispense,
offer, give or administer to another person, except as authorized in this
chapter or chapter 420f . . . a narcotic substance . . . .’’
9
General Statutes § 53a-40 provides in relevant part: ‘‘(c) A persistent
serious felony offender is a person who (1) stands convicted of a felony,
and (2) has been, prior to the commission of the present felony, convicted
of and imprisoned under an imposed term of more than one year or of
death, in this state or in any other state or in a federal correctional institution,
for a crime.
***
‘‘(k) When any person has been found to be a persistent serious felony
offender, the court in lieu of imposing the sentence of imprisonment author-
ized by section 53a-35 for the crime of which such person presently stands
convicted . . . may impose the sentence of imprisonment authorized by
said section for the next more serious degree of felony. . . .’’
10
‘‘The United States Supreme Court first recognized the automobile
exception to the fourth amendment warrant requirement in Carroll v. United
States, 267 U.S. 132, 149, 45 S. Ct. 280, 69 L. Ed. 543 (1925), where the court
explained that if [a] search and seizure without a warrant are made upon
probable cause, that is, upon a belief, reasonably arising out of circumstances
known to the seizing officer, that an automobile or other vehicle contains
that which by law is subject to seizure and destruction, the search and
seizure are valid. Likewise, under our state constitution, our automobile
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State v. Overstreet

The case was tried to a jury on August 9, 10 and 11,
2022. On August 11, 2022, the jury returned a verdict
of not guilty on counts one and two and guilty on count
three. The defendant subsequently pleaded guilty to the
part B information. On November 28, 2022, the court
sentenced the defendant to a total effective sentence
of six years of incarceration followed by four years of
special parole with conditions. This appeal followed.
Additional facts will be set forth as necessary.
As a preliminary matter, we note that the defendant
acknowledges that he did not preserve any of his claims
on appeal, and he seeks review pursuant to State v.
Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989),
as modified by In re Yasiel R., 317 Conn. 773, 781, 120
A.3d 1188 (2015). ‘‘Pursuant to Golding, a [defendant]
can prevail on a claim of constitutional error not pre-
served at trial only if all of the following conditions are
met: (1) the record is adequate to review the alleged
claim of error; (2) the claim is of constitutional magni-
tude alleging the violation of a fundamental right; (3)
the alleged constitutional violation . . . exists and
. . . deprived the [defendant] of a fair trial; and (4) if
subject to harmless error analysis, the [state] has failed
to demonstrate harmlessness of the alleged constitu-
tional violation beyond a reasonable doubt. . . . The
first two steps in the Golding analysis address the
reviewability of the claim, [whereas] the last two steps
involve the merits of the claim.’’ (Emphasis in original;
internal quotation marks omitted.) State v. Daniels, 228
Conn. App. 321, 342, 324 A.3d 820, cert. denied, 350
exception permits a warrantless search of an automobile whenever the
police have probable cause to do so . . . as where the searching officer[s]
have probable cause to believe that the vehicle contains contraband. . . .
The probable cause determination must be based on objective facts that
could have justified the issuance of a warrant by a neutral magistrate at
the time the search was made.’’ (Internal quotation marks omitted.) State
v. Brito, 170 Conn. App. 269, 292–93, 154 A.3d 535, cert. denied, 324 Conn.
925, 155 A.3d 755 (2017).
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State v. Overstreet

Conn. 926, 326 A.3d 248 (2024). ‘‘In the absence of any
one of these conditions, the defendant’s claim will fail.
The appellate tribunal is free, therefore, to respond to
the defendant’s claim by focusing on whichever condi-
tion is most relevant in the particular circumstances.’’
(Internal quotation marks omitted.) State v. Andaz, 181
Conn. App. 228, 232, 186 A.3d 66, cert. denied, 329 Conn.
901, 184 A.3d 1214 (2018). For the following reasons, we
conclude that the defendant’s claims fail under Golding.
I
The defendant first claims that the court should have
suppressed the machete seized from his vehicle. He
argues that the court misapplied the plain view doctrine
in determining that his arrest and the subsequent search
of his vehicle were lawful. We conclude that this unpre-
served claim fails under the first prong of Golding, and,
accordingly, we decline to review it.
The following additional facts are relevant to our
resolution of this claim. On August 1, 2022, the defen-
dant filed a motion to suppress ‘‘any materials obtained
by law enforcement subsequent to a search of the vehi-
cle involved with the incident giving rise to this matter.’’
He argued that ‘‘any material obtained via search of the
defendant’s vehicle after every occupant of the vehicle
was detained and placed under arrest must be sup-
pressed.’’ The defendant’s motion to suppress, however,
made no arguments concerning the plain view doctrine
or the seizure of the machete.
The following day, the court conducted an eviden-
tiary hearing regarding the defendant’s motion to sup-
press. At the hearing, the state presented the testimo-
nies of Carpentieri, Pagel, and Shea. The defendant did
not present any witnesses. The only evidence adduced
concerning the machete was Pagel’s testimony that,
when he approached the defendant’s vehicle during the
traffic stop, he ‘‘noticed a machete . . . between the
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State v. Overstreet

driver seat and the center console,’’ so he asked the
defendant to exit the vehicle, and he seized the machete.
During the hearing, defense counsel expressly
informed the court two times that she was seeking to
suppress only the bags of crack cocaine found in his
vehicle and not the machete.11 She argued that the war-
rantless search of the defendant’s vehicle was unlawful
because the defendant and the passenger were both
being detained outside of the vehicle at the time of the
search. Defense counsel contended that, pursuant to
Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L.
Ed. 2d 485 (2009), the automobile exception does not
permit officers to search a vehicle when the occupants
have been removed from the vehicle. Although the pros-
ecutor argued, inter alia, that Pagel’s observation of the
11
The following exchange occurred between the court and defense counsel
at the outset of the hearing regarding the scope of the defendant’s motion
to suppress:
‘‘The Court: So, as I understand it, your claim is limited to search incident
to arrest of the car, which, based on the police report at least, produced
the cocaine or some substance suspected to be cocaine, but you’re not
challenging any of the other items seized in this case?
‘‘[Defense Counsel]: That’s correct, Your Honor.’’
Later in the hearing, the following exchange occurred between the court
and defense counsel regarding the machete:
‘‘[Defense Counsel]: Your Honor, defense has filed a motion to suppress
the materials that were obtained via an illegal search of this vehicle and—
‘‘The Court: Well, you say materials, but your motion is very unclear. It
doesn’t specify which materials.
‘‘[Defense Counsel]: Your Honor, the only material that was seized via
search of this vehicle . . . was a bag of crack cocaine, I believe.
‘‘The Court: Well, that’s not entirely true, the machete was seized. You’re
not challeng[ing] that—
‘‘[Defense Counsel]: Right.
‘‘The Court:—as I understand it.
‘‘[Defense Counsel]: Okay, Your Honor. So, then to clarify, in my motion
we seek to suppress the bag of . . . alleged crack cocaine that was recov-
ered from the vehicle. And I apologize for the lack of clarity on that in my
written motion. Assuming the court is willing to accept my oral modification
of my motion—
‘‘The Court: Sure, yes.
‘‘[Defense Counsel]:—I’ll continue.’’
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State v. Overstreet

machete through the defendant’s car window served as
one permissible basis for the officers to search the
defendant’s vehicle, defense counsel did not address
this argument or make any other arguments regarding
the machete.
The following day, the court orally denied the defen-
dant’s motion to suppress on the record. The court
stated: ‘‘The legal issue here is whether Arizona v. Gant
[supra, 556 U.S. 332] eliminated [the] automobile excep-
tion to the warrant requirement in a case in which the
occupants of the automobile are secured by the police
in a police squad car. Gant itself expressly makes clear
that it did not eliminate the automobile exception.’’
The court continued: ‘‘So, it’s clear that the automobile
exception still applies, even when search incident to
arrest does not. Applying the automobile exception in
this case, I find that the police had probable cause to
search the car and seize the suspected cocaine. There
are really two components of that: one is the plain view
observation of the machete, [and] the second is the
finding of suspected heroin on the street, having appar-
ently been thrown out of the car by the driver. There-
fore, the police had probable cause to search the car
and discover and seize the cocaine. . . . For these rea-
sons, the motion to suppress is denied, and the state
may admit the cocaine that’s in question, subject to any
state evidentiary concerns.’’
The defendant now claims that the court should have
suppressed the machete. The state argues that the
record is inadequate to review the defendant’s claim,
and, therefore, it fails under the first prong of Golding.
The defendant, on the other hand, argues that the record
is adequate because ‘‘[t]he plain view of the machete
was raised and argued at the motion to suppress, and
the trial court made a finding specific to the machete,
based on counsels’ arguments and the officers’ testi-
mony.’’ He contends that ‘‘any gaps in the record are
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State v. Overstreet

due to the lack of probable cause, not because the
record is inadequate.’’ We agree with the state that the
record is inadequate for review.
‘‘The first Golding requirement is that the record be
adequate to review the alleged claim of [constitutional]
error . . . . The defendant bears the responsibility for
providing a record that is adequate for review of his
claim of constitutional error. If the facts revealed by
the record are insufficient, unclear or ambiguous as to
whether a constitutional violation has occurred, we will
not attempt to supplement or reconstruct the record,
or to make factual determinations, in order to decide the
defendant’s claim.’’ (Internal quotation marks omitted.)
State v. Burgos, 170 Conn. App. 501, 546–47, 155 A.3d
246, cert. denied, 325 Conn. 907, 156 A.3d 538 (2017).
‘‘[Connecticut] case law addressing whether a record
is adequate for review under the first prong of Golding
makes clear that this preservation exception operates
in a very restrictive manner, particularly in the fact
sensitive context of illegal search and seizure claims.’’
State v. Jenkins, 298 Conn. 209, 227, 3 A.3d 806 (2010).
In State v. Brunetti, 279 Conn. 39, 47, 901 A.2d 1 (2006),
cert. denied, 549 U.S. 1212, 127 S. Ct. 1328, 167 L. Ed.
2d 85 (2007), our Supreme Court determined that the
record was inadequate to review the defendant’s claim,
made for the first time on appeal, that, although his
father had consented to the officers’ search of his home,
the search was unconstitutional because the defen-
dant’s mother declined to consent to the search. Before
the trial court, the defendant had moved to suppress
evidence found in his home solely on the ground that
the police improperly had induced his father to agree to
the search. Id., 48–49. Although the suppression hearing
revealed that the defendant’s mother had refused to
sign the written consent form proffered by the police,
neither the state nor defense counsel inquired further
about the mother’s refusal to sign the consent form.
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State v. Overstreet

Id., 48–50. The trial court’s ruling on the defendant’s
motion to suppress concluded that the ‘‘father’s consent
to search was knowing and voluntary, and, therefore,
constitutionally valid.’’ Id., 50. During its brief explana-
tion of its ruling, the court stated: ‘‘It is clear that at
least one of the parties, one of the parents, declined
to consent to [the] search.’’ (Internal quotation marks
omitted.) Id., 51.
Our Supreme Court, on appeal, rejected the defen-
dant’s argument that the trial court’s statement that at
least one of the parents declined to consent to the
search constituted a finding that the defendant’s mother
had refused consent to the search. Id., 56. The court
emphasized that, ‘‘because the defendant’s motions to
suppress did not implicate the mother’s consent or lack
thereof, the state was not on notice that it was required
to establish, on the basis of the totality of the circum-
stances, that the defendant’s mother had consented to
or acquiesced in the search. In such circumstances, the
state bears no responsibility for the evidentiary lacunae,
and, therefore, it would be manifestly unfair to the state
for this court to reach the merits of the defendant’s
claim upon a mere assumption that the defendant’s
mother had declined to consent to the search.’’ (Empha-
sis in original; footnote omitted.) Id., 59. Accordingly,
the court concluded that ‘‘the facts revealed by the
record [were] inadequate to establish whether the
alleged constitutional violation did, in fact, occur.’’
Id., 64.
‘‘Our other . . . case law is consistent with Brunetti
and makes clear that [Connecticut courts] consistently
have declined to grant Golding review to [claims under
the fourth amendment to the United States constitution]
wherein the predicate factual record was not com-
pletely developed before the trial court.’’ State v. Jen-
kins, supra, 298 Conn. 230; see also id., 223 (‘‘the defen-
dant’s failure to litigate the validity of the patdown
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State v. Overstreet

during the suppression hearing rendered the record
inadequate for Golding review of this issue’’); State
v. Canales, 281 Conn. 572, 582, 916 A.2d 767 (2007)
(concluding that record was inadequate to review claim
that defendant’s statements were product of illegal
arrest ‘‘because the defendant did not argue at the sup-
pression hearing that the arrest lacked probable cause,
the state did not offer evidence concerning probable
cause, and the trial court was not called upon to deter-
mine whether probable cause to arrest existed’’); State
v. Burgos, supra, 170 Conn. App. 547–48 (concluding
that record was inadequate to review defendant’s fourth
amendment claim because he ‘‘did not contest the valid-
ity of his consent in his motion to suppress or at the
suppression hearing’’).
The present case is similar to Brunetti. Like the
defendant in Brunetti, who did not raise his mother’s
lack of consent to search the home as a ground to
suppress the items seized from his home; State v. Bru-
netti, supra, 279 Conn. 48; the defendant in the present
case did not challenge the seizure of the machete or
how it factored into the lawfulness of the seizure of
the bags of crack cocaine found in his vehicle. See
State v. Jenkins, supra, 298 Conn. 222–31 (record was
inadequate to review defendant’s claim that consent to
search car was tainted by prior illegal detention and
patdown partly because defendant did not raise issue
of illegal patdown search at suppression hearing). In
fact, defense counsel expressly informed the court that
she was not seeking to suppress the machete or other-
wise challenging its seizure. Only now, for the first
time on appeal, does the defendant claim that the court
should have suppressed the machete because the state
failed to establish that its seizure was proper under the
plain view doctrine.
Because the defendant did not raise issues related
to the seizure of the machete at the suppression hearing,
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the state was not alerted to the need to develop a factual
record concerning the application of the plain view
doctrine.12 See id., 231 (‘‘the state was not alerted to the
need to develop a factual record concerning whether
potentially permissible bases, such as consent, existed
for the patdown search’’ (footnote omitted)). There is
no record, for example, as to how Pagel knew that the
item he saw was a machete and why he believed the
machete was associated with criminal activity. Pagel’s
observation of the machete through the window of the
defendant’s vehicle is but one factor that the court
would have been required to consider if the court had
been asked to determine whether the machete was
properly seized. See, e.g., State v. Brunetti, supra, 279
Conn. 63 (‘‘the defendant’s mother’s refusal to sign the
consent to search form is but one factor that the court
would have been required to consider if the court had
been asked to determine whether she had consented
to the search’’).

Although the state asserted at the suppression hear-
ing that Pagel’s plain view observation of the machete
constituted one permissible basis for the officers to
search the vehicle, the state was not on notice as to
whether it needed to fully develop that argument
because the legality of the seizure of the machete was
uncontested. In fact, when the prosecutor stated that
the machete was seized pursuant to the plain view doc-
trine, the court interrupted to remind her that ‘‘the sei-
zure of the machete is not contested here, it’s the seizure
12
‘‘Under the plain view doctrine, if police are lawfully in a position from
which they view an object, if its incriminating character is immediately
apparent, and if the officers have a lawful right of access to the object, they
may seize it without a warrant. . . . The police meet the immediately appar-
ent requirement if, [up]on discovery, they have probable cause to associate
the property in plain view with criminal activity without further investiga-
tion.’’ (Internal quotation marks omitted.) State v. Arokium, 143 Conn. App.
419, 433, 71 A.3d 569, cert. denied, 310 Conn. 904, 75 A.3d 31 (2013).
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of the cocaine.’’ Under these circumstances, our
13

Supreme Court has indicated that the state bears no
responsibility for the lack of evidence and, therefore,
it would be ‘‘manifestly unfair’’ to the state for this court
to reach the merits of the defendant’s claim. State v.
Brunetti, supra, 279 Conn. 59.
The defendant maintains that the court made findings
of fact regarding the seizure of the machete because it
stated that ‘‘the plain view observation of the machete’’
was one of two components that established probable
cause to search the defendant’s vehicle. The court’s
statement, however, was likely intended as ‘‘nothing
more than a shorthand reference’’ to the unchallenged
fact that Pagel saw the machete through the defendant’s
car window. State v. Brunetti, supra, 279 Conn. 62;
see also id. (‘‘it is highly likely that the court’s passing
observation that the defendant’s mother had ‘declined
13
During the suppression hearing, the following exchange took place
between the prosecutor and the court regarding the seizure of the machete
under the plain view doctrine:
‘‘[The Prosecutor]: . . . Your Honor, officers approach[ed] the vehicle
based on a valid investigatory stop. . . . Once they approach[ed] the vehi-
cle, there [was] a machete in plain view. At that point, the police may seize
without a warrant any item that is reasonably believe[d] to be contraband
or evidence of a crime that is in plain view if the officers are lawfully present
to be in view of that item, and the state argues to you that they were because
they were conducting a motor vehicle stop.
‘‘The Court: But the seizure of the machete is not contested here, it’s the
seizure of the cocaine. There’s no evidence that the cocaine was in plain view.
‘‘[The Prosecutor]: Correct, Your Honor, but the machete . . . being in
plain view is what gives the officers the probable cause to believe that there
might be additional weapons in the motor vehicle, and that allows them to
search the vehicle. And also, pursuant to the automobile exception, the
police may conduct a warrantless on the scene search of a motor vehicle
based on probable cause to believe that it contains contraband or evidence
of the crime. . . . Your Honor, the state will argue that not only in the
moment when the officer seize[d] the machete [was] there probable cause
to search the car, but the moment that [Carpentieri] radio[ed] over that he
[had] what is suspected to be narcotics that he saw be thrown out the driver
side window . . . [there was] also probable cause there to search the vehi-
cle.’’ (Citation omitted.)
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to consent to [the] search’ was intended as nothing
more than a shorthand reference to the undisputed fact
that the state had not established her consent’’). To
conclude that the court intended for its statement to
constitute a factual finding would be to ‘‘presume that
the trial court had reason to be precise about how it
characterized’’ the seizure of the machete when, in fact,
that issue was not before the court. Id., 62–63. Further-
more, had the court intended to apply the plain view
doctrine to the machete, it likely would have engaged
in explicit fact-finding and analysis specific to that
issue, as it did in applying the automobile exception.
Because the issue of the seizure of the machete was
not before the court, the facts relevant to the issue of
the plain view doctrine never were adduced in the trial
court. Consequently, any decision by this court concern-
ing the validity of the seizure would be ‘‘entirely specula-
tive without the necessary factual and legal conclusions
furnished by the trial court, [and] it is [therefore] unre-
viewable under the first prong of Golding.’’14 State v.
Burgos, supra, 170 Conn. App. 548.
II
The defendant next claims that his conviction of ille-
gal possession of a weapon in a motor vehicle in viola-
tion of § 29-38 violates his right to bear arms under the
second amendment to the United States constitution.
He argues that the state has not met its burden of
justifying the statute pursuant to the test set forth in
New York State Rifle & Pistol Assn., Inc. v. Bruen, 597
U.S. 1, 18, 142 S. Ct. 2111, 213 L. Ed. 2d 387 (2022)
(Bruen). We conclude that this unpreserved claim fails
14
The defendant also seeks review of his claim under the plain error
doctrine. See Practice Book § 60-5. ‘‘Because the record is inadequate for
review under Golding it is also inadequate for consideration under the plain
error doctrine.’’ Mozell v. Commissioner of Correction, 291 Conn. 62, 69
n.3, 967 A.2d 41 (2009). Thus, we need not separately address the defendant’s
plain error claim.
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under the first prong of Golding, and, accordingly, we
decline to review it.
The defendant argues that his second amendment
claim ‘‘is reviewable because it is a question of law and
there is no dispute that the weapon at issue is a machete,
therefore there are no further factual findings required.’’
The state, on the other hand, argues that ‘‘the record
is inadequate to determine whether a machete also is
a weapon that is in common use today for self-defense,
such that it meets the criteria for second amendment
protection as elucidated in . . . Bruen.’’ (Internal quo-
tation marks omitted.)
In Bruen, the Supreme Court of the United States held
that the ‘‘[s]econd [a]mendment protects the possession
and use of weapons that are in common use at the
time.’’ (Emphasis added; internal quotation marks omit-
ted.) New York State Rifle & Pistol Assn., Inc. v. Bruen,
supra, 597 U.S. 21. The court further held that, ‘‘when
the [s]econd [a]mendment’s plain text covers an individ-
ual’s conduct, the [c]onstitution presumptively protects
that conduct. To justify its regulation, the government
may not simply posit that the regulation promotes an
important interest. Rather, the government must dem-
onstrate that the regulation is consistent with this
[n]ation’s historical tradition of firearm regulation. Only
if a firearm regulation is consistent with this [n]ation’s
historical tradition may a court conclude that the indi-
vidual’s conduct falls outside the [s]econd [a]mend-
ment’s unqualified command.’’ (Internal quotation
marks omitted.) Id., 17.
In State v. Giannone, 228 Conn. App. 11, 13, 323 A.3d
360 (2024), the defendant, who had been charged in
connection with his alleged possession of a silencer
and large capacity magazine and the sale of an assault
rifle, claimed that the statutes under which he was
charged violated his right to bear arms under the second
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amendment. The trial court, without holding an eviden-
tiary hearing, ‘‘concluded that his claims failed under
the type of means-end balancing test that the Supreme
Court [had] recently rejected in Bruen.’’ Id., 31. On
appeal, this court determined that the trial court ‘‘did
not apply the correct legal standard when assessing the
merits of the second amendment claims raised in the
defendant’s motions. Additionally, the court did not
hold a hearing on the defendant’s motions and, there-
fore, did not make any factual findings that . . . are
necessary to apply the Bruen test. . . . Accordingly,
the record is inadequate for our review of the defen-
dant’s claim under the standard announced in Bruen.’’
Id. The court remanded the case because ‘‘the applica-
tion of Bruen to the conduct at issue in the present
cases involves disputed factual questions that must be
resolved by the trial court, before which the parties can
present evidence that can be explained through expert
testimony and tested through cross-examination.’’
(Internal quotation marks omitted.) Id., 34.

Specifically, ‘‘Bruen requires the following showing
in second amendment cases. The initial step requires
that the defendant, as the party challenging the statutes
at issue in the present cases, show, by a preponderance
of the evidence, that his conduct falls within the plain
text of the second amendment, i.e., that the items at
issue, first, are ‘arms,’ and second, are in common use
or typically possessed for lawful purposes like self-
defense. . . . If the defendant makes the necessary
threshold showing as to any of the firearms or related
components at issue, then the plain text of the second
amendment ‘presumptively protects’ the defendant’s
right to keep and bear that firearm or related compo-
nent. . . . The second step then requires the state to
affirmatively prove, by presenting ‘relevantly similar’
historical analogues, that its regulation of the protected
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‘arm’ is nonetheless ‘consistent with the [n]ation’s his-
torical tradition of firearm regulation’ and is, therefore,
constitutional.’’ (Citations omitted; footnote omitted.)
Id., 38–39.

In the present case, the defendant did not raise his
second amendment claim before the trial court. Conse-
quently, the trial court did not hold an evidentiary hear-
ing on the issue and did not make any of the factual
findings that are necessary to apply the Bruen test. The
defendant contends that, because it is undisputed that
the weapon at issue is a machete, we do not need
additional factual findings from the trial court to apply
the Bruen test. Although it is undisputed that the
weapon at issue is a machete, the parties dispute whether
machetes constitute ‘‘[a]rms’’ under the second amend-
ment, whether machetes are in common use or typically
possessed for lawful purposes like self-defense, and
whether § 29-38 is consistent with our nation’s histori-
cal tradition of arms regulation. Thus, as in Giannone,
there are disputed factual questions that need to be
resolved by the trial court in order to apply the Bruen
test. Although this court remanded the case for further
proceedings in Giannone, the defendant had preserved
his Bruen claim by raising it before the trial court and,
therefore, was not required to satisfy any of the Golding
prongs on appeal. See State v. Giannone, supra, 228
Conn. App. 14–16. Because the defendant in the present
case failed to preserve his Bruen claim and is therefore
required to establish that the record is adequate for
review under the first prong of Golding, we decline to
remand the case for further proceedings.

The defendant relies on State v. DeCiccio, 315 Conn.
79, 105 A.3d 165 (2014), arguing that factual findings
are not necessary to determine whether machetes are
protected by the second amendment because ‘‘[our]
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Supreme Court has already interpreted ‘arms’ to encom-
pass a category of knives that includes machetes.’’ We
disagree with the defendant’s reading of DeCiccio.
Our Supreme Court in DeCiccio concluded only that
dirk knives constitute ‘‘[a]rms’’ under the second
amendment, specifically because of their ‘‘military ori-
gins and history . . . .’’ (Internal quotation marks omit-
ted.) State v. DeCiccio, supra, 315 Conn. 120, 128. In fact,
the court stated: ‘‘We emphasize that our conclusion is
limited to knives with characteristics of the dirk knife
at issue in the present case, and we do not decide
whether the second amendment embraces knives gen-
erally. . . . Thus, we do not consider whether the right
to keep and bear arms under the second amendment
extends to other types of knives, including those identi-
fied in § 29-38 (a), such as [knives with blades that are
four inches or longer].’’ (Citation omitted; emphasis
added.) Id., 128 n.34. The court also distinguished dirk
knives from machetes, noting that machetes are ‘‘signifi-
cantly more lethal than dirk knives . . . .’’ Id., 147.
Thus, the court in DeCiccio did not conclude that
machetes constitute ‘‘[a]rms’’ under the second amend-
ment, and there was no evidence adduced in the trial
court as to whether there is a similar history of the use
of machetes in the military that would entitle them to
second amendment protection under the rationale of
DeCiccio.
Because the issue of whether § 29-38 violates the
defendant’s right to bear arms under the second amend-
ment was not before the court, the facts relevant to the
application of the Bruen test never were adduced in
that court. Consequently, the defendant’s claim is unre-
viewable under the first prong of Golding.
III
The defendant next claims that § 29-38 is unconstitu-
tionally vague as applied to him, in violation of his due
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process rights, because he was the victim of arbitrary
and discriminatory enforcement.15 He contends the
‘‘absence of an unlawful intent requirement’’ permits
standardless law enforcement because ‘‘the officers
were under no obligation to determine whether [the
defendant] fell within an exception before arresting
him.’’ We conclude that this unpreserved due process
claim fails under the third prong of Golding because
the defendant cannot demonstrate that an alleged con-
stitutional violation exists and deprived him of a fair
trial. See State v. Daniels, supra, 228 Conn. App. 342.
Before addressing the merits of the defendant’s claim,
we set forth the applicable legal principles. ‘‘The deter-
mination of whether a statutory provision is unconstitu-
tionally vague is a question of law over which we exer-
cise de novo review. . . . In undertaking such review,
we are mindful that [a] statute is not void for vagueness
unless it clearly and unequivocally is unconstitutional,
making every presumption in favor of its validity. . . .
To demonstrate that [a statute] is unconstitutionally
vague as applied to him, the [defendant] therefore must
. . . demonstrate beyond a reasonable doubt that [he]
had inadequate notice of what was prohibited or that
15
‘‘To demonstrate that [a statute] is unconstitutionally vague as applied
to him, the [defendant must] . . . demonstrate beyond a reasonable doubt
that [he] had inadequate notice of what was prohibited or that [he was] the
victim of arbitrary and discriminatory enforcement.’’ (Internal quotation
marks omitted.) State v. Winot, 294 Conn. 753, 759, 988 A.2d 188 (2010).
The defendant appears to raise a claim under the first prong of the as applied
vagueness test by arguing that ‘‘he was not afforded a reasonable opportunity
to know what conduct was permitted or prohibited’’ by § 29-38. In his
appellate briefs, however, he states that ‘‘[t]he issue here is not that the
description of banned weapons is vague, it is the statute’s arbitrary enforce-
ment that violates due process.’’ He also states that ‘‘[a] reasonable person
reading § 29-38 is put on notice that there are lawful circumstances under
which they can transport weapons in their vehicle.’’ Because the defendant
does not claim that he had inadequate notice that having the machete in
his vehicle was prohibited under § 29-38 (a), except under the circumstances
set forth in § 29-38 (b) (5), we construe the defendant’s vagueness claim as
a claim under the second prong of the as applied vagueness test only.
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[he was] the victim of arbitrary and discriminatory
enforcement. . . . [T]he void for vagueness doctrine
embodies two central precepts: the right to fair warning
of the effect of a governing statute . . . and the guaran-
tee against standardless law enforcement.’’ (Internal
quotation marks omitted.) State v. DeCiccio, supra, 315
Conn. 87.
The defendant argues that the statute allows the
police to arrest a person for ‘‘ ‘knowingly’ ’’ possessing
a prohibited weapon in their vehicle even when posses-
sion is lawful pursuant to an exception in § 29-38 (b)
because the statute does not require the police to ascer-
tain whether an exception applies before conducting
an arrest. In support of this argument, he states: ‘‘For
example, imagine an individual that lawfully possesses
a machete that needs repair. There is an exception that
makes it lawful for an individual to possess a machete
in their vehicle if transporting it for repair. If that indi-
vidual is pulled over for a traffic infraction and is
arrested as soon as the machete is seen that individual
has been arrested for lawful conduct.’’ We are not per-
suaded.
The defendant contends that § 29-38 permits officers
to arrest people for otherwise innocent conduct, but
‘‘the hypothetical applicability of [the statute] to con-
duct unrelated to the defendant’s own actions is irrele-
vant to our consideration of whether the [statute is]
unconstitutionally vague as applied to the defendant’s
conduct.’’ State v. Roy D. L., 339 Conn. 820, 855 n.18,
262 A.3d 712 (2021); see also State v. Josephs, 328 Conn.
21, 32, 176 A.3d 542 (2018) (‘‘[u]nless a vagueness claim
implicates the first amendment right to free speech,
[a] defendant whose conduct clearly comes within a
statute’s unmistakable core of prohibited conduct may
not challenge the statute because it is vague as applied
to some hypothetical situation’’ (internal quotation
marks omitted)). The defendant has not argued that he
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lawfully possessed the machete in his vehicle pursuant
to an exception set forth in § 29-38 (b) (5). Because he
fails to argue that ‘‘he was the victim of arbitrary or
discriminatory enforcement,’’ the defendant’s claim that
§ 29-38 is unconstitutionally vague as applied to his
conduct fails. (Emphasis in original.) State v. Roy D.
L., supra, 855 n.18.
The defendant has failed to meet his burden of estab-
lishing that the alleged constitutional violation exists.
Accordingly, his unpreserved claim fails under the third
prong of Golding.
IV
Lastly, the defendant claims that § 29-38 is unconsti-
tutionally overinclusive in violation of his right to due
process because the statute ‘‘encompasses an unreason-
able amount of innocent activity.’’ Specifically, he
argues that the definition of weapons set forth in § 29-
38 (a) ‘‘criminalizes a vast amount of standard, everyday
tools . . . .’’ As applied to his own conduct, he con-
tends that a machete is ‘‘both a weapon and a common
agricultural tool’’ and that he ‘‘possessed the machete
because he used it for his job as a flagger, which, at
times, involved clearing brush—one of the primar[y]
functions of a machete.’’ We decline to review this claim
because it fails under the first prong of Golding.
The following additional facts are relevant to our
resolution of this claim. At trial, defense counsel indi-
cated that the defendant possessed the machete in his
vehicle for self-defense purposes because he lived in a
high crime area. For example, defense counsel asked
Pagel on cross-examination: ‘‘And, so, although you’ve
testified that seeing a weapon might be an indication
of a narcotics sale, it’s not uncommon to see residents
in this area carrying weapons for their own protection,
correct?’’ Subsequently, during closing argument to the
jury, defense counsel argued that Pagel’s observation
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of the machete was ‘‘not plausible,’’ that the state failed
to prove that the machete belonged to the defendant,
and that the defendant possessed the machete for self-
defense purposes. Defense counsel did not, however,
present any evidence or argument at trial to suggest
that the defendant possessed the machete for a purpose
set forth in § 29-38 (b) or for agricultural purposes
related to his work as a flagger.
Defense counsel mentioned the defendant’s work as
a flagger for the first time at sentencing, stating:
‘‘Although [the defendant] does report in the [presen-
tence investigation] report that he is not currently
employed, he also reports a pretty extensive history of
working as a flagger for a couple of different agencies.
And [the defendant’s] report is essentially that working
as a flagger can either be to direct traffic as it relates
to . . . construction or direct traffic as it relates to sort
of cutting down trees or something that could present
a hazard to a driver who’s attempting to go through the
road. He does also report that, in the instance where
he would be flagging for the purposes of helping with
clearing a tree, he is sometimes required in the course
of his job to also help clear brush, and that can require
the use of a tool like the one that is—that he is convicted
of having in his vehicle in this particular instance. I
should note . . . there’s no allegation that [the defen-
dant] attempted to use this particular tool to commit
any act of violence against any person, whether that
be police or members of the public.’’ The court, in
sentencing the defendant, did not make any statement
or findings concerning the purpose for which the defen-
dant possessed the machete in his vehicle.
Turning to the defendant’s claim that § 29-38 is uncon-
stitutionally overinclusive, we set forth the following
relevant legal principles. ‘‘Determining the constitution-
ality of a statute presents a question of law over which
our review is plenary. . . . It [also] is well established
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that a validly enacted statute carries with it a strong
presumption of constitutionality, [and that] those who
challenge its constitutionality must sustain the heavy
burden of proving its unconstitutionality beyond a rea-
sonable doubt. . . . The court will indulge in every
presumption in favor of the statute’s constitutionality
. . . . Therefore, [w]hen a question of constitutionality
is raised, courts must approach it with caution, examine
it with care, and sustain the legislation unless its invalid-
ity is clear.’’ (Internal quotation marks omitted.) Boisvert
v. Gavis, 332 Conn. 115, 143–44, 210 A.3d 1 (2019).
A statute is unconstitutionally overinclusive in viola-
tion of due process when ‘‘many of its clear applications
are not rationally related to a legitimate government
purpose.’’16 State v. Jodi D., 340 Conn. 463, 485, 264
A.3d 509 (2021); see also State v. Higgins, 265 Conn.
35, 68–69, 826 A.2d 1126 (2003) (recognizing, in dictum,
that statute may be so overinclusive or underinclusive
that it does not rationally advance legislative purpose).
‘‘[I]f a statute is unconstitutionally overinclusive, the
statute still may constitutionally be applied to conduct
that is within the statute’s rational core.’’ State v. Jodi
D., supra, 487.
Even assuming without deciding that § 29-38 is
unconstitutionally overinclusive on its face, our inquiry
does not end because the statute may be saved if the
defendant’s conduct falls within the statute’s rational
core. Because the defendant failed to raise with the
trial court the argument that his possession of the
16
Our Supreme Court, in State v. Jodi D., 340 Conn. 463, 485 n.11, 264
A.3d 509 (2021), explained that the overinclusiveness doctrine generally
applies to equal protection claims but indicated that it may apply to substan-
tive due process claims as well. See id., 485–86 n.11 (‘‘We disagree . . .
that overinclusiveness claims can never implicate substantive due process
principles. It is well established that a statute that is not rationally related
to a legitimate government purpose violates the right to substantive due
process . . . .’’ (Citation omitted.)).
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machete was for a purpose that fell outside of the stat-
ute’s core purpose, the record is inadequate for us to
determine whether the statute is constitutional as
applied to the defendant’s conduct.
‘‘Although an unpreserved due process claim may be
addressed by this court under [Golding], such a claim
necessarily will fail if the record simply is inadequate
to review the alleged violation.’’ (Citation omitted; foot-
note omitted.) S. A. v. D. G., 198 Conn. App. 170, 196,
232 A.3d 1110 (2020); see also State v. Lewis, 273 Conn.
509, 515–16, 871 A.2d 986 (2005) (‘‘to establish the
unconstitutionality of the statute as applied to him, it
[is] incumbent on the defendant to present a factual
record demonstrating how the statute was in fact
applied to him’’).
The issue of whether § 29-38 is unconstitutionally
overinclusive as applied to the defendant’s conduct
depends on facts that are not in the record. We do
not know, for example, the defendant’s purpose for
possessing the machete in his vehicle because the par-
ties have presented theories that his possession was
related to drugs, self-defense, and agricultural work.
The defendant contends on appeal that he possessed
the machete in his vehicle for lawful agricultural work-
related purposes, but he has not provided a factual
record to substantiate this contention. Had the defen-
dant raised this constitutional challenge before the trial
court, the court could have held an evidentiary hearing
and made factual findings as to the circumstances under
which the police found the machete in the defendant’s
vehicle, the defendant’s purpose for possessing the
machete in his vehicle, and his intended use of the
machete. To fault the state for the lack of a factual
record on the overinclusive issue would be manifestly
unfair because the state was not alerted that it needed
to develop a factual record as to how the defendant’s
conduct fell within the statute’s rational core. See State
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v. Jenkins, supra, 298 Conn. 229; State v. Brunetti,
supra, 279 Conn. 59.
‘‘[T]he defendant was required to clarify the record
with respect to the factual predicates on which . . .
his constitutional [claim is] based.’’ State v. Roberts,
224 Conn. App. 471, 501, 312 A.3d 1086, cert. denied,
349 Conn. 912, 314 A.3d 602 (2024). Because the issue
of whether § 29-38 is unconstitutionally overinclusive
was not before the court, the record is inadequate to
review the defendant’s claim. We therefore conclude
that the defendant’s overinclusiveness claim fails under
the first prong of Golding.
The judgment is affirmed.
In this opinion the other judges concurred.