State v. Douglas C. ( 2020 )

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STATE OF CONNECTICUT v.
DOUGLAS C., JR.*
(AC 41245)
Alvord, Prescott and Sullivan, Js.
Syllabus
Convicted, after a jury trial, of five counts of the crime of risk of injury to
a child, the defendant appealed to this court. The defendant’s conviction
stemmed from his alleged sexual abuse of five female victims, including
C, on various dates while they were under the age of sixteen. The minor
victims were often in the presence of the defendant in his home, where
the defendant had contact with their intimate parts on multiple occa-
sions. Specifically, the defendant grabbed C’s breasts over her shirt on
multiple occasions from September, 2005 to September, 2006. After the
close of the state’s case, the defendant moved for a judgment of acquittal,
which the trial court granted as to a count alleging sexual assault in
the second degree but denied as to the five remaining counts that charged
the defendant with the crime of risk of injury to a child. Subsequently,
the defendant requested that the court provide a specific unanimity
instruction to the jury on the remaining five counts, which the court
granted only as to one of those counts. On appeal, the defendant claimed,
inter alia, that the court improperly denied his motion for a judgment
of acquittal because there was insufficient evidence for the jury to
convict him on the count involving C, as the three factor test used by
our Supreme Court in State v. Stephen J. R. (309 Conn. 586) to determine
whether a child victim’s general or nonspecific testimony is sufficient
to sustain a conviction in a sexual abuse case was inapplicable to the
present case because C was not a very young child at the time she was
abused by the defendant and when she testified at trial. Held:
1. The defendant’s claim that the trial court improperly denied his motion
for a judgment of acquittal was unavailing:
a. The defendant could not prevail on his claim that the test used by
our Supreme Court in Stephen J. R. was inapplicable to the present
case because the leniency with respect to proof that has been formulated
to apply in such cases involving very young children should not be
applied with equal force in the present case: although C was older than
the child victim in Stephen J. R. when she was sexually abused by the
defendant and when she testified at trial, the test articulated by our
Supreme Court in Stephen J. R. was not dependent on the child’s age
and was applicable to the present case to assess whether C’s testimony
was sufficient to sustain the defendant’s conviction because, according
to C’s testimony at trial, the defendant had access to her on multiple
occasions at his home between September, 2005, and her sixteenth
birthday in September, 2006, and the test used in Stephen J. R. applies
to cases, such as the present case, where an alleged abuser has ongoing
access to the child victim and, as a result, the victim testifies to repeated
acts of abuse occurring over a period of time but, lacking any meaningful
point of reference, is unable to furnish many specific details, dates or
distinguishing characteristics as to individual acts or assaults; moreover,
the exact number of times that the defendant had contact with C’s
breasts and the specific dates on which these acts occurred are not
elements of committing the offense of risk of injury to a child, and the
state was only required to prove that the defendant had contact with
C’s intimate parts on one occasion before her sixteenth birthday.
b. The defendant could not prevail on his claim that, even if the three
factor test articulated in Stephen J. R. applied to the present case,
there was insufficient evidence to convict him on the count involving
C because C’s testimony failed to satisfy the second and third factors
of the test and, thus, that it was unreasonable for the jury to conclude
from the evidence presented and the inferences drawn therefrom that
the defendant had contact with C’s intimate parts before she was sixteen
years old: the defendant could not prevail on his claim with respect to
the second factor of the test, that C’s testimony failed to establish
sufficiently the number of times that the defendant had contact with
her intimate parts because her testimony was inconsistent, as that claim
merely attacked the credibility of C’s testimony and did not undermine
the sufficiency of the evidence on which the jury based its guilty verdict,
and C satisfied the second factor by testifying with sufficient specificity
that the defendant, who was charged with one count of risk of injury
to a child for having contact with C’s intimate parts in a sexual and
indecent manner, touched her breasts at least once; moreover, with
respect to the third factor of the test, which requires a child victim to
describe the general time period in which the illegal acts occurred to
assure that those acts were committed within the applicable limitation
period, the state did not need to prove the time period during which
each incident occurred because the defendant failed to claim that any
of the conduct for which he was charged occurred outside the limitation
period and, although the third factor was, nevertheless, applicable to
the present case because the state was obligated to prove that the
defendant had contact with C’s intimate parts on one or more occasions
before her sixteenth birthday, C’s testimony was sufficient in this regard
because it tended to demonstrate that the defendant’s conduct occurred
after he moved to Connecticut in September, 2005, but before she turned
sixteen years old in September, 2006, and the jury could have reasonably
found that C’s testimony regarding the general time period during which
the defendant had contact with her intimate parts was corroborated by
other testimony at trial, including the testimony of the defendant’s wife,
who testified that C was in the defendant’s home on multiple occasions
before her sixteenth birthday.
2. The defendant’s claim that he was deprived of his constitutional right to
a unanimous jury verdict because the trial court improperly denied his
request for a specific unanimity instruction as to four of the counts in
violation of his rights under the federal and state constitutions, which
prohibit the conviction of a criminal defendant by a jury unless it is
unanimous as to the defendant’s guilt, was unavailing; although the
defendant was charged in four counts with having violated one statutory
subdivision (§ 53-21 (a) (2)) by touching the intimate parts of each child
victim on one occasion, and, at trial, the state proffered evidence that
the defendant had contact with each child’s intimate parts on multiple
occasions, there was no requirement for the jury to be unanimous as
to the specific occasion on which the prohibited contact occurred and
the court was not required to provide a specific unanimity instruction,
unlike the situation in which the jury must decide whether the defendant
violated one of multiple statutory subsections, subdivisions or elements.
Argued October 10, 2019—officially released February 11, 2020
Procedural History
Substitute information charging the defendant with
five counts of the crime of risk of injury to a child, and
with the crime of sexual assault in the second degree,
brought to the Superior Court in the judicial district of
New London and tried to the jury before Jongbloed, J.;
thereafter, the court granted the defendant’s motion for
a judgment of acquittal as to the charge of sexual assault
in the second degree; subsequently, the court denied
the defendant’s motion for a judgment of acquittal; ver-
dict of guilty of the remaining charges; thereafter, the
court denied the defendant’s motions for judgment not-
withstanding the verdict and for a new trial, and ren-
dered judgment in accordance with the verdict, from
which the defendant appealed to this court. Affirmed.
Dina S. Fisher, assigned counsel, for the appellant
(defendant).
Michele C. Lukban, senior assistant state’s attorney,
with whom, on the brief, were Michael L. Regan, state’s
attorney, and Theresa Ferryman, senior assistant
state’s attorney, for the appellee (state).
Opinion
PRESCOTT, J. The defendant, Douglas C., Jr., appeals
from the judgment of conviction, rendered after a jury
trial, of five counts of risk of injury to a child in violation
of General Statutes § 53-21 (a) (2).1 The defendant
claims on appeal that the trial court improperly (1)
denied his motion for a judgment of acquittal because
there was insufficient evidence for the jury to find the
defendant guilty on count three, and (2) denied his
request for a specific unanimity instruction with respect
to counts one, three, five, and six. We disagree and,
accordingly, affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. The defendant had sexual and indecent contact
with the intimate parts of five female children—N, C,
O, S, and T—on various dates while they were under
the age of sixteen years old. These five children would
often be in the presence of the defendant at the numer-
ous gatherings he had at his home in Lisbon, after mov-
ing there in September, 2005. At these gatherings, the
defendant would serve alcohol, including to those who
were under the legal age to consume alcoholic bever-
ages. The children would also be in the defendant’s
presence when babysitting his children at his home or
on other occasions.
When the defendant was in the company of the chil-
dren, he had contact with their intimate parts on multi-
ple occasions. Specifically, the defendant touched the
breasts of N on multiple occasions and performed oral
sex on her on various occasions between 2005 and
January 8, 2007; the defendant grabbed C’s breasts over
her shirt on multiple occasions from 2005 to September
22, 2006; the defendant placed O’s hands in his pants,
resulting in her making contact with his penis, placed
his hands in her pants and made contact with her vagina,
and touched her breasts on multiple occasions between
2005 and August 7, 2010; the defendant touched S’s
vagina on more than one occasion and made contact
with her breasts on one occasion between 2005 through
September 15, 2008; and the defendant touched T’s
breasts on multiple occasions between 2005 through
October 23, 2007.2
On May 15, 2017, before the trial commenced, the
defendant moved for a bill of particulars that ‘‘speci-
f[ied] as far as reasonable the date, time, and place of
the commission of the crimes alleged . . . .’’ The state
responded by filing its substitute information on July
5, 2017, in which it provided some of these details in
greater specificity for each count.
At the close of the state’s case, the defendant moved
for a judgment of acquittal. The state conceded that it
had failed to meet its burden of proof with respect to
count two and that the motion for a judgment of acquit-
tal should be granted as to that count.3 The state other-
wise opposed the motion. The court granted the motion
as to count two and denied it as to all other counts.
After the charging conference, the defendant
requested that the court provide a specific unanimity
instruction to the jury on the remaining counts. The
state agreed that a specific unanimity instruction should
be given as to count four4 but objected to the court
giving a specific unanimity instruction on the other
remaining counts. The court agreed with the state and
stated that it would provide a specific unanimity instruc-
tion as to count four but not as to the other
remaining counts.
The defendant then made a second motion for a judg-
ment of acquittal. He reiterated his concerns about the
‘‘pervasive pattern of unreliability as to the testimony
of each [child]’’ that he raised in the first motion. The
defendant also argued, in part, that there was insuffi-
cient evidence for the jury to return a guilty verdict
as to count three. The court denied this motion and
instructed the jury. The jury returned a guilty verdict
on counts one, three, four, five, and six.
After the jury returned its verdict but before sentenc-
ing, the defendant moved for judgment notwithstanding
the verdict and for a new trial, citing the reasons stated
in his prior motions for judgment of acquittal as support
for granting these motions. The court denied the defen-
dant’s motions.
The court subsequently imposed on the defendant a
total effective sentence of eighteen years incarceration,
with execution suspended after serving ten years, fol-
lowed by ten years of probation. This appeal followed.
I
We first address the defendant’s claim that the court
improperly denied his motion for a judgment of acquit-
tal because there was insufficient evidence for the jury
to convict him on count three.5 In support of this claim,
the defendant makes two arguments: (1) the test used
by our Supreme Court in State v. Stephen J. R., 309
Conn. 586, 597–98, 72 A.3d 379 (2013), to determine
whether a child victim’s general or nonspecific testi-
mony is sufficient to sustain a conviction in a sexual
abuse case is inapplicable to the present case because
C, the child victim identified in count three, was not a
very young child at the time she was abused by the
defendant and when she testified at trial; and (2) even
if the test articulated in Stephen J. R. applies to the
present case, C’s testimony was, nevertheless, insuffi-
cient under that test to sustain his conviction under
count three. We disagree with both of the defen-
dant’s arguments.
We begin with the well settled standard governing
our review of the defendant’s claim that his conviction
was predicated on insufficient evidence. ‘‘In reviewing
a sufficiency of the evidence claim, we apply a two part
test. First, we construe the evidence in the light most
favorable to sustaining the verdict. Second, we deter-
mine whether upon the facts so construed and the infer-
ences reasonably drawn therefrom the [jury] reasonably
could have concluded that the cumulative force of the
evidence established guilt beyond a reasonable doubt
. . . . This court cannot substitute its own judgment
for that of the jury if there is sufficient evidence to
support the jury’s verdict. . . .
‘‘While the jury must find every element proven
beyond a reasonable doubt in order to find the defen-
dant guilty of the charged offense, each of the basic
and inferred facts underlying those conclusions need
not be proved beyond a reasonable doubt. . . . If it is
reasonable and logical for the jury to conclude that a
basic fact or an inferred fact is true, the jury is permitted
to consider the fact proven and may consider it in com-
bination with other proven facts in determining whether
the cumulative effect of all the evidence proves the
defendant guilty of all the elements of the crime charged
beyond a reasonable doubt. . . .
‘‘On appeal, we do not ask whether there is a reason-
able view of the evidence that would support a reason-
able hypothesis of innocence. We ask, instead, whether
there is a reasonable view of the evidence that supports
the jury’s verdict of guilty.’’ (Internal quotation marks
omitted.) Id., 593–94.
Furthermore, we are mindful that ‘‘[w]e do not sit as a
thirteenth juror who may cast a vote against the verdict
based upon our feeling that some doubt of guilt is shown
by the cold printed record. We have not had the jury’s
opportunity to observe the conduct, demeanor, and atti-
tude of the witnesses and to gauge their credibility.’’
State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983),
cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed.
2d 772 (1984).
In addition to these general principles, our Supreme
Court has established a three factor test in cases in
which the defendant is charged with sexually abusing
a child to determine whether ‘‘generic’’ testimony by a
complaining witness ‘‘about largely undifferentiated,
but distinct, occurrences’’ is nonetheless sufficient to
convict the defendant. State v. Stephen J. R., supra, 309
Conn. 595. ‘‘[I]n order to accommodate both the realities
of child victims of repeated abuse and the due process
interests of the defendant . . . [t]he victim, of course,
must describe the kind of act or acts committed with
sufficient specificity, both to assure that unlawful con-
duct indeed has occurred and to differentiate between
the various types of proscribed conduct (e.g., lewd con-
duct, intercourse, oral copulation or sodomy). More-
over, the victim must describe the number of acts com-
mitted with sufficient certainty to support each of the
counts alleged in the information or indictment (e.g.,
twice a month or every time we went camping). Finally,
the victim must be able to describe the general time
period in which these acts occurred (e.g., the summer
before my fourth grade, or during each Sunday morning
after he came to live with us), to assure the acts were
committed within the applicable limitation period.
Additional details regarding the time, place or circum-
stance of the various assaults may assist in assessing
the credibility or substantiality of the victim’s testi-
mony, but are not essential to sustain a conviction.’’
(Emphasis altered; internal quotation marks omitted.)
Id., 597–98. In establishing this test, the court weighed
two competing considerations, namely, ‘‘[o]n the one
hand, prosecutions based on generic testimony could
deprive a defendant of his due process right to fair
notice in order to effectively defend himself . . . [and]
[o]n the other hand, testimony from a child victim
describing a series of indistinguishable acts by an
abuser who has ongoing access to the child is often
the only evidence that the child is able to provide.’’
Id., 595–96.
A
The defendant first argues that the test articulated
in Stephen J. R. applies only to cases involving very
young children. The child victim testifying in Stephen
J. R. was approximately seven years old at the time the
abuse occurred and was at least thirteen years old when
she testified. See id., 592, 601; see also Stephen J. R.
v. Commissioner of Correction, 178 Conn. App. 1, 4–5,
173 A.3d 984 (2017), cert. denied, 327 Conn. 995, 175
A.3d 1246 (2018).6 C, on the other hand, was fourteen
or fifteen years old at the time the defendant allegedly
had contact with her intimate parts and was twenty-
six years old when she testified at trial. Because the
child in Stephen J. R. was considerably younger than
C at the time the abuse occurred and when testifying,
the defendant asserts that ‘‘[t]he leniency with respect
to proof that has been formulated to apply in such cases
involving very young children should not be applied
with equal force [in the present case].’’ We are not per-
suaded.
This court has, in fact, recently applied the three
factor test used in Stephen J. R. in a case in which a
defendant had sexual contact with a child for the first
time when the child was approximately eleven years
old and on multiple occasions thereafter until the child
was fifteen years old. See State v. Anthony L., 179 Conn.
App. 512, 514–15, 179 A.3d 1278, cert. denied, 328 Conn.
918, 181 A.3d 91 (2018). In Anthony L., a complaint
describing the sexual abuse that had occurred was not
filed until ten years after the child was abused, meaning
that the child would have been at least twenty-five years
old when she testified. See id., 515. Similarly, in the
present case, C was approximately fifteen years old
when the defendant had contact with her intimate parts,
and she was twenty-six years old when she testified.
Moreover, our Supreme Court’s decision to apply the
three factor test in Stephen J. R. was not dependent
on the child’s age at the time the abuse occurred or
when she testified; rather, the court used the test in
that case to consider the sufficiency of generic or non-
specific testimony that ‘‘typically arises in cases in
which an alleged abuser either lives with the child vic-
tim or has ongoing access to the child and, as a result,
the victim testifies to repeated acts of abuse occurring
over a period of time but, lacking any meaningful point
of reference, is unable to furnish many specific details,
dates or distinguishing characteristics as to individual
acts or assaults.’’ (Internal quotation marks omitted.)
State v. Stephen J. R., supra, 309 Conn. 588.
Indeed, our Supreme Court in Stephen J. R. adopted
the three factor test used by the California Supreme
Court in People v. Jones, 51 Cal. 3d 294, 316, 792 P.2d
643, 270 Cal. Rptr. 611 (1990). See State v. Stephen J. R.,
supra, 309 Conn. 588, 597–601. In Jones, the California
Supreme Court, in determining the sufficiency of the
child victim’s generic and nonspecific testimony, con-
sidered factors other than the age of the child. See
People v. Jones, supra, 315.7 The court in that case
further stated that ‘‘the victim’s failure to specify [a]
precise date, time, place or circumstance [does not]
render generic testimony insufficient . . . [because]
the particular details surrounding a child molestation
charge are not elements of the offense and are unneces-
sary to sustain a conviction.’’ Id. The court, having
decided not to depend on the age of the child as a
factor, concluded that a child victim’s generic testimony
is sufficient to sustain a conviction if the child is able
to ‘‘describe the kind of act or acts committed with
sufficient specificity, both to assure that unlawful con-
duct indeed has occurred and to differentiate between
the various types of proscribed conduct . . . the num-
ber of acts committed with sufficient certainty to sup-
port each of the counts alleged in the information or
indictment . . . [and] the general time period in which
these acts occurred . . . to assure the acts were com-
mitted within the applicable limitation period.’’
(Emphasis omitted.) Id., 316. Indeed, the California
Supreme Court acknowledged that ‘‘even a mature vic-
tim might understandably be hard pressed to separate
particular incidents of repetitive molestations by time,
place or circumstance.’’ Id., 305.
Although C was older than the child victim in Stephen
J. R. when she was sexually abused by the defendant
and when she testified at trial, the test articulated by our
Supreme Court in that case is nevertheless applicable
to the present case for two reasons. First, according to
C’s testimony at trial, the defendant had access to her
on multiple occasions at his home between September,
2005, and September 22, 2006, her sixteenth birthday.
See State v. Stephen J. R., supra, 309 Conn. 588
(applying three factor test in case in which ‘‘an alleged
abuser . . . has ongoing access to the child and, as a
result, the victim testifies to repeated acts of abuse
occurring over a period of time but, lacking any mean-
ingful point of reference, is unable to furnish many
specific details, dates or distinguishing characteristics
as to individual acts or assaults’’ (internal quotation
marks omitted)).
Second, like the sexual assault charge in Jones, the
exact number of times that the defendant in the present
case had contact with C’s breasts and the specific dates
on which these acts occurred are not elements of com-
mitting the offense of risk of injury to a child. Indeed,
the state was only required to prove that the defendant
had contact with C’s intimate parts on one occasion
before her sixteenth birthday. For the reasons stated,
although C was older than the child victim in Stephen
J. R. at the time the sexual abuse occurred and when
she testified, it is appropriate for this court to use the
three factor test articulated by our Supreme Court in
Stephen J. R. to assess whether C’s testimony was suffi-
cient to sustain the defendant’s conviction under
count three.
B
Turning to the defendant’s second argument, he
asserts that, even if the test articulated in Stephen J.
R. applies to the present case, there was nevertheless
insufficient evidence to convict him on count three.
The defendant concedes that C sufficiently specified
the manner in which the defendant had contact with
her intimate parts to satisfy the first factor of the test.
He asserts, however, that her testimony failed to satisfy
the second and third factors of the test because ‘‘[s]he
ultimately was unable to provide any information suffi-
cient to establish how many times the alleged conduct
occurred, or even the necessary time period.’’ Thus, the
defendant contends that it was unreasonable for the
jury to conclude from the evidence presented and the
inferences drawn therefrom that the defendant had con-
tact with C’s intimate parts before she was sixteen years
old. We disagree with the defendant’s arguments regard-
ing the second and third factors.
With respect to the second factor, the defendant
argues that C’s testimony was inconsistent and, because
of its inconsistency, failed to establish sufficiently the
number of times that the defendant had contact with
her intimate parts. This argument, however, merely
attacks the credibility of C’s testimony; it does not
undermine the sufficiency of the evidence on which
the jury based its guilty verdict. Our Supreme Court
has determined that a child’s inconsistent testimony as
to the number of times a defendant abused him or her
does not mean that the child’s testimony necessarily
fails the second factor of the test. See State v. Stephen
J. R., supra, 309 Conn. 599–600. Rather, the court con-
cluded that ‘‘[i]t is axiomatic that evidentiary inconsis-
tencies are for the jury to resolve, and it is within the
province of the jury to believe all or only part of a
witness’ testimony . . . [and that the] jury [is] free to
credit one version of events over the other, even from
the same witnesses.’’ (Citation omitted; internal quota-
tion marks omitted.) Id., 600. In Stephen J. R., although
the child testified at trial that the defendant sexually
abused her on three to four occasions but stated in her
videotaped diagnostic interview later introduced at trial
that ‘‘these same acts occurred five to six times, perhaps
as many as ten times,’’ our Supreme Court nevertheless
concluded that ‘‘the cumulative evidence, read in the
light most favorable to sustaining the verdict, estab-
lished that the defendant [sexually abused the child]
on at least four occasions.’’ Id., 599–600.
Turning to the present case, the defendant was
charged with one count of risk of injury to a child in
violation of § 53-21 (a) (2) for having contact with C’s
intimate parts in a sexual and indecent manner. That
means the state was required to prove beyond a reason-
able doubt only that on one occasion the defendant had
‘‘contact with the intimate parts’’ of C when she was
‘‘under the age of sixteen years . . . in a sexual and
indecent manner likely to impair the health or morals
of such child . . . .’’ General Statutes § 53-21 (a) (2).
Thus, to satisfy the second factor of Stephen J. R., C
was required to testify with sufficient certainty that the
defendant had contact with her breasts on at least one
occasion. See State v. Stephen J. R., supra, 309 Conn.
597 (holding that ‘‘the victim must describe the number
of acts committed with sufficient certainty to support
each of the counts alleged in the information’’ (empha-
sis altered; internal quotation marks omitted)); State v.
Anthony L., supra, 179 Conn. App. 522 (concluding
that ‘‘[the child’s] testimony was sufficient for the jury
reasonably to conclude that the state had proven the
elements of one count of sexual assault in the first
degree and one count of risk of injury to a child, beyond
a reasonable doubt,’’ when ‘‘[t]he [child] testified that
. . . the defendant digitally penetrated her vagina more
than once’’ (emphasis added)).
In the present case, the allegation in count three that
the defendant had contact with C’s intimate parts was
based on C’s testimony at trial that the defendant
touched her breasts on more than one occasion. At
trial, C testified that ‘‘there would be times when [the
defendant] would grab [her] and the other cousins inap-
propriately.’’ She then described the defendant’s touch-
ing her inappropriately, stating that ‘‘it was always a
quick, like, boob grab, kind of like a tweak. It wasn’t
like he was feeling around to check anything or he
didn’t go under the shirt. It was always over the shirt,
quick grab. . . . I saw him grab [N] and [O] quite fre-
quently. He did so less to me and my sister, but . . .
it did still happen.’’ On cross-examination, C reiterated
the frequency of the defendant’s touching her breasts,
stating that ‘‘[i]t was a frequent occurrence . . . . It
happened on multiple occasions.’’ She further testified
that ‘‘[i]t happened consistently. It happened every year.
It happened almost every time we were over [at the
defendant’s home]. I just don’t remember dates.’’
Because C testified with sufficient specificity that the
defendant touched her breasts at least once, we con-
clude that her testimony satisfied the second factor.
With respect to the third factor, the defendant simi-
larly takes issue with C’s inability to recall specifics,
namely, her inability to state the exact dates on which
the defendant touched her breasts. The third factor
requires a child to describe ‘‘the general time period in
which these acts occurred . . . to assure the acts were
committed within the applicable limitation period.’’
(Emphasis altered; internal quotation marks omitted.)
State v. Stephen J. R., supra, 309 Conn. 597. Thus, to
satisfy the third factor, the state is required to prove
the general time period during which the abuse took
place only if a ‘‘statute of limitations concern [is] impli-
cated . . . .’’ (Citation omitted.) Id., 600. On appeal,
however, the defendant in the present case does not
assert that there was insufficient evidence for a jury to
conclude that the defendant’s contact with C’s intimate
parts occurred within the limitation period. Thus, like
the decision in Stephen J. R., because the defendant
failed to invoke that any of the conduct for which he
was charged occurred outside the limitation period,
‘‘the state [did] not need to prove the time period during
which each incident occurred . . . .’’ (Citation omit-
ted.) Id.
Nevertheless, because the state was obligated to
prove that the defendant had contact with C’s intimate
parts on one or more occasions before her sixteenth
birthday, we conclude that the third factor is applicable
under the circumstances of this case. C’s testimony,
however, was sufficient in this regard because it tended
to demonstrate that the defendant touched her breasts
after he moved to Connecticut in September, 2005, but
before she turned sixteen years old on September 22,
2006. In her cross-examination, C testified that the
defendant grabbed her breasts when he lived in Crans-
ton, Rhode Island, and that this conduct continued
when the defendant moved to Connecticut in Septem-
ber, 2005. Furthermore, she testified that, prior to her
sixteenth birthday, she visited the defendant’s home
‘‘almost monthly.’’8 She also stated that the defendant
‘‘definitely’’ grabbed her breasts in 2006, and that it
happened ‘‘frequently . . . [and] consistently over
time.’’ In addition, she stated that ‘‘[i]t happened every
year . . . [and that] [i]t happened almost every time
[she] went over [to the defendant’s home].’’
Indeed, the jury could have reasonably found that
C’s testimony regarding the general time period during
which the defendant had contact with her intimate parts
was corroborated by other testimony at trial. For exam-
ple, the defendant’s wife testified that C attended a
birthday party at the defendant’s home in the fall of
2005, which was the first time C visited the defendant’s
home in Lisbon; C would attend birthday parties at the
defendant’s home and the Ultimate Fighting Champion-
ship (UFC) watch parties that would take place there-
after; and C attended a creamed corn eating contest at
the defendant’s home in summer, 2006, and visited the
home during summer and school vacations. Therefore,
on the basis of her testimony at trial, we conclude that
C testified with sufficient specificity as to the general
time period during which the defendant touched her
intimate parts and, thus, satisfied the third factor.
On the basis of C’s testimony, the jury could have
reasonably concluded or inferred that the defendant
touched her intimate parts at least one time between
September, 2005, and her sixteenth birthday. Accord-
ingly, the cumulative evidence, read in the light most
favorable to sustaining the verdict, was sufficient for
the jury to find beyond a reasonable doubt that the
defendant committed the offense charged in count
three.
II
The defendant next claims that he was deprived of his
constitutional right to a unanimous jury verdict because
the court improperly denied his request for a specific
unanimity instruction as to counts one, three, five, and
six, in violation of his rights under the sixth amendment
to the United States constitution and article first, § 8,
of the Connecticut constitution. We disagree.
The principles concerning a criminal defendant’s con-
stitutional right to be convicted only if the jury unani-
mously agrees that the defendant is guilty of the crime
for which he or she is charged are well settled. The
sixth and fourteenth amendments to the United States
constitution and article first, § 8, of the Connecticut
constitution prohibit the conviction of a criminal defen-
dant by a jury unless it is unanimous as to the defen-
dant’s guilt. See Burch v. Louisiana, 441 U.S. 130, 134,
99 S. Ct. 1623, 60 L. Ed. 2d 96 (1979) (holding that
‘‘conviction by a nonunanimous six-member jury in a
state criminal trial for a nonpetty offense deprives an
accused of his constitutional right to trial by jury’’);
State v. Pare, 253 Conn. 611, 624, 755 A.2d 180 (2000)
(stating that criminal defendant’s ‘‘right to unanimous
verdict [is] protected by article first, § 8, of [the] Con-
necticut constitution’’). To ensure that a defendant’s
constitutional right to a unanimous verdict is protected,
our Supreme Court has concluded that ‘‘the unanimity
requirement . . . requires the jury to agree on the fac-
tual basis of the offense. The rationale underlying [this]
requirement is that a jury cannot be deemed to be unani-
mous if it applies inconsistent factual conclusions to
alternative theories of criminal liability.’’ State v. Bailey,
209 Conn. 322, 334, 551 A.2d 1206 (1988).
This court has enforced the unanimity requirement
in cases like State v. Benite, 6 Conn. App. 667, 669–70,
507 A.2d 478 (1986), in which a defendant’s criminal
liability is premised on his or her having violated one
of multiple statutory subsections, subdivisions or ele-
ments. In Benite, because the defendant’s criminal lia-
bility was contingent on his having violated one of two
statutory subdivisions, and the jury was required to
be unanimous beyond a reasonable doubt as to which
subdivision he violated, this court held that the trial
court should have provided a specific unanimity instruc-
tion.9 Id., 670, 675–76.
Our Supreme Court, however, has ‘‘not required a
specific unanimity charge to be given in every case [like
Benite] in which criminal liability may be premised on
the violation of one of several alternative subsections
[or subdivisions] of a statute.’’ State v. Famiglietti, 219
Conn. 605, 619, 595 A.2d 306 (1991). Instead, an appel-
late court ‘‘invoke[s] a multipartite test to review a trial
court’s omission of such an instruction. [An appellate
court] first review[s] the instruction that was given to
determine whether the trial court has sanctioned a non-
unanimous verdict. If such an instruction has not been
given, that ends the matter. Even if the instructions at
trial can be read to have sanctioned such a nonunani-
mous verdict, however, [an appellate court] will remand
for a new trial only if (1) there is a conceptual distinction
between the alternative acts with which the defendant
has been charged, and (2) the state has presented evi-
dence to support each alternative act with which the
defendant has been charged.’’ Id., 619–20.
The requirement that a court provide a specific una-
nimity instruction generally is limited to cases, like
Benite, in which multiple factual allegations amount to
the defendant having violated multiple statutory subsec-
tions or subdivisions. See State v. Mancinone, 15 Conn.
App. 251, 274, 545 A.2d 1131, cert. denied, 209 Conn.
818, 551 A.2d 757 (1988), cert. denied, 489 U.S. 1017,
109 S. Ct. 1132, 103 L. Ed. 2d 194 (1989). Indeed, this
court has held that a ‘‘fact-specific and closely focused
unanimity instruction . . . [is necessary only if] the
particular count under consideration by the jury is
based on multiple factual allegations which amount
to multiple statutory subsections or multiple statutory
elements of the offense involved.’’ Id. Therefore, the
requirement does not apply in cases, such as the present
case, in which the state charges a defendant with having
violated a single statutory subdivision one time, and
the evidence proffered by the state at trial amounts to
the defendant having violated that statutory subdivision
on multiple occasions.10
Moreover, the test used by our Supreme Court in
State v. Famiglietti, supra, 219 Conn. 619–20, to deter-
mine whether a trial court was required to provide a
specific unanimity instruction, does not apply in cases
in which the multiple factual allegations do not amount
to multiple statutory subsections, subdivisions or ele-
ments having been violated. The Famiglietti test exam-
ines, in part, whether there is a conceptual distinction
between the alternative statutory subsections, subdi-
visions or elements which the defendant has been
charged with violating. See id. (assessing whether two
statutory subdivisions are conceptually distinct).
Indeed, such a test would be of little utility in a case
in which a defendant is charged with violating only one
statutory subsection, subdivision or element. There-
fore, the Famiglietti test is generally limited to those
cases in which a trial court does not provide a specific
unanimity instruction, even though the multiple factual
allegations amount to the defendant having violated
multiple statutory subsections or subdivisions.
This court engages in plenary review of a trial court’s
decision in a criminal trial to decline to give a specific
unanimity instruction that the defendant had requested.
See State v. Jennings, 216 Conn. 647, 663–64, 583 A.2d
915 (1990); see also State v. Brodia, 129 Conn. App.
391, 400–401, 20 A.3d 726, cert. denied, 302 Conn. 913,
27 A.3d 373 (2011); State v. Scribner, 72 Conn. App.
736, 740, 805 A.2d 812 (2002).
In the present case, the defendant was charged11 with
five separate counts under § 53-21 (a) (2), each involv-
ing a different child.12 Counts one, three, five, and six
charged the defendant with having violated a single
statutory subdivision—subdivision (2) of subsection (a)
of § 53-21—the basis of which was evidence presented
at trial that, on multiple occasions, the defendant had
contact with the intimate parts of the child identified
in each of those counts.13
In similar cases, in which a defendant was charged
with having had contact with the intimate parts of a
child in violation of § 53-21 based on the defendant
having committed proscribed acts on multiple occa-
sions, our courts have held that a specific unanimity
instruction was not required to preserve a defendant’s
right to a unanimous verdict. See State v. Spigarolo,
210 Conn. 359, 391–92, 556 A.2d 112 (determining that
defendant’s right to unanimous verdict was not violated
in absence of specific unanimity instruction, even
though six specific acts of sexual activity were alleged
in two counts), cert. denied, 493 U.S. 933, 110 S. Ct.
322, 107 L. Ed. 2d 312 (1989); State v. Michael D., 153
Conn. App. 296, 321–27, 101 A.3d 298 (concluding that,
even though evidence of three specific acts of sexual
misconduct was presented at trial, ‘‘there was no risk
that the jury’s verdict was not unanimous’’), cert.
denied, 314 Conn. 951, 103 A.3d 978 (2014).14
The defendant in the present case nevertheless
argues that, although he was charged in counts one,
three, five, and six with having violated one statutory
subdivision by touching the intimate parts of each child
on one occasion, the court improperly denied his
request for a specific unanimity instruction because, at
trial, the state proffered evidence that the defendant
had contact with each child’s intimate parts on multiple
occasions. Because of the way in which the state prose-
cuted its case, and in the absence of a specific unanimity
instruction, the defendant argues that the jury may not
have been unanimous as to the occasion on which the
defendant had contact with the intimate parts of each
child. In other words, the defendant contends that, with
respect to counts one, three, five, and six, the federal
and state constitutions required the jury to unanimously
agree as to the occasion on which the illegal conduct
occurred. We are not persuaded.
We first set forth the standard for determining
whether a trial court was required to provide a specific
unanimity instruction when an information charges a
defendant with having violated one statutory subsection
on one occasion and the state presents evidence at
trial that the defendant violated that single statutory
subsection on multiple occasions.15 ‘‘[I]f the actions nec-
essary to constitute a violation of one statute or subsec-
tion of a statute are distinct from those necessary to
constitute a violation of another, then jurors who dis-
agree on which one the state proves cannot be deemed
to agree on the actus reus: the conduct the defendant
committed. Where the evidence presented supports
both alternatives, the possibility that the jurors may
actually disagree on which alternative, if either, the
defendant violated is the highest. Under such circum-
stances, the jurors should be told that they must unani-
mously agree on the same alternative. . . . [S]uch a
charge is required only where a trial court charges a jury
that the commission of any one of several alternative
actions would subject a defendant to criminal liability,
and those actions are conceptually distinct from each
other, and the state has presented some evidence sup-
porting each alternative. The determination of whether
actions are conceptually distinct must be made with
reference to the purpose behind the proposed charge:
to [e]nsure that the jurors are in unanimous agreement
as to what conduct the defendant committed. . . .
‘‘[This rule, however, is] limited to a case in which
the actions necessary to constitute a violation of one
statute or subsection of a statute are distinct from those
necessary to constitute a violation of another . . . .
Thus, [this] rule, which requires the trial court in appro-
priate circumstances to give, even in the absence of a
proper request or exception, a fact-specific and closely
focused unanimity instruction, only applies where the
particular count under consideration by the jury is
based on multiple factual allegations which amount
to multiple statutory subsections or multiple statutory
elements of the offense involved. It does not apply, and
such an instruction is not required of the court, where
the multiple factual allegations do not amount to mul-
tiple statutory subsections or to multiple statutory ele-
ments of the offense. . . .
‘‘[The] limitation on [this] rule, moreover, comports
with common sense and sound principles by which to
view jury verdicts. In most criminal trials, the evidence
will allow to one degree or another differing but reason-
able views regarding what specific conduct the defen-
dant engaged in which formed the basis of the jury’s
verdict of guilt. For example, different witnesses may
present different versions of the defendant’s conduct;
and the same witness may testify inconsistently in his
description of that conduct, and thus present differing
versions of that conduct. In such cases, it is a familiar
principle that the jury is free to accept or reject all or
any part of the evidence. . . . In such cases, however,
there is nothing in the constitutional requirement of
jury unanimity that requires a specific instruction
that the jury must be unanimous with regard to any
one of those varying factual versions. As long as the
jurors are properly instructed on the legal elements of
the crime which must be proved beyond a reasonable
doubt, they need not be further instructed that they all
must agree that the exact same conduct constituted
the proscribed act. In such cases, we safely rely on the
presumption that the jury understands and properly
follows the court’s instruction that its verdict be unani-
mous . . . and we do not attempt to divine whether
that presumption is valid.
‘‘Where, however, the jury is presented with alterna-
tive, conceptually distinct statutory subsections, or with
alternative, conceptually distinct elements of the same
statute, as possible bases for guilt, the principles of
[this rule concerning specific unanimity instructions]
come into play, because it is in those situations that
the possibility that the jurors may actually disagree on
which alternative, if either, the defendant violated is
the highest. . . . In those situations, therefore, we
require a specific unanimity instruction as an additional
corollary to the usual unanimity instruction.’’ (Citations
omitted; emphasis added; internal quotation marks
omitted.) State v. Mancinone, supra, 15 Conn. App.
273–76. In State v. Scott, 11 Conn. App. 102, 119–22,
525 A.2d 1364, cert. denied, 204 Conn. 811, 528 A.2d
1157 (1987), we applied these principles and declined
to review in full a defendant’s claim that he was
deprived of his constitutional right to a unanimous ver-
dict. In that case, although ‘‘the court . . . submitt[ed]
to the jury two alternative factual bases for the larceny
charge, one of which was factually insufficient’’;
(emphasis added) id., 119; ‘‘[the] information charged
only one way of committing the crime of larceny in
the third degree, namely, that the defendant wrongfully
took property from the person of the victim, and the
jury was not presented with any statutory alternative
ways of committing this offense.’’ (Emphasis added;
internal quotation marks omitted.) Id., 121.
In other words, a trial court may be required to pro-
vide a specific unanimity instruction when, to find a
defendant guilty under a count of an information, the
jury must decide whether the defendant violated one
of multiple statutory subsections or elements. The court
is not required, however, to provide a specific unanimity
instruction when the state charges a defendant with
having violated one statutory subsection one time and
proffers evidence at trial that amounts to the defendant
having violated that single statutory subsection on mul-
tiple occasions. Thus, to convict a defendant under a
count of an information alleging that the defendant
violated § 53-21 (a) (2) once, the basis of which is evi-
dence presented at trial amounting to the defendant
having violated that statutory subdivision multiple
times, the jury is required to unanimously agree only
that on one occasion the defendant had contact with
the intimate parts of the child identified in that count
while that child was under sixteen years of age in a
manner that was sexual and indecent and likely to
impair that child’s health or morals.16 There is no
requirement, however, for the jury to be unanimous
as to the specific occasion on which that prohibited
contact occurred.17
In making his assertion that the court was required
to give a specific unanimity instruction as to counts
one, three, five, and six, the defendant relies primarily
on our decision in State v. Benite, supra, 6 Conn. App.
669–77, and the decision of the United States Court of
Appeals for the Fifth Circuit in United States v. Gipson,
553 F.2d 453, 456–59 (5th Cir. 1977). He argues that
these cases require the jury to be unanimous as to the
specific act on which it based its verdict on each count.
The decisions in Benite and Gipson, however, are inap-
posite to the present case.
In Benite, the defendant was charged with burglary
in the first degree. State v. Benite, supra, 6 Conn. App.
670. As this court noted, ‘‘[t]o obtain a conviction for
burglary in the first degree, the state must prove beyond
a reasonable doubt that the individual charged commit-
ted burglary, and it must also prove one of two aggravat-
ing factors: (1) that the individual committed the bur-
glary armed with explosives or a deadly weapon or
dangerous instrument; General Statutes § 53a-101 (a)
(1); or (2) that he committed burglary and in the course
of committing the offense, he intentionally, knowingly
or recklessly inflict[ed] . . . bodily injury on anyone.
General Statutes § 53a-101 (a) (2).’’ (Footnote omitted;
internal quotation marks omitted.) State v. Benite,
supra, 670. This court held that a specific unanimity
instruction was required because ‘‘the two kinds of
conduct which expose an individual to punishment for
burglary in the first degree are conceptually different
from one another.’’ Id., 675.
Similarly, in Gipson, the defendant was charged with
selling or receiving a stolen vehicle in violation of 18
U.S.C. § 2313 (1976). See United States v. Gipson, supra,
553 F.2d 455. The statute under which the defendant
was charged in Gipson proscribed six different acts. Id.,
455 n.1.18 At trial, ‘‘the prosecution presented evidence
tending to show that [the defendant] performed each
of the . . . acts prohibited by [the statute].’’ Id., 459.
To find that the defendant had violated 18 U.S.C.
§ 2313 (1976) beyond a reasonable doubt, the jury had
to conclude that the defendant had violated one of the
six proscribed acts enumerated in that statute. See id.,
455, 458. The trial court in Gipson, however, ‘‘charged
the [jurors] that in order to convict the defendant they
need not agree on which of the six statutorily prohibited
acts the defendant had committed, as long as they were
each convinced beyond a reasonable doubt that he had
committed one or another of the acts proscribed. . . .
The [C]ourt of [A]ppeals reversed the defendant’s con-
viction on the ground that the instruction had violated
his right to a unanimous jury verdict. . . . The court
reasoned that the statute prohibited six acts in two
distinct conceptual categories: (1) receiving, concealing
and storing; and (2) bartering, selling and disposing.
The challenged charge violated the defendant’s right to
a unanimous jury verdict because it authorized the jury
to return a guilty verdict despite the fact that some
jurors may have believed that [the defendant] engaged
in conduct only characterizable as receiving, conceal-
ing, or storing while other jurors were convinced that
he committed acts only constituting bartering, selling,
or disposing.’’ (Citations omitted; emphasis omitted;
internal quotation marks omitted.) State v. Jones, 193
Conn. 70, 75–76, 475 A.2d 1087 (1984); see also United
States v. Gipson, supra, 455–59. Thus, the court in Gip-
son determined that a specific unanimity instruction
should have been given ‘‘[b]ecause it is impossible to
determine whether all of the jurors agreed that the
defendant committed acts falling within one of the two
conceptual groupings . . . .’’ (Citation omitted.)
United States v. Gipson, supra, 459.
Neither the circumstances of Benite nor Gipson,
however, are analogous to the way in which the defen-
dant was charged in the present case.19 Under counts
one, three, five, and six, the defendant in the present
case was charged with having violated a single statu-
tory subdivision once, the basis for which was evi-
dence presented at trial that the defendant had engaged
in conduct prohibited by that singular statutory provi-
sion on multiple occasions.
This court has distinguished between cases like
Benite and Gipson, in which the defendant’s criminal
liability under a criminal count was predicated on his
or her having violated multiple statutory subsections
or elements, and the situation in the present case, in
which the defendant is charged with having violated a
single statutory subdivision one time with each child,
and the evidence offered at trial amounts to the defen-
dant having engaged in proscribed conduct with each
child on multiple occasions. See State v. Mancinone,
supra, 15 Conn. App. 274. In making this distinction,
this court has stated that ‘‘a fact-specific and closely
focused unanimity instruction, [is necessary only if]
the particular count under consideration by the jury
is based on multiple factual allegations which amount
to multiple statutory subsections or multiple statutory
elements of the offense involved. It does not apply, and
such an instruction is not required of the court, where
the multiple factual allegations do not amount to mul-
tiple statutory subsections or to multiple statutory ele-
ments of the offense.’’ (Emphasis added.) Id.20 Thus, the
holdings in Benite and Gipson concerning whether a
trial court was required to provide a specific unanimity
instruction that the defendant recites are inapplicable
to this case.
In the present case, the trial court was not required
to provide a specific unanimity instruction because the
evidence proffered by the state at trial—that the defen-
dant had contact with each child’s intimate parts on
multiple occasions—did not amount to the defendant’s
having violated multiple statutory subsections or ele-
ments.21 Accordingly, having reviewed the trial court’s
charge in its entirety, we conclude that the trial court
did not improperly deny the defendant’s request for a
specific unanimity instruction with respect to counts
one, three, five, and six.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse and the crime of risk of injury to a child, we decline
to identify the victims or others through whom the victims’ identities may
be ascertained. See General Statutes § 54-86e.
Moreover, in accordance with federal law; see 18 U.S.C. § 2265 (d) (3)
(2012); we decline to identify any party protected or sought to be protected
under a protective order or a restraining order that was issued or applied
for, or others through whom that party’s identity may be ascertained.
1
General Statutes § 53-21 (a) provides in relevant part: ‘‘Any person who
. . . (2) has contact with the intimate parts, as defined in section 53a-65,
of a child under the age of sixteen years or subjects a child under sixteen
years of age to contact with the intimate parts of such person, in a sexual
and indecent manner likely to impair the health or morals of such child
. . . shall be guilty of . . . a class B felony for a violation of subdivision
(2) of this subsection . . . .’’ Although § 53-21 (a) has been amended by
the legislature since the events underlying the present appeal, those amend-
ments have no bearing on the merits of this appeal. In the interest of
simplicity, we refer to the current revision of the statute.
‘‘ ‘Intimate parts’ ’’ are defined as ‘‘the genital area . . . groin, anus . . .
inner thighs, buttocks or breasts.’’ General Statutes § 53a-65 (8). Section
53a-65 (8) was amended by No. 06-11, § 1, of the 2006 Public Acts, which
made changes to the statute that are not relevant to this appeal. In the
interest of simplicity, we refer to the current revision of the statute.
2
The allegations in count one pertain to N; count three pertains to the
allegations regarding C; count four pertains to the allegations regarding O;
count five pertains to the allegations regarding S.; and count six pertains
to the allegations regarding T.
3
Count two charged the defendant with sexual assault in the second
degree in violation of General Statutes § 53a-71 (a) (3). Regarding the court’s
granting of the defendant’s motion for a judgment of acquittal as to this
count, the state, in its appellate brief, notes that ‘‘the state was required to
present evidence that at the time the defendant subjected . . . [N] . . . to
cunnilingus . . . she was physically helpless.’’ (Internal quotation marks
omitted.) N, however, did not testify that she was physically unable to resist
the defendant’s conduct. Thus, the state ‘‘conceded that the defendant’s
motion for a judgment of acquittal should be granted . . . as to count two.’’
4
In count four of the amended substitute information, the state alleged
that the defendant ‘‘had contact with the intimate parts of a child under the
age of sixteen years . . . and subjected said minor female to contact with
his intimate parts . . . .’’ (Emphasis added.) The defendant requested, and
the state did not object to, the court providing a specific unanimity instruc-
tion as to this count. The court provided the following instruction as to
count four to the jury: ‘‘As to count four, the state has also alleged that the
defendant subjected the child or specific minor female alleged . . . to con-
tact with the defendant’s intimate parts. Again, it is sufficient if the contact
is with any one of the intimate parts. Now, the state has alleged that the
defendant committed this element of the offense in two different ways on
count four. You may find this element established only if you all unanimously
agree that the state has proved beyond a reasonable doubt that the defendant
had contact with the intimate parts of [the minor female] or you all agree
that the state has proved beyond a reasonable doubt that the defendant
subjected [the minor female] to contact with his intimate parts or both.’’
(Emphasis added.)
5
Count three charged the defendant with risk of injury to a child in
violation of § 53-21 (a) (2) for having contact with the intimate parts of C
while she was under sixteen years of age. We consider the defendant’s
insufficiency of the evidence claim first because, if successful, the defendant
would be entitled to a judgment of acquittal as to count three. See State v.
Reed, 176 Conn. App. 537, 540 n.3, 169 A.3d 326, cert. denied, 327 Conn.
974, 174 A.3d 194 (2017).
6
The victim initially described this abuse in a videotaped diagnostic inter-
view with a clinical child interview supervisor when she was approximately
thirteen years old. See State v. Stephen J. R., supra, 309 Conn. 592, 601; see
also Stephen J. R. v. Commissioner of Correction, supra, 178 Conn. App. 4–5.
7
In declining to consider age as a factor when developing the three factor
test, the court in Jones noted that the California legislature adopted a statute
that, in a criminal trial in which a child who is testifying is ten years old
or younger, the court, upon request of a party, must instruct the jury that
it may not discredit a child’s testimony simply because of his or her age.
See People v. Jones, supra, 51 Cal. 3d 315; see also Cal. Penal Code § 1127f
(West 1986).
8
In her direct examination, C testified that she would have been fifteen
years old when the defendant moved to Lisbon in September, 2005. In
addition to testifying to the frequency with which she visited the defendant’s
home in Lisbon, C testified to being there ‘‘[w]henever a UFC game was
on,’’ and that she was there ‘‘a lot for birthday parties’’ and at one point for
‘‘a creamed corn eating contest . . . with a band.’’
9
Ultimately, in Benite, this court held that there was no reversible error
because, although ‘‘this case present[ed] a close call, [this court held] that
because of [the] facts, there is no reasonable possibility that the jurors were
misled by the charge.’’ State v. Benite, supra, 6 Conn. App. 676–77.
10
We consider the phrase ‘‘multiple factual allegations,’’ as used in our
prior cases, to encompass either different descriptions of the manner in
which the prohibited act was committed or differing statements as to the
specific time at which the proscribed act occurred. Furthermore, we con-
strue this phrase to include specific acts identified in the information that
form the basis for the state’s charge under each count or evidence of specific
acts presented at trial that are the basis for the state having charged the
defendant with having violated a statutory subsection. See State v. Manci-
none, supra, 15 Conn. App. 275–76.
11
Although counts one, three, five, and six do not specify the number of
times that the defendant had contact with the intimate parts of each child,
we interpret each count as charging the defendant with having violated § 53-
21 (a) (2) on one occasion with respect to the child identified in that count.
For example, count three alleged that ‘‘in or about 2005 through September
22, 2006, [the defendant] did [violate § 53-21 (a) (2)] in that he had contact
with the intimate parts of a child under the age of sixteen years . . . in a
sexual and indecent manner likely to impair the health and morals of said
child . . . .’’
12
In count four, the defendant was charged with violating § 53-21 (a) (2)
because he ‘‘had contact with the intimate parts of a child under the age
of sixteen years . . . and subjected said minor female to contact with his
intimate parts . . . .’’ (Emphasis added.) We do not address count four,
however, because the court provided a specific unanimity instruction as to
this count.
13
The defendant cites State v. Snook, 210 Conn. 244, 262, 555 A.2d 390,
cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989), and
State v. Dennis, 150 Conn. 245, 250, 188 A.2d 65 (1963), as support for the
proposition that, as he states, ‘‘separate and distinct acts in violation of
[§ 53-21] are separate crimes, each to be proven.’’ The defendant then argues
that, because each violation of § 53-21 constitutes a separate offense, the
state, in the present case, was required to charge each of the defendant’s
violations of § 53-21 in separate counts and prove each count beyond a
reasonable doubt. Thus, the defendant asserts that the manner in which the
state charged and prosecuted its case—charging the defendant with one
violation of § 53-21 (a) (2) for each child and providing evidence of multiple
violations per child—contravenes the decisions concerning § 53-21 in Snook
and Dennis.
The defendant, however, misconstrues the conclusions of our Supreme
Court in Snook and Dennis concerning the divisibility of acts alleged to be
in violation of § 53-21. Contrary to what the defendant contends, neither of
the decisions in these cases held that, when alleging that a defendant has
violated § 53-21 multiple times, the state must charge the defendant under
separate counts for each violation. Rather, we construe these cases to mean
that the state may, but is not required to, charge each violation in a separate
count, even though ‘‘[a] distinct repetition of an act prohibited by § 53-21
constitutes a second offense.’’ State v. Snook, supra, 210 Conn. 262. Indeed,
in Snook, the court decided that distinct repetitions of acts in violation of
§ 53-21 constituted separate offenses, in part, to prevent ‘‘a person who has
committed one sexual assault upon a victim to commit with impunity many
other such acts during the same encounter.’’ (Internal quotation marks
omitted.) Id. Thus, we are not persuaded by the defendant’s reading of
Snook and Dennis.
14
In the present case, the court did provide a general unanimity instruction
as to counts one, three, five, and six. With respect to these counts, the court
charged the jury as follows:
‘‘As to each count, if you unanimously find that the state has proved
beyond a reasonable doubt each of the elements of the crime of risk of
injury to a minor, then you shall find the defendant guilty. On the other
hand, if you unanimously find that the state has failed to prove beyond a
reasonable doubt any of the elements, you shall then find the defendant
not guilty. . . .
‘‘The defendant is entitled to and must be given by you a separate and
independent determination of whether he is guilty or not guilty as to each
of the counts in the information. Each of the counts charged is a separate
crime. The state is required to prove each element in each count beyond a
reasonable doubt. Each count must be deliberated upon separately. . . .
You may find that some evidence applies to more than one count. The
evidence, however, must be considered separately as to each element in
each count. Each count is a separate entity. You must consider each count
separately and return a separate verdict for each count. This means that
you may reach opposite verdicts on different counts. A decision on one
count does not bind your decision on another count. . . .
‘‘When you reach a verdict, it must be unanimous.’’
15
The defendant and the state agree that the test used by our Supreme
Court in State v. Famiglietti, supra, 219 Conn. 619–20, to determine whether
a trial court was required to provide a specific unanimity instruction does
not apply to the present case. Because the present case is one in which the
evidence presented at trial amounts to the defendant’s having violated a
single statutory subdivision on multiple occasions, we agree with the
defendant and the state that the Famiglietti test does not apply in this case.
See State v. Mancinone, supra, 15 Conn. App. 274.
16
If a defendant allegedly violates the same statutory subsection multiple
times, the state may charge the defendant in different ways. For example,
the state may charge the defendant in one count with having violated the
statute once, the basis of which is evidence that the defendant violated the
statute multiple times that is presented at trial, or the state may charge the
defendant for each violation under separate counts. Indeed, the United States
Court of Appeals for the Second Circuit has recognized that there is a
difference between, for example, when a defendant is charged under one
count with having committed a crime by engaging in a criminal act ten times
and when a defendant is charged in ten separate counts for having committed
the same crime ten times. See United States v. Margiotta, 646 F.2d 729, 733
(2d Cir. 1981) (‘‘With the mailings on which the [g]overnment will rely now
reduced to a manageable number, their placement in a single count achieves
the obvious benefit of limiting the maximum penalties [the] defendant may
face if convicted of mail fraud and also avoids the unfairness of portraying
the defendant to the jury as the perpetrator of [fifty] crimes. We anticipate
no unfairness to the defendant if the jury, properly instructed, is permitted
to convict on [c]ount [o]ne upon finding all of the elements of mail fraud
established, including the mailing of at least one item in furtherance of the
scheme to defraud.’’).
17
In counts one, three, five, and six, the state described neither the specific
act that constituted the defendant’s violation of § 53-21 (a) (2), nor alleged
the specific date on which this violation occurred. The state, however, was
under no obligation to allege this information because the date of the offense
is not an element of committing an offense under § 53-21 (a) (2), except
that the violation must have occurred before the child’s sixteenth birthday.
See State v. Hauck, 172 Conn. 140, 150, 374 A.2d 150 (1976) (stating that
‘‘[t]he general rule is that where time is not of the essence or gist of the
offense, the precise time at which it is charged to have been committed is
not material’’); State v. Minor, 80 Conn. App. 87, 92, 832 A.2d 697 (concluding
that ‘‘[t]he state . . . is not usually required to plead and to prove an exact
time when an offense allegedly occurred if the information is sufficiently
precise as to the time frame involved’’), cert. denied, 267 Conn. 907, 840
A.2d 1172 (2003); State v. Saraceno, 15 Conn. App. 222, 237, 545 A.2d 1116
(concluding that ‘‘as long as the information provides a time frame which
has a distinct beginning and an equally clear end, within which the crimes
are alleged to have been committed, it is sufficiently definite to satisfy the
[constitutional] requirements’’), cert. denied, 209 Conn. 823, 552 A.2d 431
(1988), and cert. denied, 209 Conn. 824, 552 A.2d 432 (1988); see also General
Statutes § 53-21 (a) (2). Thus, such an omission by itself is not fatal to the
state’s case. See State v. Marcelino S., 118 Conn. App. 589, 596, 984 A.2d
1148 (2009) (‘‘The state has a duty to inform a defendant, within reasonable
limits, of the time when the offense charged was alleged to have been
committed. The state does not have a duty, however, to disclose information
which the state does not have.’’ (Emphasis omitted; internal quotation marks
omitted.)), cert. denied, 295 Conn. 904, 988 A.2d 879 (2010); see also State
v. Mancinone, supra, 15 Conn. App. 259.
18
At the time that Gipson was decided, the statute under which the
defendant was charged stated as follows: ‘‘Whoever receives, conceals,
stores, barters, sells, or disposes of any motor vehicle or aircraft, moving
as, or which is a part of, or which constitutes interstate or foreign commerce,
knowing the same to have been stolen, shall be fined not more than $5,000
or imprisoned not more than five years, or both.’’ (Emphasis added.) 18
U.S.C. § 2313 (1976).
19
Indeed, count four in the present case illustrates a circumstance similar
to the way in which, in Gipson, the defendant’s criminal liability under a
count of the indictment was based on multiple statutory elements. See
United States v. Gipson, supra, 553 F.2d 455, 458. In count four, the state
alleged that the defendant ‘‘had contact with the intimate parts of a child
under the age of sixteen years . . . and subjected said minor female to
contact with his intimate parts . . . .’’ (Emphasis added.) Unlike counts
one, three, five, and six, the defendant could face criminal liability under
count four if a jury found beyond a reasonable doubt that he engaged in
either element of conduct proscribed by § 53-21 (a) (2); that is, the defendant
either had contact with the child’s intimate parts while she was under sixteen
years of age or he subjected the child to contact with his intimate parts
while she was under sixteen. Accordingly, the court provided a specific
unanimity instruction as to this count. See footnote 4 of this opinion.
20
The defendant argues that the trial court was required to apply the
conceptual distinction analysis used in State v. Benite, supra, 6 Conn. App.
675–76, and United States v. Gipson, supra, 553 F.2d 458. We disagree
because our courts usually apply that analysis in circumstances in which
the factual allegations made against a defendant under a criminal count
amount to his or her having violated multiple statutory subsections, subdivi-
sions or elements. See, e.g., State v. Reddick, 224 Conn. 445, 451–54, 619
A.2d 453 (1993); State v. Reyes, 19 Conn. App. 695, 705, 564 A.2d 309, cert.
denied, 213 Conn. 803, 567 A.2d 833 (1989); State v. Delgado, 19 Conn. App.
245, 247–48, 562 A.2d 539 (1989).
Even if a conceptual distinction analysis was required, our Supreme Court
has determined that multiple acts of having contact with the intimate parts
of a child are not conceptually distinct. See State v. Spigarolo, supra, 210
Conn. 391–92. Therefore, the court concluded that ‘‘[t]he defendant’s right
to a unanimous verdict . . . was not violated by the trial court’s failure to
provide a specific unanimity instruction . . . .’’ Id., 392. Thus, we conclude
that the defendant’s argument that the individual occasions on which he
had contact with the intimate parts of the children were conceptually distinct
acts entitling him to a specific unanimity instruction is unavailing.
21
The defendant claims on appeal that the risk of a nonunanimous verdict
in this case was exacerbated by the substantial amount of uncharged miscon-
duct evidence that was admitted against the defendant at trial. In the defen-
dant’s view, this uncharged misconduct evidence could have been relied on
by jurors as the ‘‘actus reus’’ of the crimes for which the defendant was
convicted. This claim was not preserved in the trial court. Even if we were
to address it on the merits, it fails because the defendant conceded that the
court properly instructed the jury regarding the proper use of the uncharged
misconduct evidence.