State v. Joseph V. ( 2023 )

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STATE v. JOSEPH V.—CONCURRENCE AND DISSENT
MULLINS, J., with whom KAHN, J., joins, concurring
in part and dissenting in part. In my concurring opinion
in State v. Douglas C., 345 Conn. , A.3d
(2022), I explained why I declined to follow the majority
in adopting a new rule whereby (1) duplicitous charging
of multiple alleged violations of a criminal statute in a
single count necessarily violates the sixth amendment
right to a unanimous jury verdict in the absence of a
bill of particulars or specific unanimity instruction, and
(2) there is an exception for course of conduct charging,
but such charging is constitutionally permissible only
when the legislature has expressly authorized it for
the specific statute at issue. See id., (Mullins, J.,
concurring). I believe that this court should instead
adopt the more flexible, case-by-case framework used
by the United States Court of Appeals for the Second
Circuit, among various other federal and sister state
courts. That approach makes more sense as a general
matter, and, in particular, it better comports with how
the state historically has charged repeated sexual
assaults on a child.
Because I discussed these matters fully in Douglas
C., in this opinion, I will confine my discussion of the
governing legal principles to a brief recapitulation. See
part I of this opinion. Unlike in Douglas C., however,
in the present case, I cannot fully agree with the result
of the majority’s analysis. Specifically, as I discuss in
part II of this opinion, I would affirm the conviction of
the defendant, Joseph V., for sexual assault in the first
degree, in violation of General Statutes § 53a-70 (a) (2)
(child sexual assault).
In addition, as I discuss in part III of this opinion, I
believe that juxtaposing our analyses of § 53a-70 (a) (2)
and General Statutes § 53-21 (a) (2), the risk of injury
to a child provision based on sexual assault, highlights
what I see as one important flaw in the majority’s
approach, namely, its inability to convincingly distin-
guish between those statutes that purportedly allow for
course of conduct charging under General Statutes § 1-
2z and those that do not. In my view, child sexual assault
and risk of injury to a child, which have been charged
hand in hand as continuing offenses for the better part
of one century in Connecticut, are indistinguishable
with respect to duplicity and the unanimity require-
ment. For these reasons, I respectfully dissent from
part I B of the majority opinion. I concur in the results
reached by the majority in part I A and C and part
II of its opinion, in which it upholds the defendant’s
conviction of risk of injury to a child in violation of
§ 53-21 (a) (2) and conspiracy to commit risk of injury
to a child in violation of § 53-21 (a) (2) and General
Statutes § 53a-48 (a).
I
In Douglas C., I discussed at some length my disagree-
ment with the majority as to the law that governs claims
of duplicity and related constitutional issues with
respect to cases in which the state charges in one count
multiple violations of a single statutory provision. See
State v. Douglas C., supra, 345 Conn. (Mullins, J.,
concurring); see also id., (outlining majority’s three
step test but also noting exception for permissibly
charged course of conduct). As I noted in Douglas C.,
‘‘[m]uch of the difference between my view and that of
the majority centers on how to treat course of conduct
charging. The framework I would have us adopt when
assessing whether charging multiple instances in a sin-
gle count is permissible or impermissible is the follow-
ing four step approach: First, pursuant to . . . § 1-2z, if
the statute at issue either expressly permits or expressly
bars course of conduct charging, or if there are other
clear indicia of legislative intent, then courts must defer
to the legislative will. Second, if the statute at issue is
silent as to course of conduct charging, and there are
no other clear indicia of legislative intent, as will most
often be the case, then the prosecutor has the discretion
as to whether to charge repeated violations of the stat-
ute as individual incidents or as a single course of con-
duct. Third, notwithstanding the prosecutor’s charging
decision, the trial court should determine whether such
charging (1) would be unreasonable or unfair under
the circumstances or (2) would otherwise violate the
defendant’s fifth and sixth amendment (and corres-
ponding state constitutional) rights to notice, to present
a defense, to a unanimous jury verdict, and to not twice
be placed in jeopardy for the same offense, among oth-
ers. Such determinations must be made on a case-by-
case basis. If, at trial, the judge concludes that there is
potential for unfairness or a constitutional violation,
then the judge should not permit course of conduct
charging and should either order that the charges be
separated or give an instruction to the jury that it must
be unanimous as to at least one specific incident.
Fourth, if an appellate court, on review, concludes that
the trial court should not have permitted course of
conduct charging, either because the defendant’s con-
duct cannot fairly be characterized as a single scheme
or pattern under the statute at issue, or because the
constitutional rights that underlie the rule against
duplicity were not adequately secured, then the trial
court’s determination is subject to harmless error analy-
sis.’’ (Emphasis in original; footnote omitted.) Id.,
(Mullins, J., concurring).
As I further detailed in Douglas C., there are numer-
ous reasons why I believe that the more flexible Second
Circuit approach to charging multiple instances cases
is to be preferred over the more formulaic approach
that the majority adopts, particularly in cases such as
this. See id., (Mullins, J., concurring). Rather than
rehash all those reasons here, I highlight one, which is
that following the approach I favor, in my view, more
appropriately serves the interests both of the child vic-
tim (who may be unable to testify as to the dates and
details of particular assaults with sufficient precision
to differentiate them) and of the defendant (by avoiding
the needless cumulation of charges and potential sen-
tences). The majority’s approach, in contrast, will do
as much to penalize as to protect criminal defendants
and will make it virtually impossible to prosecute many
child molestation cases, among other heinous crimes,
contrary to the clearly stated intent of the legislature
to protect young children. That is an unfortunate reality
of the majority’s position and one I do not think is
warranted, either practically or under the law. I decline
to follow it.1
II
Applying the framework I propose to the defendant’s
sexual assault conviction under count one, I conclude,
contrary to the majority, that the charge was not imper-
missibly duplicitous and that his constitutional rights
were not infringed. Accordingly, I would affirm the con-
viction.
The first step in the analysis is to consider the lan-
guage of the statute, pursuant to § 1-2z, to ascertain
whether the legislature has directly addressed the ques-
tion of whether repeated violations of § 53a-70 may be
charged as one continuing offense. Section 53a-70 (a)
(2), the first degree sexual assault statute, provides in
relevant part: ‘‘A person is guilty of sexual assault in the
first degree when such person . . . 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 . . . .’’ The stat-
ute neither expressly authorizes nor expressly prohibits
course of conduct charging.2
The majority states that ‘‘we can infer from the legisla-
ture’s use in other statutes of the phrase ‘course of
conduct,’ as well as other phrases that connote more
than one act, that the legislature knows how to crimi-
nalize 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.’’ (Footnotes omitted.)
Part I B of the majority opinion. To support this point,
the majority cites to General Statutes § 53a-181d, the
second degree stalking statute, as an example of a stat-
ute in which the legislature did expressly authorize
course of conduct charging. See footnote 13 of the
majority opinion.
But stalking, by definition, has to be a course of con-
duct crime. The legislature included the terms ‘‘course
of conduct’’ in the second degree stalking statute; Gen-
eral Statutes § 53a-181d (b) (1) and (2); and ‘‘repeatedly’’
in the third degree stalking statute; General Statutes
§ 53a-181e (a) (2); to make clear that an individual can-
not stalk someone by following or harassing them just
once. There is no reason to expect that the legislature
would include language imposing that same require-
ment in every statute that, like § 53a-70, merely can be
a continuing offense.
Even more to the point, however, our legislature also
has demonstrated expressly that it knows how to say,
in no uncertain terms, when an ongoing crime has to
be charged as discrete infractions. A good example
of a Connecticut statute demonstrating this legislative
knowledge is General Statutes § 15-173 (b), which, for
docking violations, imposes a daily fine of up to $10,000
and expressly provides that ‘‘[e]ach violation shall be
a separate and distinct offense, and, in the case of a
continuing violation, each day’s continuance thereof
shall be deemed to be a separate and distinct offense.’’
Another example is General Statutes § 22a-226 (a),
which uses substantially the same language with
respect to civil penalties for violations of solid waste
management law. There is no language like that in our
first degree sexual assault and child sexual assault stat-
utes. Our legislature has thus clearly demonstrated that
it knows the difference between a single violation of a
statute and a continuing violation and that it knows
how to say so expressly when an ongoing crime has to
be charged as discrete infractions. When, as in the case
of child sexual assault, the legislature has not spoken
specifically on the issue, course of conduct charging
is, therefore, left to the discretion of the prosecutor,
subject always to the oversight of the trial court and
the restraints imposed by the federal and state constitu-
tions.
The second step in the analysis is to consider whether
the victim’s allegations reasonably can be characterized
as an ongoing pattern or scheme of misconduct such
that course of conduct charging was a proper exercise
of prosecutorial discretion. They clearly can. The vic-
tim’s half-brother, T, began regularly sexually abusing
the victim when the victim was four or five years old.
The defendant began to participate in the assaults, as
part of an ongoing conspiracy, when the victim was six
or seven years old, and continued to do so until the
victim was ten. The victim was able to describe some
details of three such incidents involving the defendant,
but, for the most part, he was unable to say when the
abuse occurred or to provide specific, distinguishing
details. In particular, he testified that the assaults
‘‘blurred together because there [were] too many to
count and distinguish between.’’ He indicated that the
assaults occurred ‘‘[m]ultiple times’’ and that they
always occurred at his father’s home, primarily in his
father’s or T’s bedroom.
In addition, although he was unable to remember any
specifics, he did testify that that the assaults typically
involved T and the defendant performing the same sex-
ual acts, namely, trying to anally penetrate him or prod-
ding him to perform fellatio or to manually stimulate
them. On facts such as these, I have no difficulty con-
cluding that the alleged assaults, involving the same
defendant committing the same crimes against the same
victim at the same location, were alike enough in nature
and motive to constitute a pattern or scheme, such that
course of conduct charging was permissible. I believe
that our sister courts would agree.3 The essence of
the charged crime was, in short, the ongoing pattern
of abuse.
The third step in the analysis is the critical question
of whether charging the defendant’s various assaults as
a single course of conduct violated his sixth amendment
right to a unanimous jury verdict. The defendant con-
tends that, insofar as the victim and T offered detailed
accounts of four specific sexual assaults, it is impossi-
ble to know whether the jury unanimously agreed that
he committed any one particular assault. I disagree.
Much of the testimony regarding the defendant’s alleged
sexual assaults of the victim was generic in nature, and
the majority in Douglas C. concedes that, when generic
testimony is at issue, the primary question for the jury
is simply the credibility of the complainant and other
key witnesses. See State v. Douglas C., supra, 345 Conn.
. In addition, although defense counsel cross-exam-
ined the victim and T regarding some of the specific
details of the assaults that they described, the defense
as to each of those incidents—as well as to all of the
generic continuous/repeated sexual abuse testimony—
was the same.4 In such instances, the sixth amendment
is not implicated because the crime that is being
charged is, in essence, the course of conduct itself. See,
e.g., United States v. Tutino, 883 F.2d 1125, 1141 (2d
Cir. 1989), cert. denied, 493 U.S. 1081, 110 S. Ct. 1139,
107 L. Ed. 2d 1044 (1990), and cert. denied sub nom.
Guarino v. United States, 493 U.S. 1082, 110 S. Ct. 1139,
107 L. Ed. 2d 1044 (1990); United States v. Margiotta,
646 F.2d 729, 733 (2d. Cir. 1981). So long as the state
can prove that, then all of the essential elements of the
statute at issue have been satisfied, and whether the
defendant acted in a particular way on a particular day
is immaterial; it is simply part of the means by which
the criminal scheme was accomplished. In addition, the
charge that the trial court gave the jury came very close
to a specific unanimity instruction and is consistent
with charges that we have approved as giving the jury
adequate guidance.5
In many such cases, courts of this state and others,
regardless of whether they deem course of conduct
charging to be impermissibly duplicitous, have con-
cluded that there was no reversible error because the
primary question for the jury was the relative credibility
of the complainant and the defendant, and the guilty
verdict necessarily meant that the jury had resolved
those questions in favor of the complainant. See, e.g.,
State v. Vumback, 263 Conn. 215, 229–31, 819 A.2d 250(2003); State v. Saraceno, 15 Conn. App. 222, 230–31,
545 A.2d 1116, cert. denied, 209 Conn. 823, 552 A.2d 431,
and cert. denied, 209 Conn. 824, 552 A.2d 432 (1988);
see also, e.g., Arizona v. Alcantar, Docket No. 2 CA-
CR 2020-0105, 2022 WL 3919832, *8 (Ariz. App. August
31, 2022); Commonwealth v. Sineiro, 432 Mass. 735,
737–38, 740 N.E.2d 602 (2000); State v. Altgilbers, 109
N.M. 453, 467–68, 786 P.2d 680 (App. 1989), cert. denied,
109 N.M. 419, 785 P.2d 1038 (1990).
Finally, we must consider whether any of the defen-
dant’s fifth amendment rights were violated when the
state charged his many alleged assaults on the victim as
one course of conduct. As in Douglas C., the substitute
information afforded the defendant adequate notice of
the charged crimes; there is no potential double jeop-
ardy violation because the state would be precluded
from charging the defendant with any additional sexual
assaults of the victim during the years in question; and
the defendant was not hampered in his ability to present
an alibi or other defense, insofar as he indisputably was
present at the residence of the victim’s father with the
victim between 2006 and 2010, when the charged crimes
occurred.
Accordingly, applying the Second Circuit framework,
I would conclude that, under the facts of the present
case, the state did not violate any of the defendant’s
fifth or sixth amendment rights by charging count one
as a continuing course of conduct. I would therefore
affirm his conviction of sexual assault in the first degree,
in violation of § 53a-70 (a) (2), rather than remand for
a new trial.
III
I have explained in part II why I believe that course
of conduct charging of sexual assault in the first degree
in count one was appropriate in this case and did not
violate the defendant’s fifth or sixth amendment rights.
A similar analysis applies to the risk of injury to a
child and conspiracy charges. To address each of those
charges here is unnecessary because I ultimately agree
with the majority that counts two and three were not
impermissibly duplicitous. I concur in the result
reached by the majority in part I A and C and part II
of its opinion.
It is important for me to explain why I believe that
sexual assault and risk of injury to a child should not
be treated differently when it comes to duplicity and
unanimity. These crimes are almost always charged
together when the abuse is visited on a child, the state
has charged them both as continuing offenses for the
better part of one century; see part III C of this opinion;
and, in the past, both this court and the Appellate Court
have treated them alike for purposes of course of con-
duct charging. See, e.g., State v. Snook, 210 Conn. 244,
265, 555 A.2d 390, cert. denied, 492 U.S. 924, 109 S. Ct.
3258, 106 L. Ed. 2d 603 (1989); State v. William B., 76
Conn. App. 730, 761, 822 A.2d 265, cert. denied, 264
Conn. 918, 828 A.2d 618 (2003); State v. Saraceno, supra,
15 Conn. App. 227–32. I am concerned that the majori-
ty’s disparate treatment of these two extraordinarily
similar statutes is without solid foundation, and I
believe that it exposes an important shortcoming in the
majority’s approach.
The majority advances three possible bases for distin-
guishing between § 53-21 (a) (2) (risk of injury to a
child) and § 53a-70 (a) (2) (first degree sexual assault
of a child), such that the former can be a continuing
course of conduct crime whereas the latter cannot: (1)
the statutory text, (2) the legislative history, and (3)
previous holdings of this court and the Appellate Court.
I consider each theory in turn.
A
First, the majority suggests that the primary test,
under § 1-2z, is whether the statutory language permits
course of conduct charging. See part I of the majority
opinion; see also State v. Douglas C., supra, 345 Conn.
. I agree that, if the statutory language expressly
permits course of conduct charging, then it is permissi-
ble to charge a crime as a continuing course. Similarly,
when the statutory language expressly bars course of
conduct charging, prosecutors lack the discretion to
charge a crime in that manner. In this case, however,
neither statute expressly recognizes or criminalizes a
continuing course of conduct; nor does either statute
expressly preclude course of conduct charging. The
majority acknowledges that ‘‘the phrase ‘contact with
the intimate parts’ in the risk of injury statute does
not appear to clarify whether the statute criminalizes
a continuing course of conduct or limits its scope to a
single occurrence.’’ State v. Douglas C., supra, . The
same is true of § 53a-70 (a) (2); nothing in the plain
language of that statute speaks to course of conduct
charging one way or the other.6 One statute simply
prohibits contact with the victim’s intimate parts,
whereas the other prohibits engaging in sexual inter-
course with the victim. Either act of child abuse (or
child sexual assault) can just as readily be performed
as a single act or on an ongoing basis; the only difference
is in the seriousness or intrusiveness of the violation.
If anything, the verb ‘‘engages,’’ which the legislature
used in the child sexual assault statute, is more sugges-
tive of ongoing conduct than is the ‘‘having contact’’
language that defines risk of injury to a child.7
The majority’s suggestion to the contrary notwith-
standing, other state statutes that, like § 53a-70, prohibit
sexual intercourse with a child, or use substantially
equivalent language, have been construed to permit
course of conduct charging. See, e.g., Commonwealth
v. Sineiro, supra, 432 Mass. 735, 737–38 (rape of child);8
State v. Altgilbers, supra, 109 N.M. 455, 464–71 (criminal
sexual penetration);9 Huddleston v. State, 695 P.2d 8,
10–11 (Okla. Crim. App. 1985) (rape of child).10 In fact,
as I discuss more fully hereinafter, both this court and
the Appellate Court have approved prosecutors’ deci-
sions to charge repeated sexual assaults as a single
course of conduct. See State v. Snook, supra, 210 Conn.
265–66 (finding no double jeopardy violation because,
among other things, state charged second degree sexual
assault as continuing course of conduct); State v. Wil-
liam B., supra, 76 Conn. App. 761 (‘‘[t]he state properly
charged the defendant with a course of sexual conduct’’
in violation of § 53a-70 (a) (2)); State v. Saraceno, supra,
15 Conn. App. 227–32 (trial court’s refusal to separate
sexual assault charges into separate counts did not
abridge defendant’s right to fair trial).
Put simply, I see no basis in the actual statutory
language for treating the two statutes differently. The
only distinction is in the type of improper sexual con-
duct at issue; that is a distinction without a difference.11
B
Second, the majority contends that, insofar as the
plain language of § 53-21 (a) (2) is ambiguous, the legis-
lative history indicates that the legislature intended that
risk of injury to a child could be charged as a continuing
course of conduct. See State v. Douglas C., 345 Conn.
. Once again, however, the legislative histories fail
to support a distinction between the two statutes and,
if anything, support prosecutorial discretion to charge
child sexual assault as a continuing offense.
Focusing first on § 53-21 (a) (2), I do not read the
majority opinion to have identified any statements in
the legislative history that specifically indicate that the
legislature intended risk of injury to a child to be charge-
able as a continuing course of conduct crime. Rather,
I understand the majority simply to be stating that this
court already had interpreted the prior version of the
risk of injury statute to permit charging a continuing
course of conduct; see part III C 3 of this opinion; and
that there is no indication that the legislature, when it
amended § 53-21 in 1995 to add what is now subsection
(a) (2), intended to change that interpretation. See State
v. Douglas C., supra, 345 Conn. . So, the issue, ulti-
mately, is one of legislative acquiescence.
As I explained in Douglas C., however, there are two
reasons why the legislative acquiescence argument as
to § 53-21 is particularly unpersuasive. First, if there
was legislative acquiescence in this case, it ratified my
approach to the law of duplicity, rather than that of the
majority. The pre-1995 decisions of this court that the
legislature is alleged to have adopted in 1995, in which
this court approved of the prosecutor’s decision to
charge a course of conduct in risk of injury matters,
decided the course of conduct question primarily on
the basis of practical considerations, not as a matter
of statutory construction. See part III C 3 of this opinion.
Second, because legislators emphasized in 1995 that
subdivision (2) of what is now § 53-21 (a) defined a
‘‘new’’ crime, which was contacting a child’s intimate
parts in a sexual and indecent manner, the legislative
history itself contradicts the majority’s position. See 38
S. Proc., Pt. 5, 1995 Sess., p. 1766, remarks of Senator
Thomas F. Upson. It is true that part of the motivation
for the 1995 amendment was to divide the risk of injury
statute into sexual and nonsexual parts at that time,
so that individuals convicted of inappropriate sexual
contact with children could be subjected to mandatory
minimum sentences and sex offender registration
requirements. See, e.g., 38 H.R. Proc., Pt. 7, 1995 Sess.,
pp. 2590–91, remarks of Representative James A.
Amann. But the bill’s sponsor indicated that the legisla-
ture was not merely separating out sexual from nonsex-
ual harms to children but was making a ‘‘change in the
definition of risk of injury . . . so that the offense can
be more carefully delineated.’’ 38 S. Proc., supra, pp.
1769–70, remarks of Senator Martin M. Looney.
In addition, unlike the pre-1995 version of the statute,
which is now subsection (a) (1), the new, sexual compo-
nent of the statute, subsection (a) (2), makes no men-
tion of dangerous situations, only of specific acts. The
use of the term ‘‘situations’’ is important to the majori-
ty’s argument as to why risk of injury to a child in
general can be charged as a continuing course of con-
duct. ‘‘Situations,’’ it suggests, invokes crimes of an
ongoing nature. See footnote 12 of the majority opinion.
But subsection (a) (2) is not directed at situations. It
is directed solely at acts of sexual contact. The fact
that the legislature expressly prohibited both dangerous
situations and inappropriate acts in subsection (a) (1),
but only inappropriate acts in subsection (a) (2), cannot
have been accidental. See, e.g., Rutter v. Janis, 334
Conn. 722, 739, 224 A.3d 525 (2020). Thus, to the extent
that the majority relies for its interpretation of § 53-21
on the fact that subsection (a) (1) of the statute prohib-
its the creation of dangerous situations, such as child
neglect, as well as dangerous acts, such as child abuse,
and, thus, necessarily envisions ongoing violations as
well as individual infractions, the fact that the legisla-
ture chose not to include the situation language when it
created the new subsection (a) (2) addressed to sexual
misconduct, and instead used only contact language,
would seem to support the opposite conclusion.
Also, it bears noting that the public act that enacted
the new risk of injury to a child provision, No. 95-142,
§ 1, of the 1995 Public Acts (P.A. 95-142), also amended
the sexual assault statute, § 53a-70, by increasing the
mandatory minimum sentence for first degree sexual
assaults perpetrated against victims under ten years of
age. See P.A. 95-142, § 13. As I discussed, there is no
indication in the legislative history that the legislature
gave any thought at that time to the question of which
crimes could or could not be prosecuted as course of
conduct crimes. What is clear, however, is that P.A.
95-142 was an integral part of then Governor John G.
Rowland’s tough on crime legislative package, the
stated intent of which was to put more teeth into Con-
necticut’s recently adopted version of Megan’s Law and
to better protect the public by stiffening the penalties
for sex crimes against children. There are statements
to that effect throughout the legislative history of the
1995 act.12 I would thus hesitate to conclude, or to adopt
any interpretation of these laws predicated on the view,
that the legislature intended the amended sexual assault
statute to be interpreted so that it would be substantially
more difficult to prosecute the ongoing sexual abuse
of young children. Such a reading would be flatly incom-
patible with the stated purpose of the 1995 amendments
to both statutes.
With respect to the legislative history of § 53a-70 (a)
(2), that provision of the sexual assault statute was
enacted in 1989. See Public Acts 1989, No. 89-359 (P.A.
89-359). The bill’s sponsor, Representative Richard D.
Tulisano, repeatedly suggested in his introduction of
the bill that the intent was to allow the prosecution not
only of individual sexual assaults but also of ongoing
sexual relationships between adults and minors, which
at least implies a continuing course of conduct.13 I can-
not agree with the majority that the statements of the
bill’s sponsor introducing the legislation for debate can
be dismissed as merely the views of ‘‘one legislator,’’
or that Representative Tulisano’s references to the
problems posed by consensual relationships with four-
teen year old children in no way suggest ongoing con-
duct and are nothing more than ‘‘euphemisms for sexual
intercourse . . . .’’ Footnote 18 of the majority opinion.
Accordingly, I see no basis in the history of the two
statutes for discerning a clear legislative preference for
charging § 53-21 (a) (2) as a course of conduct but not
permitting prosecutors to charge § 53a-70 (a) (2) in the
same manner, when appropriate. Indeed, that outcome
would be bizarre insofar as the two statutes typically
are charged together in cases involving the sexual abuse
of children, a fact of which the legislature is well aware,
and the legislative history is crystal clear that the legisla-
ture in both instances sought to do everything within
its constitutional means to protect children from sexual
abuse and to bring perpetrators to justice.14 Certainly,
nothing in the legislative histories points to any rea-
son—and the majority suggests none—why the legisla-
ture might have intended to treat the two similar stat-
utes differently for purposes of due process.
C
To summarize, having reviewed the statutory text
and the legislative histories of the two statutes pursuant
to § 1-2z, the majority fails to identify any clear manifes-
tation of a legislative intent to distinguish between risk
of injury to a child based on sexual contact and child
sexual assault, such that prosecutors were to have dis-
cretion over how they charge the former statute but
not the latter.15 Ultimately, rather, the majority settles
on a sort of legislative acquiescence theory, whereby
it concludes that this court has distinguished between
the two laws for purposes of course of conduct charging
and the legislature has, in effect, ratified that distinc-
tion.16 For various reasons, I am unpersuaded.
In support of its argument, the majority relies on two
different lines of appellate cases, one addressing § 53a-
70, discussed in part III C 1 of this opinion, and one
addressing § 53-21, discussed in part III C 3. Neither line
of cases justifies distinguishing between child sexual
assault and risk of injury to a child for purposes of
charging a continuous offense.
1
With respect to § 53a-70, the majority looks to a line of
appellate cases that address a fundamentally different
legal question, essentially the opposite question, in fact.
As I discussed in Douglas C., at common law, pleadings
could be improper for duplicity (pleading multiple
causes of action in one count) or, conversely, for multi-
plicity (pleading one cause of action in multiple counts).
See State v. Douglas C., supra, 345 Conn. (Mullins,
J., concurring). In the criminal context, this means that
defendants often will have at least a colorable appellate
claim, regardless of which way a prosecutor chooses
to charge the case, when multiple incidents are
involved. If, as here, an ongoing series of sexual assaults
of the same degree is charged as a single course of
conduct, the defendant may claim that the charge was
erroneous for duplicity and violated his right to a unani-
mous verdict. By contrast, in those cases in which the
prosecutor charges each incident of child abuse as a
separate offense, defendants often claim that the charge
was erroneous for multiplicity; in effect, that the state
improperly charged one ongoing crime in multiple
counts, placing the defendant in double jeopardy and
unfairly imposing multiple sentences.
What the majority relies on for its interpretation of
the sexual assault statute, almost exclusively, is that
latter category of cases, in which a defendant sexually
abused a victim multiple times, was convicted of multi-
ple crimes, and then complained that there should have
been only one conviction, one sentence. See, e.g., State
v. Anderson, 211 Conn. 18, 25, 557 A.2d 917 (1989);
State v. Frazier, 185 Conn. 211, 228–30, 440 A.2d 916(1981), cert. denied, 458 U.S. 1112, 102 S. Ct. 3496, 73
L. Ed. 2d 1375 (1982);17 State v. Ayala, 154 Conn. App.
631, 654–55, 106 A.3d 941 (2015), aff’d, 324 Conn. 571,
153 A.3d 588 (2017); State v. Giannotti, 7 Conn. App.
701, 708–709, 510 A.2d 451, cert. denied, 201 Conn. 804,
513 A.2d 700 (1986); State v. Cassidy, 3 Conn. App. 374,
388–89, 489 A.2d 386, cert. denied, 196 Conn. 803, 492
A.2d 1239 (1985). To make that claim, the defendants
in those cases had to argue that, under the unique cir-
cumstances of those cases,18 rape, sexual assault, or
the other crimes at issue could be charged only as
course of conduct crimes. We have roundly rejected
such claims, concluding that the minimal unit of prose-
cution for sexual assault is the individual infraction. To
read the statute otherwise, we have explained, would
lead to absurd results: if prosecutors do not have the
option to charge each infraction separately, then an
offender, having initially assaulted a victim, could ‘‘com-
mit with impunity many other such acts during the same
encounter.’’ State v. Frazier, supra, 229.
None of this says anything about whether child sexual
assault can be charged as a course of conduct when
that makes the most sense, only that it does not have
to be charged that way. Although the majority quotes
some language from those cases out of context, at no
point does the majority explain why, as a matter of
principle, the outcomes of our multiplicity cases should
govern these duplicity cases, which present a funda-
mentally different question. The majority’s response,
that the meaning of the statutory language does not
change with the nature of the claim, although of course
true, misses the point. See part I B of the majority
opinion. We are addressing two distinct legal questions.
One goes to the minimal unit of prosecution permitted
by the statute: is the state permitted to charge multiple
assaults, committed in close proximity, as multiple
crimes, or is it required to charge only one offense?
The other goes to whether the state is permitted to
charge a series of similar assaults, committed over time,
as one offense, or whether it is required to charge them
as separate offenses. Just as the minimum sentence
imposed by a criminal statute says nothing about the
maximum allowable sentence (that is a different ques-
tion of statutory interpretation), the minimum unit of
prosecution authorized by statute does not resolve the
question of whether charging multiple acts by continu-
ando is also permissible.
Indeed, numerous federal courts of appeals and sister
state courts have considered and expressly rejected the
very argument that the majority makes here, that the
fact that a single infraction is the minimal unit of prose-
cution for purposes of a multiplicity/double jeopardy
challenge means that a crime cannot be also charged,
in the discretion of the state, as a course of conduct.
See, e.g., United States v. Root, 585 F.3d 145, 153–55
and n.5 (3d Cir. 2009); United States v. Anson, 304 Fed.
Appx. 1, 4 (2d Cir. 2008), cert. denied, 556 U.S. 1160,
129 S. Ct. 1687, 173 L. Ed. 2d 1050 (2009); United States
v. King, 200 F.3d 1207, 1212–13 (9th Cir. 1999); United
States v. Bruce, 89 F.3d 886, 889 (D.C. Cir. 1996); State
v. Lente, 453 P.3d 416, 430 (N.M. 2019).
Notably, this court has quoted the exact same lan-
guage from Frazier on which the majority relies for
its interpretation of § 53a-70 in rejecting a multiplicity
challenge to the risk of injury statute. See State v. Snook,
supra, 210 Conn. 261–62 (‘‘In [Snook], the separate
counts alleging risk of injury to a [child] arose out of
separate acts. . . . As we stated in an analogous con-
text, ‘each separate act of forcible 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.’ ’’ (Citations
omitted.)). I fail to see why precisely the same language
and legal analysis precludes course of conduct charging
of sexual assault but not in the case of risk of injury
to a child.
2
While quoting at length from these multiplicity cases,
the majority largely disregards the line of appellate
cases that are on point, namely, our duplicity cases.
This court and the Appellate Court have directly or
indirectly addressed the actual question presented here,
whether child sexual assault can be charged as a course
of conduct in the discretion of the state, in a series
of decisions that approved prosecutors’ decisions to
charge the sexual assault of children as a course of
conduct crime.
In State v. Silver, 139 Conn. 234, 93 A.2d 154 (1952),
for example, this court relied on the fact that a predeces-
sor statute had been charged as a continuing course of
conduct in affirming the conviction. See id., 247 (O’Sul-
livan, J., concurring); see also State v. Snook, supra,210 Conn. 265 (relying on fact that state had charged
sexual assault based on ‘‘a number of episodes in which
the defendant engaged in sexual intercourse with the
victim’’ to reject double jeopardy challenge). Accord-
ingly, we have, at least implicitly, deemed such charging
to be proper.
Several panels of the Appellate Court also have con-
cluded that sexual assault may be charged as a continu-
ing course of conduct crime without offending a defen-
dant’s constitutional rights. For example, in State v.
Saraceno, supra, 15 Conn. App. 222, a case involving
multiple instances of sexual assault charged in one
count, the Appellate Court adopted the rule articulated
by the Second Circuit in Margiotta, stating that ‘‘[a]
single count is not duplicitous merely because it con-
tains several allegations that could have been stated as
separate offenses. . . . Rather, such a count is only
duplicitous whe[n] the policy considerations underlying
the doctrine are implicated. . . . These [considera-
tions] include . . . avoiding the risk that the jurors may
not have been unanimous as to any one of the crimes
charged . . . .’’19 (Citations omitted; internal quotation
marks omitted.) Id., 228–29.
With respect to the defendant’s contention that, at
the very least, he should have been provided with a bill
of particulars, the Appellate Court in Saraceno
explained that, ‘‘in a case involving the sexual abuse
of a very young child, that child’s capacity to recall
specifics, and the state’s concomitant ability to provide
exactitude in an information, are very limited. The state
can . . . provide [only] what it has. This court will not
impose a degree of certitude as to date, time and place
that will render prosecutions of those who sexually
abuse children impossible. To do so would have us
establish, by judicial fiat, a class of crimes committable
with impunity.’’ Id., 237. This court adopted that lan-
guage in State v. Stephen J. R., 309 Conn. 586, 72 A.3d
379 (2013), adding that ‘‘testimony from a child victim
describing a series of indistinguishable acts by an
abuser who has ongoing access to the child is often the
only evidence that the child is able to provide.’’ Id., 596.
Notably, the Appellate Court’s conclusion in Sara-
ceno was that there simply was no error in the state’s
duplicitous charging of sexual assault in the second
degree—‘‘the trial court did not err in its denial of the
defendant’s motion to separate’’—and not that there
was harmless, nonprejudicial error.20 State v. Saraceno,
supra, 15 Conn. App. 232; see State v. Vere C., 152 Conn.
App. 486, 508–13 and n.6, 98 A.3d 884, cert. denied, 314
Conn. 944, 102 A.3d 1116 (2014); State v. Jessie L. C.,
148 Conn. App. 216, 226–33, 84 A.3d 936, cert. denied,
311 Conn. 937, 88 A.3d 551 (2014); State v. Marcelino
S., 118 Conn. App. 589, 592–97, 984 A.2d 1148 (2009),
cert. denied, 295 Conn. 904, 988 A.2d 879 (2010); see
also State v. William B., supra, 76 Conn. App. 761 (‘‘[t]he
state properly charged the defendant with a course of
sexual conduct’’ in violation of § 53a-70 (a) (2)).
3
I also disagree with the majority’s discussion of this
court’s risk of injury to a child jurisprudence and how
our analysis of the course of conduct charging question
as to § 53-21, over time, bears on the meaning of § 53a-
70. Contrary to the majority’s suggestion, when we ini-
tially determined that a series of violations of the risk
of injury statute can be charged either as individual
infractions or as a single course of conduct, it appears
to me, given that this court never construed the lan-
guage of the statute in the opinion, we reached that
conclusion not as a matter of statutory interpretation
but, rather, primarily as a policy matter. This is consis-
tent with the history that I set forth in Douglas C., which
indicates that the law of duplicity originated at common
law as a set of rules governing the pleading process;
only more recently have constitutional and statutory
concerns also emerged as important considerations.
See State v. Douglas C., supra, 345 Conn. (Mullins,
J., concurring).
The case in which this court first recognized that a
version of the pre-1995 risk of injury statute could be
charged as a continuing course of conduct was State
v. Hauck, 172 Conn. 140, 374 A.2d 150 (1976). The defen-
dant in that case challenged the court’s denial of his
motion for a supplemental bill of particulars when the
state charged him with violating § 53-21 ‘‘ ‘on or about
divers dates’ ’’ between November 11, 1971, and June,
1972. Id., 150. This court’s conclusion in that case, that
‘‘[t]he offenses charged . . . were obviously of a con-
tinuing nature,’’ made no reference to the statutory lan-
guage, the legislative history of § 53-21, or any other
indicia of legislative intent. Id.
Rather, in deferring to the trial court’s discretion in
allowing course of conduct charging, this court relied
on purely practical considerations—that the charges
were ‘‘clearly reasonable’’ in light of the trial testimony;
id., 151; and, importantly, that ‘‘it would have been virtu-
ally impossible to provide the many specific dates [on]
which the acts constituting the offenses occurred’’—as
well as the general principle that, when ‘‘time is not of
the essence or gist of the offense, the precise time
at which it is charged to have been committed is not
material.’’ Id., 150. In other words, the considerations
that first led this court to permit prosecutors to charge
risk of injury to a child as a course of conduct crime,
as a matter of judge made law, were exactly the same
practical considerations that would support the same
result with respect to sexual assault in cases such as
this.
In subsequent cases, this court has continued to rely
on Hauck and, specifically, on the pragmatic rationales
that we articulated therein. See, e.g., State v. Spigarolo,
210 Conn. 359, 391, 556 A.2d 112 (citing Hauck for
proposition that, ‘‘[b]ecause the state was unable to
specify with greater precision the times of the alleged
incidents, it necessarily proceeded under a theory that
the defendant’s conduct was in the nature of a continu-
ing offense’’), cert. denied, 493 U.S. 933, 110 S. Ct. 322,
107 L. Ed. 2d 312 (1989). If the legislature has, in the
intervening years, placed its imprimatur on cases such
as Hauck and Spigarolo, as the majority suggests, then
it has endorsed not a statutory analysis of the meaning
of § 53-21—our cases offered no such analysis—but,
rather, the very framework that I am supporting and
that I would apply to sexual assault, under which the
state has the discretion to charge a course of conduct
when appropriate.
4
Finally, as I explain in Douglas C., if there is any
legislative acquiescence argument to be made here, it
is in favor of course of conduct charging of both stat-
utes. See State v. Douglas C., supra, 345 Conn.
(Mullins, J., concurring). There is a long, consistent,
well documented history of Connecticut prosecutors
exercising their discretion to charge multiple instances
of child sexual assault occurring over divers dates in
one count. In such cases, spanning the better part of
one century, child sexual assault and risk of injury to
a child frequently have been charged, hand in hand, as
course of conduct crimes. In Douglas C., I identify more
than one dozen examples of such cases, beginning in
1952 and continuing through the present case, in which
the state charged multiple instances of child sexual
assault, or closely related crimes, in a single count. See
id., n.14 (Mullins, J., concurring). Many of those
cases, like the present one, involved a blend of generic
testimony with testimony regarding specific incidents
of abuse. No one ever suggested that there was a distinc-
tion to be drawn or that the two statutes should be
treated differently with respect to course of conduct
charging.
The legislature is presumed to be aware of this long-
standing practice of charging child sexual assault,
which has been memorialized in many appellate deci-
sions and relied on in several of them. See, e.g., State
v. Snook, supra, 210 Conn. 265; State v. Silver, supra, 139
Conn. 247 (O’Sullivan, J., concurring). If the legislature
was of the view that charging child sexual assault in
this manner was an abuse of prosecutorial discretion
or a misapplication of the statute, it could have made
that clear during any of the many amendments to the
statute over the years. In the absence of any clear mani-
festation of legislative intent, I fail to see what purpose
will be served by suddenly prohibiting this long-stand-
ing charging practice.
For all of these reasons, I disagree with the conclu-
sions reached by the majority, first, that there is any
principled basis for permitting course of conduct charg-
ing under § 53a-21 (a) (2) but not § 53a-70 (a) (2) and,
second, that the trial court committed reversible error
by failing to give a specific unanimity instruction on
the sexual assault count.21
1
Although the majority is correct that whatever rules we adopt will poten-
tially apply to most crimes; see footnote 20 of the majority opinion; the
practical reality is that the scope of the continuing offense doctrine is most
frequently and most hotly debated in cases that involve the sexual abuse
of children. As a practical matter, regardless of which approach we adopt,
course of conduct charging will not be appropriate for the vast majority of
criminal prosecutions.
2
The majority contends that, although the phrase ‘‘engages in sexual
intercourse’’ may be ambiguous, insofar as one can engage in intercourse
on a single occasion or on a regular basis, the statute is nevertheless unambig-
uous because intercourse itself happens on a onetime basis. See part I B
of the majority opinion. I disagree. In my view, the text of the statute
is facially ambiguous, in that ‘‘engages in sexual intercourse’’—the actual
conduct prohibited by the statute—could refer to one act or several. General
Statutes § 53a-70 (a) (2). Thus, we may consider the legislative history
pursuant to § 1-2z. I consider the statutory text in greater detail, as well as
the legislative history, in part III of this opinion.
3
See, e.g., State v. Generazio, 691 So. 2d 609, 611 (Fla. App. 1997) (‘‘[w]ith
the notable exception of New York, the courts of our sister states have
recognized that child molestation is, by its very nature, a continuous course
of criminality’’); Commonwealth v. King, 387 Mass. 464, 467, 441 N.E.2d
248 (1982) (rejecting argument that rape of child could not be continuing
offense); State v. Cruz, Docket No. A-1-CA-35877, 2019 WL 5095831, *1, *3
(N.M. App. September 30, 2019) (allowing course of conduct charging of
criminal sexual penetration of minor), cert. denied, New Mexico Supreme
Court, Docket No. S-1-SC-37991 (December 12, 2019); see also State v.
Saraceno, 15 Conn. App. 222, 229–30, 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).
4
The defense consistently argued that the two young men, the state’s
primary witnesses, simply lacked credibility. Defense counsel argued that
T was testifying for the state, and conforming his testimony to that of
the victim, pursuant to a cooperation agreement that would limit his own
potential jail time. With respect to the victim, defense counsel focused on
his unwillingness to review his prior statements to refresh his recollections
and to clarify inconsistent testimony. Although defense counsel certainly
pressed on the specifics of some of the alleged incidents as examples of
both witnesses’ lack of credibility, there was never any suggestion that one
incident was especially unlikely or was subject to unique defenses, such as
alibi. Rather, the entire defense was predicated on the theory that T had a
long history of abusing the victim and that the defendant had no motive to
do so and had been wrongly implicated in the ongoing abuse. The prosecutor,
as well as the trial court, concurred that the case came down to the credibility
of these key witnesses.
5
The court charged the jury 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.’’
6
General Statutes § 53-21 (a) provides in relevant part: ‘‘Any person who
. . . (2) has contact with the intimate parts, as defined in section 53a-65,
of a child under the age of sixteen years or subjects a child under sixteen
years of age to contact with the intimate parts of such person, in a sexual
and indecent manner likely to impair the health or morals of such child
. . . shall be guilty of . . . a class B felony . . . .’’
General Statutes § 53a-70 (a) provides in relevant part: ‘‘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 . . . .’’
7
Dictionaries in print at the time a statute was enacted are considered
‘‘especially instructive’’ in ascertaining the common meaning of the statutory
language. State v. Menditto, 315 Conn. 861, 866, 110 A.3d 410 (2015). Diction-
aries in print in the late 1960s, when § 53a-70 originally was enacted, defined
‘‘engage,’’ in its intransitive form, in a manner that suggests or encompasses
a continuing course of conduct. See, e.g., Webster’s Seventh New Collegiate
Dictionary (1969) p. 275 (‘‘to begin and carry on an enterprise’’ (empha-
sis added)).
8
See Mass. Gen. Laws ch. 265, § 23 (‘‘sexual intercourse or unnatural
sexual intercourse, and [abuse of] a child under 16 years of age’’).
9
See N.M. Stat. Ann. § 30-9-11 (A) (1984) (‘‘the unlawful and intentional
causing of a person to engage in sexual intercourse, cunnilingus, fellatio or
anal intercourse’’).
10
In Douglas C., I identified numerous examples in which the Second
Circuit and other federal courts held that various federal statutes were
amenable to course of conduct charging, even though nothing in the statutory
language expressly or even implicitly authorized such charging. See State
v. Douglas C., supra, 345 Conn. (Mullins, J., concurring). In United
States v. Moloney, 287 F.3d 236, 240 (2d Cir.), cert. denied, 537 U.S. 951,
123 S. Ct. 416, 154 L. Ed. 2d 297 (2002), the Second Circuit explained why
violations of any criminal statute presumptively can be charged as a course
of conduct, so long as the conduct reasonably can be characterized as part
of a common scheme.
11
The majority misstates my views by asserting that, ‘‘if explicit language
is not used, such as the phrase course of conduct—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.’’ (Internal quotation marks omitted.) Footnote 11 of the majority
opinion, quoting State v. Douglas C., supra, 345 Conn. . That is not my
view; nor is it accurate. Indeed, in parts III A and B of this opinion, I fully
review the relevant statutory language and its legislative history.
12
E.g., 38 S. Proc., Pt. 10, 1995 Sess., p. 3444–45, remarks of Senator
Thomas F. Upson; Conn. Joint Standing Committee Hearings, Judiciary, Pt.
2, 1995 Sess., p. 682, remarks of Representative Robert M. Ward; Conn.
Joint Standing Committee Hearings, Judiciary, Pt. 3, 1995 Sess., pp. 932–33,
remarks of Representative Ward; Conn. Joint Standing Committee Hearings,
Judiciary, Pt. 5, 1995 Sess., pp. 1554–57, 1613–17, remarks and written testi-
mony of Governor Rowland; see also Conn. Joint Standing Committee Hear-
ings, Judiciary, Pt. 11, 1995 Sess., p. 3760 (statement of Megan’s Law regard-
ing need to protect children from pedophiles); Conn. Joint Standing
Committee Hearings, Judiciary, pt. 11, 1995 Sess., p. 3762 (statistics on child
sexual abuse from Adam Walsh Center).
13
See, e.g., 32 H.R. Proc., Pt. 8, 1989 Sess., p. 2583, remarks of Representa-
tive Tulisano (‘‘[c]urrently, our legislation does not . . . contemplate that
kind of sexual . . . relationships’’); 32 H.R. Proc., Pt. 17, 1989 Sess., p. 5750,
remarks of Representative Tulisano (‘‘we had indicated [that] we were going
to expand our study of this during the summer and further that we do run
a problem of dealing with consensual relationships at age fourteen’’); see
also 32 H.R. Proc., Pt. 39, 1989 Sess., p. 14179, remarks of Representative
Tulisano (‘‘[t]his would allow that it be sexual assault in the first degree
. . . for anybody who has sexual relations with anybody under the age of
[thirteen]’’). As was the case with P.A. 95-142, the senate sponsor of P.A. 89-
359—in this instance, Senator Steven Spellman—indicated that the primary
purpose of the bill was to protect children from sexual predation. See 32
S. Proc., Pt. 12, 1989 Sess., p. 4043.
14
Indeed, the legislature has made it clear that the stated public policy
of this state is to protect children from abuse and neglect. See General
Statutes § 17a-101 (a), as amended by Public Acts 2022, No. 22-87, § 4 (‘‘[t]he
public policy of this state is . . . [t]o protect children whose health and
welfare may be adversely affected through injury and neglect’’).
15
The majority acknowledges that the language of the two statutes is not
meaningfully different with respect to course of conduct charging and that
‘‘our interpretation of the language in § 53-21 (a) (2) is premised in no small
part on our prior interpretation of this statute . . . .’’ Footnote 12 of the
majority opinion. As I explain herein, that prior interpretation was not based
on the court analyzing the statute’s ‘‘situations’’ language to conclude that
continuing course charging was permissible. Rather, we simply agreed with
the prosecutor’s decision, as a practical matter, to charge a continuing
course of conduct under the circumstances.
16
Specifically, the majority contends that, ‘‘under our prior case law inter-
preting this statute, risk of injury to a child may be charged under a continu-
ing course of conduct theory’’; part I A of the majority opinion; and there
is no indication that the legislature intended to reject this interpretation
when it amended the statute in 1995; see footnote 12 of the majority opinion;
whereas ‘‘this court has not recognized a common-law exception for a
continuing course of sexual assault, even in cases involving children.’’ Part
I B of the majority opinion.
17
Frazier, on which the majority relies most heavily, is also readily distin-
guishable. Frazier involved three alleged rapes of an adult woman commit-
ted in close succession on a Sunday morning. See State v. Frazier, supra,185 Conn. 213–14. The state charged the defendant with seven separate
violations of two now defunct statutes, one prohibiting rape in the first
degree and one prohibiting deviate sexual intercourse in the first degree—
not the child sexual assault statute at issue in the present case. See id., 212
and nn.1 and 2. This court merely held that the state was not obliged to
charge the multiple acts of forced intercourse, ‘‘committed . . . in a short
period of time,’’ as one continuous act. (Internal quotation marks omitted.)
Id., 228.
18
In almost all of these cases, the multiple convictions were for different
acts perpetrated on one occasion, so that the court was not confronted with
the continuous course of conduct issue raised in this appeal but, rather,
the question of whether the legislature intended that different infractions
committed as part of one ongoing criminal episode can be treated as dis-
tinct crimes.
19
I disagree with the majority’s contention that Saraceno is not relevant
authority because it relies on the Gipson test, which the majority repudiates.
See part I B and footnote 16 of the majority opinion. At no point does
Saraceno cite to, much less rely on, Gipson or its conceptual distinctness
test. Rather, Saraceno relies entirely on the same federal cases that I would
follow, such as United States v. Margiotta, supra, 646 F.2d 729, and United
States v. Shorter, 608 F. Supp. 871 (D.D.C. 1985), aff’d, 809 F.2d 54 (D.C.
Cir.), cert. denied, 484 U.S. 817, 108 S. Ct. 71, 98 L. Ed. 2d 35 (1987). See
State v. Saraceno, supra, 15 Conn. App. 229–30.
20
Accordingly, I do not agree with the majority’s contention that the
Appellate Court in Saraceno concluded that any error was harmless, and
not that there was no error. See part I B of the majority opinion. Likewise,
in several subsequent cases, the Appellate Court proceeded on the assump-
tion that the question of prejudice went to the issue of whether duplicitous
charging of sexual assault created a constitutional violation, and not to
whether any error was harmless, and, accordingly, held that the claim at
issue foundered on the third prong, and not the fourth, of State v. Golding,
213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R.,
317 Conn. 773, 781, 120 A.3d 1188 (2015). See, e.g., State v. Marcelino S.,
118 Conn. App. 589, 594, 984 A.2d 1148 (2009), cert. denied, 295 Conn. 904,
988 A.2d 879 (2010); State v. William B., supra, 76 Conn. App. 759–60.
21
In several places, the majority highlights the fact that I have made
arguments in this opinion regarding the scope of the course of conduct
exception that the state itself does not make in its brief. See footnotes 12
and 17 of the majority opinion. That observation fails to tell the whole story.
As the majority readily acknowledges, until today, this court had not formally
recognized any prohibition against charging multiple instances of a single
crime in one count of an information. We assessed duplicity challenges only
for unanimity as to elements. In its brief, the state simply argued that we
should continue to apply that precedent. The defendant invited this court
to adopt a new rule requiring unanimity as to instances, but his proposed
analytical framework for applying that rule did not include any exception
for continuing offenses or course of conduct charging. In fact, the majority
opinion is the first time the course of conduct exception is set out and
explained. Thus, it is not nearly as telling to me as it is to the majority that
the state did not make an argument in response to an exception that only
was explicated for the first time in the release of Douglas C.