Mattos ( 2023 )

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STATE OF CONNECTICUT v. DANIEL
VELASQUEZ-MATTOS
(SC 20683)
Robinson, C. J., and McDonald, D’Auria,
Mullins, Ecker and Alexander, Js.
Syllabus
Convicted of the crimes of sexual assault in the first degree and risk of
injury to a child in connection with his sexual abuse of the victim, J,
the defendant appealed to this court. The sexual abuse allegedly
occurred over the course of several months, when the defendant, who
lived in the same multifamily house as J and J’s family, invited J to play
video games and to do homework in the defendant’s bedroom. On those
occasions, the defendant touched his penis and J’s penis, and penetrated
J’s anus with his penis. J eventually disclosed the abuse to his mother,
M, and his grandmother, T, resulting in the defendant’s arrest. In the
count of the information pertaining to first degree sexual assault, the
state alleged that the defendant had engaged in sexual intercourse with
J on ‘‘diverse dates’’ over the course of three months. At trial, J testified
that the first time the defendant touched him, he forced J to use his
hand to touch the defendant’s penis for about ten seconds. J also testified
about an incident during which the defendant had inserted his penis
into his ‘‘behind’’ and moved it ‘‘up and down . . . .’’ J testified that he
had disclosed to M and T the ‘‘nasty stuff’’ that the defendant had done
to him, which he described as kissing, touching, and anal penetration.
During cross-examination, however, J conceded that he had told a foren-
sic interviewer that the defendant never touched him with his mouth.
J also clarified that the incident involving anal penetration occurred on
a Thursday and that the defendant had touched him in that manner five
or six times. M and T subsequently testified, over defense counsel’s
objection, as constancy of accusation witnesses. During an offer of
proof, M testified that J had disclosed to her that the defendant subjected
J to a variety of sexual conduct, including fellatio and anal penetration,
and that, after each occasion, the defendant would take the bedsheets
off the bed to wash them. M also testified that J had thanked her for
taking him away from the ‘‘creepy man . . . .’’ The trial court limited
M’s constancy testimony, precluding her from testifying before the jury
about the statements regarding the ‘‘creepy man’’ and the bedsheets.
Responding to defense counsel’s objection, the trial court assured coun-
sel that there would be ‘‘unfettered cross-examination’’ of the witnesses.
T testified that J had disclosed to her the defendant’s conduct involving
anal penetration and fellatio. J’s father, R, also testified, recounting two
occasions on which he heard J scream while J was in the defendant’s
bedroom. R confirmed on direct examination that he had two prior felony
convictions, but the prosecutor objected when, on cross-examination,
defense counsel inquired into whether R had any pending charges and
the nature of those charges. During a colloquy with the court, the prose-
cutor conceded that defense counsel could question R about his prior
convictions but not about any pending charges. The court stated that
it would note R’s two felony convictions when it charged the jury and
then instructed the jury to disregard any mention of pending charges.
When cross-examination resumed, defense counsel did not inquire into
any issue relating to R’s motive, bias, or interest in testifying favorably
for the state but, instead, questioned R about comments that he had
made to the police about T’s use of ‘‘reverse psychology’’ to coax J into
disclosing the sexual abuse. At the close of evidence, defense counsel
did not file a request to charge that included a specific unanimity instruc-
tion or object to the trial court’s proposed jury instructions, which also
omitted a specific unanimity instruction. On the defendant’s appeal from
the judgment of conviction, held:
1. The trial court did not abuse its discretion in admitting the constancy of
accusation testimony of M and T relating to J’s disclosure of the defen-
dant’s sexual abuse:
Under the constancy of accusation rule that existed at the time of the
defendant’s trial, as articulated by this court in State v. Troupe (237
Conn. 284), a person to whom a sexual assault victim has reported the
assault may testify only with respect to the fact and timing of the victim’s
complaint, any testimony regarding the details of the assault must be
strictly limited to those necessary to associate the victim’s complaint
with the pending charge or charges, and such evidence is admissible only
to corroborate the victim’s testimony and not for substantive purposes.
The constancy testimony of M and T was within the parameters set forth
in Troupe, as the details that they provided regarding anal penetration
and other sexual misconduct served to associate J’s complaint with the
pending charges by corroborating J’s direct testimony that the defendant
had performed various sexual acts on him, including anal penetration,
the trial court limited M’s constancy testimony by excluding certain
extraneous but potentially inflammatory details, such as J’s comments
regarding the ‘‘creepy man’’ and the defendant’s changing of the beds-
heets, and the trial court properly instructed the jury that such evidence
was to be considered only for the purpose of determining the weight
and credibility of J’s testimony.
Moreover, contrary to the defendant’s claim that the admission of M’s
and T’s constancy testimony was improper because their testimony was
inconsistent with J’s trial testimony, insofar as the testimony of M and
T included allegations of fellatio whereas J’s testimony did not, neither
this court nor the Appellate Court has required the absence of inconsis-
tencies between the victim’s testimony and that of the constancy witness
or witnesses in order for the constancy testimony to be admissible, and
any such inconsistencies can be explored during the cross-examination
of the victim or the constancy witness, and are to be assessed by the jury.
In the present case, the inconsistency between the testimony of M and
T about fellatio and J’s testimony about his prior statement that the
defendant had never touched him with his mouth could have been, but
was not, highlighted by defense counsel in connection with the jury’s
evaluation of the credibility of the trial testimony, and defense counsel
was not precluded from attacking J’s credibility and was expressly per-
mitted to conduct ‘‘unfettered cross-examination’’ of the constancy wit-
nesses.
2. The defendant could not prevail on his unpreserved claim that the trial
court had violated his constitutional rights to confront and cross-exam-
ine his accusers and to present a defense by precluding defense counsel
from cross-examining R about R’s pending criminal charges, the defen-
dant having failed to demonstrate the existence of a constitutional viola-
tion under the third prong of the test for review of unpreserved
constitutional claims set forth in State v. Golding (213 Conn. 233), as
modified by In re Yasiel R. (317 Conn. 773):
The defendant’s claim on appeal was premised on the argument that R’s
pending criminal charges caused him to be biased, insofar as he allegedly
expected leniency in exchange for testifying favorably for the state.
Nonetheless, the defense never claimed at trial that evidence of R’s
pending criminal charges was admissible under the provision (§ 6-5) of
the Connecticut Code of Evidence governing impeachment by evidence
showing bias, prejudice, or interest, and, accordingly, the defendant’s
appellate theory that the evidence of R’s pending charges was admissible
to show bias was unpreserved.
The defendant failed to demonstrate the existence of a violation of his
constitutional rights because, during defense counsel’s cross-examina-
tion of R, counsel was permitted to sufficiently explore the theory of
defense, namely, that no sexual acts between the defendant and J had
occurred and that J’s allegations were entirely fabricated, as counsel
had elicited testimony regarding T’s use of ‘‘reverse psychology’’ on J
to goad J into alleging the sexual abuse.
Moreover, defense counsel’s reference to the nature of the pending
charges, namely, forgery in the third degree, without mentioning R’s
motive or bias in testifying for the state, indicated that he intended to
impeach R’s credibility only, and the trial court properly excluded evi-
dence of the pending charges on that basis, in accordance with the
provision (§ 6-7) of the Connecticut Code of Evidence governing
impeachment with evidence of a prior conviction.
Furthermore, defense counsel was permitted to elicit evidence that R
had two prior felony convictions, and the trial court reminded defense
counsel, during his cross-examination of R, that counsel could attack
or challenge any witness’ credibility, motivation, or bias at any time.
3. The defendant was not entitled to a new trial on the charge of sexual
assault in the first degree because, although it was undisputed that that
charge was duplicitous, insofar as it was premised on multiple acts,
each of which would have constituted a separate violation of the first
degree sexual assault statute (§ 53a-70), and such duplicity was not
cured by a bill of particulars or a specific unanimity instruction, the
defendant did not suffer prejudice as a result of the uncured violation:
a. Contrary to the state’s claim, defense counsel’s failure to object to
the trial court’s proposed jury instructions, which omitted a specific
unanimity instruction on the first degree sexual assault charge, did not
constitute an implicit waiver of the defendant’s unpreserved instructional
error claim under the rule set forth in State v. Kitchens (299 Conn. 447):
The defendant’s claim involved his right to jury unanimity as to instances
of conduct, which arises when a defendant is charged in a single count
with having violated a single statutory provision on multiple, separate
occasions, and this court first recognized jury unanimity claims involving
instances of conduct in State v. Douglas C. (345 Conn. 421), which, along
with its companion case, State v. Joseph V. (345 Conn. 516), was released
after the conclusion of the defendant’s trial in the present case.
Under Kitchens, the waiver of a constitutional challenge to jury instruc-
tions is implied rather than express because it arises from an inference
that the defendant knowingly and voluntarily relinquished the right in
question, but, when the law governing a defendant’s constitutional claim
has changed after the defendant’s trial, counsel acting under binding
precedent in effect at the time of the trial cannot make a knowing and
intelligent waiver of rights affected by the subsequent change in the law.
In light of the recent and significant change in the law that occurred
after the conclusion of the defendant’s trial by virtue of this court’s
decisions in Douglas C., which recognized the separate kinds of jury
unanimity claims and adopted the federal test for claims of unanimity
as to instances of conduct, and in Joseph V., which held that § 53a-70,
under which the defendant in the present case was charged, does not
criminalize a continuing course of conduct, defense counsel in the pres-
ent case did not knowingly and intelligently waive the defendant’s right
to challenge the trial court’s failure to include a specific instruction on
jury unanimity with respect to the first degree sexual assault charge.
b. This court concluded that, because the defendant was not prejudiced
by the duplicitous sexual assault charge, there was no constitutional
violation with respect to his right to jury unanimity as to instances of
conduct, and, accordingly, the defendant could not prevail on his claim
under the third prong of Golding:
Although the record demonstrated that the prosecutor had explored
multiple instances of sexual conduct during the state’s case-in-chief, and
the defendant claimed that J had testified to at least three specific,
discrete incidents that occurred over the course of several months, this
court’s review of the record revealed that J testified about two specific
instances of conduct, namely, the first time the defendant ever touched
J, when the defendant forced J to touch the defendant’s penis, and the
Thursday on which anal penetration occurred, which served as examples
of the recurring sexual activity.
In the present case, only the allegations involving the anal penetration
constituted sexual intercourse, as that term is defined by the statutory
scheme, both the prosecutor and defense counsel, after J testified about
the first instance of abuse, focused their questioning on the abuse that
occurred on the Thursday in question, and the record demonstrated
that the prosecutor had presented substantial evidence of that specific
instance of sexual intercourse to serve as an exemplar of the ongoing
sexual abuse that J had endured at the hands of the defendant.
Moreover, although neither the information nor the jury instructions
indicated on what instance of sexual intercourse the first degree sexual
assault charge was based, the prosecutor specified during closing argu-
ment that the state was relying on the Thursday incident as the basis
for that charge, the prosecutor’s direct examination of J, M, T, and R
was consistent with that approach, and defense counsel, during closing
argument, also attacked the testimony of J, M, and R regarding the
Thursday incident, while maintaining that J had fabricated the abuse
entirely.
Furthermore, the risk of prejudice to the defendant was minimized
because the same theory of defense was used for both the single specific
incident alleged and the general conduct alleged, namely, that the sexual
abuse never happened and that it was entirely fabricated, such that there
was no realistic possibility of juror confusion concerning the multiple
incidents insofar as the jurors were required either to find that the
allegations were fabricated and that no sexual abuse ever occurred, or
to believe J’s testimony, as corroborated by the other witnesses, that
anal penetration had in fact occurred on that certain Thursday.
In addition, although M and T testified that J had disclosed acts of
fellatio, the jurors were specifically instructed not to consider that fact
substantively, and, in the absence of evidence to the contrary, the jurors
were presumed to have followed that instruction, and the only substan-
tive evidence of fellatio was contained in a medical record that the
defense, itself, placed before the jury.
Argued February 23—officially released September 12, 2023
Procedural History
Substitute information charging the defendant with
one count of the crime of sexual assault in the first
degree and two counts of the crime of risk of injury to
a child, brought to the Superior Court in the judicial
district of New Haven and tried to the jury before B.
Fischer, J.; verdict and judgment of guilty, from which
the defendant appealed to this court. Affirmed.
Denis J. O’Malley III, assistant public defender, with
whom, on the brief, was Mark Rademacher, assistant
public defender, for the appellant (defendant).
Laurie N. Feldman, assistant state’s attorney, with
whom, on the brief, was John P. Doyle, state’s attorney,
for the appellee (state).
Opinion
ROBINSON, C. J. The principal issue in this appeal
requires us to consider the relationship between the
waiver doctrine announced in State v. Kitchens, 299
Conn. 447, 482–83, 10 A.3d 942 (2011), which applies
to unpreserved challenges to jury instructions, and the
use of jury instructions to protect the sixth amendment
right to jury unanimity with respect to duplicitous
charges, as explained by our recent decisions in State
v. Douglas C., 345 Conn. 421, 285 A.3d 1067 (2022), and
State v. Joseph V., 345 Conn. 516, 285 A.3d 1018 (2022).
The defendant, Daniel Velasquez-Mattos, appeals directly1
from the judgment of conviction, rendered after a jury
trial, of one count of sexual assault in the first degree,
in violation of General Statutes § 53a-70 (a) (2),2 and
two counts of risk of injury to a child, in violation of
General Statutes § 53-21 (a).3 On appeal, the defendant
claims that (1) the trial court improperly admitted, pur-
suant to the constancy of accusation doctrine, testi-
mony that included excessive and unnecessary details
of the sexual assault of the victim, J,4 (2) the trial court
improperly excluded impeachment evidence of pending
criminal charges against a key witness for the state, and
(3) the first degree sexual assault charge was duplici-
tous, in violation of his sixth amendment right to jury
unanimity. We disagree with the defendant’s claims and,
accordingly, affirm the judgment of the trial court.
The record reveals the following relevant facts, which
the jury reasonably could have found, and procedural
history. The defendant lived in the first floor apartment,
and J’s family lived in the second floor apartment, of
a multifamily house. The defendant befriended then
eight year old J and purchased various gifts for him,
including clothes, video games, and a PlayStation 4
gaming console. Almost nightly, the defendant invited
J downstairs to do homework and play video games in
the defendant’s bedroom, locking the bedroom door
each time. During these visits in the locked bedroom,
the defendant touched J’s and his own penis and anally
penetrated J with his penis.
J did not immediately disclose the sexual abuse
because the defendant once brandished a knife in J’s
presence and threatened to kill J’s family if he ever told
anyone. The night before J disclosed the abuse to his
mother, M, and his grandmother, T, the defendant vis-
ited their upstairs apartment, where he kissed J’s neck,
told J that he loved him, and played two sexually sugges-
tive songs on his cell phone in front of M and T. After
M and T told the defendant to stop and leave the apart-
ment, the defendant began to cry and stated that he
was going to write J a letter and commit suicide, which
resulted in the defendant’s hospitalization. The next
day, J divulged in detail to M and T the ‘‘nasty stuff’’
that the defendant had done to him. M immediately
called the police and took J to a hospital to be examined.
When the police questioned the defendant regarding
his relationship with J, the defendant initially denied
that any relationship existed but later admitted that he
spent three or four days per week in his bedroom with J.
The defendant was arrested in March, 2015, and sub-
sequently charged with, ‘‘on or about diverse dates
between August, 2014, [through] October, 2014,’’ (1)
one count of sexual assault in the first degree, alleging
that the victim was under thirteen years of age and the
actor was more than two years older, in violation of
§ 53a-70 (a) (2), (2) one count of risk of injury to a child
by contact with the intimate parts of a child under the
age of sixteen in a sexual and indecent manner likely
to impair the health and morals of the child, in violation
of § 53-21 (a) (2), and (3) one count of risk of injury
to a child by causing or permitting a child under the
age of sixteen to be placed in a situation or engaging
in an act likely to impair the health or morals of the
child, in violation of § 53-21 (a) (1). The case was tried
to a jury in December, 2015. At trial, M and T testified
as constancy of accusation witnesses for the state
regarding J’s disclosure of the sexual abuse, and J’s
father, R, also testified for the state. The jury found the
defendant guilty on all three counts, and the trial court
rendered a judgment of conviction in accordance with
the jury’s verdict, sentencing him to a total effective
sentence of twenty-five years of incarceration, execu-
tion suspended after eighteen years, followed by twenty
years of probation. This appeal followed.
On appeal, the defendant claims that (1) the trial
court abused its discretion by permitting M and T to
testify regarding the details of J’s report of the sexual
assault and his disclosure to them of acts of fellatio
about which he did not testify at trial, (2) the trial court
improperly excluded impeachment evidence favorable
to his defense that a key state’s witness, R, had pending
criminal charges, and (3) under State v. Douglas C.,
supra, 345 Conn. 421, and State v. Joseph V., supra, 345
Conn. 516, the trial court’s failure to provide a specific
unanimity instruction requires reversal of his sexual
assault conviction. Additional relevant facts will be set
forth as necessary in the context of each claim on
appeal.
I
We first consider the defendant’s claim that, under
the legal framework set forth in State v. Troupe, 237
Conn. 284, 304, 677 A.2d 917 (1996), the trial court
abused its discretion by admitting constancy of accusa-
tion evidence from M and T relating to J’s disclosure of
the defendant’s sexual conduct. To begin, the defendant
contends that the admission of the constancy testimony
violated § 6-11 (c) of the 2009 edition of the Connecticut
Code of Evidence, the version of that provision in effect
at the time of the defendant’s trial,5 in two ways: (1)
the details of the alleged sexual activity between J and
the defendant were not necessary to associate J’s allega-
tion with the pending charges, and (2) constancy testi-
mony that the defendant had performed fellatio on J
was inconsistent with J’s testimony at trial, which did
not mention that act. Relying on State v. Rolon, 257
Conn. 156, 777 A.2d 604 (2001), the defendant argues
that, because Troupe permits testimony only as to ‘‘the
time and place of the attack or the identity of the alleged
perpetrator’’; (internal quotation marks omitted) id.,
191; the admission of such details for constancy pur-
poses was an abuse of the trial court’s discretion. The
defendant further contends that the trial court’s abuse
of discretion requires reversal, considering that the
state’s case rested solely on J’s credibility.
In response, the state argues that, under the case law
governing constancy evidence at the time of trial; see
footnote 5 of this opinion; the trial court correctly fol-
lowed the limitations of Troupe by admitting the con-
stancy evidence because the witnesses’ testimony
corroborated J’s testimony and any inconsistency could
be explored on cross-examination. The state, quoting
State v. Troupe, supra, 237 Conn. 304, also contends
that the trial court correctly limited the testimony solely
to statements concerning ‘‘ ‘the details surrounding the
assault . . . .’ ’’6 We agree with the state and conclude
that the constancy of accusation evidence admitted in
this case did not violate the limitations set forth in
Troupe.
At trial, J testified that the ‘‘first time’’ that the defen-
dant touched him occurred while he was in the defen-
dant’s bedroom playing video games. The defendant
touched his own penis, ‘‘put it near . . . [J’s] behind,’’
and then forced J to touch the defendant’s penis with
J’s hand, which J was forced to move ‘‘up and down’’
for about ten seconds. J also testified that, on another
occasion, the defendant put his penis ‘‘halfway’’ into J’s
‘‘behind,’’ that the defendant moved it ‘‘up and down,’’
which ‘‘hurt’’ and made J scream, and that he ‘‘felt stuff’’
on his back. Later, on direct examination, J testified
that he told M and T that the defendant had done ‘‘nasty
stuff’’ to him. When the prosecutor asked J to explain
the ‘‘nasty stuff,’’ J stated that the defendant ‘‘used to
kiss [J] and . . . like, take his thing in [J’s] behind,
and, like, touch [J’s] boy part.’’ On cross-examination,
J conceded that he had told a forensic interviewer that
‘‘[the defendant] never touched [him] with his mouth
. . . .’’ On redirect examination, when again asked
about the disclosure of the ‘‘nasty stuff’’ to M and T, J
testified that, ‘‘when [he] came back from school, [he]
told [his] grandma all about it.’’ J then answered in the
affirmative when the prosecutor clarified that J had
‘‘told [his] grandmother . . . all the . . . nasty things
that [the defendant] had done . . . .’’
M, who is J’s mother, subsequently testified for the
state as a constancy witness. During the state’s offer
of proof, M testified that J had thanked her for taking
the ‘‘creepy man away from’’ him. She also testified that
J told her that the defendant had brandished a knife at
him and had threatened to kill J’s family if he ever told
anyone about the abuse. She continued: ‘‘[J] said that
. . . [the defendant] took [J’s] hand . . . [to] ejaculate,
[to] jerk [the defendant] . . . . Then . . . [J] said that
[the defendant] . . . put his [penis] in [J’s] back—in
[J’s] back area,’’ that the defendant moved it ‘‘in and
out,’’ that ‘‘it hurt,’’ and that, ‘‘all of a sudden [J] felt
wet stuff on his back.’’ J also had told M about an
incident in which the defendant put his mouth on J’s
penis, and that, each time after the defendant finished
doing ‘‘nasty things’’ to J, the defendant would take the
bedsheets off the bed to wash them.
Defense counsel objected to M’s constancy of accusa-
tion testimony, as proffered in the state’s offer of proof,
arguing that it was ‘‘highly prejudicial’’ and that it went
‘‘well beyond the purpose of [the constancy] rule.’’ The
trial court sustained the objection in part, allowing M’s
constancy testimony in a ‘‘very limited’’ manner, by
precluding her from testifying about J’s ‘‘creepy man’’
and bedsheet comments. When defense counsel further
objected to M’s testimony on the ground that J had
never testified as to an allegation of fellatio, the trial
court responded that ‘‘constancy witnesses can testify
to what [an] alleged complainant said’’ and that defense
counsel would ‘‘have unfettered cross-examination.’’
The court further instructed M that her answers con-
cerning J’s complaints had to be ‘‘very succinct . . . .’’
M testified consistently with her offer of proof testi-
mony and the trial court’s instructions, and additionally
testified that ‘‘[J] had told [her] that [the defendant]
tried taking [J’s] head to put it down to . . . [the defen-
dant’s] private part.’’ Defense counsel then cross-exam-
ined M but did not ask her about the allegations of
fellatio.
Over defense counsel’s objection, T then testified as
the state’s second constancy witness. During the offer
of proof, T testified that J had stated that the defendant
did something ‘‘nasty’’ and that he was ‘‘force[d]’’ to
‘‘suck [the defendant’s] penis.’’ T also testified that J
had disclosed that the defendant ‘‘put [his penis] inside
[J’s] butt . . . [that he] put . . . the thing on top of
[J’s] back,’’ and that he ‘‘did it . . . almost every day.’’
She, too, reiterated that the defendant had told J that,
if J told anyone, he would kill J’s family. As with M,
defense counsel also cross-examined T but did not ask
her about the allegations of fellatio. In charging the
jury, the trial court instructed that the constancy testi-
mony of M and T should be considered only for weight
and credibility purposes.
Before turning to the defendant’s claim on appeal,
we set forth the applicable law governing the constancy
of accusation doctrine and our scope and standard of
review, as it existed at the time of trial. ‘‘In [State v.
Troupe, supra, 237 Conn. 303–304] we determined that
the constancy of accusation doctrine should be modi-
fied to better accommodate the interest of the victim
in being protected against the unwarranted, but none-
theless persistent, view that a sexual assault victim who
does not report the crime cannot be trusted to testify
truthfully about the incident . . . and the interest of
the accused in being protected against an enhanced
risk that the jury may be unduly swayed by the repeated
iteration of the constancy of accusation testimony. . . .
We thus decided in Troupe to reject the then existing
rule that a person to whom a sexual assault victim has
complained may provide substantive testimony regard-
ing the incident. . . . We specifically concluded: [A]
person to whom a sexual assault victim has reported
the assault may testify only with respect to the fact and
timing of the victim’s complaint; any testimony by the
witness regarding the details surrounding the assault
must be strictly limited to those necessary to associate
the victim’s complaint with the pending charge, includ-
ing, for example, the time and place of the attack or the
identity of the alleged perpetrator. In all other respects,
our current rules remain in effect. Thus, such evidence
is admissible only to corroborate the victim’s testimony
and not for substantive purposes. Before the evidence
may be admitted, therefore, the victim must first have
testified concerning the facts of the sexual assault and
the identity of the person or persons to whom the inci-
dent was reported. In determining whether to permit
such testimony, the trial court must balance the proba-
tive value of the evidence against any prejudice to the
defendant.’’ (Citations omitted; internal quotation marks
omitted.) State v. Samuels, 273 Conn. 541, 547–48, 871
A.2d 1005 (2005).
‘‘[W]hether evidence is admissible under the con-
stancy of accusation doctrine is an evidentiary question
that will be overturned on appeal only [when] there
was an abuse of discretion and a showing by the defen-
dant of substantial prejudice or injustice. . . . An
appellate court will make every reasonable presump-
tion in favor of upholding the trial court’s evidentiary
rulings. . . . To the extent that the evidentiary ruling
in question is challenged as an improper interpretation
of a rule of evidence, [appellate] review is plenary.’’
(Internal quotation marks omitted.) State v. Prince A.,
196 Conn. App. 413, 419, 229 A.3d 1213, cert. denied, 335
Conn. 949, 238 A.3d 20 (2020). Because the defendant’s
claims on appeal are limited to the application of the
constancy standards under Troupe that governed at the
time of his trial; see footnote 5 of this opinion; we
review the trial court’s decision to admit the constancy
testimony of M and T for an abuse of discretion.
This court has ‘‘consistently held that constancy of
accusation testimony is admissible to corroborate the
victim’s [allegations] after the victim has first testified
as to what transpired and to whom [he or] she related
the event.’’ State v. DePastino, 228 Conn. 552, 566, 638
A.2d 578 (1994). Several Appellate Court decisions, the
continuing vitality of which the defendant does not
challenge in this appeal, have addressed the extent to
which constancy testimony may corroborate a victim’s
testimony with specific details about the allegations
of sexual conduct without violating the boundaries of
admissibility set forth in Troupe and whether the admis-
sion of such detailed constancy testimony was suffi-
ciently prejudicial to require reversal. See, e.g., State v.
Vumback, 68 Conn. App. 313, 323–24, 791 A.2d 569(2002), aff’d, 263 Conn. 215, 819 A.2d 250 (2003).
In Vumback, four constancy witnesses testified about
what the victim had disclosed to each of them, including
testimony that the victim stated that she ‘‘was getting
out of the shower and . . . [the defendant] approached
her and attempted to put his penis in her and tried to
kiss her,’’ that ‘‘she had been sexually molested in her
vaginal area and her breasts by the defendant,’’ that the
defendant ‘‘had asked her to touch his penis . . . [and]
had attempted to . . . perform oral sex on her and
touch her breasts . . . [and that the defendant also]
attempt[ed] to put his penis between her legs,’’ and that
the defendant had ‘‘asked [the victim] to put his penis
in [her] mouth . . . .’’ (Internal quotation marks omit-
ted.) Id., 325–26. One constancy witness further testified
that the victim ‘‘also explained oral sex performed by
the defendant on her’’ and that the defendant ‘‘attempted
to put his penis inside of her.’’ (Internal quotation marks
omitted.) Id., 326. The Appellate Court held that each
witness’ testimony ‘‘corroborated the victim’s accusa-
tions and associated the defendant with the pending
charges’’ within the limitations set forth in Troupe and
that the defendant failed to show either that the trial
court had abused its discretion or that he had been
substantially prejudiced by the admissions. Id., 327.
Similarly, in State v. Orhan, 52 Conn. App. 231, 238,
726 A.2d 629 (1999), the defendant claimed that the trial
court had improperly permitted the constancy witness
to provide testimony concerning details of the com-
plaint beyond that permitted by Troupe. The constancy
witness testified that the victim had disclosed that the
defendant ‘‘came in the middle of the night and . . .
touched [her] where he shouldn’t have’’ and that the
defendant ‘‘had touched her private parts while she was
sleeping . . . the night before.’’ (Internal quotation
marks omitted.) Id., 242. In holding that this constancy
testimony was consistent with Troupe, the Appellate
Court emphasized that ‘‘[t]he controlling language from
Troupe does not limit the identifying information that
may be provided. It limits only the extent of the informa-
tion provided. [The court in Troupe] merely gave exam-
ples of how a sexual assault might be identified; it did
not hold that that was the only testimony that could
be provided.’’ Id., 243.
Likewise, in State v. Lisevick, 65 Conn. App. 493, 504,
783 A.2d 73, cert. denied, 258 Conn. 933, 785 A.2d 230(2001), the defendant argued that the trial court had
improperly admitted testimony that included more
details than were necessary to connect the victim’s
complaint to the charge. In that case, one constancy
witness testified that the victim had disclosed ‘‘that
the defendant made him ‘touch’ and ‘kiss’ her ‘private
parts.’ ’’ Id., 507. Another constancy witness testified
‘‘that the victim told her that the defendant had made
‘him touch her in—on the vagina, buttocks and breast.’ ’’
Id., 507–508. The Appellate Court concluded that both
statements were within the scope of permissible con-
stancy of accusation testimony. See id.; see also State
v. Williams, 65 Conn. App. 449, 464–65, 783 A.2d 53(constancy witness’ testimony that victim had disclosed
that defendant subjected her ‘‘to oral and genital sexual
abuse, and sexual abuse involving masturbation,’’ was
consistent with Troupe because trial court had instructed
jury to use testimony corroboratively and because ‘‘vari-
ous counts alleged sexual abuse in the form of cunnilin-
gus, fellatio, [vaginal penetration], and acts of masturbation’’
(internal quotation marks omitted)), cert. denied, 258
Conn. 927, 783 A.2d 1032 (2001).
The Appellate Court has similarly addressed whether
constancy testimony should have been excluded
because of inconsistencies with the victim’s testimony.
In State v. Velez, 17 Conn. App. 186, 551 A.2d 421 (1988),
cert. denied, 210 Conn. 810, 556 A.2d 610, cert. denied,
491 U.S. 906, 109 S. Ct. 3190, 105 L. Ed. 2d 698 (1989),
the Appellate Court observed that ‘‘neither [it] nor this
court has required as a condition of its admissibility
that there be no inconsistencies between the victim’s
testimony and that of the constancy of accusation wit-
ness. . . . Any inconsistencies between the victim’s
testimony and the testimony of the witness are left to
the jury for a determination of whether the victim was
constant and consistent in relating what had happened
to her.’’ (Citation omitted.) Id., 189; see, e.g., State v.
Kelley, 229 Conn. 557, 566, 643 A.2d 854 (1994) (‘‘Rather
than disadvantaging a defendant, [the constancy] doc-
trine supplies a fertile field for cross-examination of a
complainant with reference to ascertaining where the
truth lies. . . . In addition to providing additional infor-
mation on which the defendant can cross-examine the
victim, the defendant can cross-examine the constancy
of accusation witnesses.’’ (Citation omitted; internal
quotation marks omitted.)); State v. Brigandi, 186
Conn. 521, 530–31, 442 A.2d 927 (1982) (trial court prop-
erly allowed correctly instructed jury ‘‘to decide as a
question of fact’’ whether victim’s allegations and testi-
mony had been ‘‘constant and consistent’’ (internal quo-
tation marks omitted)).
After reviewing the record in this case, we conclude
that the trial court did not abuse its discretion by admit-
ting the constancy testimony of M and T because it
was within the parameters set forth in Troupe and the
defendant has not shown substantial prejudice or injus-
tice. The details that M and T provided to the court
regarding anal penetration and other sexual misconduct
served ‘‘to associate the victim’s allegations with the
pending charge[s]’’; (internal quotation marks omitted)
State v. Samuels, supra, 273 Conn. 548; by corroborating
J’s direct testimony that the defendant had performed
various sexual acts on him, including anal penetration.
Although J did not testify about fellatio, inconsistencies
between the constancy testimony and J’s testimony do
not make the former inadmissible. See, e.g., State v.
Velez, supra, 17 Conn. App. 189. The inconsistency with
J’s prior statement that the defendant had never touched
him with his mouth could have been—but was not—
highlighted by defense counsel in connection with the
jury’s evaluation of the credibility of the trial testimony
presented, which the jury could have chosen to credit
or discredit. See, e.g., State v. Ayala, 333 Conn. 225,
237, 215 A.3d 116 (2019). Finally, the trial court limited
M’s constancy testimony by excluding certain extrane-
ous but potentially inflammatory details, such as J’s
comments regarding the ‘‘creepy man’’ and the defen-
dant’s changing of the bedsheets, and properly instructed
the jury that the evidence was to be considered only in
determining the weight and credibility of J’s testimony.
The defendant’s reliance on State v. Rolon, supra, 257
Conn. 156, is misplaced. The trial court in that case
permitted the state to offer detailed testimony through
its constancy witness for the sole purpose of rehabilitat-
ing the witness under the prior consistent statement
exception to the rule against hearsay. Id., 190. This
court concluded in Rolon that, because the defendant
had been precluded from attacking the victim’s credibil-
ity on the basis of her prior sexual abuse by another
individual, and because the inconsistencies in her testi-
mony were ‘‘insignificant’’ and did not justify the repeated
use of detailed constancy of accusation testimony for
rehabilitation purposes, the substantive testimony ‘‘proved
to be far more prejudicial than probative . . . .’’ Id.,190–91. In contrast to Rolon, the defendant in the pres-
ent case was not precluded from attacking the credibil-
ity of J or any other witness, or from exploring the
inconsistency regarding the allegations of fellatio. In
fact, the trial court permitted defense counsel ‘‘unfet-
tered cross-examination’’ of the constancy witnesses.
Accordingly, we conclude that the trial court did not
abuse its discretion in admitting M’s and T’s constancy
of accusation testimony.
II
The defendant next claims that his sixth and four-
teenth amendment rights to confront and cross-exam-
ine his accusers and to present a defense were violated
when the trial court did not permit him to cross-examine
R, who is J’s father and a witness for the state, about
criminal charges that were pending against him.
The following additional facts are relevant to this
claim. R testified at trial that he had heard J scream
from the defendant’s bedroom on two occasions. The
first time, he heard J ‘‘screaming a little bit’’ and went
to check on him, only to find him behind the defendant’s
locked bedroom door. The second time, on October
2, 2014, R was with M when he heard J scream; he
subsequently saw J ascending the stairs with the defen-
dant following behind. Cross-examination of R began
with defense counsel’s statement that he was ‘‘just going
into background a little bit.’’ Defense counsel pro-
ceeded to confirm with R that he had testified, on direct
examination, that he had prior felony convictions.
Defense counsel then asked R if he had any pending
charges, which prompted R to respond that he was
‘‘going to court right now.’’ When defense counsel asked
whether those charges were for forgery in the third
degree, the prosecutor objected. Outside the presence
of the jury, the trial court asked defense counsel
whether R was entitled to a presumption of innocence
similar to that afforded to the defendant, and counsel
agreed that R was so entitled. The trial court then
responded that the ‘‘jury doesn’t hear about pending
cases’’ and asked whether there was ‘‘anything else as
far as record that [the trial court] need[ed] to hear about
outside the presence of the jury . . . .’’ Defense coun-
sel replied, ‘‘I don’t think so, Your Honor.’’
The prosecutor noted for the record that he had pro-
vided defense counsel with R’s criminal history and
that he had already introduced the fact that R had a
felony conviction. The prosecutor consequently asked
the trial court to strike the testimony regarding the
pending charges and their specific nature, because the
jury ‘‘shouldn’t take that into account.’’ The prosecutor
and the trial court then engaged in a colloquy, addressing
the parties’ stipulation that R had two felony convic-
tions. The prosecutor conceded that defense counsel
could question R about his two felony convictions ‘‘but
. . . not for what they are and also not about pending
charges for which [R had] the presumption of inno-
cence.’’ The trial court then noted that, when it charged
the jury, it would indicate that R had two felony convic-
tions. Before defense counsel was permitted to con-
tinue his cross-examination, the trial court instructed
the jury to disregard any mention of a pending charge
or its nature.
At no point during the remainder of the cross-exami-
nation of R did defense counsel revisit any issue relating
to R’s motive, bias, or interest to testify favorably for
the state. Indeed, defense counsel subsequently inquired
into R’s involvement as a witness to a burglary at the
defendant’s residence, where the PlayStation 4 was sto-
len, and the prosecutor objected on relevance grounds.
After sustaining the objection outside the presence of
the jury, the trial court noted that, ‘‘to be clear . . .
[defense counsel] could—and either counsel knows,
[they] could attack or challenge any witness’ credibility,
motivation, [or] bias at any time.’’ At the conclusion of
R’s cross-examination, defense counsel asked R whether
he remembered telling police detectives that T had used
‘‘reverse psychology’’ to get J to disclose the defendant’s
sexual misconduct. R responded that T told J that the
defendant had ‘‘told her the truth, not the way [defense
counsel was] trying to flip it around,’’ and that it was
not T ‘‘beating it [into J’s] head the way [defense counsel
was] trying to make it seem.’’ At the close of the evi-
dence, the trial court instructed the jury that it could
consider R’s prior felony convictions only for purposes
of assessing his credibility.
The defendant contends that his constitutional claim
was preserved because, even though he did not cite to
the rule or any constitutional right, he made it ‘‘abun-
dantly clear’’ that his defense was that nothing had
happened to J. Therefore, the defendant contends that
the incriminating nature of R’s testimony, which was
that he had heard J scream from the defendant’s bed-
room on two occasions, was obvious. Relying on State
v. Arroyo, 292 Conn. 558, 56970–72, 973 A.2d 1254(2009), cert. denied, 559 U.S. 911, 130 S. Ct. 1296, 175
L. Ed. 2d 1086 (2010), which is a jailhouse informant
case, the defendant contends that R likely expected
leniency if he testified favorably for the state. He argues
that the trial court’s confusion of two different rules of
evidence, namely, §§ 6-57 and 6-78 of the Connecticut
Code of Evidence, was harmful because of the impor-
tance of R’s testimony and the fact that no other witness
provided firsthand corroboration of the allegations of
abuse.
In response, the state argues that the trial court prop-
erly precluded cross-examination regarding R’s pending
criminal charges because, under existing case law
applying § 6-5 of the Connecticut Code of Evidence, a
party who wants to impeach a witness for motive, bias,
or interest must indicate his or her desire to do so to
the trial court. See, e.g., State v. Devalda, 306 Conn.
494, 517–18, 50 A.3d 882 (2012) (defendant’s evidentiary
claim was unpreserved because he never claimed that
statement was admissible under § 6-6 (a) of Connecticut
Code of Evidence). The state posits that the prosecu-
tor’s colloquy with the trial court illustrates that defense
counsel sought to admit the evidence of pending
charges under § 6-7 of the Connecticut Code of Evi-
dence, which governs impeachment by conviction,
rather than § 6-5, which governs general matters of bias
or interest. Because the defendant never put the trial
court on notice—expressly or implicitly— of his appel-
late theory that the evidence was admissible on grounds
of bias, motive, or interest grounds, the state further
argues that the defendant did not create a record for
review and cannot show a constitutional violation under
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).9 Alternatively, the state con-
tends that any evidentiary error was harmless. We agree
with the state and conclude that the defendant has
not established a violation of his sixth and fourteenth
amendment rights.
Because the defendant never claimed at trial that
evidence of R’s pending criminal charges was admissi-
ble for impeachment purposes under § 6-5 of the Con-
necticut Code of Evidence, this particular evidentiary
claim is unpreserved. See, e.g., State v. Devalda, supra,
306 Conn. 517–18; see also Practice Book § 5-5 (‘‘[w]hen-
ever an objection to the admission of evidence is made,
counsel shall state the grounds upon which it is claimed
or upon which objection is made, succinctly and in such
form as he or she desires it to go upon the record, before
any discussion or argument is had’’). Nonetheless, the
defendant alternatively requests review under Golding.
With respect to Golding’s first two prongs, we conclude
that the record, which contains the full transcript of
the trial proceedings, is adequate for our review and
that the claim is of constitutional magnitude because
it implicates the defendant’s sixth and fourteenth amend-
ment rights to confront and cross-examine his accusers,
and to present a defense. See, e.g., State v. Luna, 208
Conn. App. 45, 67–68, 262 A.3d 942, cert. denied, 340
Conn. 917, 266 A.3d 146 (2021). Accordingly, the defen-
dant’s constitutional claim is reviewable, and we
address it under the third prong of Golding, namely,
whether the alleged constitutional violation exists and
whether it deprived the defendant of a fair trial. See
State v. Golding, supra, 213 Conn. 240; see also In re
Yasiel R., supra, 317 Conn. 781.
‘‘The following principles guide our analysis of this
claim. The right of confrontation is the right of an
accused in a criminal prosecution to confront the wit-
nesses against him. . . . The primary interest secured
by confrontation is the right to cross-examination . . .
and an important function of cross-examination is the
exposure of a witness’ motivation in testifying. . . .
Cross-examination to elicit facts tending to show
motive, interest, bias and prejudice is a matter of right
and may not be unduly restricted. . . . The right of
confrontation is preserved if defense counsel is permit-
ted to expose to the jury the facts from which jurors,
as the sole triers of fact and credibility, could appropri-
ately draw inferences relating to the reliability of the
witness. . . .
‘‘Although it is within the trial court’s discretion to
determine the extent of cross-examination and the
admissibility of evidence, the preclusion of sufficient
inquiry into a particular matter tending to show motive,
bias and interest may result in a violation of the constitu-
tional requirements . . . of the sixth amendment. . . .
This court has held repeatedly that [e]vidence tending
to show the motive, bias or interest of an important
witness is never collateral or irrelevant. It may be . . .
the very key to an intelligent appraisal of the testimony
of the [witness]. . . . [W]hether . . . limitations on
impeachment, including cross-examination, [were] so
severe as to violate [the defendant’s rights under] the
[sixth amendment] . . . is a question of law [that is]
reviewed de novo. . . .
‘‘It bears emphasis that, although restrictions on the
scope of cross-examination are within the trial court’s
sound discretion, this discretion comes into play only
after the defendant has been permitted cross-examina-
tion sufficient to satisfy the sixth amendment. . . . [A]
claim that the trial court unduly restricted cross-exami-
nation generally involves a two-pronged analysis:
whether the aforementioned constitutional standard
has been met, and, if so, whether the court nonetheless
abused its discretion . . . . Constitutional concerns
are at their apex when the trial court restricts a defen-
dant’s ability to cross-examine a key government wit-
ness.’’ (Citations omitted; emphasis omitted; internal
quotation marks omitted.) State v. Juan A. G.-P., 346
Conn. 132, 166–68, 287 A.3d 1060 (2023).
‘‘[W]hether a trial court’s . . . restriction of a . . .
[witness’] testimony in a criminal trial deprives a defen-
dant of his [constitutional] right to present a defense
is a question that must be resolved on a [case-by-case]
basis. . . . The primary consideration in determining
whether a trial court’s ruling violated a defendant’s right
to present a defense is the centrality of the excluded
evidence to the claim or claims raised by the defendant
at trial. . . . In order to determine whether a defen-
dant’s constitutional right to cross-examination has
been satisfied, [w]e consider the nature of the excluded
inquiry, whether the field of inquiry was adequately
covered by other questions that were allowed, and the
overall quality of the cross-examination viewed in rela-
tion to the issues actually litigated at trial.’’ (Citation
omitted; internal quotation marks omitted.) State v. Tor-
res, 343 Conn. 208, 217–18, 273 A.3d 163 (2022).
We conclude that the defendant’s claim fails under
the third prong of Golding because the defendant has
not shown that a constitutional violation exists. See,
e.g., id., 218–19 (defendant’s rights of confrontation and
to present defense were not violated because he was
permitted to present his version of events to jury and
to elicit essential facts from which jury could assess
witness’ credibility); State v. Andrews, 313 Conn. 266,
277–78, 96 A.3d 1199 (2014) (there was no violation of
defendant’s constitutional rights, even though excluded
witness would have corroborated his testimony regard-
ing inheritance and might have been more credible,
because that point ‘‘was not disputed’’ and ‘‘was not a
central issue in the case,’’ as it was completely unrelated
to defense).
During his cross-examination of R, defense counsel
was permitted to sufficiently explore the theory of
defense, namely, that no sexual acts had occurred and
that J’s allegations were entirely fabricated. By eliciting
evidence that R had told police detectives that T had
used ‘‘reverse psychology’’ on J, defense counsel was
permitted to sufficiently cross-examine R to satisfy the
mandates of the sixth and fourteenth amendments
under the circumstances of this case. Defense counsel’s
reference to the forgery charges, without any mention
of R’s motive, bias, or interest for testifying for the
state, indicates that he intended to impeach R’s credibil-
ity only, and the trial court properly excluded evidence
of R’s pending charges in accordance with § 6-7 on that
basis. See footnote 8 of this opinion. Defense counsel
also was permitted to elicit evidence that R had two
felony convictions, and the trial court, in addition to
instructing the jury that R had two felony convictions,
reminded defense counsel that he ‘‘could attack or chal-
lenge any witness’ credibility, motivation, [or] bias at
any time’’ during his cross-examination of R. Accord-
ingly, the defendant’s claim fails under the third prong
of Golding.
III
The defendant’s final claim is that a new trial is
required with respect to his conviction of sexual assault
in the first degree because that charge was duplicitous
and violated his sixth amendment right to jury unanim-
ity in light of this court’s recent decisions in State v.
Douglas C., supra, 345 Conn. 421, and State v. Joseph
V., supra, 345 Conn. 516. He contends that, as in Joseph
V., the duplicity violation created a ‘‘genuine possibility
that the conviction occurred as the result of different
jurors concluding that the defendant committed differ-
ent acts,’’ thereby prejudicing him. The defendant relies
on the trial court’s all-inclusive definition of ‘‘sexual
intercourse’’—which was consistent with the prosecu-
tor’s closing argument that the statutory definition
includes ‘‘any type of sexual . . . intercourse’’ or ‘‘any
other kind of penetration’’—as well as the presence—
via the constancy testimony of M and T—of an act that J
had not expressly accused the defendant of committing,
namely, fellatio, to demonstrate the substantial risk of
a nonunanimous verdict. He also contends that this
case is not one in which the duplicitous count was
based only on general testimony that the jury would
either credit or discredit in its entirety, because J testi-
fied about at least three specific incidents that took
place over the course of three months. See State v.
Joseph V., supra, 552–54.
The state’s response is threefold. First, the state
argues that there was no violation of the right to jury
unanimity explicated in Douglas C. and Joseph V.
because that right is not one against duplicitous charges
categorically but, rather, the right to seek recourse for
any duplicity in a charge, which the defendant did not
request in this case. Consistent with this argument, the
state next contends that defense counsel’s affirmative
acceptance of the proposed jury instructions, which did
not include a specific unanimity instruction, resulted
in a waiver of any right to a remedy or a bill of particu-
lars under State v. Kitchens, supra, 299 Conn. 447,
which would preclude Golding review of this unpre-
served claim. See footnote 9 of this opinion. Third, and
alternatively, the state contends that the defendant has
not shown prejudice because, unlike in Joseph V., J’s
testimony provided only a generic description of undif-
ferentiated incidents, with a specific demarcation only
of the final instance on October 2, 2014, on which the
state relied in its closing argument. In addition, because
the theory of the defense was that no sexual acts
occurred, without any differentiation among alleged
instances, the jury was required to decide whether J
was subjected to the sexual assaults or had fabricated
them entirely. The state further argues that the allega-
tions of fellatio discussed in the constancy testimony
of M and T did not prejudice the defendant in this
respect, given the generalized nature of the constancy
evidence and the presumption that the jury followed
the limiting instruction not to consider that constancy
testimony substantively. With that testimony so limited,
the state observes, the only substantive evidence of
fellatio consisted of statements contained in the medi-
cal report from the hospital where J was examined
following his disclosure, which the defendant himself
offered into evidence.10 We agree with the state and
conclude that, although the defendant did not waive
his right to jury unanimity as to instances of conduct
pursuant to Kitchens, the defendant nevertheless was
not prejudiced by the uncured violation and, therefore,
is not entitled to a new trial.
‘‘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 allegations that could have been
stated as separate offenses. . . . Rather, such a count
is . . . duplicitous [only when] the policy considera-
tions 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 information [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.)
State v. Douglas C., supra, 345 Conn. 433–34.
To determine whether a defendant was entitled to a
specific unanimity charge, we apply the three-pronged
test articulated in Douglas C. and applied in Joseph V.:
‘‘(1) Considering the allegations 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 contemplates criminalizing a continuing
course of conduct, then each instance of conduct is not
a separate violation of the statute but a single, continu-
ing violation. To determine whether the statute contem-
plates criminalizing a continuing course of conduct,
we employ our well established principles of statutory
interpretation. Only if each instance of conduct consti-
tutes a separate violation of the statute is a count duplic-
itous. And (3) if duplicitous, was the duplicity cured by
a bill of particulars 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.’’
Id., 448; accord State v. Joseph V., supra, 345 Conn.
531–32. ‘‘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
infringement of the defendant’s constitutional rights,
our review is plenary.’’ (Internal quotation marks omit-
ted.) State v. Joseph V., supra, 529.
Because it is undisputed that the single sexual assault
charge in this case was duplicitous, insofar as it was
premised on multiple acts,11 each of which would have
been a separate violation of § 53a-70 (a) (2), and that
the violation was not cured by a bill of particulars or
specific unanimity instruction, we consider only whether
the defendant has established that the duplicitous
charges prejudiced him.
A
Review of the defendant’s duplicity claim under Gold-
ing, and particularly whether the failure to provide a
specific unanimity instruction requires reversal, turns
on whether defense counsel’s failure to object to the
jury charge12 means that the defendant implicitly waived
his right to an unanimity instruction pursuant to Kitch-
ens. See State v. Bellamy, 323 Conn. 400, 437, 147 A.3d
655 (2016) (‘‘[a]n unpreserved constitutional claim that
has not been waived under Kitchens may be afforded
Golding review’’).
‘‘[W]aiver is an intentional relinquishment or aban-
donment of a known right or privilege. . . . It involves
the idea of assent, and assent is an act of understanding.
. . . The rule is applicable that no one shall be permit-
ted to deny that he intended the natural consequences
of his acts and conduct. . . . In order to waive a claim
of law it is not necessary . . . that a party be certain
of the correctness of the claim and its legal efficacy. It
is enough if he knows of the existence of the claim and
of its reasonably possible efficacy.’’ (Internal quotation
marks omitted.) State v. Kitchens, supra, 299 Conn. 469.
Among the rights that may be waived by the action of
counsel in a criminal trial is the right of a defendant to
correct jury instructions, even when fundamental rights
are at issue. See id., 467–68. This court reaffirmed the
Kitchens waiver rule, and the policy grounds on which
the court relied,13 in State v. Bellamy, supra, 323 Conn.
418–19, in which we explained that a Kitchens waiver
is consistent with the well established principle that
‘‘the waiver of a procedural right constitutes the waiver
of all of the claims within it.’’
Citing the discussion of this point in State v. Bellamy,
supra, 323 Conn. 433 n.22,14 the state argues that, although
our decisions in Douglas C. and Joseph V. were issued
after the completion of the defendant’s trial in the pres-
ent case, defense counsel nevertheless failed to pre-
serve this claim for appellate review because he could
have challenged settled law at the time but did not. The
state further contends that our case law and federal
precedent have long recognized claims of duplicity as
to instances of conduct. Additionally, the state posits
that defense counsel’s decision to accept the existing
jury instructions could have been strategic, insofar as
not requesting a specific unanimity charge could well
have prevented the jury from focusing on one particular
act of sexual abuse, or could have dissuaded the state
from charging the defendant with multiple counts of
sexual assault, each premised on a separate instance
of conduct, which would have increased the defendant’s
potential sentencing exposure. See State v. Kitchens,
supra, 299 Conn. 479–80 (discussing line of cases finding
waiver when defense counsel did not object to jury
instruction ‘‘for what clearly appeared . . . to have
been tactical reasons’’). We disagree with the state and
conclude that the defendant did not implicitly waive
his right to jury unanimity pursuant to Kitchens by
failing to object to the proposed jury instructions.
As we explained in Kitchens, because the waiver of a
constitutional challenge to jury instructions ‘‘is implied
rather than express, it arises from an inference that the
defendant knowingly and voluntarily relinquished the
right in question.’’ (Internal quotation marks omitted.)
Lapointe v. Commissioner of Correction, 316 Conn.
225, 312, 112 A.3d 1 (2015). ‘‘This requirement ordinarily
is met easily because it is presumed that, in our adver-
sary system, counsel was familiar with the relevant
constitutional principles and had acted competently in
determining that . . . the defendant’s [constitutional]
rights were protected. . . . Consequently, to demon-
strate knowing and intelligent waiver, the state ordi-
narily is not required to establish that defense counsel
was aware of a possible constitutional claim in the
factual scenario presented . . . . To demand more
would require the trial court to canvass defense counsel
with respect to counsel’s understanding of the relevant
constitutional principles before accepting counsel’s
agreement on how to proceed . . . [and] there is noth-
ing in our criminal law that supports such a require-
ment.’’ (Citations omitted; internal quotation marks
omitted.) State v. Culbreath, 340 Conn. 167, 181–82,
263 A.3d 350 (2021); see State v. Bellamy, supra, 323
Conn. 418–19.
Nevertheless, ‘‘when the law governing a defendant’s
constitutional claim has changed after the defendant’s
trial, counsel acting under binding precedent in effect
at the time of the trial cannot make a knowing and
intelligent waiver of rights affected by the later decision
changing the law.’’ State v. Johnson, 345 Conn. 174,
188–89, 283 A.3d 477 (2022). This is consistent with the
principle that, ‘‘at a minimum, all defendants whose
cases [are] still pending on direct appeal at the time of
[a law changing] decision should be entitled to invoke
the new rule.’’ (Internal quotation marks omitted.) Grif-
fith v. Kentucky, 479 U.S. 314, 322, 107 S. Ct. 708, 93
L. Ed. 2d 649 (1987). ‘‘If we do not resolve all cases
before us on direct review in light of our best under-
standing of governing constitutional principles, it is dif-
ficult to see why we should so adjudicate any case at
all.’’ (Internal quotation marks omitted.) Id., 323; see
O’Connor v. Ohio, 385 U.S. 92, 93, 87 S. Ct. 252, 17
L. Ed. 2d 189 (1966) (reversing Ohio Supreme Court’s
decision that petitioner was not entitled to benefit from
new constitutional rule based on failure to raise claim
below because ‘‘his failure to object to a practice [that]
Ohio had long allowed [could not] strip him of his right
to attack the practice following its invalidation by [the
United States Supreme] Court’’).
This court’s recent decision in State v. Culbreath,
supra, 340 Conn. 167, squarely controls our resolution
of the Kitchens waiver issue in this case. In Culbreath,
we held that defense counsel did not make a knowing
and intelligent waiver of the state constitutional claim
raised on appeal by the defendant, Jesse Culbreath,
because the law governing that claim had changed after
Culbreath’s trial. Id., 182–85. After the jury returned its
verdict in Culbreath’s trial, we released our decision in
State v. Purcell, 331 Conn. 318, 320–21, 203 A.3d 542(2019), in which we held for the first time that the
Connecticut constitution requires police officers to clar-
ify an ambiguous request for counsel before they can
continue an interrogation, thus providing greater pro-
tection for a criminal defendant’s rights under Miranda
v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L.
Ed. 2d 694 (1966), than the federal constitution. See
State v. Culbreath, supra, 183–84. Accordingly, ‘‘we
[could not] presume that defense counsel knew that the
state constitution would subsequently be interpreted
to provide an additional layer of prophylaxis to prevent
a significant risk of deprivation of those vital . . . rights
protected under Miranda.’’ (Internal quotation marks
omitted). State v. Culbreath, supra, 184; see, e.g., State
v. Johnson, supra, 345 Conn. 189 (because defendant
arguably would not have had colorable confrontation
clause claim under subsequently reversed Appellate
Court decision at time of trial, defense counsel’s failure
to object did not constitute waiver).
In State v. Douglas C., supra, 345 Conn. 421, we recog-
nized for the first time that a duplicitous information
may yield two distinct and separate kinds of unanimity
claims, and we adopted the federal test for claims of
unanimity as to instances of conduct. See id., 441; see
also State v. Joseph V., supra, 345 Conn. 531 (‘‘Pre-
viously, our appellate courts [had] not distinguished
between [unanimity as to elements and unanimity as
to instances of conduct]. In Douglas C., however, we
explained that different tests apply . . . .’’). Similarly,
in State v. Joseph V., supra, 550–51, we concluded for
the first time that the sexual assault statute, § 53a-70,
with which the defendant in this case was charged,
does not criminalize a continuing course of conduct.
Thus, in light of the recent and significant change in
our case law that occurred after the completion of the
defendant’s trial, we conclude that defense counsel did
not make a knowing and intelligent waiver of the right
to unanimity as to instances of conduct pursuant to
Kitchens, and, accordingly, we address whether a con-
stitutional violation exists for purposes of Golding
review.
B
Whether the defendant’s duplicity claim requires
reversal depends on whether the lack of a specific una-
nimity charge or bill of particulars ultimately prejudiced
him. See State v. Douglas C., supra, 345 Conn. 447–48
(discussing third prong of test analyzing prejudice,
namely, whether ‘‘the duplicity created the genuine pos-
sibility that the conviction [occurred as the result of]
different jurors concluding that the defendant commit-
ted different acts’’). The record demonstrates that the
prosecutor explored multiple instances of sexual con-
duct during the state’s case-in-chief. J testified in detail
as to the ‘‘first time’’ that the defendant touched him
inappropriately, and J subsequently testified that the
defendant had touched him or asked him to touch the
defendant approximately four to six times. J also testi-
fied in detail as to an occasion when he was ‘‘in [the
defendant’s] bedroom and something happened with
[J’s] behind . . . .’’ J stated that ‘‘the thing with [his]
butt happen[ed]’’ approximately five times.15 On cross-
examination, defense counsel asked J whether ‘‘the
thing with [his] butt happen[ed] on the Wednesday or
Thursday before that Monday—before the weekend,’’
and J responded that ‘‘it was on the Thursday.’’ On redirect
examination, the prosecutor clarified that the Thursday
to which defense counsel was referring was October
2, 2014, and, during closing argument, the prosecutor
explained to the jury the legal definition of ‘‘sexual inter-
course.’’16
During closing argument, defense counsel drew atten-
tion to accounts of the incident from J, M, and R with
respect to ‘‘October 2, which [was] a Thursday . . . .’’
He also observed that ‘‘[w]e have a case alleging sexual
assault with sexual intercourse, anal penetration . . . .’’
He continued: ‘‘Now, you [have] heard [J] testify that
he was raped multiple times; he couldn’t tell you how
many. Sometimes it was three, sometimes it was five,
sometimes it was six, sometimes it was every day.’’ The
trial court then instructed the jury that, to find the
defendant guilty of sexual assault in the first degree,
the state had to prove that the defendant had engaged in
sexual intercourse, meaning ‘‘vaginal intercourse, anal
intercourse, fellatio, or cunnilingus.’’
The starting point of our analysis of whether the
defendant has shown that the duplicitous charges
caused him prejudice is our recent decision in Joseph
V. In that case, the defendant claimed, inter alia, that
the count of the information charging him with sexual
assault in the first degree was duplicitous. Id., 521–22,
538–39. At trial, the victim and a witness testified about
four distinct incidents of abuse by the defendant; id.,
539; and the victim also testified that there were many
other occurrences that ‘‘had blurred together because
there [were] too many to count and distinguish between.’’
(Internal quotations marks omitted.) Id., 525. Defense
counsel in that case extensively cross-examined both
the victim and the witness regarding the specific details
for each of the four incidents. Id., 539, 556, 557 n.21.
During closing argument, the prosecutor summarized
the four specific instances of sexual abuse and high-
lighted the repeated nature of the conduct, while also
arguing ‘‘that the jury only had to believe it happened
once . . . to satisfy the element of sexual intercourse.’’
(Internal quotation marks omitted.) Id., 539. In response,
defense counsel argued that the victim and the witness
lacked credibility and also highlighted the inconsisten-
cies in their testimony as to each of the four instances
of abuse. Id., 539–40. Consequently, defense counsel in
that case requested a bill of particulars and a specific
unanimity instruction, which the trial court declined to
grant. Id., 524–25.
Applying the three-pronged test that we adopted in
Douglas C., we concluded that a new trial was required
because the defendant suffered prejudice as a result of
the trial court’s denial of his request for a bill of particu-
lars or a specific unanimity instruction, thereby violating
the defendant’s constitutional right to jury unanimity.
See id., 528–29; see also id., 531–32. We reasoned that,
‘‘in light of the specific nature of the testimony and defense
counsel’s extensive cross-examination and closing argu-
ment directed at unique credibility concerns related
to each incident, as well as the prosecutor’s closing
argument that any of the alleged incidents would estab-
lish the element of sexual intercourse . . . [t]he
duplicitous nature of [the first degree sexual assault]
count . . . created the potential for the [jurors] to be
confused or to disagree about which of the various acts
of sexual intercourse the defendant committed, thereby
prejudicing him.’’ (Emphasis added; footnote omitted.)
Id., 556–57.
Although Joseph V. is the only decision applying the
test articulated in Douglas C., the Appellate Court’s
previous decision in State v. Saraceno, 15 Conn. App.
222, 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), is also instructive. See State v. Joseph
V., supra, 345 Conn. 553–56. In Saraceno, the defendant
claimed that his conviction of two counts of sexual
assault in the second degree, each of which alleged
the commission of a single crime based on multiple,
separate incidents of sexual assault, prejudiced him
because they were duplicitous. See State v. Saraceno,
supra, 225 n.1, 228; see also State v. Joseph V., supra,
553. Upholding the conviction, the Appellate Court rea-
soned that, because of the victim’s age and ‘‘relative
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 credibil-
ity of the young complainant. When she testified, for
example, 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
[specter] of lack of unanimity cannot arise.’’ State v.
Saraceno, supra, 230. The jury was also ‘‘adequately
warned that it was required to render a unanimous
verdict on at least a single violation of the statute alleged
in each count in order to [find] the defendant [guilty].’’
Id., 230–31.
Although the defendant in the present case contends
that J testified to at least three specific, discrete inci-
dents that took place over the course of several months,
our review of the record reveals that J testified to two
specific instances of conduct as examples of the reoc-
curring sexual activity—the first being the ‘‘first time’’
and the second being when ‘‘something happened with
[J’s] behind’’—with only the latter instance containing
allegations of sexual intercourse within the meaning of
the sexual assault statute. See footnote 16 of this opin-
ion. J testified that the ‘‘first time’’ that the defendant
had been inappropriate with him was when the defen-
dant touched J’s penis and forced J to touch the defen-
dant’s penis for about ten seconds. See part I of this
opinion. J then testified about, and both the prosecutor
and defense counsel focused their examinations on
throughout the trial, the October 2, 2014 incident, when
the defendant anally penetrated J’s ‘‘behind.’’ See id.
Specifically, on cross-examination, defense counsel
asked J about ‘‘the one that happened on Thursday,’’
and, on redirect examination, the prosecutor clarified
that the Thursday that defense counsel was referring
to was October 2, 2014. (Emphasis added.)
Beyond the evidence focusing on the sexual assault
allegations on Thursday, October 2, 2014, at trial, the
defendant in the present case advanced essentially the
same defense that the defendant advanced in Joseph
V., namely, that the victim and witness or witnesses
lacked credibility. See State v. Joseph V., supra, 345
Conn. 539. However, unlike in the present case, defense
counsel in Joseph V. ‘‘extensive[ly]’’ cross-examined the
victim and the witness regarding the specifics of each
of the three particular incidents of conduct, argued in
closing the unique credibility concerns relating to each
incident, and attacked the prosecutor’s closing argu-
ment that any of the alleged incidents would establish
the element of sexual intercourse. See id., 556–57 and
n.21; see also id., 557 n.21 (‘‘[t]he primary focus of the
trial was on these specific incidents of conduct’’). In
contrast to Joseph V., the record in the present case
demonstrates that the state presented substantial evi-
dence of one specific instance of sexual intercourse to
serve as an exemplar of the ongoing sexual abuse that
J had endured at the hands of the defendant.
Although neither the information nor the jury charge
indicated which instance of sexual intercourse the first
degree sexual assault charge was based on, the prosecu-
tor specified during closing argument that the state was
relying on the October 2, 2014 incident as the basis for
that charge, and the prosecutor’s direct examination of
J, M, T, and R was consistent with that approach. During
closing argument, defense counsel also attacked the
testimony of J, M, and R regarding the October 2, 2014
incident, while maintaining that J had fabricated the
abuse entirely. Thus, the risk of prejudice to the defen-
dant was minimized when, as in this case, the defendant
utilized the same theory of defense for both the single
specific incident alleged and the general conduct
alleged, namely, that the sexual abuse never happened
and that it was entirely fabricated. Put differently, there
was no realistic possibility of juror confusion or dis-
agreement concerning the multiple incidents because
the jurors were required either to find that the allega-
tions were fabricated and that no sexual conduct ever
occurred at all, or to believe J’s testimony, as corrobo-
rated by the other witnesses, that anal penetration had
in fact occurred on October 2, 2014. Compare State v.
Hufford, 205 Conn. 386, 397, 533 A.2d 866 (1987) (there
was no prejudice when defense was simple denial that
incident had ever occurred, and defendant did not
assert that he would have changed his defense if infor-
mation had charged him with each alternative in sepa-
rate counts or in conjunctive), with Jackson v. State, 342
P.3d 1254, 1256, 1258–59 (Alaska App. 2014) (prejudice
existed because defense clearly differentiated between
vaginal and anal penetration, asserting that one was
consensual and one was accidental), and State v. Truji-
llo, 296 Kan. 625, 630, 294 P.3d 281 (2013) (‘‘cases not
containing a unified defense are reversed’’ (internal quo-
tation marks omitted)). Likewise, J was only ten years
old when he testified and approximately eight or nine
years old when the abuse took place. See State v. Sara-
ceno, supra, 15 Conn. App. 230 (relying on victim’s age
and ‘‘relative inability to recall with specificity the
details of separate assaults’’ in upholding conviction).
Although M and T testified as constancy witnesses
that J had disclosed acts of fellatio, the jury was specifi-
cally instructed not to consider that fact substantively,
and, in the absence of evidence to the contrary, the
jury is presumed to have followed that instruction. See,
e.g., State v. Holley, 327 Conn. 576, 629, 175 A.3d 514(2018). Moreover, the only substantive evidence of fella-
tio was contained in the medical report, which was an
exhibit that the defendant himself placed before the
jury. See id., 620 (‘‘the defendant cannot successfully
challenge the admission of evidence when he was
responsible for placing that evidence before the jury’’
(internal quotation marks omitted)); see also footnote
10 of this opinion. We therefore conclude that, because
the defendant was not prejudiced by the uncured viola-
tion of his right to jury unanimity as to instances of
conduct, there was no constitutional violation, and the
defendant is not entitled to a new trial.
The judgment is affirmed.
In this opinion the other justices concurred.
1
The defendant appealed directly to this court pursuant to General Stat-
utes § 51-199 (b) (3). Although he did not file a timely appeal, a habeas
court restored his appellate rights pursuant to a stipulated agreement.
2
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 . . . .’’
3
General Statutes § 53-21 (a) provides in relevant part: ‘‘Any 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, or (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 . . . .’’
4
In accordance with our policy of protecting the privacy interests of
victims of sexual abuse and the crime of risk of injury to a child, we decline
to identify the victim or others through whom the victim’s identity may be
ascertained. See General Statutes § 54-86e.
5
Section 6-11 of the Connecticut Code of Evidence has been revised to
reflect this court’s modification of the constancy of accusation doctrine in
State v. Daniel W. E., 322 Conn. 593, 629–30, 142 A.3d 265 (2016). Section
6-11 (c) of the 2023 version of the Connecticut Code of Evidence provides
in relevant part: ‘‘(1) If the defense impeaches the credibility of a sexual
assault complainant regarding any out-of-court complaints or delayed
reporting of the alleged sexual assault, the state shall be permitted to call
constancy of accusation witnesses. . . . (2) If the complainant’s credibility
is not impeached by the defense regarding any out-of-court complaints or
delayed reporting of the alleged sexual assault, constancy of accusation
testimony shall not be permitted, but, rather, the trial court shall provide
appropriate instructions to the jury regarding delayed reporting.’’ The revi-
sion to § 6-11 did not go into effect until February 1, 2018, subsequent to
the conclusion of the trial in the present case on December 10, 2015. Thus,
this issue is governed by the unmodified constancy of accusation doctrine
as it existed prior to Daniel W. E. See, e.g., State v. Daniel W. E., supra,
630; State v. Prince A., 196 Conn. App. 413, 418–19, 229 A.3d 1213, cert.
denied, 335 Conn. 949, 238 A.3d 20 (2020).
6
The state also posits, as alternative grounds for affirmance, that (1) the
statements were admissible under Troupe as prior consistent statements
made to rebut the suggestion of recent fabrication, and (2) any error is
harmless. Given our conclusion that the constancy of accusation evidence
did not violate the limitations set forth in Troupe, we need not reach these
alternative grounds.
7
Section 6-5 of the Connecticut Code of Evidence provides: ‘‘The credibil-
ity of a witness may be impeached by evidence showing bias for, prejudice
against, or interest in any person or matter that might cause the witness to
testify falsely.’’
8
Section 6-7 (a) of the Connecticut Code of Evidence provides: ‘‘For the
purpose of impeaching the credibility of a witness, evidence that a witness
has been convicted of a crime is admissible if the crime was punishable by
imprisonment for more than one year. In determining whether to admit
evidence of a conviction, the court shall consider: (1) the extent of the
prejudice likely to arise; (2) the significance of the particular crime in
indicating untruthfulness; and (3) the remoteness in time of the conviction.’’
9
‘‘[A] defendant can prevail on a claim of constitutional error not preserved
at trial only if all of the following conditions are met: (1) the record is
adequate to review the alleged claim of error; (2) the claim is of constitutional
magnitude alleging the violation of a fundamental right; (3) the alleged
constitutional violation . . . exists and . . . deprived the defendant of a
fair trial; and (4) if subject to harmless error analysis, the state has failed
to demonstrate harmlessness of the alleged constitutional violation beyond
a reasonable doubt.’’ (Emphasis in original; footnote omitted.) State v. Gold-
ing, supra, 213 Conn. 239–40; see In re Yasiel R., supra, 317 Conn. 781(modifying third prong of Golding).
10
The defense admitted into evidence J’s medical record from the hospital
visit on the day that M notified the police of the alleged abuse. The medical
record provides in relevant part: ‘‘After [M] witnessed the [defendant] kiss
[J’s] neck and confronted him, [J] eventually revealed to [M] that [the defen-
dant] had performed both oral sex and anal intercourse on him [four] days
ago. . . .’’
11
The long form information charged the defendant with, among other
crimes, one count of sexual assault in the first degree for conduct occurring
‘‘on or about diverse dates between August, 2014, [through] October, 2014,’’
alleging that the victim was under thirteen years of age and the actor was
more than two years older, in violation of § 53a-70 (a) (2).
12
The defendant did not file a request to charge that included a specific
unanimity instruction. Further, at the close of evidence, neither the state
nor the defense took any exceptions or made any objections to the trial
court’s proposed jury instructions.
13
These policy grounds include ‘‘(1) the presumption that counsel is com-
petent, (2) the rules of practice that provide for counsel’s participation in
the crafting of instructions, (3) the rules of fairness that place responsibility
with the trial court and counsel to ensure that the instructions are correct,
and (4) the existence of habeas review as a potential safety net.’’ State v.
Bellamy, supra, 323 Conn. 423.
14
See State v. Bellamy, supra, 323 Conn. 433 n.22 (‘‘To the extent the
defendant claims that habeas review does not eliminate the unfairness of
finding implied waiver in cases in which counsel challenges an aspect of
settled law on direct appeal that was not challenged in the trial proceedings,
we note that the defendant is in the same position as all other defendants
to whom the law has applied in the past. Moreover, there is nothing to
prevent trial counsel from challenging settled law in the trial proceedings,
thereby preserving the claim for appellate review. . . . We nonetheless
leave the merits and a full discussion of this argument for another day, when
such a claim is presented to this court on direct appeal.’’ (Citation omitted.)).
15
R also testified about these two specific occurrences on direct examina-
tion. Before providing her constancy of accusation testimony, M testified
about the October 2, 2014 incident, during which she and R heard J scream
from the defendant’s downstairs apartment and then found the defendant
following J upstairs.
16
The prosecutor explained that ‘‘[s]exual intercourse under the law in
this area is defined in a variety of manners . . . . It’s [defined as] vaginal,
anal, fellatio, cunnilingus, any type of sexual . . . intercourse. . . . In this
case, what the state is alleging is anal intercourse or any other kind of
penetration. You heard testimony from [J] in regard to what happened to
him . . . that Thursday afternoon [when] the defendant placed his penis
into [J’s] anus . . . that it went in or that it went halfway in. If you find
that testimony to be credible, then the crime of sexual assault in the first
degree has occurred and concluded.’’ See General Statutes (Rev. to 2015)
§ 53a-65 (2) (‘‘ ‘Sexual intercourse’ means vaginal intercourse, anal inter-
course, fellatio or cunnilingus between persons regardless of sex. Penetra-
tion, however slight, is sufficient to complete . . . anal intercourse
. . . .’’ ’).