State v. Joseph V. ( 2023 )

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STATE OF CONNECTICUT v. JOSEPH V.*
(SC 20504)
McDonald, D’Auria, Mullins, Kahn and Ecker, Js.
Syllabus
A criminal information is duplicitous when it charges a defendant in a single
count with two or more distinct and separate criminal offenses, thereby
implicating the defendant’s constitutional right to a unanimous jury
verdict.
In the companion case of State v. Douglas C. (345 Conn. 421), this court
recognized that a duplicitous information may raise two distinct and
separate kinds of issues regarding a defendant’s right to jury unanimity:
unanimity as to the elements of a crime, which arises when a defendant
is charged in a single count with having violated multiple statutory
provisions, subsections, or clauses, requiring the court to determine
whether the statutory provisions, subsections, or clauses constitute sep-
arate elements of the statute, thereby requiring jury unanimity, or alterna-
tive means of committing a single element, which do not require jury
unanimity; and unanimity as to instances of conduct, which arises when
a defendant is charged in a single count with having violated a single
statutory provision, subsection, or clause on multiple, separate
occasions.
Convicted of the crimes of sexual assault in the first degree, risk of injury
to a child, and conspiracy to commit risk of injury to a child in connection
with his sexual abuse of the victim, the defendant appealed to the
Appellate Court. T, the victim’s half brother, began sexually abusing the
victim when the victim was four or five years old. In 2006, T moved to
a new residence with his and the victim’s father, where the victim
would periodically have overnight visits. T’s sexual abuse of the victim
continued at the father’s residence. The defendant, who is a first cousin
of the victim and T, also began to sexually abuse the victim at that time.
The defendant and T often abused the victim simultaneously, and the
abuse occurred until 2010, when the victim was ten years old. In the
risk of injury count, the state alleged that, on ‘‘diverse dates’’ between
2006 and 2010, at the residence of the victim’s father, the defendant had
contact with the victim’s intimate parts and subjected the victim to
contact with the defendant’s intimate parts, in violation of the risk of
injury to a child statute (§ 53-21 (a) (2)). In the sexual assault count,
the state alleged that the defendant had violated the first degree sexual
assault statute (§ 53a-70 (a) (2)) by engaging in fellatio and anal inter-
course with the victim, also on diverse dates between 2006 and 2010 at
the father’s residence. Prior to trial, defense counsel sought a bill of
particulars, claiming that the information was duplicitous in that the
evidence at trial would show multiple, separate incidents of abuse, each
of which could constitute a separate violation of the statutes at issue,
giving rise to the risk that the defendant would not be afforded a unani-
mous verdict because the jurors could reach a guilty verdict on the
same count on the basis of findings as to different incidents of sexual
abuse. The trial court denied counsel’s motion for a bill of particulars,
and, at trial, the state offered testimony from the victim and T about
four separate incidents of abuse that occurred on distinct dates, as well
as the victim’s testimony that additional incidents of abuse had occurred
but had ‘‘blurred together’’ in his memory. Thereafter, the trial court
denied defense counsel’s request that the jury be given a specific unanim-
ity instruction as to each count. The Appellate Court affirmed the judg-
ment of conviction, and the defendant, on the granting of certification,
appealed to this court, claiming that the trial court had violated his
constitutional right to jury unanimity as to instances of conduct by
denying defense counsel’s requests for a bill of particulars and a specific
unanimity instruction insofar as each count was premised on multiple,
separate incidents of unlawful conduct, each of which could establish
a separate violation of the same statute. In the alternative, the defendant
claimed that the counts pertaining to risk of injury and conspiracy to
commit risk of injury violated his right to jury unanimity as to the
elements of those crimes because each count was premised on multiple
violations of the alternative types of conduct prohibited by § 53-21 (a)
(2), namely, the defendant’s having contact with the victim’s intimate
parts, on the one hand, or the defendant’s subjecting the victim to
contact with the defendant’s intimate parts, on the other. Held:
1. Applying the three-pronged test that this court adopted in Douglas C. for
claims of jury unanimity as to instances of conduct, this court concluded
that, although the risk of injury to a child and conspiracy to commit
risk of injury counts were not duplicitous and did not violate the defen-
dant’s right to unanimity, the first degree sexual assault count was
duplicitous, the trial court’s denial of counsel’s request for a specific
unanimity instruction or a bill of particulars with respect to that count
violated the defendant’s right to unanimity, the defendant suffered preju-
dice as a result of that violation, and, accordingly, this court reversed the
Appellate Court’s judgment insofar as that court affirmed the defendant’s
conviction of sexual assault in the first degree and remanded the case
for a new trial with respect to that offense only:
a. The count of the information charging the defendant with risk of
injury to a child was not duplicitous because, although the state had the
discretion to charge him with violating § 53-21 (a) (2) for each incident
of conduct that had occurred, the state properly charged and presented
the case to the jury as a continuing course of conduct:
Although the risk of injury count was premised on multiple, separate
incidents of conduct, insofar as it alleged that the sexual abuse occurred
on diverse dates over the span of four years and as the testimony at
trial concerned four separate instances of sexual intercourse on distinct
dates, the defendant’s claim failed under the second prong of the test
applicable to unanimity as to instances of conduct for the reasons set
forth in the companion case of Douglas C., in which this court held that
§ 53-21 (a) (2) criminalizes both a single incident of conduct and an
ongoing course of conduct such that, when a defendant commits multiple,
separate acts of having contact with the intimate parts of the same
alleged victim as part of a continuing course of conduct, the state has
discretion to charge the defendant either with multiple counts of having
violated § 53- 21 (a) (2), with each count premised on a single incident,
or with a single count of having violated § 53-21 (a) (2) premised on a
continuing course of conduct.
In the present case, the trial court’s denial of defense counsel’s requests
for a bill of particulars and a specific unanimity instruction did not
violate the defendant’s constitutional right to jury unanimity, as the risk
of injury count contemplated an ongoing course of conduct, the state
charged the defendant with a continuing course of conduct and argued
to the jury that multiple incidents of unlawful conduct had occurred,
and the jury reasonably could have found that the incidents at issue
involved a single victim and furthered a single, continuing objective to
touch the victim in a sexual and indecent manner.
b. The count of the information charging the defendant with sexual
assault in the first degree, in which multiple, separate instances of assault
were alleged, was duplicitous, and the trial court’s failure to provide the
jury with the requested specific unanimity instruction on that count
violated his right to jury unanimity by creating the possibility that the
jury found him guilty of that offense without having agreed on which
of the multiple instances of conduct he committed:
In view of the allegations in the sexual assault count, as well as the
evidence admitted at trial in support of that charge, including the testi-
mony concerning the four specific instances of sexual intercourse, each
of which occurred on different dates, at different times, and in different
locations in the father’s residence, this court concluded that the present
case, as presented to the jury, did not involve multiple acts of sexual
intercourse committed in the course of a single incident of brief temporal
duration but, rather, involved multiple, separate incidents.
The language of § 53a-70 (a) (2), as well as this court’s case law interpre-
ting that language, indicated that the legislature intended to criminalize
only single acts of sexual intercourse and not a continuous course of
conduct, this court has not recognized a common-law exception for a
continuing course of sexual assault, even in cases involving children,
and, accordingly, in the absence of a unanimity instruction to the jury,
the information charging the defendant with one count of sexual assault
premised on multiple, separate instances of conduct, each of which could
have supported a separate offense, was duplicitous and violated the
defendant’s constitutional right to jury unanimity.
Moreover, the duplicitous nature of the sexual assault count prejudiced
the defendant, as it created the potential for the jury to be confused or
to disagree about which of the various, alleged acts of sexual intercourse
the defendant committed, as the jury reasonably could have interpreted
the trial court’s instruction that it must unanimously agree that at least
one violation of § 53a-70 (a) (2) occurred by either fellatio or anal inter-
course to mean that it had to agree that an instance of sexual intercourse
had occurred but not which specific instance had occurred.
c. The count of the information charging the defendant with conspiracy
to commit risk of injury to a child was not duplicitous:
Although there was testimony that the defendant and T gave each other
a look before the first, specific instance of sexual assault occurred and
that T was present when the defendant sexually assaulted the victim
during the third specific instance, it is well established that a conspiracy
may be alleged as a continuing course of conduct, and, therefore, a single
count of conspiracy premised on a continuous course of conduct is
not duplicitous.
In the present case, the information and the prosecutor’s closing argu-
ment to the jury clearly showed that the conspiracy count was premised
not on two separate conspiracies but, rather, on a single, ongoing conspir-
acy, with the evidence of the look that T and the defendant exchanged
and T’s presence during the third incident merely constituting separate
proof of their ongoing agreement to commit the crime of risk of injury
against the victim through contact with intimate parts.
2. The defendant could not prevail on his claim that the risk of injury to a
child and conspiracy to commit risk of injury counts were duplicitous
on the ground that they violated his right to jury unanimity as to the
elements of the crime, as the language in § 53-21 (a) (2) created two
ways to satisfy the element of contact with intimate parts, that is, the
defendant’s having contact with the victim’s intimate parts and the
defendant’s forcing the victim to have contact with the defendant’s
intimate parts:
Upon review of this state’s precedent and federal case law, this court
concluded that the appellate courts of this state have been applying the
wrong test to claims regarding jury unanimity as to the elements and
adopted the test applied by the majority of federal courts of appeals to
determine whether multiple statutes, statutory provisions, or statutory
clauses constitute separate elements or alternative means of committing
a single element, pursuant to which courts consider the statutory lan-
guage, relevant legal traditions and practices, the overall structure of
the statute at issue, its legislative history, moral and practical equivalence
between the alternative actus rei or mentes reae, and any other implica-
tions for unfairness associated with the absence of a specific unanim-
ity instruction.
This court’s case law suggested that the language in § 53-21 (a) (2)
prohibiting any person from ‘‘[having] contact with the intimate parts
. . . of a child under the age of sixteen years or subject[ing] a child
under sixteen years of age to contact with the intimate parts of such
person’’ established alternative means of violating the statute rather
than separate elements, and, to the extent the statutory language was
ambiguous, the legislative history indicated that subsection (a) (2) of
§ 53-21 was created to distinguish sexual contact from the nonsexual
contact prohibited under subsection (a) (1), and this court was not
aware of any moral or practical distinction between a defendant’s having
contact with a child’s intimate parts and a defendant’s forcing of a child
to have contact with the defendant’s intimate parts.
(Two justices concurring in part and dissenting in part)
Argued November 15, 2021—officially released December 13, 2022**
Procedural History
Substitute information charging the defendant with
the crimes of sexual assault in the first degree, risk of
injury to a child and conspiracy to commit risk of injury
to a child, brought to the Superior Court in the judicial
district of Waterbury, where the court, K. Murphy, J.,
denied the defendant’s motions for a bill of particulars
and to preclude certain evidence; thereafter, the case
was tried to the jury; verdict and judgment of guilty,
from which the defendant appealed to the Appellate
Court, Keller, Bright and Flynn, Js., which affirmed
the trial court’s judgment, and the defendant, on the grant-
ing of certification, appealed to this court. Reversed in
part; new trial.
Megan L. Wade, assigned counsel, with whom was
James P. Sexton, assigned counsel, for the appellant
(defendant).
Timothy F. Costello, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, Amy L. Sedensky and Don E. Therkildsen, Jr.,
senior assistant state’s attorneys, and Jennifer F. Miller,
former assistant state’s attorney, for the appellee (state).
Opinion
D’AURIA, J. Today, in State v. Douglas C., 345 Conn.
421, A.3d (2022), we held that a single count
of an information that charges a defendant with a single
statutory violation is duplicitous when evidence at trial
supports multiple, separate incidents of conduct, each
of which could independently establish a violation of
the charged statute. In the absence of a specific unanim-
ity instruction to the jury or a bill of particulars, such
a count violates a defendant’s constitutional right to
jury unanimity and requires the reversal of the judgment
of conviction if it creates the risk that the defendant’s
conviction occurred as the result of different jurors
concluding that the defendant committed different
criminal acts.
We now must apply our holding in Douglas C. to the
present case in which the defendant, Joseph V., appeals
from the judgment of the Appellate Court, which
affirmed the trial court’s judgment of conviction, ren-
dered following a jury trial, of sexual assault in the first
degree in violation of General Statutes § 53a-70 (a) (2),1
risk of injury to a child in violation of General Statutes
§ 53-21 (a) (2),2 and conspiracy to commit risk of injury
to a child in violation of § 53-21 (a) (2) and General
Statutes § 53a-48 (a). The defendant claims that each
count was duplicitous because each count charged him
with a single violation of the underlying statute despite
evidence at trial of multiple, separate incidents of con-
duct, each of which could establish a violation of the
statute, thus creating the possibility that the jury found
him guilty without having unanimously agreed on which
incident occurred. As a result, he argues that the trial
court’s failure to either grant his request for a bill of
particulars or a specific unanimity instruction violated
his federal constitutional right to jury unanimity. We
agree with the defendant as to the sexual assault count
but disagree with him as to the risk of injury and conspir-
acy counts. Accordingly, we reverse in part the Appellate
Court’s judgment and remand the case to that court
with direction to remand the case to the trial court for
a new trial on the sexual assault count.
The Appellate Court’s opinion contains a detailed
discussion of the facts that the jury reasonably could
have found, along with the procedural history of this
case, which we summarize briefly. When the victim was
four or five years of age, his half brother, T, began
frequently abusing him in a sexual manner. State v.
Joseph V., 196 Conn. App. 712, 716, 230 A.3d 644 (2020).
In 2006, after the abuse by T had begun, T and the
victim’s father moved to a new residence, while the
victim and his mother continued to reside together,
although the victim would have overnight visits at his
father’s new residence. Id. T’s abuse of the victim con-
tinued at the father’s new residence. Id. Both prior to
and following the time that the victim’s father and T
moved to the new residence, the defendant, a first
cousin of both T and the victim, had a close relationship
with T, including an ongoing sexual relationship. Id.,
715, 717. After the victim’s father and T moved to the
new residence, the defendant, when he was fifteen years
old, began to sexually assault the victim. Id., 717. This
abuse often involved simultaneous sexual abuse of the
victim by T and occurred until the victim was ten years
old. Id.
When the victim was thirteen, he revealed the sexual
abuse in digital correspondence to The Trevor Project,
a California based organization. Id., 719. After he did
not receive an immediate response, the victim used an
instant messaging feature on The Trevor Project’s web-
site to speak with a counselor. Id. During this instant
messaging conversation, the victim again revealed the
sexual abuse by T and the defendant. Id.
The counselor at The Trevor Project, as required by
law, reported the victim’s allegations of sexual assault
to the Los Angeles County Department of Children and
Family Services, which, in turn, contacted the police in
the Connecticut municipality in which the victim resided.
Id., 720. In response, the police visited the residence
of the victim and his mother. Id. The victim told the
police about the alleged sexual assault by T and the
defendant, and the defendant was then arrested.3 Id.
The state initially charged the defendant with two
counts of sexual assault in the first degree, one count
of risk of injury to a child, and one count of conspiracy
to commit risk of injury to a child. Id., 721 and n.9. The
defendant’s criminal trial on these four counts ended
in a mistrial. See id., 721 n.8. After the mistrial, the
defendant filed a motion for a bill of particulars, seeking
to compel the state to allege within the charging instru-
ment additional information with respect to each
charge. Id., 721–22. In response, the state filed a substi-
tute information (the operative information at the time
of the defendant’s second trial), limited to one count
of sexual assault in the first degree, one count of risk
of injury to a child, and one count of conspiracy to
commit risk of injury to a child. Id., 722 and n.12.
The trial court then heard argument on the defen-
dant’s motion for a bill of particulars. Id., 722. Defense
counsel argued that, based on the evidence offered at
the prior trial, the defense anticipated that there would
be testimony regarding multiple, separate incidents of
abuse, each of which could constitute a separate viola-
tion of the statutes at issue. Id., 722–23. As a result, she
asserted, there was the potential ‘‘risk that one or more
jurors could reach a guilty verdict with respect to a
count on the basis of their findings with respect to an
incident of abuse proven by the state, and one or more
jurors could reach a guilty verdict on the same count,
but on the basis of their findings with respect to a different
incident of abuse proven by the state.’’ (Emphasis omit-
ted.) Id., 723. Defense counsel stated that, if the trial
court denied the motion for a bill of particulars, she
would request that the court give the jury a specific
unanimity instruction. Id., 724. The prosecutor responded
that no concern about unanimity existed because he
expected the defense to argue generally that the victim
was not credible and, therefore, that the state had not
met its burden of proof. Id. The trial court agreed with
the prosecutor and denied the defendant’s motion, rul-
ing that, before returning a guilty verdict, the jury was
required only to unanimously agree on whether the
defendant had engaged in the type of conduct proscribed
by the statutes during the time frame alleged. Id.,
724–25.
At trial, the victim testified about three distinct inci-
dents of abuse by the defendant. See id., 717 n.3. T
testified about an additional distinct incident of abuse
of the victim by the defendant during which T was
present but did not participate. Id., 718 and n.5. ‘‘The
victimalso testifiedthat,beyondtheincidentshedescribed,
many other incidents of sexual abuse involving the
defendant and T had ‘blurred together because there [were]
too many to count and distinguish between.’ These inci-
dents, which always occurred at the home of the vic-
tim’s father, involved the touching of intimate parts,
oral sex, and anal sex. The victim recalled that the
defendant and T abused him simultaneously and would
frequently take turns or ‘trade off’ in terms of the sexual
acts that they committed against him.’’4 Id., 717 n.3.
As a result of this testimony, defense counsel
requested that the trial court give the jury a specific
unanimity instruction as to the charge of sexual assault
in the first degree, arguing that, without this instruction,
the count was duplicitous and, thus, infringed on the
defendant’s right to jury unanimity. Id., 724–25. Relying
on the rationale set forth in its prior ruling, the trial
court declined defense counsel’s request. Id., 726–27.
The following day, outside the presence of the jury,
defense counsel renewed her request for a specific una-
nimity instruction, clarifying that the request applied
to all three counts. Id., 727. The trial court declined to
give the requested charge. Id., 728.
The jury returned a guilty verdict on all three counts.
Id., 715. The trial court sentenced the defendant to a
total effective term of twenty years of incarceration,
execution suspended after ten years, followed by ten
years of probation with special conditions, including
lifetime inclusion on the state’s sex offender registry.
Id., 715 n.1.
The defendant appealed to the Appellate Court,
claiming that the trial court improperly had denied his
request for a bill of particulars and/or a specific unanim-
ity jury instruction because the three counts were
duplicitous, thereby violating his federal constitutional
right to jury unanimity. Id., 730–31. The Appellate Court
affirmed the trial court’s judgment; id., 763; explaining
that ‘‘whether the state’s substitute information posed
a risk that the jurors may not have been unanimous
. . . comes down to whether the defendant’s criminal
liability for each offense was premised on his having
violated one of multiple statutory subsections or ele-
ments.’’ Id., 740. The court then examined the statutory
language underlying each count to determine whether
multiple statutory subsections or elements were at
issue. Id., 744–47. As to count one, which charged the
defendant with sexual assault in the first degree, the
Appellate Court held that there were no unanimity con-
cerns because the defendant was charged with violating
only one statutory subsection, which prohibited only a
single type of conduct. See id., 744–45. As to counts
two and three, which charged the defendant with risk
of injury to a child and conspiracy to commit risk of
injury to a child, respectively, the court held that,
because § 53-21 (a) (2) contemplates a violation prem-
ised on two alternative types of conduct—namely, the
defendant’s making contact with the victim’s intimate
parts or, in the alternative, the defendant’s subjecting
the victim to contact with his intimate parts—these
counts rested on alternative bases of criminal liability,
and, thus, it was possible that the jury was not unani-
mous with respect to the specific type of statutorily
prohibited conduct that occurred. See id., 746. The court
held, however, that, because the trial court did not
expressly sanction a nonunanimous verdict, no specific
unanimity instruction was required. Id., 747–48. We
granted certification to appeal.5 Additional facts and
procedural history will be provided as necessary.
I
As he did in the trial court, the defendant claims that
all three counts that the state charged—sexual assault,
risk of injury, and conspiracy to commit risk of injury—
were improperly duplicitous, creating the possibility
that the jury was not unanimous as to the specific inci-
dent of criminal conduct he committed. Thus, he con-
tends that the trial court’s denial of his requests for a
bill of particulars or a specific unanimity instruction
deprived him of his constitutionally guaranteed right
to a unanimous verdict. Specifically, he argues that the
information charged him with only one count each of
sexual assault, risk of injury to a child, and conspiracy
to commit risk of injury to a child but that testimony at
trial described multiple, separate incidents of conduct,
each of which could constitute a separate violation of
the statutes at issue. As a result, he maintains that either
a bill of particulars or a specific unanimity instruction
was required because of the potential that the jury could
find him guilty without agreeing on which criminal act
he committed.
Applying the test detailed in Douglas C., we agree
with the defendant that count one alleging first degree
sexual assault was duplicitous, and thus the trial court’s
denial of his request for a specific unanimity instruction
or a bill of particulars violated his constitutional right
to jury unanimity. Finding as we do that the defendant
suffered prejudice as a result of this violation, we must
reverse the judgment of conviction in part and remand
the case for a new trial on that count. We disagree,
however, with the defendant’s claim that counts two
and three were duplicitous, thereby violating his right
to unanimity as to instances of conduct and, thus, affirm
his conviction of risk of injury to a child and conspiracy
to commit risk of injury to a child.
‘‘Although we generally review the denial of a motion
for a bill of particulars for abuse of discretion . . .
because this claim is premised on an alleged infringe-
ment of the defendant’s constitutional rights, our review
is plenary.’’ (Citation omitted.) State v. Douglas C.,
supra, 345 Conn. 435. ‘‘Duplicity occurs when two or
more offenses are charged in a single count of the
accusatory instrument. . . . [A] single count is not
duplicitous merely because it contains several allega-
tions that could have been stated as separate offenses.
. . . Rather, such a count is . . . duplicitous [only
when] the policy considerations underlying the doctrine
are implicated. . . . These [considerations] include
avoiding the uncertainty of whether a general verdict
of guilty conceals a finding of guilty as to one crime
and a finding of not guilty as to another, avoiding the
risk that the jurors may not have been unanimous as
to any one of the crimes charged, assuring the defendant
adequate notice, providing the basis for appropriate
sentencing, and protecting against double jeopardy in
a subsequent prosecution. . . . A duplicitous informa-
tion [implicating a defendant’s right to jury unanimity],
however, may be cured either by a bill of particulars
or a specific unanimity instruction.’’ (Citations omitted;
internal quotation marks omitted.) Id., 433–34.
The defendant argues only that the allegedly duplici-
tous counts implicated his right to a unanimous verdict,
and thus we limit our analysis to that issue. The defen-
dant’s right to jury unanimity under the sixth amend-
ment to the United States constitution ensures that a jury
‘‘cannot convict unless it unanimously finds that the
[g]overnment has proved each element’’ of the charged
crime. Richardson v. United States, 526 U.S. 813, 817,
119 S. Ct. 1707, 143 L. Ed. 2d 985 (1999). Nevertheless,
‘‘different jurors may be persuaded by different pieces
of evidence, even when they agree [on] the bottom line.
Plainly there is no general requirement that the jury
reach agreement on the preliminary factual issues
which underlie the verdict.’’ (Internal quotation marks
omitted.) Schad v. Arizona, 501 U.S. 624, 631–32, 111
S. Ct. 2491, 115 L. Ed. 2d 555 (1991) (opinion announcing
judgment). In other words, ‘‘a jury must come to agree-
ment on the principal facts underlying its verdict—what
courts have tended to call the elements of the offense.
But that requirement does not extend to subsidiary
facts—what the [Supreme] Court has called ‘brute facts.’ ’’
United States v. Lee, 317 F.3d 26, 36 (1st Cir.), cert.
denied, 538 U.S. 1048, 123 S. Ct. 2112, 155 L. Ed. 2d
1089 (2003). ‘‘In the routine case, a general unanimity
instruction will ensure that the jury is unanimous on
the factual basis for a conviction, even where an [infor-
mation] alleges numerous factual bases for criminal
liability.’’ (Internal quotation marks omitted.) United
States v. Holley, 942 F.2d 916, 925–26 (5th Cir. 1991),
quoting United States v. Beros, 833 F.2d 455, 460 (3d
Cir. 1987).
In Douglas C., this court for the first time recognized
that a duplicitous information may raise two distinct
and separate kinds of unanimity claims: (1) unanimity
as to a crime’s elements, which occurs when a defen-
dant is charged in a single count with having violated
multiple statutory provisions, subsections, or clauses,
and thus the court must determine whether the statu-
tory provisions, subsections, or clauses constitute sepa-
rate elements of the statute, thereby requiring jury
unanimity, or alternative means of committing a single
element, which do not require jury unanimity; and (2)
unanimity as to instances of conduct, also known as a
multiple acts or multiple offense claim, which occurs
when a defendant is charged in a single count with
having violated a single statutory provision, subsection,
or clause on multiple, separate occasions. See State v.
Douglas C., supra, 345 Conn. 432–33, 441. Previously,
our appellate courts have not distinguished between
these two distinct unanimity claims. In Douglas C., how-
ever, we explained that different tests apply to a claim
of unanimity as to elements and a claim of unanimity
as to instances of conduct. Id., 441.
In the present case, the defendant argues that all three
counts were duplicitous because each was premised on
multiple, separate instances of conduct, each of which
could establish a separate violation of the same statute.
In other words, he claims that his right to unanimity
as to instances of conduct was violated, not his right
to unanimity as to elements. As to a claim of unanimity
as to instances of conduct, in Douglas C., we adopted
and applied the three-pronged test applied by a majority
of federal courts of appeals:6 ‘‘(1) Considering the alle-
gations in the information and the evidence admitted
at trial, does a single count charge the defendant with
violating a single statute in multiple, separate instances?
(2) If so, then does each instance of conduct establish
a separate violation of the statute? If the statute contem-
plates criminalizing a continuing course of conduct,
then each instance of conduct is not a separate violation
of the statute but a single, continuing violation. To deter-
mine whether the statute contemplates criminalizing
a continuing course of conduct, we employ our well
established principles of statutory interpretation. Only
if each instance of conduct constitutes a separate viola-
tion of the statute is a count duplicitous. And (3) if
duplicitous, was the duplicity cured by a bill of particu-
lars or a specific unanimity instruction? If yes, then
there is no unanimity issue. If not, then a duplicitous
count violates a defendant’s right to jury unanimity but
reversal of the defendant’s conviction is required only
if the defendant establishes prejudice [namely, that the
duplicity created the genuine possibility that the convic-
tion occurred as the result of different jurors concluding
that the defendant committed different acts].’’ Id., 448.
As to the second prong, to the extent we must interpret
applicable statutes, well established principles directed
by General Statutes § 1-2z guide our inquiry. See, e.g.,
State v. Bischoff, 337 Conn. 739, 746, 258 A.3d 14 (2021).
In interpreting the statutes at issue to determine if the
legislature criminalized a continuous course of conduct,
we have explained that, ‘‘[a]t times, it may be easy to
make this second determination. That is because, [i]n
some cases the standard for individuating crimes is
obvious—we count murders, for instance, by counting
bodies. But in other cases, determining how many
crimes were committed is much less clear. . . . In
these more difficult cases, courts have examined the
statute’s language, its legislative history, and [other]
case law regarding similar statutes . . . .’’ (Citation
omitted; internal quotation marks omitted.) State v.
Douglas C., supra, 345 Conn. 442.
‘‘In examining the statutory language at issue . . . if
the underlying criminal statute contemplates crimi-
nalizing a continuing course of conduct and the defen-
dant has been charged with violating the statute by a
continuing course of conduct, a single count premised
on multiple, separate instances of conduct is not duplic-
itous when the multiple instances of conduct constitute
‘a continuing course of conduct, during a discrete
period of time7 . . . .’ To determine if a statute crimi-
nalizes only a single act, a continuous course of con-
duct, or both, courts must interpret the statute’s
language in the manner directed by . . . § 1-2z. . . .
If a statute does criminalize a continuing course of
conduct, then the court must determine whether the
multiple instances of conduct alleged in fact constitute
a continuous course of conduct by examining, among
other things, whether the acts occurred within a rela-
tively short period of time, were committed by one
defendant, involved a single victim, and furthered a
single, continuing objective.’’ (Citations omitted; foot-
note added; footnotes omitted.) Id., 442–45.
A
We begin by addressing count two of the information,
which charged the defendant with risk of injury to a
child in violation of § 53-21 (a) (2), because we already
have addressed a similar claim in relation to this statute
in Douglas C. We conclude that the defendant’s claim
fails under the second prong of the test applicable to
claims of unanimity as to instances of conduct and,
therefore, that count two did not violate his constitu-
tional right to jury unanimity.
Count two of the information charged the defendant
with committing risk of injury to a child ‘‘in that on
or about diverse dates between August 23, 2006, and
December 25, 2010,’’ at the residence of the victim’s
father, the defendant had contact with the victim’s inti-
mate parts and subjected the victim to ‘‘contact with
[the defendant’s] intimate parts . . . .’’ (Internal quota-
tion marks omitted.) State v. Joseph V., supra, 196 Conn.
App. 722 n.12. At trial, as evidence of this unlawful
contact, the state relied on testimony from the victim
and T about the four specific, separate incidents of
conduct discussed in footnote 4 of this opinion. As we
previously noted, defense counsel cross-examined both
the victim and T about these four incidents.
In closing argument to the jury, as to the element of
contact with intimate parts, the prosecutor argued that
the state had ‘‘to prove the defendant had contact with
the intimate parts of the minor, [the victim], or the
defendant—or the defendant subjected [the victim] to
contact with the defendant’s intimate parts; either way.
. . . So, any of the sexual assaults that I just talked
about, that counts; any one of those incidents counts—
the oral sex, the anal sex—any of that counts for the
sexual contact.’’ In response, as previously discussed,
defense counsel challenged the credibility of the victim
and T both generally and specifically as to each of the
four separate incidents.
After closing arguments, with regard to the element
of intimate contact in the risk of injury charge in count
two, the trial court instructed the jury: ‘‘The state must
prove either that the defendant had contact with the
child’s intimate parts, [or] the defendant subjected the
child to contact with the defendant’s intimate parts.
There need not be a touching of all the intimate parts. It
is sufficient if any one of the intimate parts is touched.’’
Similar to the instruction on sexual assault, the court
concluded: ‘‘In order to convict the defendant on this
count, you must be unanimous that at least one violation
of this statute occurred between the defendant and [the
victim] during the time frame indicated.’’
Section 53-21 (a) prohibits ‘‘[a]ny person . . . (2)
[from having] contact with the intimate parts, as defined
in section 53a-65, of a child under the age of sixteen
years or subject[ing] 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 . . . .’’ General Statutes § 53a-
65 (8) defines ‘‘intimate parts’’ as ‘‘the genital area or
any substance emitted therefrom, groin, anus or any
substance emitted therefrom, inner thighs, buttocks
or breasts.’’8
First, we must determine whether count two was
premised on multiple, separate incidents of conduct.
Count two of the information alleged that the defendant
committed risk of injury to a child on ‘‘diverse dates’’
over the course of more than four years, and this allega-
tion was supported by testimony concerning four spe-
cific, separate instances of conduct. This evidence
shows that, as the case was presented to the jury, there
was evidence of multiple, separate incidents of conduct,
not a single incident.
Because count two was premised on multiple, sepa-
rate incidents of conduct, we next must determine
under prong two of the applicable test whether each
incident could establish an independent violation of
§ 53-21 (a) (2). We hold that, although the state had
discretion to charge the defendant with violating § 53-
21 (a) (2) for each incident of conduct that occurred, the
state properly charged and presented these incidents
to the jury as a continuing course of conduct.
In Douglas C., we held that § 53-21 (a) (2) criminalizes
both a single incident of conduct and an ongoing course
of conduct. See State v. Douglas C., supra, 345 Conn.
464. Specifically, we explained that, under our prior
case law interpreting this statute, risk of injury to a
child may be charged under a continuing course of
conduct theory. Id., 465. We explained that both the
structure of the statute as a whole and its legislative
history support this interpretation of § 53-21 (a) (2). See
id., 466–69. Thus, when a defendant commits multiple,
separate acts of having contact with the intimate parts
of the same alleged victim as part of a continuing course
of conduct, the state has discretion to charge the defen-
dant either with multiple counts of having violated § 53-
21 (a) (2), with each count premised on a single incident,
or with a single count of having violated § 53-21 (a) (2)
premised on a continuing course of conduct.
In the present case, the language of count two shows
that the state charged the defendant with a continuing
course of conduct in that, ‘‘on or about diverse dates
between August 23, 2006, and December 25, 2010,’’ he
had contact with the victim’s intimate parts and that
the victim had contact with the defendant’s intimate
parts. State v. Joseph V., supra, 196 Conn. App. 722 n.12.
This language clearly contemplates more than a single
instance of contact; it contemplates an ongoing course
of conduct during this time period. Additionally,
although the trial court noted that only one violation
of the statute had to occur and the state argued that
proof of only one alleged act was necessary to find the
defendant guilty under count two, the state argued that
multiple instances of contact occurred continuously
between August 23, 2006, and December 25, 2010. Thus,
§ 53-21 (a) (2) criminalizes a continuing course of con-
duct, and the state charged the defendant with a contin-
uing course of conduct.
Moreover, as to count two, the jury reasonably could
have found that the multiple, separate incidents of con-
duct constituted a continuing course of conduct. The
testimony regarding the four specific instances of con-
duct showed that, although the multiple incidents of
sexual and indecent touching of intimate parts occurred
over a prolonged period of time, these acts occurred
with sufficient frequency to be considered a continuous
course of conduct. See, e.g., United States v. Root, 585
F.3d 145, 154–55 (3d Cir. 2009) (multiple acts may be
considered part of continuous course of conduct, even
if conduct spanned years). Additionally, these incidents
were committed by the same perpetrators—the defen-
dant and T—involved a single victim, and furthered a
single, continuing objective to touch the victim in a
sexual and indecent manner.
As a result, although count two was premised on
multiple, separate instances of conduct, these instances
were properly alleged and presented to the jury as a
continuous course of conduct, and not as independent
violations of § 53-21 (a) (2). Accordingly, we conclude
that count two, charging the defendant with a single
violation of § 53-21 (a) (2), was not duplicitous, and
thus the trial court’s failure to grant the defendant’s
request for a specific unanimity instruction or a bill of
particulars as to that count did not violate his constitu-
tional right to jury unanimity.
B
Count one of the information charged the defendant
with sexual assault in the first degree in violation of
§ 53a-70 (a) (2). Because there was trial testimony
regarding four separate, specific instances of conduct,
each of which could have constituted a violation of
the statute, the defendant argues that this count was
duplicitous. In turn, he argues that, because the trial
court did not provide the jury with a specific unanimity
instruction as defense counsel requested,9 the jury ver-
dict violated his right to jury unanimity and created the
possibility that the jury found him guilty without having
agreed on which instance of conduct he committed.
We agree with the defendant.
The following additional procedural history is rele-
vant to our consideration of the defendant’s claim with
respect to this count. Count one of the operative infor-
mation charged the defendant with committing sexual
assault in the first degree ‘‘on or about diverse dates
between August 23, 2006, and December 25, 2010,’’ by
engaging in sexual intercourse (fellatio and anal inter-
course) with the victim at the residence of the victim’s
father. State v. Joseph V., supra, 196 Conn. App. 722 n.12.
At trial, as evidence that the defendant had engaged in
sexual intercourse with the victim, the state offered
the testimony of both the victim and T regarding four
distinct incidents of abuse, as well as the victim’s gen-
eral testimony that he recalled that other incidents of
sexual abuse had occurred but that they had ‘‘ ‘blurred
together’ ’’ in his memory. Id., 717 n.3. Defense counsel
cross-examined both the victim and T about the specific
details regarding each of the four specific incidents of
sexual abuse.
In closing argument, the prosecutor argued that ‘‘a
plethora of evidence’’ supported the element of sexual
intercourse, summarizing the four specific instances of
sexual abuse and noting that ‘‘these same types of acts
happened between [the victim] and the defendant alone,
and [the victim] and the defendant and [T] . . . too
many times to count.’’ The prosecutor then argued that
the jury only had ‘‘to believe it happened once. Any one
time is enough to satisfy the element of sexual inter-
course.’’
In response, defense counsel argued generally that
the state’s witnesses, including the victim and T, lacked
credibility. Counsel walked the jury through the three
alleged incidents about which the victim had testified,
discussing inconsistencies in his testimony as to each
particular incident. Defense counsel specifically chal-
lenged T’s testimony regarding these incidents, arguing
that T had admitted to having tailored his testimony to
the victim’s allegations.
After closing arguments, the trial court’s jury charge
included a general instruction regarding unanimity:
‘‘Remember that your verdict as to each count must be
unanimous; all six jurors must agree as to the verdict
as to each separate count.’’ As to count one, charging
sexual assault, the trial court instructed in relevant part:
‘‘In order to convict the defendant on this count you
must be unanimous that at least one violation of this
statute by one of the methods alleged occurred between
the defendant and [the victim] during the time frame
indicated. . . . [T]he state must prove each element of
each offense, including identification of the defendant,
beyond a reasonable doubt. If you unanimously find
that the state has proved beyond a reasonable doubt
each of the elements of the crime of sexual assault in the
first degree, then you shall find the defendant guilty.’’
(Emphasis added.)
Addressing the defendant’s unanimity claim in the
present case, we must first determine if count one was
premised on multiple, separate acts and, if so, whether
each act established a separate violation of the sexual
assault statute.10 We recognize that this may be a diffi-
cult task, as ‘‘[t]he line between multiple offenses and
multiple means to the commission of a single continuing
offense is often a difficult one to draw.’’ (Internal quota-
tion marks omitted.) United States v. Davis, 471 F.3d
783, 791 (7th Cir. 2006). One example of a multiple
means case (i.e., claim of unanimity as to elements) is
State v. Anderson, 211 Conn. 18, 557 A.2d 917 (1989),
in which the state charged the defendant with two
counts of sexual assault in the first degree premised
on multiple kinds of sexual intercourse—four instances
of vaginal intercourse and two instances of fellatio—
alleged to have been committed during a single criminal
episode of relatively brief, temporal duration (approxi-
mately one hour). Id., 20–23. This court held that the
multiple acts of sexual intercourse constituted alterna-
tive means of committing the element of sexual inter-
course, and, thus, the jury did not have to unanimously
agree as to which means occurred. Id., 34–35; see id.,
35 (‘‘[t]he several ways in which sexual intercourse
may be committed under . . . § 53a-65 (2) are only one
conceptual offense’’); see also United States v. Gordon,
713 Fed. Appx. 424, 430 (6th Cir. 2017) (types of prohib-
ited sexual conduct constitute alternative means of
committing that conduct and do not constitute elements
about which jury must be unanimous). Thus, in Ander-
son, the jury could, consistent with constitutional prin-
ciples, find the defendant guilty of sexual assault in the
first degree if the jurors were unanimous in finding,
beyond a reasonable doubt, that some form of sexual
intercourse occurred during the alleged incident.
Anderson did not address whether unanimity issues
arise when the state charges only one count of sexual
assault, but the record contains evidence of multiple,
separate incidents of sexual intercourse. The line between
a single incident comprised of various alternative means
of committing sexual intercourse, on the one hand, and
multiple, separate incidents of sexual intercourse, on
the other, may be unclear at times and must be decided
on a case-by-case basis based on the language of the
count at issue, the evidence admitted in support of that
count, and the kind of conduct the legislature intended
to criminalize (single instance of conduct or continuing
course of conduct).
In the present case, under the first prong of the test
adopted in Douglas C., we must first look at the allega-
tions in the charge and the evidence admitted in support
thereof to determine if count one was premised on
multiple, separate incidents of conduct. See State v.
Douglas C., supra, 345 Conn. 448. Unlike the situation
in Anderson, the information in the present case alleged
that the defendant committed sexual assault on ‘‘diverse
dates’’ over the course of more than four years. There
was testimony concerning four specific instances of
sexual intercourse, each of which occurred on different
dates, at different times, and in different locations
within the residence of the victim’s father. From this
testimony, it is clear that the present case does not
involve multiple acts of sexual intercourse committed
in the course of a single incident of brief, temporal
duration. Rather, this evidence shows that, as the case
was presented to the jury, there were multiple, sepa-
rate incidents.
Additionally, unlike our risk of injury statute, under
the second prong of the test announced in Douglas
C., the language of § 53a-70 (a) (2) and our case law
interpreting that language show that the legislature
intended for each of these separate, specific incidents
to be charged as separate violations of § 53a-70 (a)
(2). Specifically, under § 53a-70 (a) (2), the state was
required to establish that the defendant ‘‘engage[d] in
sexual intercourse . . . .’’11 The statutory scheme does
not define the term ‘‘engages,’’ and thus we turn to the
common dictionary definition of this term. See Black’s
Law Dictionary (11th Ed. 2019) p. 669 (defining ‘‘engage’’
as ‘‘[t]o employ or involve oneself; to take part in; to
embark on’’); Webster’s Third New International Dic-
tionary (2002) p. 751 (defining ‘‘engage’’ as ‘‘to employ
or involve oneself . . . to take part . . . participate’’).
These definitions of ‘‘engage’’ do not provide any clarifi-
cation as to whether the statute criminalizes a continu-
ing course of conduct.12 The concurring and dissenting
justice (dissent) contends that, under these definitions
of ‘‘engage,’’ this term is ‘‘suggestive of ongoing conduct
. . . .’’ This is true, but this merely creates ambiguity
because the definitions also are suggestive of singular
conduct. This ambiguity, however, is clarified when the
term ‘‘engaged’’ is interpreted in its context, specifically,
in relation to the phrase ‘‘sexual intercourse.’’ The statu-
tory scheme defines ‘‘sexual intercourse’’ as ‘‘vaginal
intercourse, anal intercourse, fellatio or cunnilingus
between persons regardless of sex. Penetration, how-
ever slight, is sufficient to complete vaginal intercourse,
anal intercourse or fellatio and does not require emis-
sion of semen.’’ General Statutes § 53a-65 (2). This defi-
nition suggests that the statute intended to criminalize
each single act of sexual intercourse, which is defined
in singular terms. This kind of language consistently
has been interpreted as criminalizing only single acts.
See Cooksey v. State, 359 Md. 1, 19–21, 752 A.2d 606(2000) (reviewing case law from various states with
similarly worded sexual assault statutes, all of which
have been interpreted as not criminalizing continuous
course of conduct). Thus, this language does not con-
template an ongoing, continuous course of conduct but,
rather, penalizes a single instanceof sexual intercourse.
Interpreting § 53a-70 to criminalize each separate act
of sexual intercourse and not a continuous course of
conduct is also supported by our ‘‘well settled principle
of statutory construction that the legislature knows how
to convey its intent expressly . . . or to use broader
or limiting terms when it chooses to do so.’’ (Internal
quotation marks omitted.) State v. Ruiz-Pacheco, 336
Conn. 219, 235, 244 A.3d 908 (2020). Specifically, we
can infer from the legislature’s use in other statutes of
the phrase ‘‘course of conduct,’’13 as well as other
phrases that connote more than one act,14 that the legis-
lature knows how to criminalize a course of conduct
when it wants to do so. From the fact that the legislature
did not do so in § 53a-70, we may infer that it did not
intend to criminalize a continuous course of conduct.
Our long-standing precedent interpreting § 53a-70
lends further support to this interpretation. It is well
established that, in determining the plain meaning of a
statute, we look to prior case law defining the statute.
See, e.g., Redding Life Care, LLC v. Redding, 331 Conn.
711, 719, 207 A.3d 493 (2019) (‘‘we must construe the
statute in conformity with prior case law interpreting
it’’); State v. Moreno-Hernandez, 317 Conn. 292, 299,
118 A.3d 26 (2015) (‘‘[i]n interpreting the [statutory]
language . . . [we] are bound by our previous judicial
interpretations of the language and the purpose of the
statute’’ (internal quotation marks omitted)). General
Statutes (Rev. to 1975) § 53a-72 (a), which was repealed
in 1975; see Public Acts 1975, No. 75-619, § 7; crimi-
nalized rape, and was a precursor to our current sexual
assault statute, used the same phrase at issue in the
present case: ‘‘A male is guilty of rape in the first degree
when he engages in sexual intercourse with a female
. . . .’’ (Emphasis added.) In State v. Frazier, 185 Conn.
211, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112,
102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982), this court, in
interpreting General Statutes (Rev. to 1972) § 53a-72,
followed the lead of the Oklahoma courts and explained
that ‘‘rape is not a continuous offense. . . . There is
ample authority holding that each separate act of forc-
ible sexual intercourse constitutes a separate crime.
. . . A different view would allow a person who has
committed one sexual assault [on] a victim to commit
with impunity many other such acts during the same
encounter. The classic test of multiplicity is whether
the legislative intent is to punish individual acts sepa-
rately or to punish only the course of action which they
constitute. . . . [W]e believe the legislative intention
was that each assault should be deemed an additional
offense.’’ (Citations omitted.) Id., 229–30. Since Frazier,
and after the repeal of General Statutes (Rev. to 1975)
§ 53a-72, this interpretation of the phrase ‘‘engages in
sexual intercourse’’ has been applied to § 53a-70. See
State v. Anderson, supra, 211 Conn. 26 (The court
quoted Frazier in explaining that, ‘‘[i]n addressing legis-
lative intent with regard to multiple punishments for
sexual assaults, we have stated that each separate act
of forcible sexual intercourse constitutes a separate
crime. . . . Thus, each act of sexual assault is punish-
able separately.’’ (Citations omitted; internal quotation
marks omitted.)); see also State v. Snook, 210 Conn.
244, 262, 555 A.2d 390 (same), cert. denied, 492 U.S.
924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989);15 State v.
Ayala, 154 Conn. App. 631, 654, 106 A.3d 941 (2015)
(same), aff’d, 324 Conn. 571, 153 A.3d 588 (2017); State
v. Giannotti, 7 Conn. App. 701, 709, 510 A.2d 451 (citing
Frazier in holding that each individual act or attempted
act of forcible sexual intercourse constitutes separate
crime), cert. denied, 201 Conn. 804, 513 A.2d 700 (1986).
For approximately forty years, the Appellate Court
has rejected the dissent’s interpretation of § 53a-70.16
Specifically, in State v. Cassidy, 3 Conn. App. 374, 489
A.2d 386 (Borden, J.), cert. denied, 196 Conn. 803, 492
A.2d 1239 (1985), the defendant, who had been charged
with and convicted of multiple counts of sexual assault
under § 53a-70, argued ‘‘that he should . . . have been
tried on [only] one count of sexual assault, on the theory
that only one act of sexual assault was alleged, albeit
one involving several acts of sexual intercourse.’’ Id.,
388. In rejecting this argument, the Appellate Court
cited to Frazier and noted that ‘‘[t]his argument was
rejected under the predecessor to . . . § 53a-70. . . .
We reject it under . . . § 53a-70 as well.’’ (Citation
omitted.) Id. In so holding, the court was not persuaded
by the defendant’s contention that, ‘‘while the legislative
intent of the repealed statute [§ 53a-72] was to punish
each individual act of assault separately, the legislature,
by enacting the current statute, intended only to punish
the total course of conduct as one offense. As under
the prior statute, however, each assault [on] the victim
involved a separate act of will on the part of the defen-
dant and a separate indignity [on] the victim. . . . [T]he
legislative intention was that each assault should be
deemed an additional offense. . . . To interpret the
statute otherwise would be to strip it of all its sense.
[T]he application of common sense to the language of
a penal law is not to be excluded in a way which would
involve absurdity or frustrate the evident design of the
lawgiver. . . . There is ample authority holding that
each separate act of forcible sexual intercourse consti-
tutes a separate crime. . . . A different view would
allow a person who has committed one sexual assault
[on] a victim to commit with impunity many other such
acts during the same encounter.’’ (Citations omitted;
footnote omitted; internal quotation marks omitted.)
Id., 388–89.
The dissent argues that our reliance on Frazier and
Cassidy is misplaced because they involved multiplic-
ity, not duplicity, which, in his view, ‘‘present[s] a funda-
mentally different question.’’ But it does not. Not for
these purposes. Both the test for multiplicity in the
double jeopardy context and the test for duplicity in
the unanimity context require that we construe the lan-
guage of our sexual assault statute to arrive at the
legislature’s intent in enacting it. How we interpret stat-
utory language does not change based on the claim at
issue. We reject the dissent’s conclusion that the most
reasonable reading of our sexual assault statute and
cases interpreting its language is that prosecutors, in
their discretion, can choose to charge crimes either
way—as a course of conduct or as a single act—based
on a tradition of prosecutorial discretion that is not
supported by our criminal statutes and in which the
legislature has not acquiesced. If acquiescence were
important to determining a statute’s meaning, the legis-
lature’s acquiescence in how our appellate courts have
interpreted the statute is a more compelling case.17
Accordingly, guided by § 1-2z and our prior case law
interpreting § 53a-70, we conclude that the plain and
unambiguous language of § 53a-70 shows that the legis-
lature intended to criminalize only single acts of sexual
intercourse and not a continuing course of conduct.
This court, therefore, should not consider legislative
history.18 As a result, when we apply the well established
legal principles regarding statutory construction, we
find that our sexual assault statute does not criminalize
a continuing course of conduct.
Moreover, even if this court were allowed to create
and apply common-law exceptions in determining the
meaning of a statute; see footnote 7 of this opinion;
this court has not recognized a common-law exception
for a continuing course of sexual assault, even in cases
involving children. Cf. Gilson v. State, 8 P.3d 883, 899
(Okla. Crim. App. 2000), cert. denied, 532 U.S. 962, 121
S. Ct. 1496, 149 L. Ed. 2d 381 (2001). Accordingly, we
conclude that the information charging the defendant
with a single count of sexual assault premised on multi-
ple, separate instances of conduct, each of which could
have supported a separate offense, was duplicitous and
violated the defendant’s right to jury unanimity. This is
consistent with decisions of other state courts that have
applied the majority test to this issue. See, e.g., State
v. Arceo, 84 Haw. 1, 30, 928 P.2d 843 (1996); Cooksey
v. State, supra, 359 Md. 19–21.
As a result, in the absence of a unanimity instruction,
the state was required to either charge the defendant
with multiple counts of sexual assault in the first degree,
each premised on a separate instance of conduct, or
limit the single count it did charge to a single instance
of conduct. Alternatively, the state could have charged
as it did, as long as a specific unanimity instruction
was given. The state, however, using similar language
as contained in count two, attempted to charge count
one under a continuing course of conduct theory, and
the trial court did not give a specific unanimity instruc-
tion.19 The state was not permitted to do so under the
plain language of § 53a-70, and thus the state’s manner
of charging under count one does not cure the
count’s duplicity.
Nevertheless, the dissent relies on prior case law from
the Appellate Court to argue that our courts have recog-
nized a policy in favor of affording the prosecutor dis-
cretion in charging in cases involving sexual assault of
a child. Although this court has not recognized a com-
mon-law exception for a continuing course of sexual
assault, we are aware that this state’s case law regarding
unanimity and ongoing sexual assault of children has
created some confusion on this issue, likely owing both
to our belated recognition of persuasive federal case
law, as well as to an understandable motivation to
accommodate the difficulties inherent in prosecuting
such cases involving children, particularly traumatized
children. For example, the Appellate Court has distin-
guished between sexual assault cases in which there
is specific testimony regarding multiple, separate inci-
dents of sexual assault, and cases in which there is
only general testimony that multiple incidents of sexual
assault occurred but precise details regarding time and
location are unknown. This occurs commonly in cases
involving the ongoing sexual assault of children. This
line of cases has caused confusion in the Appellate
Court, including in the present case, over whether an
information is duplicitous or whether any duplicity cre-
ates a risk of a nonunanimous verdict when a sexual
assault case involves only general testimony about mul-
tiple incidents of sexual assault. See State v. Joseph V.,
supra, 196 Conn. App. 737–38 (citing cases). To the
extent the defendant relies on this case law to argue
that the Appellate Court has held that a single count
of sexual assault premised on specific testimony of
multiple, separate incidents of conduct may be alleged
under a continuing course of conduct theory, we dis-
agree. Rather, these cases show that, when there is only
general testimony regarding the ongoing sexual assault
of a child, a defendant more likely than not will not be
prejudiced by a single count of sexual assault premised
on multiple incidents of conduct.
This issue first arose in State v. Saraceno, 15 Conn.
App. 222, 229, 545 A.2d 1116, cert. denied, 209 Conn.
823, 552 A.2d 431 (1988), and cert. denied, 209 Conn.
824, 552 A.2d 432 (1988), in which the defendant claimed
that the information was duplicitous because the two
counts of sexual assault of which he was convicted
each alleged the commission of a single crime based
on multiple, separate incidents of sexual intercourse.
Id., 227–28. In resolving this claim, the court addressed
the five policy considerations underlying the doctrine
of duplicity. See id., 229–32. As to the possible lack of
jury unanimity, the Appellate Court concluded ‘‘that
with regard to the evidence adduced . . . it was not
possible for the jury to return a verdict [that] was not
unanimous. Given the complainant’s age and her rela-
tive inability to recall with specificity the details of
separate assaults, the jury was not presented with the
type of detail laden evidence [that] would engender
differences of opinion on fragments of her testimony.
In other words, the bulk of the state’s case rested on
the credibility of the young complainant. When she testi-
fied . . . that on many occasions the defendant forced
her to engage in fellatio while in a motor vehicle parked
on the banks of the Connecticut River, the jury was
left, primarily, only with the decision of whether she
should be believed. With such general testimony, the
spectre of lack of unanimity cannot arise. . . . Under
the specific circumstances . . . [the court] con-
clude[d] that the defendant was not prejudiced by the
potential lack of jury unanimity.’’ Id., 230–31.
In so holding, the court clearly focused on whether
the defendant was prejudiced by the potential lack of
unanimity, specifically, whether the jury possibly was
confused. See id., 229–31. The court concluded that, in
light of the nature of the general testimony, there was
no possibility that the jury had a difference of opinion
as to which acts the defendant had committed because
the nature of the testimony did not allow the jury to
be divided as to which instance of conduct occurred
but, rather, required the jury to credit all or none of
the victim’s testimony. See id., 230. In other words, the
court determined that any potential duplicity, assuming
it existed, was not harmful. Saraceno did not hold that
a single count of sexual assault premised on specific
testimony of multiple separate instances of conduct
may be alleged under a continuing course of conduct
theory. Thus, under neither the statutory scheme at
issue nor our state’s common law may first degree sex-
ual assault be charged as a continuing course of conduct
crime when premised on specific testimony of multiple,
separate incidents of conduct.20 As a result, in the absence
of a unanimity instruction, the state was required either
to charge the defendant with four counts of sexual
assault in the first degree, each premised on a separate
instance of conduct, or to limit the single count it did
charge to a single instance of conduct. Alternatively,
the state could have charged as it did without offending
the defendant’s right to jury unanimity if the trial court
had given a specific unanimity instruction. Accordingly,
because count one is premised on multiple, separate
incidents of conduct, each of which could indepen-
dently establish a violation of § 53a-70 (a) (2), that count
was rendered duplicitous.
Because we hold that a single count of sexual assault
premised on specific testimony of multiple separate
acts, committed other than in the course of a single
criminal episode of relatively brief, temporal duration,
is duplicitous and violates a defendant’s right to jury
unanimity when no specific unanimity instruction is
given, we must determine whether this duplicity preju-
diced the defendant. In light of the evidence of multiple,
separate instances of sexual intercourse, we conclude
that the jury reasonably could have interpreted the trial
court’s instruction that it ‘‘must be unanimous that at
least one violation of this statute by one of the methods
alleged occurred between the defendant and [the vic-
tim] during the time frame indicated’’ to require it to
be unanimous as to whether an instance of sexual inter-
course occurred but not to require it to be unanimous
as to which instance of sexual intercourse occurred.
This is especially so in light of the specific nature of
the testimony and defense counsel’s extensive cross-
examination and closing argument directed at unique
credibility concerns related to each incident, as well as
the prosecutor’s closing argument that any of the
alleged incidents would establish the element of sexual
intercourse.21 As a result, the state’s concession of harm
if we find any error is prudent. The duplicitous nature
of count one created the potential for the jury to be
confused or to disagree about which of the various acts
of sexual intercourse the defendant committed, thereby
prejudicing him. Accordingly, we reverse the defen-
dant’s conviction of sexual assault in the first degree
and remand the case for a new trial as to that count.
C
We next apply the Douglas C. test to count three,
which charged the defendant with conspiracy to com-
mit risk of injury to a child in violation of §§ 53-21 (a)
(2) and 53a-48 (a). The defendant argues that he was
charged only with a single violation of § 53a-48 (a) but
that there was testimony showing that he and T had
agreed to commit two separate conspiracies: (1) when
the defendant and T exchanged a ‘‘look’’ before the first
incident; and (2) when the defendant touched the victim
in the living room while T watched. See footnote 4 of
this opinion. We disagree.
Count three of the information alleged ‘‘[t]hat the
said [defendant] did commit the crime of conspiracy
to commit risk of injury to a child in violation of [§§]
53a-48 (a) and 53-21 (a) (2) in that on or about diverse
dates between August 23, 2006, and December 25, 2010,
at or near [the new residence of the victim’s father],
the said [defendant], with intent that conduct constitut-
ing the crime of risk of injury to a child be performed,
did agree with one or more persons, namely, [T], to
engage in and cause the performance of such conduct,
and any one of them committed an overt act in pursu-
ance of such conspiracy.’’ (Internal quotation marks omit-
ted.) State v. Joseph V., supra, 196 Conn. App. 722 n.12.
At trial, to show that the defendant and T had agreed
to enter into a conspiracy, the state presented testimony
that, immediately prior to the first specific incident of
abuse, the defendant and T shared a ‘‘look.’’ Addition-
ally, there was testimony that, during the third specific
incident of abuse, the defendant sexually abused the
victim while T was in the room and watched the abuse
occur. See footnote 4 of this opinion.
In closing argument as to this count, the prosecutor
discussed the first specific incident of abuse. As evi-
dence of an agreement, he pointed to T’s testimony
that T and the defendant, who were best friends, first
cousins, and in a sexual relationship, shared a look
before the defendant began touching the victim. The
prosecutor also argued that ‘‘[t]here’s other incidents
where [T] and [the] defendant would do this to [the
victim]. [The victim] can’t remember all of them and
the details because it happened too many times.’’ He
then referred to the incident in which T watched the
defendant sexually assault the victim: ‘‘I submit to you
there’s an agreement if there’s—if one person’s sexually
assaulting a child and the other person, the defendant, is
awaiting his turn, or vice-versa, the defendant’s sexually
assaulting a child and the other person is awaiting their
turn, that’s evidence of an agreement. . . . [T]he ongo-
ing course of conduct and sexual assaults done together
[show] they entered into a conspiracy to sexually
assault [the victim], not on an infrequent basis; they
kept sexually assaulting him; that’s all those times of
the conspiracy.’’
A person is guilty of conspiracy under § 53a-48 ‘‘when,
with intent that conduct constituting a crime be per-
formed, he agrees with one or more persons to engage
in or cause the performance of such conduct, and any
one of them commits an overt act in pursuance of such
conspiracy.’’ General Statutes § 53a-48 (a); see State v.
Pond, 315 Conn. 451, 467, 108 A.3d 1083 (2015). The
defendant argues that a single count of conspiracy may
be premised on only an agreement to commit a single
conspiracy but that there was evidence of two separate
agreements to commit two separate conspiracies to
commit risk of injury to a child. To determine whether
count three was premised on multiple, separate acts
requires that we review our case law interpreting § 53a-
48 (a). This court continuously has interpreted the plain
language of § 53a-48 (a) as criminalizing an agreement
to commit a single conspiracy: ‘‘Whether the object of
a single agreement is to commit one or many crimes,
it is in either case that agreement which constitutes
the conspiracy which the statute punishes. The one
agreement cannot be taken to be several agreements
and hence several conspiracies because it envisages
the violation of several statutes rather than one. . . .
The single agreement is the prohibited conspiracy, and
however diverse its objects it violates but a single stat-
ute . . . .’’ (Internal quotation marks omitted.) State v.
Ortiz, 252 Conn. 533, 559, 747 A.2d 487 (2000). As a
result, for double jeopardy purposes, ‘‘[a] single agree-
ment to commit several crimes constitutes one conspir-
acy. . . . [M]ultiple agreements to commit separate
crimes constitute multiple conspiracies. . . . We con-
sider several factors in determining whether multiple
prosecutions are permitted for [multiple] conspiracies,
including . . . the participants, the time period, simi-
larity of the crimes, and the existence of common acts,
objectives and a common location.’’ (Citations omitted;
internal quotation marks omitted.) State v. Guerrera,
167 Conn. App. 74, 110, 142 A.3d 447 (2016), aff’d, 331
Conn. 628, 206 A.3d 160 (2019).
As a result, a single count of conspiracy may be prem-
ised on an agreement to commit only a single conspir-
acy. Only if the evidence offered at trial shows the
existence of two separate conspiracies is a single count
of conspiracy duplicitous. See United States v. Lapier,
796 F.3d 1090, 1096 (9th Cir. 2015) (‘‘[J]urors must still
unanimously agree that the defendant is guilty of partici-
pating in a particular conspiracy . . . . [T]he evidence
at trial tended to show at least two separate conspirac-
ies—one between [the defendant] and his first [drug]
supplier . . . and a later one between [the defendant]
and his second [drug] supplier . . . but not a single
overarching conspiracy.’’ (Citations omitted.)).
In support of his argument of two separate conspirac-
ies, the defendant contends that the testimony regard-
ing the ‘‘look’’ that he and T shared was evidence of
an agreement to commit the first, and only the first,
incident of abuse. He further argues that the testimony
regarding T’s presence during the third specific incident
showed an agreement to commit that, and only that,
particular incident of abuse. It is well established, how-
ever, that a conspiracy may be alleged as a continuing
offense. See, e.g., State v. Hayes, 127 Conn. 543, 605–
606, 18 A.2d 895 (1941); see also id., 606 (‘‘ ‘[b]ut when
the plot contemplates bringing to pass a continuous
result which will not continue without continuous coop-
eration of the conspirators to keep it up, and there is
such continuous cooperation, it is a perversion of natu-
ral thought and of natural language to call such continu-
ous cooperation a cinematographic series of distinct
conspiracies, rather than to call it a single one’ ’’). This
is consistent with precedent from other states holding
that a conspiracy may be alleged as a continuous course
of conduct crime, and thus a single count of conspiracy
premised on a continuous course of conduct is not
duplicitous. See, e.g., Commonwealth v. Albert, 51 Mass.
App. 377, 385, 745 N.E.2d 990 (‘‘[n]o unanimity instruc-
tion was required because a conspiracy refers to a con-
tinuing course of conduct, rather than a succession of
clearly detached incidents’’), appeal denied, 434 Mass.
1104, 752 N.E.2d 240 (2001); see also People v. Davis,
488 P.3d 186, 192 (Colo. App. 2017) (‘‘A single crime of
conspiracy can be defined this broadly. . . . No una-
nimity instruction was required because a conspiracy
refers to a continuing course of conduct, rather than
a succession of clearly detached incidents.’’ (Citation
omitted; internal quotation marks omitted.)), cert.
denied, Colorado Supreme Court, Docket No. 17SC386
(April 9, 2018).
The defendant’s claim then comes down to whether
count three was premised on an agreement between the
defendant and T to commit two separate conspiracies
or a single, ongoing conspiracy. The information and
the prosecutor’s closing argument clearly show that
count three was premised on a single, ongoing conspir-
acy, not on two separate conspiracies. Evidence that
the defendant and T shared a ‘‘look’’ and later, during a
separate incident, that T was present for the defendant’s
abuse of the victim merely constituted separate proof
of their ongoing agreement to commit the crime of
risk of injury against the victim through contact with
intimate parts. As charged, argued and proven, this was
not evidence of two separate conspiracies.
Our conclusion that count three was premised on a
single, ongoing conspiracy is supported by the fact that
these two incidents involved the same participants and
similar conduct (contact with intimate parts), occurred
in various areas of a single location (the residence of
the victim’s father), and had the same objective (contact
with intimate parts between the defendant and the vic-
tim). Accordingly, we conclude that count three was
not premised on multiple, separate acts and, thus, was
not duplicitous.
II
Alternatively, the defendant claims that, if the second
and third counts alleging risk of injury and conspiracy
did not violate his right to jury unanimity as to instances
of conduct, these counts nonetheless violate his right to
jury unanimity as to elements because, as the Appellate
Court held, each count was premised on multiple viola-
tions of the alternative types of conduct prohibited by
§ 53-21 (a) (2). Specifically, the defendant argues that
the statutory requirement that the state prove that either
he had contact with the victim’s intimate parts or sub-
jected the victim to contact with his intimate parts are
historically separate offenses constituting separate ele-
ments, and thus are facially duplicitous. Because the
trial court denied his request for a bill of particulars or
a specific unanimity instruction, the defendant argues,
this duplicity violated his right to a unanimous jury
verdict. He argues that the Appellate Court properly
held that counts two and three created a risk of a non-
unanimous verdict but committed error by applying the
wrong test, and thus improperly held that his constitu-
tional right to jury unanimity was not violated. We agree
with the defendant that this court and the Appellate
Court have been applying the wrong test to claims of
unanimity as to elements, but we disagree that, under
the proper test, the statutory language at issue created
two separate elements, thereby violating the defen-
dant’s right to jury unanimity.
Initially, we must determine what test to apply to
claims of unanimity as to elements. As discussed in
part I of this opinion, these claims require a court to
determine whether the statutory language at issue cre-
ates alternative means of committing a single element
or, instead, creates separate elements, thereby consti-
tuting separate crimes that must be charged in separate
counts. Understandably, as to the defendant’s claim of
unanimity as to elements, the Appellate Court applied
the test this court announced in State v. Famiglietti,
219 Conn. 605, 619–20, 595 A.2d 306 (1991), and held
that, under this test, because counts two and three were
premised on the violation of multiple statutory clauses,
counts two and three were duplicitous but that, because
the trial court did not specifically sanction a nonunani-
mous verdict, this error was harmless. See State v.
Joseph V., supra, 196 Conn. App. 745–48.
In Famiglietti, this court applied a multifactor test
to determine whether alternative statutes, statutory
subsections, or statutory clauses constituted separate
elements or alternative means: ‘‘We first review the
instruction that was given to determine whether the
trial court has sanctioned a nonunanimous 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 nonunanimous verdict, how-
ever, we 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 evidence to support each alternative
act with which the defendant has been charged.’’ (Inter-
nal quotation marks omitted.) State v. Reddick, 224
Conn. 445, 453, 619 A.2d 453 (1993), quoting State v.
Famiglietti, supra, 219 Conn. 619–20. This test, at times
referred to as the Famiglietti test, is consistent with
the test the United States Court of Appeals for the Fifth
Circuit applied in United States v. Gipson, 553 F.2d 453(5th Cir. 1977), which this court consistently has applied
in unanimity cases both prior to and after deciding
Famiglietti. See, e.g., State v. Tucker, 226 Conn. 618,
644–48, 629 A.2d 1067 (1993); State v. Anderson, supra,211 Conn. 34–35.
Approximately one month before this court issued
its decision in Famiglietti, however, the United States
Supreme Court rejected the Gipson test for determining
whether alternative statutes, statutory subsections, or
statutory clauses constitute alternative elements, requir-
ing jury unanimity, or alternative means of committing
a single element, not requiring jury unanimity. Specifi-
cally, in Schad, the defendant claimed that Arizona’s
first degree murder statute violated his sixth amend-
ment right to unanimity because it did not require the
jury to be unanimous as to one of the statute’s two
alternative theories of committing first degree murder
—premeditated murder or felony murder. Schad v. Ari-
zona, supra, 501 U.S. 630 (opinion announcing judg-
ment). The court reframed the defendant’s claim as a
due process challenge ‘‘to Arizona’s characterization of
[first degree] murder as a single crime as to which a
verdict need not be limited to any one statutory alterna-
tive, as against which he argue[d] that premeditated
murder and felony murder are separate crimes as to
which the jury must return separate verdicts.’’ Id.,630–31 (opinion announcing judgment); see State v.
Douglas C., supra, 345 Conn. 437 n.10. In other words,
the court was tasked with deciding whether the two
mental states—‘‘the one being premeditation, the other
the intent required for murder combined with the com-
mission of an independently culpable felony’’—consti-
tuted either alternative means of satisfying the mens
rea element, or separate elements, requiring separate
verdicts or a specific unanimity instruction. Schad v.
Arizona, supra, 632 (opinion announcing judgment);
see State v. Douglas C., supra, 437 n.10.
The court in Schad acknowledged that it is difficult
to discern when alternative mentes reae or actus rei
constitute alternative means of committing the element
at issue, and when the ‘‘differences between means
become so important that they may not reasonably be
viewed as alternatives to a common end, but must be
treated as differentiating what the [c]onstitution
requires to be treated as separate offenses.’’ Schad v.
Arizona, supra, 501 U.S. 633 (opinion announcing judg-
ment). The court noted that the Fifth Circuit in Gipson
had ‘‘attempted to define what constitutes an immate-
rial difference as to mere means and what constitutes
a material difference requiring separate theories of
crime to be treated as separate offenses subject to sepa-
rate jury findings . . . .’’ Id., 633–34 (opinion announc-
ing judgment).
In Gipson, the defendant was charged with and con-
victed of a single count of violating 18 U.S.C. § 2313(1976), which prohibited knowingly ‘‘receiv[ing], con-
ceal[ing], stor[ing], barter[ing], sell[ing] or dispos[ing]
of’’ any stolen motor vehicle or aircraft moving in inter-
state commerce. (Internal quotation marks omitted.)
United States v. Gipson, supra, 553 F.2d 455 n.1. The
District Court instructed the jury that it did not have
to agree on which of the enumerated acts the defendant
had committed. Id., 455–56. Applying the two-pronged
test discussed previously, the Fifth Circuit reversed the
District Court’s judgment, reasoning that the defen-
dant’s right to jury unanimity was violated by the join-
der, in a single count, of ‘‘two distinct conceptual
groupings,’’ receiving, concealing, and storing forming
the first grouping (referred to by the court as ‘‘hous-
ing’’), and bartering, selling, and disposing (‘‘market-
ing’’) constituting the second grouping. Id., 458–59.
Specifically, the court in Gipson held that the alterna-
tive acts of selling and receiving a stolen vehicle were
conceptually distinct such that they constituted alterna-
tive elements, not alternative means of committing a
single element. See id., 458.
In reviewing Gipson, the court in Schad stated that
it was ‘‘not persuaded that the Gipson approach really
answers the question, however. Although the classifica-
tion of alternatives into ‘distinct conceptual groupings’
is a way to express a judgment about the limits of
permissible alternatives, the notion is too indeterminate
to provide concrete guidance to courts faced with ver-
dict specificity questions. . . . This is so because con-
ceptual groupings may be identified at various levels
of generality, and we have no a priori standard to deter-
mine what level of generality is appropriate.’’ (Citations
omitted.) Schad v. Arizona, supra, 501 U.S. 635 (opinion
announcing judgment).
Rather than follow Gipson, the court in Schad held
that, to determine whether the legislature intended
either to enumerate alternative means of satisfying a
single element or to define separate elements, ‘‘our
sense of appropriate specificity is a distillate of the
concept of due process with its demands for fundamen-
tal fairness . . . and for the rationality that is an essen-
tial component of that fairness. In translating these
demands for fairness and rationality into concrete judg-
ments about the adequacy of legislative determinations,
we look both to history and wide practice as guides to
fundamental values, as well as to narrower analytical
methods of testing the moral and practical equivalence
of the different mental states that may satisfy the mens
rea element of a single offense. The [i]nquiry is under-
taken with a threshold presumption of legislative com-
petence to determinethe appropriate relationship between
means and ends in defining the elements of a crime.’’
(Citation omitted.) Id., 637–38 (opinion announcing
judgment).
Federal courts of appeals have explained that, ‘‘[e]ven
though this rule [under Schad] speaks in terms of a mens
rea analysis, it rejects the Gipson model for analyzing
unanimity problems. Thus the Schad rule should apply
equally to analysis of multiple [actus reus] elements as
well as analysis of multiple mens rea elements.’’ United
States v. Sanderson, 966 F.2d 184, 188 (6th Cir. 1992).
As a result, in analyzing both multiple actus reus ele-
ments and multiple mens rea elements, federal courts
of appeals have taken their cues from Schad and consid-
ered the statutory language, relevant legal traditions
and practices, the overall structure of the statute at
issue, its legislative history, moral and practical equiva-
lence between the alternative actus rei or mentes reae,
and any other implications for unfairness associated
with the absence of a specific unanimity instruction.
See, e.g., United States v. Lee, supra, 317 F.3d 37; United
States v. Sanderson, supra, 188.
This court never has addressed the effect of the
Supreme Court’s analytical framework in Schad on our
adoption of the Gipson test as applied in Famiglietti.22
Federal appellate courts, however, including the Fifth
Circuit, specifically have held that Schad overruled and
replaced the Gipson test. See, e.g., Maxwell v. Thaler,
350 Fed. Appx. 854, 857 (5th Cir. 2009) (applying Schad,
not Gipson), cert. denied, 559 U.S. 978, 130 S. Ct. 1698,
176 L. Ed. 2d 191 (2010); Reed v. Quarterman, 504 F.3d
465, 481–82 (5th Cir. 2007) (referring to Gipson test as
‘‘former test’’ and applying Schad test); United States
v. Verbitskaya, 406 F.3d 1324, 1334 (11th Cir. 2005) (Schad
rejected Gipson analysis), cert. denied, 546 U.S. 1096,
126 S. Ct. 1095, 163 L. Ed. 2d 864 (2006); see also United
States v. Sanderson, supra, 966 F.2d 188 (‘‘we interpret
Schad to hold that there must be a commonsense deter-
mination of a subject statute’s application and purpose
in light of traditional notions of due process and funda-
mental fairness’’).
Since Schad, a majority of federal courts of appeals,
including the United States Court of Appeals for the
Second Circuit, have applied the Schad test to deter-
mine whether multiple statutes, statutory provisions,
or statutory clauses constitute separate elements or
alternative means of committing a single element. See,
e.g., United States v. Gonzalez, 905 F.3d 165, 185 (3d
Cir. 2018), cert. denied, U.S. , 139 S. Ct. 2727,
204 L. Ed. 2d 1120 (2019); United States v. Mickey,
897 F.3d 1173, 1181 (9th Cir. 2018); United States v.
McIntosh, 753 F.3d 388, 392–93 (2d Cir. 2014); United
States v. Allen, 603 F.3d 1202, 1213 (10th Cir.), cert.
denied, 562 U.S. 1076, 131 S. Ct. 680, 178 L. Ed. 2d 505(2010); United States v. Hurt, 527 F.3d 1347, 1355 (D.C.
Cir. 2008); Reed v. Quarterman, supra, 504 F.3d 481;
United States v. Verbitskaya, supra, 406 F.3d 1334;
United States v. Lee, supra, 317 F.3d 37; United States
v. Sanderson, supra, 966 F.2d 188. In light of the court’s
holding in Schad and its progeny, we agree with the
defendant that the Gipson test, as adopted in Famig-
lietti, has been replaced by the Schad test,23 and thus
we apply the latter in the present case to analyze the
defendant’s claim.
We begin with the text of § 53-21 (a): ‘‘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, except that, if the violation is of
subdivision (2) of this subsection and the victim of the
offense is under thirteen years of age, such person shall
be sentenced to a term of imprisonment of which five
years of the sentence imposed may not be suspended
or reduced by the court.’’24 It is not clear from the plain
language of § 53-21 (a) (2) whether the phrase, ‘‘has
contact with the intimate parts . . . 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,’’ creates two separate elements or alternative
means of having contact with intimate parts. Our case
law regarding § 53-21 (a) (2),25 however, suggests that
this statutory language creates alternative means, not
elements. Specifically, under Gipson, we previously
have held that these two statutory requirements are
not conceptually distinct; rather, the only distinction
between the two forms of contact is whether the defen-
dant subjects the victim ‘‘to either active or passive
participation in sexual activity . . . .’’ State v. Spigar-
olo, 210 Conn. 359, 391–92, 556 A.2d 112, cert. denied,
493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989).
Although we hold today that the Gipson test is no longer
applicable to claims of unanimity as to elements, our
analysis in Spigarolo is relevant to our analysis under
the Schad test to the extent it shows our legal traditions
and practices regarding our interpretation of this statu-
tory language. See United States v. Lee, supra, 317 F.3d
37. Additionally, to the extent the statutory language is
ambiguous, the legislative history shows that subsec-
tion (a) (2) was created to distinguish sexual contact
from the nonsexual conduct prohibited under subsec-
tion (a) (1). Thus, the purpose of subsection (a) (2) is
to criminalize sexual contact with a child that would
likely impair the health or morals of that child. The
statutory language merely establishes two alternative
ways of having sexual contact with a child. This con-
struction is supported by the fact that this court is
unaware of any moral or practical distinction between
subjecting a child to passive participation in sexual
activity (the defendant’s having contact with the child’s
intimate parts) and active participation in sexual activ-
ity (the defendant’s forcing the child to have contact
with the defendant’s intimate parts). Accordingly, we
conclude that the language of § 53-21 (a) (2) creates
two alternative ways of satisfying the element of contact
with intimate parts, and thus counts two and three were
not duplicitous.
The judgment of the Appellate Court is reversed inso-
far as that court affirmed the defendant’s conviction of
sexual assault in the first degree and the case is remanded
to that court with direction to reverse the defendant’s
conviction of that offense and to remand the case to the
trial court for a new trial with respect to that offense
only; the judgment of the Appellate Court is affirmed
insofar as that court affirmed the defendant’s conviction
of risk of injury to a child and conspiracy to commit risk
of injury to a child.
In this opinion McDONALD and ECKER, Js., con-
curred.
* In accordance with our policy of protecting the privacy interests of
victims of the crime of risk of injury to a child, we decline to use the
defendant’s full name or to identify the victim or others through whom the
victim’s identity may be ascertained. See General Statutes § 54-86e.
Moreover, in accordance with federal law; see 18 U.S.C. § 2265 (d) (3)
(2018), as amended by the Violence Against Women Act Reauthorization
Act of 2022, Pub. L. No. 117-103, § 106, 136 Stat. 49, 851; we decline to
identify any person protected or sought to be protected under a protection
order, protective order, or a restraining order that was issued or applied
for, or others through whom that person’s identity may be ascertained.
** December 13, 2022, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
Although § 53a-70 has been amended since the events at issue in this
appeal; see Public Acts 2015, No. 15-211, § 16; that amendment has no bearing
on the merits of this appeal. In the interest of simplicity, we refer to the
current revision of § 53a-70.
2
Although § 53-21 has been amended several times since the events at
issue in this appeal; see, e.g., Public Acts 2015, No. 15-205, § 11; Public Acts
2013, No. 13-297, § 1; and Public Acts 2007, No. 07-143, § 4; those amendments
have no bearing on the merits of this appeal. In the interest of simplicity,
we refer to the current revision of § 53-21.
3
T also was arrested, but, prior to his criminal trial, he entered into a
written plea deal with the state in which he agreed to cooperate fully and
truthfully with respect to the investigation and the charges brought against
the defendant. State v. Joseph V., supra, 196 Conn. App. 716 n.2. In exchange
for T’s testimony and cooperation, the state agreed to limit the charges
against him to risk of injury to a child in violation of § 53-21 (a) (1) and
sexual assault in the fourth degree in violation of General Statutes § 53a-
73a (a) (1) (A), and to recommend a total effective sentence of five years
of incarceration, execution suspended after eighteen months, followed by
five years of probation, including sex offender registration. Id.
4
Both the victim and T testified as to the first incident of abuse, although
their testimony conflicted regarding who initiated the abuse. State v. Joseph
V., supra, 196 Conn. App. 717 and n.4. From this testimony, the jury reason-
ably could have found that ‘‘[t]he first time that the defendant sexually
abused the victim occurred in T’s bedroom after the defendant, T, and the
victim had been playing video games. . . . The defendant and T exchanged
a knowing glance just before the defendant put his hand on the victim’s
hand and made the victim stroke his penis. Thereafter, T and the defendant
took turns rubbing their penises between the victim’s legs, near his buttocks.
At one point during this incident, T attempted to anally penetrate the victim
with his penis while the defendant made the victim perform oral sex on
him.’’ (Footnote omitted.) Id.The victim also testified regarding ‘‘[a]nother incident involving the defen-
dant [that] occurred when he and the victim were watching television in
the bedroom of the victim’s father. While the defendant and the victim were
lying in bed, the defendant took the victim’s hand and made the victim
stroke his penis. Then, the defendant made the victim, who was fully clothed,
perform oral sex on him.’’ Id., 718.
As to the third incident, T alone testified that ‘‘[t]he defendant sexually
abused the victim during another incident that occurred in T’s presence,
although T did not participate. This incident occurred at night . . . in the
living room, which was downstairs at the residence of the victim’s father.
The defendant partially undressed himself and partially undressed the victim
before making the victim perform oral sex on him. The defendant also
rubbed his penis between the victim’s legs.’’ (Footnote omitted.) Id.
As to the fourth incident, the victim testified that, ‘‘when [he] was ten years
of age, [he and] the defendant . . . were alone together at the residence
of the victim’s father after other family members had left to purchase food.
The defendant, who was on the couch in the living room with the victim,
partially removed his pants and the victim’s pants and anally penetrated
the victim with his penis. Thereafter, the defendant made the victim perform
oral sex on him.’’ Id.
5
We granted the defendant certification to appeal, limited to the following
issues: (1) ‘‘Did the Appellate Court properly uphold the trial court’s denial
of the defendant’s request for a specific unanimity charge and correctly
conclude that, under 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), a specific unanimity charge
is required only when the defendant has been charged with violating multiple
subsections or multiple ‘statutory elements’ of a statute?’’ And (2) ‘‘[i]f a
specific unanimity charge is required when there is evidence presented at
trial of more than one separate and distinct criminal act that could serve
as the basis for a single count, did the Appellate Court correctly conclude
that the state’s information was not duplicitous where the state presented
evidence of more than one separate and distinct incident that could have
served as the basis of conviction on each of the three counts?’’ State v.
Joseph V., 335 Conn. 945, 945–46, 238 A.3d 17 (2020).
6
For the same reasons stated in the majority opinion in Douglas C., we
reject the argument of the concurring and dissenting justice (hereinafter,
the dissent) that this court should adopt the test used by the United States
Court of Appeals for the Second Circuit for determining if a single count
of an information violates a defendant’s right to jury unanimity as to
instances of conduct. Specifically, we reject the dissent’s argument that,
like the Second Circuit, we should adopt and apply a presumption that our
legislature intends that prosecutors have discretion to charge a defendant
with either a single crime or an ongoing course of conduct crime if the
legislature has not made its intent clear in this regard, as determined by
the statute’s plain language, related statutes, and relevant legislative history.
See State v. Douglas C., supra, 345 Conn. 448–60. As explained at length in
Douglas C., not only do we disagree with the dissent that our case law
supports this presumption, but we also need not reach this issue, as we
determine that the legislature’s intent regarding the various statutes at issue
is clear based on the statutory language, relevant case law, and/or legislative
history. See id., 444 n.12.
7
In Douglas C., we recognized that ‘‘some federal courts have noted that
some state courts have relied on their own common law to hold that a
statute encompasses a continuing course of conduct. See Dyer v. Farris,
787 Fed. Appx. 485, 495 (10th Cir. 2019) (Under Oklahoma law, the general
rule requiring the [s]tate to elect which offense it will prosecute is not in
force when separate acts are treated as one transaction. . . . [W]hen a
child of tender years is under the exclusive domination of one parent for
a definite and certain period of time and submits to sexual acts at that
parent’s demand, the separate acts of abuse become one transaction within
the meaning of this rule. (Citation omitted; internal quotation marks omit-
ted.)), cert. denied, U.S. , 140 S. Ct. 1157, 206 L. Ed. 2d 207 (2020);
id. (citing Gilson v. State, 8 P.3d 883, 899 (Okla. Crim. App. 2000), cert.
denied, 532 U.S. 962, 121 S. Ct. 1496, 149 L. Ed. 2d 381 (2001), which stated
that, generally, under Oklahoma law, rape was not considered continuing
offense, but that, under Oklahoma’s common law, court had recognized
exception for ongoing sexual abuse of minors under certain circumstances).
Because neither party [in Douglas C.] argue[d] that any common-law excep-
tion applie[d], we [did] not decide . . . whether creating or applying com-
mon-law exceptions in interpreting statutes is proper.’’ (Internal quotation
marks omitted.) State v. Douglas C., supra, 345 Conn. 443–44 n.11.
8
Although § 53a-65 (8) has been amended since the defendant’s commis-
sion of the crimes that formed the basis of his conviction; see Public Acts
2006, No. 06-11, § 1; that amendment has no bearing on the merits of this
appeal. In the interest of simplicity, we refer to the current revision of § 53a-
65 (8).
9
Defense counsel requested that the trial court instruct the jury as follows:
‘‘The state has alleged that the defendant . . . has committed the offense
of sexual assault in the first degree. The state alleges in the first count the
act of sexual assault in the first degree by way of fellatio and anal intercourse.
‘‘You may find the defendant guilty of the offense of sexual assault in the
first degree only if you all unanimously agree on the manner in which the
state alleges the defendant committed the offense and that it occurred during
the time and place alleged by the state.
‘‘This means you may not find the defendant guilty on the first count of
sexual assault in the first degree unless you all agree that the state has
proved beyond a reasonable doubt that the [defendant] did engage in sexual
intercourse by fellatio and anal intercourse with [the victim] and [the victim]
was under [thirteen] years of age and [the defendant] was more than [two]
years older than [the victim]. The state alleges these crimes were committed
between August 23, 2006, and December 25, 2010, at or near [the new
residence of the victim’s father]. If the state has not met its burden of proving
sexual assault in the first degree by way of fellatio and anal intercourse at
said time and place, you must return a verdict of not guilty. As I have
instructed you, when you reach a verdict, it must be unanimous on all
elements of the offense.’’
We note that, in the proposed instruction, it is not clear whether defense
counsel was asking the court to instruct the jury that it must be unanimous
that a single, specific act occurred, or that that it must be unanimous that
all alleged acts occurred.
10
The defendant does not claim that count one violated his constitutional
right to jury unanimity as to elements but only as to instances of conduct.
This is because it is clear that count one alleges only a single violation of
a single statute, statutory provision, or statutory clause. Specifically, § 53a-
70 (a) (2) provides only a single actus reus: engaging in sexual intercourse.
See General Statutes § 53a-70 (a) (‘‘[a] person is guilty of sexual assault in
the first degree when such person . . . (2) engages in sexual intercourse
with another person and such other person is under thirteen years of age
and the actor is more than two years older than such person’’).
‘‘Sexual intercourse’’ is defined as ‘‘vaginal intercourse, anal intercourse,
fellatio or cunnilingus between persons regardless of sex. Penetration, how-
ever slight, is sufficient to complete vaginal intercourse, anal intercourse
or fellatio and does not require emission of semen. Penetration may be
committed by an object manipulated by the actor into the genital or anal
opening of the victim’s body.’’ General Statutes § 53a-65 (2).
Count one, therefore, does not allege the violation of multiple statutes,
statutory provisions, or statutory clauses.
11
The concurring and dissenting justice (dissent) argues that, because the
plain language of the statute does not specifically prohibit charging sexual
assault as a continuing course of conduct crime, the proposed presumption
in favor of prosecutorial discretion applies. See footnote 6 of this opinion.
The problem with this analysis, however, is twofold. First, as we stated in
Douglas C., there is no support in our case law for this presumption. State
v. Douglas C., supra, 345 Conn. 453. Second, even if such a presumption
existed, it would not apply in the present case because, as we explain, the
language of the statute is plain and unambiguous. As we explained in Douglas
C., ‘‘[c]ontrary to the [dissent’s] assertion, a full and complete analysis
pursuant to § 1-2z does not end in silence on this issue, thereby requiring
this court to resort to any kind of presumption. What the [dissent] calls
silence is not silence but the absence of explicit language specifically stating
that the statute criminalizes only a continuous course of conduct or only
single acts. Rather than conduct a full analysis pursuant to § 1-2z and come
to a conclusion about the statute’s meaning, as we are obliged to do, the
[dissent’s] rule would hold that, if the statute is ‘facially silent’—in other
words, if explicit language is not used, such as the phrase ‘course of con-
duct’—then a criminal statute is silent regarding whether it criminalizes a
single act, a continuous course of conduct, or both, and a prosecutor can
choose which charging method to apply.’’ Id., 451. However, ‘‘[t]he fact
that the legislature did not explicitly use the phrase ‘continuous course of
conduct’ or ‘each single act’ does not end our analysis. Such talismanic
phrases are not required. Rather, we must look to the definitions of the
terms used.’’ Id., 465.
12
As the dissent observes, the language of § 53a-70 (a) (2) does not signifi-
cantly differ from the language § 53-21 (a) (2), the risk of injury statute.
One might be tempted to contend, although the state does not, that the two
statutes should be interpreted similarly—either as both permitting the state
to charge a continuing course of conduct, in addition to a singular act, or
as neither permitting a continuing course of conduct. We note, however,
that it is not only the statutory language that distinguishes § 53-21 (a) (2)
from § 53a-70 (a) (2). As discussed at length in Douglas C., our interpretation
of the language in § 53-21 (a) (2) is premised in no small part on our prior
interpretation of this statute and its legislative history—specifically, that
prior to an amendment to § 53-21 in 1995, this court interpreted the language
of the statute, which criminalized both acts and ‘‘situations,’’ as criminalizing
both single acts and continuing courses of conduct. See State v. Douglas
C., supra, 345 Conn. 468–69. The legislative history demonstrates that, when
it amended § 53-21, the legislature did not intend to create a new crime or
to alter the substance of the preexisting crime but, rather, intended merely
to distinguish between crimes involving sexual contact and nonsexual con-
tact. In contrast to § 53-21, § 53a-70 (a) (2) has no such legislative history;
rather, this court consistently has interpreted the language at issue as crimi-
nalizing only single acts and not a continuing course of conduct. In fact, a
stronger argument could be made under the plain language of both statutes
that neither the risk of injury statute nor the sexual assault statute contem-
plates a continuing course of conduct. As in Douglas C., the defendant in
the present case does not make this argument either, although in Douglas
C., we already have rejected it.
13
For example, as we explained in Douglas C., ‘‘under our second degree
stalking statute, [General Statutes] § 53a-181d, the legislature specifically
proscribed certain continuous courses of conduct; see General Statutes
§ 53a-181d (b) (1), as amended by Public Acts 2021, No. 21-56, § 2 (‘knowingly
engages in a course of conduct directed at or concerning a specific person
that would cause a reasonable person to (A) fear for such specific person’s
physical safety or the physical safety of a third person; (B) suffer emotional
distress; or (C) fear injury to or the death of an animal owned by or in
possession and control of such specific person’ . . .); as well as certain
kinds of single acts. See General Statutes § 53a-181d (b) (3) (‘[s]uch person,
for no legitimate purpose and with intent to harass, terrorize or alarm, by
means of electronic communication, including, but not limited to, electronic
or social media, discloses a specific person’s personally identifiable informa-
tion without consent of the person’). Similarly, under subsection (a) (1) of
our risk of injury statute, the legislature specifically criminalized both a
single act and a continuous course of conduct through the use of the terms
‘act’ and ‘situation,’ respectively. See General Statutes § 53-21 (a) (1) (‘wil-
fully or unlawfully causes or permits any child under the age of sixteen
years to be placed in such a situation that the life or limb of such child is
endangered, the health of such child is likely to be injured or the morals
of such child are likely to be impaired, or does any act likely to impair the
health or morals of any such child’ . . .). Thus . . . these statutes show
that, when the legislature intends to explicitly criminalize both an act and
a continuous course of conduct, it knows how to do so. That does not mean
that such explicit statutory language is required to interpret a statute as
criminalizing both an act and a continuous course of conduct. . . . [W]e
by no means are adopting a presumption against such charging when the
plain language of a statute is not explicit in this regard. Rather, courts must
closely analyze the language of the statute, case law interpreting the statute,
the statutory scheme and, if needed, the legislative history to determine if
a statute criminalizes both an act and a continuous course of conduct.’’
(Emphasis in original.) State v. Douglas C., supra, 345 Conn. 458–60.
14
See, e.g., General Statutes § 53-21 (a) (‘‘[a]ny person who (1) wilfully
or unlawfully causes or permits any child under the age of sixteen years to
be placed in such a situation that the life or limb of such child is endangered,
the health of such child is likely to be injured or the morals of such child
are likely to be impaired, or does any act likely to impair the health or
morals of any such child’’); General Statutes § 53-142k (b) (1) (larceny by
shoplifting of retail property, the value of which exceeds $2000, during 180
day period constitutes organized retail theft); General Statutes § 53a-119 (3)
(‘‘[a] person obtains property by false promise . . . pursuant to a scheme to
defraud’’); General Statutes § 53a-196e (a) (‘‘[a] person is guilty of possessing
child pornography in the second degree when such person knowingly pos-
sesses (1) twenty or more but fewer than fifty visual depictions of child
pornography, or (2) a series of images in electronic, digital or other format,
which is intended to be displayed continuously, consisting of twenty or
more frames, or a film or videotape, consisting of twenty or more frames,
that depicts a single act of sexually explicit conduct by one child’’); General
Statutes § 53a-215 (a) (‘‘[a] person is guilty of insurance fraud when the
person, with the intent to injure, defraud or deceive any insurance company
. . . (2) assists, abets, solicits, or conspires with another to prepare or
make any written or oral statement that is intended to be presented to any
insurance company’’).
15
The dissent’s contrary take on Snook is mistaken. Although the state
in Snook charged the defendant with sexual assault in the second degree
as a continuing course of conduct crime, the defendant never challenged
this method of charging as improper. Instead, he raised a double jeopardy
claim, challenging his conviction of both sexual assault in the second degree
and sexual assault in the third degree. See State v. Snook, supra, 210
Conn. 260.
16
Nevertheless, the dissent contends that this state has a history of prose-
cutors charging sexual assault as a continuing course of conduct offense
for almost one century and that this court has ‘‘approved prosecutors’ deci-
sions to charge repeated sexual assaults as a single course of conduct.’’ As
we explained in Douglas C., however, ‘‘the fact that we have cases that
merely state that a prosecutor charged a defendant under a single count
based on a continuous course of conduct but the nature of the charging
was not challenged on appeal does not support the [dissent’s] proposed
presumption. . . . That is not the same as this court holding that such an
interpretation is proper or that a presumption of prosecutorial discretion
exists. Most important, for purposes of determining legislative intent, of
course, the past practice of prosecutors is not a relevant factor under § 1-
2z in ascertaining whether a statute criminalizes a continuing course of
conduct.’’ (Citations omitted.) State v. Douglas C., supra, 345 Conn. 454–55.
Moreover, although ‘‘[i]t is true that a handful of Appellate Court cases have
held that there is no unanimity violation when a defendant has been charged
in a single count with violating the same statute based on multiple acts,
especially in the context of ongoing sexual assault of children. . . . These
cases do not support adopting the [dissent’s] proposed presumption, as they
do not apply a presumption. Rather, these cases were decided under the
test set forth in [United States v. Gipson, 553 F.2d 453 (5th Cir. 1977)] and
before this court recognized claims of unanimity as to instances of conduct.
As we explained, the Gipson test did not require that a court analyze whether
the statute at issue criminalizes a continuous course of conduct and is not
the proper test for determining claims of unanimity regarding instances of
conduct.’’ (Citations omitted.) State v. Douglas C., supra, 457–58.
17
In response to the defendant’s assertion in the present case that a
different test should apply to claims of unanimity regarding multiple inci-
dents of conduct, the state has not argued that there should be a continuing
course of conduct exception that includes and relies on the dissent’s pro-
posed presumption. In fact, as recently as this court’s decision in State v.
Cody M., 337 Conn. 92, 259 A.3d 576 (2020), in arguing that each incident
of violation of a standing criminal protective order constituted a separate
offense and thus could not be charged in one count under a continuous
course of conduct theory, the state specifically asserted that ‘‘a violation
of a protective order is more analogous to sexual assault, which is a separate
act crime, than kidnapping, which is a continuous act crime.’’ Id., 101. We
make this observation not because we question whether the argument has
been preserved in these cases. Rather, we find it illuminating that the consti-
tutional officer whose discretion the dissent suggests the law presumes and
the legislature necessarily acknowledges, has not made the argument the
dissent makes.
18
Even if we were to go on to examine the applicable legislative history,
we disagree with the dissent that it shows that the legislature intended to
criminalize a continuing course of conduct. Specifically, the dissent argues
that the legislative history shows that ‘‘the intent was to allow the prosecu-
tion not only of individual sexual assaults but also of ongoing sexual relation-
ships between adults and minors, which at least implies a continuing course
of conduct.’’ (Emphasis omitted.) Text accompanying footnote 13 of the
concurring and dissenting opinion. The use of the terms ‘‘relationship’’ and
‘‘relations’’ by one legislator in the legislative history does not show that
the legislature intended to criminalize a continuing course of conduct. First,
nowhere in the legislative history is the issue of criminalizing a single act
or an ongoing course of conduct explicitly mentioned. Second, in context,
it is just as reasonable to construe that legislator’s use of the terms ‘‘relation-
ship’’ and ‘‘relations’’ as euphemisms for sexual intercourse, as it is to
construe them as referring to criminalizing a continuing course of conduct.
Thus, at most, this legislative history creates ambiguity and is of little use.
19
Specifically, count one alleged in relevant part: ‘‘[T]he . . . [defendant]
did commit the crime of sexual assault in the first degree in violation of [§]
53a-70 (a) (2) in that on or about diverse dates between August 23, 2006,
and December 25, 2010 . . . [he] did engage in sexual intercourse (fellatio
and anal intercourse) with . . . [the victim] . . . .’’ (Internal quotation
marks omitted.) State v. Joseph V., supra, 196 Conn. App. 722 n.12.
20
We are sympathetic ‘‘to the plight of both the young victims, often unable
to state except in the most general terms when the acts were committed,
and of prosecutors, either hampered by the lack of specific information or,
when it is reported that the conduct occurred dozens or hundreds of times
over a significant period, faced with the practical problem of how to deal
with such a multitude of offenses.’’ Cooksey v. State, supra, 359 Md. 18.
Sympathies aside, however, we have only the words of our sexual assault
statute to interpret and apply to the federal case law.
We note the observation of Saraceno and its progeny that a defendant is
not prejudiced when a single count of sexual assault is premised on only
general testimony that the defendant continuously sexually assaulted the
minor victim over a period of time if this general testimony did not allow
the jury to be divided as to which instance of conduct occurred but, rather,
required the jury to credit all or none of the victim’s testimony. This is
consistent with how other state courts have treated general testimony regard-
ing multiple instances of sexual assault of a child when applying federal
law. See State v. Voyles, 284 Kan. 239, 253–55, 160 P.3d 794 (2007) (consider-
ing general nature of victims’ testimony and general nature of defendant’s
defense challenging victims’ credibility in determining harm of duplicitous
indictment in multiple acts case); State v. Ashkins, 357 Or. 642, 654, 357
P.3d 490 (2015) (in addressing harm, explaining that, ‘‘in the context of
nonspecific and undifferentiated evidence of multiple occurrences of a single
charged offense, a jury concurrence instruction may have been unnecessary
because there would have been no basis for the jurors to choose any particu-
lar occurrence as the one proven’’); State v. Fitzgerald, Docket No. 38347-
7-I, 1997 WL 327421, *2 (Wn. App. June 16, 1997) (decision without published
opinion, 86 Wn. App. 1059) (in multiple acts case in which defendant entered
only general denial and proof of crime was solely dependent on victim’s
credibility versus that of defendant, court’s failure to give jury unanimity
instruction may be harmless when rational trier of fact would have no
reasonable doubt about other indistinguishable incidents).
The state may argue that, if these kind of general testimony cases do not
prejudice a defendant, it might be that there exists a common-law exception
to the right to jury unanimity for a continuing course of conduct of sexual
assault of children when there is only general testimony. Because the state
has not raised this issue, however, and because the present case does not
involve only general testimony, we do not address it. We do note, however,
that federal courts have held that a defendant is not prejudiced, even if a
single count of an information is premised on multiple, separate incidents
of conduct if the jury is charged with having to agree that all alleged acts
occurred. See State v. Douglas C., supra, 345 Conn. 446 n.14. Some state
courts have followed suit in sexual assault cases involving children. See
People v. Jones, 51 Cal. 3d 294, 322, 792 P.2d 643, 270 Cal. Rptr. 611 (1990)
(modified August 15, 1990); Baker v. State, 948 N.E.2d 1169, 1177 (Ind. 2011).
We also note that several state legislatures have amended their sexual
assault statutes to criminalize a continuing course of sexual assault against
children. See Cooksey v. State, supra, 359 Md. 27. Our legislature might wish
to consider similar legislation. Cf. Cal. Penal Code § 288.5 (Deering 2008)
(prohibiting continuous sexual abuse of children); N.Y. Penal Law § 130.75(McKinney 2020) (‘‘[1] [a] person is guilty of a course of sexual conduct
against a child . . . when, over a period of time not less than three months
in duration: (a) he or she engages in two or more acts of sexual conduct,
which includes at least one act of sexual intercourse, oral sexual conduct,
anal sexual conduct or aggravated sexual contact, with a child less than
eleven years old’’). This is a more prudent course of action than adopting
the dissent’s proposed presumption, which would apply not only to sexual
assault cases involving children but to all criminal statutes.
Finally, we recognize that sexual assault prosecutions are most often
played out in state courts, not federal courts, and, thus, in defining the test
applicable to claims of unanimity as to instances of conduct, federal courts
perhaps did not consider the unique problems associated with charges of
ongoing sexual assault of children. We do not believe, however, that we are
at liberty to adopt a different constitutional test for different statutes or
different kinds of crimes. Rather, we apply a single test and leave it to the
legislature to craft or amend statutes as it sees fit in light of this test.
21
Even if we were to agree with the dissent that § 53a-70 (a) (2) is ambigu-
ous and that this court should adopt and apply the dissent’s proposed
presumption; see footnote 6 of this opinion; the application of this presump-
tion to the facts and circumstances of this case still would establish a
violation of the defendant’s right to jury unanimity as to instances of conduct.
The dissent argues that it is not impossible to know whether the jury unani-
mously agreed that the defendant committed any one particular assault
because, although there was a mixture of both general testimony and specific
testimony, ‘‘the defense as to each of those incidents—as well as to all of
the generic continuous/repeated sexual abuse testimony—was the same’’;
text accompanying footnote 4 of the concurring and dissenting opinion;
namely, that the witnesses, the victim and T lacked credibility. Although
defense counsel did attack the credibility of these witnesses, the dissent
overlooks the fact that defense counsel also cross-examined the victim and
T extensively regarding the specifics of each of the three specific incidents
of conduct and then argued in closing why the jury should not credit each
particular incident. The primary focus of the trial was on these specific
incidents of conduct. The present case is distinguishable from prior Appellate
Court cases in which that court held that any duplicity or unanimity problem
was not prejudicial because there was only generic testimony regarding
ongoing abuse. See, e.g., State v. Saraceno, supra, 15 Conn. App. 230. Thus,
it was very possible that the jury did not agree unanimously on which
instance of conduct the defendant committed.
22
This court cited to Schad in Famiglietti but did not address the effect
of Schad on the applicable test. See State v. Famiglietti, supra, 219 Conn. 620.
23
The state argues that the Gipson and Schad tests merely use different
language to express the same legal test. This argument is undermined by
Schad’s explicit rejection of the test applied in Gipson. Even if the Gipson
rule were still considered good law, the defendant’s claim would fail both
because the trial court did not explicitly sanction a nonunanimous verdict
and because, even if we assume that the trial court did sanction a nonunani-
mous verdict, this court already has held that, under the Gipson test, active
or passive participation in sexual activity as proscribed under § 53-21 (a)
(2) constitutes alternative means, not elements, and does not require a
specific unanimity instruction. See State v. Spigarolo, 210 Conn. 359, 391–92,
556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989).
24
General Statutes § 53a-48 (a) provides: ‘‘A person is guilty of conspiracy
when, with intent that conduct constituting a crime be performed, he agrees
with one or more persons to engage in or cause the performance of such
conduct, and any one of them commits an overt act in pursuance of such con-
spiracy.’’
The defendant argues that because, in the present case, the state could
have based the charge of risk of injury to a child on alternative types
of statutorily prohibited conduct, the conspiracy count likewise rested on
alternative bases of criminal liability. Thus, the defendant’s claim as it relates
to count three is premised on the success or demise of his claim regarding
count two. Because we hold that the statutory language at issue in § 53-21
(a) (2) created alternative means of committing a single element, and not
separate elements, thereby not violating the defendant’s right to jury unanim-
ity, the defendant’s claims as it relates to count three likewise fails.
25
The defendant argues that case law regarding double jeopardy and risk
of injury to a child establishes that the two alternatives create separate
offenses that the state must charge as such. The defendant, however, miscon-
strues our double jeopardy case law. For example, in State v. Snook, supra,210 Conn. 244, this court held that the state may charge a defendant with
two counts of risk of injury to a child: one count premised on the defendant’s
contact with the victim’s intimate parts; the other count premised on the
defendant’s having subjected the victim to contact with the defendant’s
intimate parts. See id., 262. We did not hold, however, 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, for double
jeopardy purposes, the state may, but is not required to, charge each violation
in a separate count.