State v. Greer ( 2022 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
STATE OF CONNECTICUT v. DANIEL GREER
(AC 43726)
Bright, C. J., and Elgo and DiPentima, Js.
Syllabus
Convicted of four counts of risk of injury to a child, the defendant appealed
to this court. The defendant, a rabbi, was a teacher at and served as
the dean of a private, Orthodox Jewish high school. The victim, E,
attended the school for four years, commencing in 2001. E alleged that,
during his sophomore year, when he was fourteen and fifteen years old,
he and the defendant met at least once a week to engage in various
sexual acts. The defendant continued to engage in sexual acts with E
after he turned sixteen years old. In 2016, E reported the sexual abuse
to the police. The defendant was arrested and charged with four counts
each of sexual assault in the second degree and risk of injury to a child.
At trial, the state introduced uncharged misconduct evidence pursuant
to a provision (§ 4-5) of the Connecticut Code of Evidence regarding a
sexual relationship between the defendant and R, a former student at
the school, and the defendant’s relationship with E after his sixteenth
birthday. Following R’s testimony, the court provided a limiting instruc-
tion to the jury. After the close of evidence at trial, defense counsel
moved for a judgment of acquittal as to the charges of sexual assault
in the second degree on the ground that the prosecution was barred by
the applicable statute ((Rev. to 2001) § 54-193a, as amended by Public
Acts 2002, No. 02-138, § 1) of limitations because E had not notified a
police officer or state’s attorney within five years of the commission of
the offense. The state conceded that the charges were barred, and the
trial court granted the motion for a judgment of acquittal. Thereafter,
the state filed a new information limited to the four counts of risk of
injury to a child. In its final instructions to the jury, the court instructed in
relevant part regarding misconduct evidence: ‘‘It is for you to determine
whether the defendant committed any uncharged sexual misconduct
. . . .’’ The jury found the defendant guilty. The defendant filed postver-
dict motions for a judgment of acquittal and a new trial, claiming, inter
alia, that the limitation period applicable to the charges of sexual assault
in the second degree should also apply to the risk of injury charges
because the charges were based on the same conduct. The trial court
denied the motions, and the defendant appealed to this court. Held:
1. The trial court properly denied the defendant’s motion for a judgment of
acquittal as to the risk of injury charges: our courts previously have
concluded that risk of injury to a child and sexual assault are separate
and distinct offenses; moreover, contrary to the defendant’s assertion,
the requirement that a victim notify a police officer or state’s attorney
of an offense within five years of its commission was limited by the
plain and unambiguous language of § 54-193a to charges of sexual assault
in the second degree pursuant to statute (§ 53a-71 (a) (1)); furthermore,
if the legislature had intended the additional reporting requirement to
also apply to charges of risk of injury under the applicable statute (§ 53-
21 (a) (2)), it would have stated so expressly, and, accordingly, for the
court to expand the requirement to violations of § 53-21 (a) (2) would be
contrary to the presumed intent of the legislature; additionally, applying
different statutes of limitations to the two sets of charges would not
lead to an absurd or unworkable result, as two criminal statutes can
be construed to proscribe the same conduct and a defendant may be
prosecuted under either.
2. The trial court properly instructed the jury as to the evidence of uncharged
misconduct: the defendant adequately preserved his challenge to the
trial court’s instructions regarding the uncharged misconduct evidence
involving the defendant’s continued sexual acts with E after E turned
sixteen by stating in his request to charge that, ‘‘[a]s to any evidence
of uncharged misconduct,’’ the state had the burden to prove such
conduct by clear and convincing evidence; moreover, the trial court
instructed that it was for the jury ‘‘to determine’’ whether the defendant
engaged in the acts of uncharged misconduct and, contrary to the defen-
dant’s assertions, there was no meaningful distinction between an
instruction that a jury may consider prior misconduct evidence if it
‘‘believes’’ such evidence, which our Supreme Court endorsed in State
v. Cutler (293 Conn. 303) and which is used in the Connecticut Criminal
Jury Instructions, and the trial court’s use of the word ‘‘determine’’;
accordingly, the trial court’s instructions regarding the uncharged mis-
conduct were not deficient.
Argued February 28—officially released July 19, 2022
Procedural History
Substitute information charging the defendant with
four counts each of the crimes of sexual assault in the
second degree and risk of injury to a child, brought to
the Superior Court in the judicial district of New Haven,
geographical area number twenty-three, and tried to
the jury before Alander, J.; thereafter, the court,
Alander, J., granted the defendant’s motion for a judg-
ment of acquittal as to the four counts of sexual assault
in the second degree; verdict of guilty of four counts
of risk of injury to a child; subsequently, the court,
Alander, J., denied the defendant’s postverdict motions
for a judgment of acquittal and a new trial and rendered
judgment in accordance with the verdict, from which
the defendant appealed to this court. Affirmed.
Richard Emanuel, with whom was David T. Grud-
berg, for the appellant (defendant).
Timothy F. Costello, senior assistant state’s attorney,
with whom, on the brief, were Patrick J. Griffin, former
state’s attorney, and Maxine Wilensky and Karen A.
Roberg, senior assistant state’s attorneys, for the appel-
lee (state).
Opinion
BRIGHT, C. J. The defendant, Daniel Greer, appeals
from the judgment of conviction, rendered after a jury
trial, of four counts of risk of injury to a child in violation
of General Statutes § 53-21 (a) (2). On appeal, the defen-
dant claims that the court improperly (1) concluded that
the statute of limitations applicable to sexual assault
in the second degree under General Statutes (Rev. to
2001) § 54-193a, as amended by Public Acts 2002, No.
02-138, § 1 (effective May 23, 2002) (P.A. 02-138),1 did
not apply to the risk of injury charges and (2) declined
to instruct the jury to apply a standard of proof to
determine whether certain prior misconduct occurred.
We disagree and, accordingly, affirm the judgment of
the trial court.
The jury reasonably could have found the following
facts. The defendant, who is a rabbi, founded Yeshiva of
New Haven, Inc. (yeshiva), a private, Orthodox Jewish
school, and served as a dean, rabbi, and teacher at the
yeshiva. The victim, E,2 attended the yeshiva for high
school, beginning his freshman year in August or Sep-
tember, 2001, when he was thirteen years old. E’s birth-
day is in October, and he turned fourteen years old
during his freshman year. Shortly after the school year
began, E was expelled from the yeshiva, but he was
allowed to return to complete his freshman year after
spending a few weeks at home.
In 2002, when he was fourteen years old, E returned
to the yeshiva for his sophomore year. At some point
during the beginning of the school year, the defendant
told E to meet him at an apartment adjacent to the
school, and E complied. At the apartment, the defendant
offered E a can of nuts and an alcoholic drink, either
wine or hard liquor, in a red Solo cup. They proceeded
to drink and talk about E’s family and his future, and
E began to get emotional and his head felt ‘‘fuzzy . . . .’’
At some point, the defendant touched E’s thigh or
crotch area and attempted to kiss him on the lips. When
E pulled away and asked the defendant what he was
doing, the defendant said that ‘‘[i]t wasn’t a big deal
and that this is what he does to his kids.’’ Nothing
further transpired, and E returned to his dormitory.
After the initial incident at the apartment, E and the
defendant met at least once a week during his sopho-
more year at various locations—often in New Haven
or at a motel in Branford—and engaged in oral or anal
sex. During these encounters, the defendant and E often
would consume alcohol. E acknowledged that ‘‘the
encounters meld together’’ but was ‘‘very sure’’ that he
and the defendant engaged in anal and oral sex during
his sophomore year, during which time he was fourteen
and fifteen years old. He testified that, during that
period, he and the defendant frequently performed oral
sex on each other, that he performed anal sex on the
defendant ‘‘many’’ times, and that, when the defendant
attempted to perform anal sex on E, E forced him to
stop because it was too painful. After these encounters,
E would feel ‘‘shame, guilt, [and] confusion.’’ At the
yeshiva, the defendant gave E preferential treatment
and would not yell at him as he regularly did with
other students. When E attempted to end the sexual
relationship, the defendant stopped giving him prefer-
ential treatment and became ‘‘nasty’’ instead of ‘‘nice
and charming . . . .’’ The defendant continued to
engage in sexual acts with E after he turned sixteen
years old in October, 2003.
After graduating in 2005, E went to an Orthodox
yeshiva in Israel to continue his Jewish studies and met
S, his future wife, while staying there. In 2006, E told
S that the defendant had molested him during high
school, but he did not provide any details about the
abuse. In the summer of 2006, E returned to Connecticut
and met the defendant at the Branford motel, where
they had their last sexual encounter.
In December, 2007, E and S were married, and the
defendant was one of the witnesses at the ceremony,
which is a position of honor. E explained that he gave
the defendant this honor because he respected the
defendant and ‘‘still felt part of the New Haven commu-
nity . . . .’’ For several years following their marriage,
E and S would travel to New Haven for Jewish holidays,
where they would share meals with members of the
yeshiva community, including the defendant. When E
and S had a son in June, 2010, E asked the defendant
to hold the baby during the circumcision, which is also
a position of honor.
In 2013, E and S bought a house in New Jersey, and
E found a rabbi in that community. Around that time,
E stopped traveling to New Haven and communicating
with the defendant. At some point before 2016, E dis-
closed the abuse to his therapist and two family friends,
one of whom was working at the yeshiva. In May, 2016,
E filed a civil action in federal court against the defen-
dant seeking money damages stemming from the sexual
abuse. In August, 2016, while the civil action was pend-
ing, E reported the sexual abuse to the New Haven
Police Department.
On July 26, 2017, the defendant was arrested and
charged with four counts of sexual assault in the second
degree under General Statutes § 53a-71 (a) (1)3 and four
counts of risk of injury to a child under § 53-21 (a) (2).4
In the operative long form information, the state alleged
that the charged conduct occurred when E was fourteen
and fifteen years old, ‘‘at the city of New Haven on divers
dates between 2002 up to October 27, 2003 . . . .’’ As
the state acknowledged at oral argument before this
court, the sexual assault and risk of injury charges were
premised on the same conduct—anal intercourse and
fellatio.5
The case proceeded to a jury trial, and, at the close
of evidence, defense counsel moved for a judgment of
acquittal as to the charges of sexual assault in the sec-
ond degree on the ground that the prosecution was
barred by the statute of limitations set forth in § 54-
193a because E had not notified a police officer or
state’s attorney within five years after the commission
of the offense. After a brief recess, the state conceded
that the sexual assault charges are barred under § 54-
193a, and the court granted the motion for a judgment
of acquittal as to the four counts of sexual assault in
the second degree (counts one, three, five, and seven).
Thereafter, the state filed a new information limited to
the four counts of risk of injury to a child, and the jury
found the defendant guilty of those charges.
The defendant filed postverdict motions for a judg-
ment of acquittal and a new trial. In the memorandum
of law in support of the motions, the defendant claimed,
inter alia, that the same limitation period applicable to
sexual assault in the second degree should apply to the
risk of injury charges because all of the charges were
based on the same conduct.6 After hearing argument,
the court rejected the defendant’s statute of limitations
claim and denied the motions. Thereafter, the court
sentenced the defendant to twenty years of incarcera-
tion, execution suspended after twelve years, followed
by ten years of probation. This appeal followed. Addi-
tional facts will be set forth as necessary.
I
The defendant first claims that the same limitation
period that applied to the charges of sexual assault in
the second degree also applies to the risk of injury
charges, which were based on the same conduct and
proved by the same evidence. We are not persuaded.
As a preliminary matter, we set forth our standard
of review and the legal principles that guide our analy-
sis. The defendant’s statute of limitations claim presents
an issue of statutory construction. ‘‘Issues of statutory
construction present questions of law, over which we
exercise plenary review.’’ (Internal quotation marks
omitted.) 500 North Avenue, LLC v. Planning Commis-
sion, 199 Conn. App. 115, 121, 235 A.3d 526, cert. denied,
335 Conn. 959, 239 A.3d 320 (2020); see also State v.
George J., 280 Conn. 551, 562–63, 910 A.2d 931 (2006)
(statute of limitations claims raise questions of statu-
tory construction subject to plenary review), cert.
denied, 549 U.S. 1326, 127 S. Ct. 1919, 167 L. Ed. 2d
573 (2007).
‘‘When construing a statute, [o]ur fundamental objec-
tive is to ascertain and give effect to the apparent intent
of the legislature. . . . In seeking to determine that
meaning, General Statutes § 1-2z directs us first to con-
sider the text of the statute itself and its relationship
to other statutes. If, after examining such text and con-
sidering such relationship, the meaning of such text is
plain and unambiguous and does not yield absurd or
unworkable results, extratextual evidence of the mean-
ing of the statute shall not be considered. . . . When
a statute is not plain and unambiguous, we also look
for interpretive guidance to the legislative history and
circumstances surrounding its enactment, to the legisla-
tive policy it was designed to implement, and to its
relationship to existing legislation and common law
principles governing the same general subject matter
. . . .
‘‘[I]t is reasonable to presume that, by rejecting the
underlying premise [of a prior decision], the legislature
also . . . express[es] its disapproval of [the court’s
prior] conclusion . . . . The legislature can reject the
underlying premise of a decision by changing or deleting
a provision on which the court relied. This is especially
true when that provision exists elsewhere in the statu-
tory scheme. For instance, [when] a statute, with refer-
ence to one subject, contains a given provision, the
omission of such provision from a similar statute con-
cerning a related subject . . . is significant to show
that a different intention existed. . . . This tenet of
statutory construction ensures that statutes [are] con-
strued, if possible, such that no clause, sentence or
word shall be superfluous, void or insignificant, and
that every sentence, phrase and clause is presumed to
have a purpose.’’ (Citations omitted; internal quotation
marks omitted.) Gilmore v. Pawn King, Inc., 313 Conn.
535, 542–43, 98 A.3d 808 (2014).
‘‘The purpose of a statute of limitations is to limit
exposure to criminal prosecution to a certain fixed
period of time following the occurrence of those acts
the legislature has decided to punish by criminal sanc-
tions. Such a limitation is designed to protect individu-
als from having to defend themselves against charges
when the basic facts may have become obscured by the
passage of time and to minimize the danger of official
punishment because of acts in the far-distant past. Such
a time limit may also have the salutary effect of encour-
aging law enforcement officials promptly to investigate
suspected criminal activity. . . . Indeed, it is because
of the remedial nature of criminal statutes of limita-
tion[s] that they are to be liberally interpreted in favor
of repose.’’ (Citation omitted; internal quotation marks
omitted.) State v. Skakel, 276 Conn. 633, 677, 888 A.2d
985, cert. denied, 549 U.S. 1030, 127 S. Ct. 578, 166 L.
Ed. 2d 428 (2006).
In accordance with § 1-2z, we begin with the text of
§ 54-193a, which provides in relevant part: ‘‘Notwith-
standing the provisions of section 54-193, no person
may be prosecuted for any offense, except a class A
felony, involving sexual abuse, sexual exploitation or
sexual assault of a minor except within thirty years
from the date the victim attains the age of majority or
within five years from the date the victim notifies any
police officer or state’s attorney acting in such police
officer’s or state’s attorney’s official capacity of the
commission of the offense, whichever is earlier, pro-
vided if the prosecution is for a violation of subdivision
(1) of subsection (a) of section 53a-71 . . . the victim
notified such police officer or state’s attorney not later
than five years after the commission of the offense.’’
General Statutes (Rev. to 2001) § 54-193a, as amended
by P.A. 02-138.
Thus, for an offense involving sexual abuse, sexual
exploitation, or sexual assault of a minor, the statute
of limitations is the earlier of (1) thirty years from the
date the victim reaches eighteen years old or (2) five
years from the date the victim notifies law enforcement
or a state’s attorney of the offense. See General Statutes
(Rev. to 2001) § 54-193a, as amended by P.A. 02-138. The
legislature, however, provided a further requirement
for a violation of § 53a-71 (a) (1), which involves sexual
intercourse between a victim at least age thirteen but
under age sixteen and an actor at least three years
older, that the victim notify a police officer or prosecu-
tor within five years after the offense is committed. See
General Statutes (Rev. to 2001) § 54-193a, as amended
by P.A. 02-138. That reporting requirement is at issue
in the present case.
It is undisputed that E did not report the defendant’s
conduct to the police within five years of its occurrence.
In fact, it was for this reason that the court granted the
judgment of acquittal as to the sexual assault charges.
The defendant argues that, because the sexual assault
and risk of injury charges were based on the same
conduct, ‘‘it would be illogical and unreasonable to
apply a greater limitation period to that same conduct
when it is simultaneously prosecuted under the risk
of injury statute—a statute that does not require proof
of sexual intercourse or penetration, and which can be
violated simply by proof of over the clothes contact
with the intimate parts of the perpetrator or the intimate
parts of the child victim. Such a bizarre or irrational
result was undoubtedly neither intended nor foreseen
by the legislature . . . .’’ (Emphasis in original; foot-
note omitted; internal quotation marks omitted.) In
response, the state asserts that the plain and unambigu-
ous statutory language defeats the defendant’s claim
because, ‘‘where the legislature expressly has pro-
scribed a shorter statute of limitations for one way of
committing a crime . . . a reviewing court cannot pre-
sume that it also intended to extend that limitation to
other crimes not specifically named.’’7 We agree with
the state.
As a preliminary matter, we note that ‘‘[o]ur courts
have addressed the relationship between risk of injury
to a child and the various degrees of sexual assault
in the context of double jeopardy claims on several
occasions, each time concluding that the two crimes
do not constitute the same offense. In State v. Bletsch,
[281 Conn. 5, 28–29, 912 A.2d 992 (2007)], for example,
[our Supreme Court] . . . concluded that, under the
charging instruments in that case, the crimes of sexual
assault in the second degree under . . . § 53a-71 (a),
and risk of injury to a child under § 53-21 (a) (2), do
not constitute the same offense for double jeopardy
purposes because the language of the statutes makes
it possible to have ‘sexual intercourse’ under § 53a-71
(a) without touching the victim’s ‘intimate parts’ under
§ 53-21 (a) (2), and vice versa.’’ State v. Alvaro F., 291
Conn. 1, 7, 966 A.2d 712, cert. denied, 558 U.S. 882,
130 S. Ct. 200, 175 L. Ed. 2d 140 (2009). Accordingly,
although the underlying conduct giving rise to the
charges in the present case is the same, sexual assault
in the second degree and risk of injury to a child are
separate and distinct offenses.
Notwithstanding this fact, the defendant, relying on
State v. George J., supra, 280 Conn. 571–76, contends
that the same statute of limitations should apply to both
offenses. In George J., the defendant claimed that his
prosecutions for two counts of risk of injury to a child
were time barred under General Statutes (Rev. to 1993)
§ 54-193, which provided the statute of limitations for
nonclass A felony offenses generally. Id., 571. The defen-
dant argued that General Statutes (Rev. to 1993) § 54-
193a, as amended by Public Acts 1993, No. 93-340, § 11
(P.A. 93-340), which provided an extended statute of
limitations ‘‘ ‘for any offense involving sexual abuse,
sexual exploitation or sexual assault of a minor,’ ’’
applied ‘‘only to offenses for which sexual abuse, sexual
exploitation or sexual assault of a minor is an element
of the crime, and that risk of injury is not such an
offense because conduct other than sexual acts against
minors is encompassed within that offense.’’ Id. At the
time of the offense, General Statutes (Rev. to 1993)
§ 53-21 did not include subsection (2), which was added
in 1995 to address sexual contact with a minor child.
Id., 573–74 and n.15.
In rejecting the defendant’s claim, the court noted
that ‘‘the legislature has created an extended limitations
period to allow child sexual abuse victims, who may
be unable to come forward at the time the offense has
occurred, a reasonable opportunity to report the abuse.
It would thwart that purpose and create disharmony to
apply the extended statute of limitations to a sexual
assault offense, but apply the general limitations period
of five years from the date of the offense to a risk
of injury charge involving the same conduct. The law
prefers rational and prudent statutory construction, and
we seek to avoid interpretations of statutes that pro-
duce odd or illogical outcomes.’’ Id., 574–75.
The defendant contends that ‘‘the ‘odd or illogical
outcome’ that the George J. court sought to avoid,
would occur here if the court allowed the risk of injury
convictions to stand—convictions based on the same
essential conduct underlying the time barred sexual
assault charges. . . . Where, as here, the alleged viola-
tions of § 53-21 (a) (2) are based on the same conduct
forming the basis for the sexual assault charges under
§ 53a-71 (a) (1), the same five year statute should apply.’’
(Footnote omitted.) We disagree.
In George J., our Supreme Court sought to determine
whether the extended statute of limitations for sex
offenses against minors applied to the risk of injury
statute despite the fact that General Statutes (Rev. to
1993) § 53-21 did not include a sexual element of the
offense. State v. George J., supra, 280 Conn. 573. In
rejecting the state’s contention that General Statutes
(Rev. to 1993) § 54-193a ‘‘clearly’’ applied to risk of
injury to a child, the court explained that ‘‘the meaning
of the statute is not plain and unambiguous, because
it does not refer expressly either to the crime of risk
of injury or to the statute addressing that crime, and
there is more than one reasonable construction based
solely on the text of the statute. Indeed, because the
crime of risk of injury does not necessarily involve
sexual abuse, we certainly cannot conclude that [Gen-
eral Statutes (Rev. to 1993)] § 54-193a becomes unam-
biguous by looking to the crime charged in the present
case.’’ (Emphasis in original; internal quotation marks
omitted.) Id., 563 n.8. Nevertheless, after considering
the specific language the legislature chose to use in
General Statutes (Rev. to 1993) § 54-193a, the legislative
policy underlying the statute, and the bill analysis pre-
pared by the Office of Legislative Research (OLR), the
Supreme Court concluded that the extended statute of
limitations applied to risk of injury charges that were
based on sexual abuse, sexual assault, or sexual exploi-
tation of a minor. Id., 572–76.
Specifically, the court first noted that, at the time of
the defendant’s conduct, ‘‘[i]t [was] well established
that [General Statutes (Rev. to 1993) § 53-21’s] proscrip-
tion on actions that create a risk of ‘impair[ing]’ the
‘health or morals’ of a child encompasses a broad range
of acts, including sexual acts against minors.’’ Id., 572.
The court then defined the question before it as
‘‘whether, by creating an extended statute of limitations
for ‘any offense . . . involving sexual abuse, sexual
exploitation or sexual assault of a minor’ . . . General
Statutes (Rev. to 1993) § 54-193a, as amended by P.A.
93-340, § 11; the legislature intended that the statute
apply to any such conduct or only to such conduct
when it expressly is prescribed as an element of the
offense.’’ (Emphasis in original.) State v. George J.,
supra, 280 Conn. 573. The court answered that question
by comparing General Statutes (Rev. to 1993) § 54-193a
with other criminal statutes of limitations: ‘‘[General
Statutes (Rev. to 1993) §] 54-193a is one of three criminal
statutes of limitations. Notably, in both of the other
statutes of limitations, the legislature specifically has
provided the statutory provisions to which the limita-
tions period applies; see General Statutes § 54-193b;8
or has delineated the statutory provisions or classes of
offenses that are excluded from the limitations period.
See General Statutes (Rev. to 1993) § 54-193. By con-
trast, in § 54-193a, the legislature did not cite specific
statutes to which the expanded limitations period
applies; rather, it used a broad descriptive phrase, ‘any
offense[s] involving . . . .’ General Statutes (Rev. to
1993) § 54-193a, as amended by P.A. 93-340, § 11. It
is difficult to imagine how the legislature could have
phrased the statute more expansively and yet still lim-
ited its reach to sexual acts against children.’’ (Footnote
in original; footnote omitted.) State v. George J., supra,573–74. The court concluded that its interpretation was
consistent with OLR’s analysis of the public act, which
was codified at § 54-193a. Id., 575.
As noted previously in this opinion, the court also
discussed the legislative policy underlying General Stat-
utes (Rev. to 1993) § 54-193a and concluded that
applying the extended statute of limitations to a sexual
assault offense but not to a risk of injury offense based
on the same conduct would thwart the policy behind
the statute, create disharmony, and produce odd or
illogical outcomes. Id., 574–75. It is this policy statement
on which the defendant relies to argue that it would
create similar disharmony to apply the reporting
requirement in § 54-193a to violations of § 53a-71 (a)
(1) but not to risk of injury violations based on the
same conduct.
The problem with the defendant’s argument is that
it ignores the plain and unambiguous language of the
statute. The legislature specifically identified § 53a-71
(a) (1) as the sole statute to which the additional
reporting requirement applies. General Statutes (Rev.
to 2001) § 54-193a, as amended by P.A. 02-138. Given the
plain and unambiguous statutory language, we cannot
expand § 54-193a’s limited exception for a prosecution
of sexual assault in the second degree under § 53a-71
(a) (1) and apply it to a risk of injury charge under § 53-
21 (a) (2). Indeed, to do so ‘‘would contravene the
doctrine of expressio unius est exclusio alterius—the
expression of one thing is the exclusion of another—
[under which] we presume that when the legislature
expresses items as part of a group or series, an item
that was not included was deliberately excluded. . . .
Put differently, it is well settled that [w]e are not permit-
ted to supply statutory language that the legislature
may have chosen to omit.’’ (Citation omitted; internal
quotation marks omitted.) Mayer v. Historic District
Commission, 325 Conn. 765, 776, 160 A.3d 333 (2017).
Furthermore, our conclusion is consistent with the
reasoning in George J., in which our Supreme Court
expressly relied on the fact that the legislature did not
limit the expanded statute of limitations in General
Statutes (Rev. to 1993) § 54-193a to specific criminal
statutes. State v. George J., supra, 280 Conn. 573–74. It
further noted that this was in stark contrast to other
statutes of limitations that either were limited to spe-
cific statutes or excluded specific statutes from their
operation. Id., 573. Relevant to the present case, the
legislature did not provide that the additional reporting
requirement applied to any offense involving sexual
intercourse with another person between the ages of
thirteen and sixteen when the defendant is more than
three years older than such person. Instead, the legisla-
ture specifically limited the application of the reporting
requirement to only ‘‘a violation of subdivision (1) of
subsection (a) of section 53a-71 . . . .’’ General Stat-
utes (Rev. to 2001) § 54-193a, as amended by P.A. 02-
138. Consistent with our Supreme Court’s conclusion
in George J., we conclude that, had the legislature
intended a different application of the statute, it readily
could have so provided. See State v. George J., supra,
574.
Finally, we are not persuaded that applying a different
statute of limitations to the two sets of charges in the
present case leads to an absurd or unworkable result.
As this court has recognized, ‘‘[t]wo criminal statutes
can be construed to proscribe the same conduct and a
defendant can be prosecuted under either.’’ Evans v.
Commissioner of Correction, 47 Conn. App. 773, 780–
81, 709 A.2d 1136, cert. denied, 244 Conn. 921, 714 A.2d
5 (1998). Although the defendant suggests that the legis-
lature intended for the reporting requirement to apply
to the conduct giving rise to a prosecution of sexual
assault in the second degree, as noted previously in this
opinion, such an intent is not reflected in the statutory
language.
As our Supreme Court has explained, ‘‘[o]ur statute
of limitations distinguishes between offenses according
to their severity, and there is nothing inconsistent in
the fact that some prosecutions are barred where others
are not. We further believe that confidence in our judi-
cial system would be severely eroded if serious charges
were dismissed by the courts for reasons of judicial
policy, when the legislature, through the statute of limi-
tations, has manifested an intent that they be prose-
cuted.’’ State v. Ellis, 197 Conn. 436, 476, 497 A.2d 974(1985). In the present case, we are persuaded that the
legislature, by establishing an extended statute of limi-
tations for ‘‘any offense . . . involving sexual abuse,
sexual exploitation or sexual assault of a minor,’’ has
manifested an intent that charges of risk of injury to a
child should be prosecuted, so long as the prosecution
occurs within the extended statute of limitations.
(Emphasis added.) General Statutes (Rev. to 2001) § 54-
193a, as amended by P.A. 02-138; see also State v. George
J., supra, 280 Conn. 574 (‘‘[i]t is difficult to imagine how
the legislature could have phrased [General Statutes
(Rev. to 1993) § 54-193a] more expansively and yet still
limited its reach to sexual acts against children’’). The
fact that the legislature identified a single statutory
exception to that extended statute of limitations for a
prosecution of sexual assault in the second degree does
not indicate a contrary intent.
In sum, the legislature carved out a single exception
to the extended statute of limitations under § 54-193a
for the prosecution of a violation of § 53a-71 (a) (1).
Had the legislature intended for the same exception to
apply to § 53-21 (a) (2), it would have stated so
expressly. Consequently, we conclude that § 54-193a is
unambiguous and does not yield absurd or unworkable
results. Therefore, the court properly denied the defen-
dant’s motion for a judgment of acquittal as to the risk
of injury charges.9
II
The defendant next claims that the court, in its mid-
trial and final instructions to the jury, improperly failed
to provide the jury with a standard of proof to apply
in determining whether the defendant had committed
acts of uncharged misconduct. In response, the state
argues that the defendant’s challenge to the court’s
instruction as to the evidence of uncharged misconduct
with E is unpreserved and unreviewable and that the
court properly instructed the jury regarding the evi-
dence of uncharged sexual misconduct with another
student, R. We conclude that the defendant’s claim is
preserved and that the court properly instructed the
jury.
The following additional facts and procedural history
are relevant to the defendant’s claim. Before trial, the
state filed a motion to introduce uncharged misconduct
evidence pursuant to § 4-5 of the Connecticut Code
of Evidence.10 The state sought to introduce evidence
regarding a sexual relationship between the defendant
and R, a former student who attended the yeshiva in
2008, and the defendant’s sexual relationship with E
after E’s sixteenth birthday. Following oral argument,
the court granted the state’s motion, determining that
the defendant’s uncharged sexual misconduct with R
was admissible to establish the defendant’s propensity
to commit the type of sexual misconduct with which
he was charged under § 4-5 (b) of the Connecticut Code
of Evidence and that the continuation of the defendant’s
sexual relationship with E was admissible to show the
defendant’s common plan or scheme to have continu-
ous sexual relations with E under § 4-5 (c).11
At trial, the state presented testimony from E regard-
ing incidents that occurred after his sixteenth birthday.
Before the state elicited that testimony, the court pro-
vided a limiting instruction to the jury.12 The state also
presented testimony from R regarding incidents of
uncharged sexual misconduct. R testified that, in 2008,
when he was thirteen or fourteen years old, the defen-
dant had tutored him at the yeshiva. R recounted that
the defendant frequently would touch R’s crotch to get
R’s attention and that, when R attempted to position
himself in such a way to avoid that contact, the defen-
dant would touch R’s ‘‘butt’’ instead. R also testified
regarding one particular incident where, after he told
the defendant that he received a good grade, the defen-
dant drove him to a local park to celebrate. When they
arrived at the park, they sat on a bench, and the defen-
dant pulled out a bottle of wine, two plastic cups, and
a can of nuts. After drinking some of the wine, R began
to feel dizzy and decided to eat some of the nuts. R
testified that, while he was eating the nuts, the defen-
dant was ‘‘trying to, like, French kiss me and I was
trying to keep my mouth shut.’’ When R became upset,
the defendant ‘‘got all embarrassed and said, like, ‘oh,
I’m out of line, it must be the alcohol.’ ’’ The defendant
then brought R back to the school.
Following R’s testimony, the court provided the fol-
lowing limiting instruction to the jury: ‘‘The state is
claiming that the defendant engaged in other sexual
. . . misconduct with someone other than [E], particu-
larly with . . . [R]. The defendant has not been charged
with any offense related to this alleged conduct. In a
criminal case such as this in which the defendant is
charged with a crime involving sexual misconduct, evi-
dence of the defendant’s commission of other sexual
misconduct is admissible and may be considered to
prove that the defendant had the propensity or tendency
to engage in the type of criminal sexual behavior with
which he is charged. However, evidence of prior mis-
conduct on its own is not sufficient to prove that the
defendant is guilty of the crimes charged in the informa-
tion. It is for you to determine whether the defendant
committed any uncharged sexual misconduct and, if
so, the extent, if any, to which that evidence establishes
that the defendant had the . . . propensity or tendency
to engage in criminal sexual behavior. Please bear in
mind as you consider this evidence that at all times
the state has the burden of proving that the defendant
committed each of the elements of the offenses which
he is charged in the information, and I remind you that
the defendant is not on trial for any act, conduct or
offense not charged in the information.’’
Before the charge conference, the defendant filed a
written request to charge regarding uncharged sexual
misconduct, which provided in relevant part: ‘‘It is for
you to determine whether the state has proven by clear
and convincing evidence whether the defendant com-
mitted the alleged uncharged sexual misconduct. If you
find that the state has met that standard, then you may
determine the extent, if any, to which that evidence
establishes that the defendant had a propensity or ten-
dency to engage in criminal sexual behavior. Bear in
mind as you consider this evidence that, at all times,
the state has the burden of proving that the defendant
committed each of the elements of the offense charged
in the information. As to any evidence of uncharged
misconduct, the state’s burden is to prove that conduct
by clear and convincing evidence.’’ (Footnote omitted.)
At the charge conference, the following exchange
occurred between the court and defense counsel:
‘‘The Court: . . . [Y]ou’re asking me to tell the jury
that any uncharged sexual misconduct has to be proven
by clear and convincing evidence.
‘‘[Defense Counsel]: Correct.
‘‘The Court: Do you have any authority for that?
‘‘[Defense Counsel]: It’s cited, Your Honor. It’s out-
of-state authority. . . .
‘‘The Court: And this says ‘but see [State v. Cutler,
293 Conn. 303, 977 A.2d 209 (2009), overruled in part
on other grounds by State v. Elson, 311 Conn. 726, 91
A.3d 862 (2014)],’ is that contrary authority?
‘‘[Defense Counsel]: Absolutely. Yes.
‘‘The Court: Okay. So you’re asking me to overrule
the Connecticut Supreme Court. . . . Your request is
duly filed. That’s not the law in the state of Connecticut
and it’s not—
‘‘[Defense Counsel]: A journey of a million miles, Your
Honor, begins with but a single step.
‘‘The Court: No, I—I understand you may be pre—
preserving for appellate review; I have no quarrel
with that.’’
Shortly thereafter, while discussing the portion of the
court’s draft charge regarding evidence of the continu-
ing sexual relationship between E and the defendant,
which was titled ‘‘Evidence of Other Misconduct,’’
defense counsel requested that the court instruct the
jury that ‘‘[i]t is for you to determine, one, whether the
state has proven such acts occurred . . . [and] [t]wo,
if proven, whether they established what the state seeks
to establish . . . .’’ Defense counsel explained that
‘‘[t]he way this is drafted it assumes that it has been
proven; it doesn’t really leave to the jury to determine.
It essentially says, look, I, the judge, have admitted
those, here’s how you’re supposed to use this, okay.’’
When the prosecutor asked defense counsel to repeat
himself, the court explained that ‘‘[h]e wants to empha-
size that the state has to prove that these acts occurred.’’
An exchange between the court and defense counsel
followed:
‘‘The Court: How . . . is it not clear when it says it is
for you to determine; one, whether such acts occurred?
How . . . does that assume that they’ve been proven?
‘‘[Defense Counsel]: Because it’s—it’s the burden of
the state to—to prove it. . . . Okay, they have to prove
it. . . . What I asked for earlier was a standard by
which they can determine whether it was proven, that’s
a—a flaw in our scheme for these—for addressing these
types of cases. The court, having rejected my request
and anticipating—
‘‘The Court: No, it’s not a flaw, it’s that you want a
higher standard than the law requires. It’s not that there
isn’t a standard, the standard is preponderance of the
evidence, you gotta prove these facts by the preponder-
ance of the evidence this—this uncharged misconduct
or other misconduct; you have to prove the elements
of the crime beyond a reasonable doubt.
‘‘[Defense Counsel]: And you have to—my position
is that the state has to prove these by some standard,
okay, and—and the way this is phrased without putting
it that way essentially there’s an imprimatur from the
court that these things are valid and have been proven.
‘‘The Court: Yeah, I don’t read it that way . . . .’’
The court denied the defendant’s requests and subse-
quently instructed the jury regarding the uncharged mis-
conduct evidence as follows: ‘‘The state has submitted
evidence that the defendant engaged in sexual miscon-
duct with [R]. The defendant has not been charged
in this case with any offenses related to this alleged
conduct. In a criminal case such as this in which the
defendant is charged with a crime involving sex—sex-
ual misconduct, evidence of the defendant’s commis-
sion of other sexual misconduct is admissible and may
be considered to prove that the defendant had the pro-
pensity or a tendency to engage in the type of criminal
sexual behavior with which he is charged. However,
evidence of prior misconduct on its own is not sufficient
to prove the defendant guilty of the crimes charged in
the information. It is for you to determine whether the
defendant committed any uncharged sexual miscon-
duct and, if so, the extent, if any, to which that evidence
establishes that the defendant had the propensity or a
tendency to engage in criminal sexual behavior. Bear
in mind as you consider this evidence that, at all times,
the state has the burden of proving that the defendant
committed each of the elements of the offenses charged
in the information. I remind you that the defendant is
not on trial for any act, conduct or offense not charged
in the information.
‘‘The state has also presented that the defendant con-
tinued to have sexual relations with [E] after [E]
reached the age of sixteen . . . . This evidence has
not been admitted to prove the bad character of the
defendant or the defendant’s tendency to commit crimi-
nal acts and it cannot be used by you for such purposes.
Such evidence has been admitted for a limited purpose
only. This evidence was admitted to show or explain
the full extent of the sexual relationship be—between
the defendant and [E] and to show a common plan or
scheme by the defendant to have continuous sexual
relations with [E]. The evidence may be used by you
only for those purposes. It is for you to determine, one,
whether such acts occurred and, two, if they occurred,
whether they establish what the state seeks to estab-
lish.’’ (Emphasis added.)
A
We first address whether the defendant preserved
his claim of instructional error regarding the evidence
of uncharged misconduct with E. The state claims that,
in his written request to charge, ‘‘the defendant only
asked the court to instruct that the state had to prove
by clear and convincing evidence ‘alleged uncharged
sexual misconduct’ admitted to prove ‘that the defen-
dant had a propensity or tendency to engage in criminal
sexual behavior.’ ’’ Significantly, however, the second
to last sentence of the request to charge provided: ‘‘As
to any evidence of uncharged misconduct, the state’s
burden is to prove that conduct by clear and convincing
evidence.’’ (Emphasis added.) Moreover, the court
understood the scope of the defendant’s request to
charge because the court explained: ‘‘It’s not that there
isn’t a standard, the standard is preponderance of the
evidence, you gotta prove these facts by the preponder-
ance of the evidence this—this uncharged misconduct
or other misconduct . . . .’’ (Emphasis added.) Conse-
quently, we conclude that the defendant adequately pre-
served his challenge to the court’s instructions as to
the uncharged misconduct evidence involving E. See
State v. Ramon A. G., 336 Conn. 386, 395, 246 A.3d 481(2020) (‘‘[b]ecause the sine qua non of preservation is
fair notice . . . the determination of whether a claim
has been properly preserved will depend on a careful
review of the record to ascertain whether the claim on
appeal was articulated below with sufficient clarity to
place the trial court on reasonable notice of that very
same claim’’ (emphasis added; internal quotation marks
omitted)).
B
Having determined that the defendant preserved his
claim that the court improperly failed to provide the
jury with a standard by which to determine whether
the acts of uncharged misconduct occurred, we now
consider its merits.
We begin our analysis with the standard of review.
‘‘When reviewing the challenged jury instruction . . .
we must adhere to the well settled rule that a charge
to the jury is to be considered in its entirety, read as
a whole, and judged by its total effect rather than by
its individual component parts. . . . [T]he test of a
court’s charge is not whether it is as accurate upon
legal principles as the opinions of a court of last resort
but whether it fairly presents the case to the jury in
such a way that injustice is not done to either party
under the established rules of law. . . . As long as [the
instructions] are correct in law, adapted to the issues
and sufficient for the guidance of the jury . . . we will
not view the instructions as improper.’’ (Internal quota-
tion marks omitted.) State v. Arroyo, 292 Conn. 558,
566, 973 A.2d 1254 (2009), cert. denied, 559 U.S. 911,
130 S. Ct. 1296, 175 L. Ed. 2d 1086 (2010).
In State v. Cutler, supra, 293 Conn. 303, our Supreme
Court addressed a claim similar to the defendant’s claim
in the present case. In Cutler, the defendant claimed
that the trial court improperly failed to instruct the jury
to apply a preponderance of the evidence standard in
considering uncharged misconduct evidence. Id., 315.
The challenged instructions provided: ‘‘You may con-
sider such evidence if you believe it, and further find
that it logically and rationally supports the issue for
which it is being offered by the state, but only as it may
bear on the issue of intent. On the other hand, if you
don’t believe such evidence, or even if you do, if you
find that it does not logically and rationally support the
issue for which [it] is being offered by the state, namely
the defendant’s intent, then you may not consider the
testimony for any purpose.’’ (Internal quotation marks
omitted.) Id., 316.
Our Supreme Court disagreed with the defendant and
concluded ‘‘that it is not necessary that a trial court
instruct the jury that it must find, by a preponderance
of the evidence, that prior acts of misconduct actually
occurred at the hands of the defendant. Instead, a jury
may consider prior misconduct evidence for the proper
purpose for which it is admitted if there is evidence
from which the jury reasonably could conclude that the
defendant actually committed the misconduct.’’ (Foot-
note omitted.) Id., 322. The court explained that the
trial court’s ‘‘use of the word ‘believe’ comports with the
requirement that a jury may consider prior misconduct
evidence if there is evidence from which it reasonably
could conclude that the defendant committed the acts.
. . . [I]t is clear that the trial court’s use of the word
‘believe’ is not only correct in law, but also sufficiently
guides the jury as to its consideration of the prior mis-
conduct evidence. If the jury believes the prior miscon-
duct evidence, it follows logically that there is evidence
from which the jury reasonably could conclude that the
defendant committed the prior acts of misconduct.’’ Id.,322–23.13
In the present case, the defendant notes that the
‘‘believe’’ instruction endorsed in Cutler is used in the
Connecticut Criminal Jury Instructions14 and by Con-
necticut judges when instructing on uncharged miscon-
duct. He argues that, in the present case, he ‘‘did not
even get the benefit of the (lower than a preponderance)
‘believe’ standard, which has its own deficiencies.
Instead, the jury was allowed to make its decisions
(on whether the defendant committed any misconduct)
unfettered by any uniform standard. . . . The court’s
instructional omission was patently erroneous.’’
(Emphasis in original; footnote omitted.) We disagree.
Here, the court instructed that it was for the jury
‘‘to determine’’ whether the defendant engaged in the
uncharged misconduct. We discern no meaningful dis-
tinction between the ‘‘believe’’ standard endorsed in
Cutler and the court’s use of the word ‘‘determine’’ in
the present case. For that reason, we are not persuaded
that the court’s instructions were deficient. If anything,
‘‘determine’’ is a stronger standard than ‘‘believe.’’ When
used as a transitive verb, ‘‘believe’’ means ‘‘to consider
to be true or honest’’ or ‘‘to accept the word or evidence
of’’ or ‘‘to hold as an opinion . . . .’’ Merriam-Webster’s
Collegiate Dictionary (11th Ed. 2003) p. 112. In the same
context, ‘‘determine’’ means ‘‘to settle or decide by
choice of alternatives or possibilities’’ or ‘‘to find out
or come to a decision about by investigation, reasoning,
or calculation . . . .’’ Id., p. 340. Thus, ‘‘believe’’ con-
notes, at least to some extent, subjective and emotional
reasoning, whereas ‘‘determine’’ connotes more objec-
tive and logical reasoning. Accordingly, we find no error
in the court’s instructions to the jury that it must deter-
mine that something occurred rather than believe that it
occurred. Consequently, we conclude that our Supreme
Court’s decision in Cutler controls and, therefore, that
the court properly instructed the jury regarding the
uncharged misconduct evidence.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The legislature repealed § 54-193a effective October 1, 2019. Unless other-
wise indicated, all references to § 54-193a in this opinion are to the 2001
revision of the statute, as amended by P.A. 02-138.
2
In accordance with our policy of protecting the privacy interests of the
victims of the crime of risk of injury to a child, we decline to identify the
victims or others through whom the victims’ identities may be ascertained.
See General Statutes § 54-86e.
3
General Statutes § 53a-71 provides in relevant part: ‘‘(a) A person is
guilty of sexual assault in the second degree when such person engages in
sexual intercourse with another person and: (1) Such other person is thirteen
years of age or older but under sixteen years of age and the actor is more
than three years older than such other person . . . .
‘‘(b) Sexual assault in the second degree is a class C felony or, if the
victim of the offense is under sixteen years of age, a class B felony, and
any person found guilty under this section shall be sentenced to a term of
imprisonment of which nine months of the sentence imposed may not be
suspended or reduced by the court.’’
Although § 53a-71 has been the subject of several amendments since the
defendant’s commission of the crime that formed the basis of his conviction;
see, e.g., Public Acts 2004, No. 04-130, § 1 (establishing additional form of
sexual assault when actor is twenty years old or older and stands in position
of power, authority or supervision); Public Acts 2007, No. 07-143, § 1 (increas-
ing, from two to three years, age difference between teenagers required for
older individual to be guilty of sexual assault in second degree); those
amendments have no bearing on the merits of this appeal. Accordingly, in
the interest of simplicity, we refer to the current revision of the statute.
4
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
(2) of this subsection . . . .’’
Although § 53-21 has been the subject of several amendments since the
defendant’s commission of the crimes that formed the basis of his conviction;
see, e.g., 2007 Public Acts, No. 07-143, § 4 (establishing five year mandatory
minimum sentence for violation of § 53-21 (a) (2) when victim is under
thirteen years old); 2013 Public Acts, No. 13-297, § 1 (adding additional form
of risk of injury); those amendments have no bearing on the merits of this
appeal. Accordingly, in the interest of simplicity, we refer to the current
revision of the statute.
5
Counts one, three, five, and seven alleged that the defendant violated
§ 53a-71 (a) (1) by engaging in the following conduct: ‘‘anal intercourse—
Daniel Greer’s penis with [E’s] anus’’ (count one); ‘‘fellatio—Daniel Greer’s
penis in [E’s] mouth’’ (count three); ‘‘anal intercourse—[E’s] penis in Daniel
Greer’s anus’’ (count five); and ‘‘fellatio—[E’s] penis in Daniel Greer’s mouth’’
(count seven). Counts two, four, six, and eight alleged that the defendant
violated § 53-21 (a) (2) based on the following contact between the defendant
and E: ‘‘Daniel Greer’s genital area with [E’s] anus’’ (count two); ‘‘Daniel
Greer’s genital area with [E’s] mouth’’ (count four); ‘‘[E’s] genital area with
Daniel Greer’s anus’’ (count six); and ‘‘[E’s] penis in Daniel Greer’s mouth’’
(count eight).
6
Although the defendant’s memorandum stated that it was filed in support
of both his motion for a new trial and his motion for a judgment of acquittal,
it addressed only the defendant’s claim that the risk of injury charges should
be dismissed for the same reason that the sexual assault charges were
dismissed. Thus, on the basis of the statute of limitations issue raised, the
defendant sought a judgment of acquittal and not a new trial.
7
The state also contends that the defendant waived this claim by failing
to raise it at trial. We disagree.
In State v. Golodner, 305 Conn. 330, 355–56, 46 A.3d 71 (2012), the defen-
dant filed postverdict motions for a judgment of acquittal and a new trial,
asserting that one count of the substituted information was barred by the
applicable statute of limitations. The trial court denied the motion, ‘‘stating
that the defendant had failed to raise the statute of limitations defense in
a timely manner . . . .’’ Id., 356. On appeal, the state argued ‘‘that the
defendant waived an affirmative defense based on the statute of limitations
by raising it for the first time after the conclusion of trial.’’ Id. In rejecting
the state’s waiver argument, our Supreme Court noted that a waiver of a
statute of limitations defense must be voluntary and intelligent and held
that ‘‘[t]here [was] nothing to suggest a voluntary waiver on the part of the
defendant . . . . His motion for acquittal based on the statute of limitations
would suggest the contrary.’’ Id., 359.
In the present case, as in Golodner, the defendant raised the statute
of limitations defense in postverdict motions and, therefore, he did not
voluntarily waive it. Although the state argues that Golodner is distinguish-
able because it involved an amendment to the information and, therefore,
the statute of limitations defense was unavailable before trial; see id., 355–56;
we are not persuaded that this fact had any bearing on the court’s holding
in Golodner. In fact, the court agreed with the defendant’s argument in
Golodner that Practice Book § 41-8’s ‘‘use of the phrase ‘if made prior to
trial’ suggests that the motion does not have to be made before trial.’’ (Empha-
sis added.) Id., 356; see also Practice Book § 41-8 (statute of limitations
defense ‘‘shall, if made prior to trial, be raised by a motion to dismiss the
information’’).
The state also contends that the present case should be controlled by
State v. Pugh, 176 Conn. App. 518, 535, 170 A.3d 710, cert. denied, 327 Conn.
985, 175 A.3d 43 (2017), in which this court held that, because the defendant
failed to assert the statute of limitations defense at trial, ‘‘the defendant is
deemed to have waived such defense and is, therefore, barred from raising
it on appeal.’’ Unlike the present case, however, the defendant in Pugh failed
to raise the statute of limitations claim before the trial court and sought to
raise it for the first time on appeal. See id. Therefore, the claim in Pugh
was unpreserved. Accordingly, we conclude that Pugh is distinguishable
and that Golodner is controlling.
8
‘‘General Statutes [Rev. to 2005] § 54-193b provides: ‘Notwithstanding
the provisions of sections 54-193 and 54-193a, a person may be prosecuted
for a violation of section 53a-70, 53a-70a, 53a-70b, 53a-71, 53a-72a or 53a-
72b not later than twenty years from the date of the commission of the
offense, provided (1) the victim notified any police officer or state’s attorney
acting in such police officer’s or state’s attorney’s official capacity of the
commission of the offense not later than five years after the commission
of the offense, and (2) the identity of the person who allegedly committed
the offense has been established through a DNA (deoxyribonucleic acid)
profile comparison using evidence collected at the time of the commission
of the offense.’ Although § 54-193b was enacted in 2000; see Public Acts
2000, No. 00-80, § 1; we nonetheless find it useful in discerning the type of
language that the legislature could have used in 1995 had it intended that
§ 54-193a have a more limited, specific reach.’’ State v. George J., supra,280 Conn. 573 n.16.
9
The defendant also claims that, ‘‘[i]f this court has any reasonable doubt
about the proper scope of § 54-193a, relief should be granted as a matter
of lenity.’’ ‘‘[T]he touchstone of this rule of lenity is statutory ambiguity.
. . . [W]e . . . [reserve] lenity for those situations in which a reasonable
doubt persists about a statute’s intended scope even after resort to the
language and structure, legislative history, and motivating policies of the
statute.’’ (Emphasis in original; internal quotation marks omitted.) State v.
Palmenta, 168 Conn. App. 37, 47, 144 A.3d 503, cert. dismissed, 323 Conn.
930, 150 A.3d 230 (2016), and cert. denied, 323 Conn. 931, 150 A.3d 231(2016). Here, because we conclude that the statute is not ambiguous and
that it does not lead to absurd or unworkable results, we have no reason
to resort to the rule of lenity. See id. (‘‘[b]ecause we conclude that, after
full resort to the process of statutory construction, there is no reasonable
doubt as to the meaning of the statute, we need not resort to the rule of
lenity’’); see also General Statutes § 1-2z (when meaning of text of statute
‘‘is plain and unambiguous and does not yield absurd or unworkable results,
extratextual evidence of the meaning of the statute shall not be considered’’).
10
Section 4-5 of the Connecticut Code of Evidence provides in relevant
part: ‘‘(a) General Rule. Evidence of other crimes, wrongs or acts of a person
is inadmissible to prove the bad character, propensity, or criminal tendencies
of that person except as provided in subsection (b).
‘‘(b) When evidence of other sexual misconduct is admissible to prove
propensity. Evidence of other sexual misconduct is admissible in a criminal
case to establish that the defendant had a tendency or a propensity to engage
in aberrant and compulsive sexual misconduct if: (1) the case involves
aberrant and compulsive sexual misconduct; (2) the trial court finds that
the evidence is relevant to a charged offense in that the other sexual miscon-
duct is not too remote in time, was allegedly committed upon a person
similar to the alleged victim, and was otherwise similar in nature and circum-
stances to the aberrant and compulsive sexual misconduct at issue in the
case; and (3) the trial court finds that the probative value of the evidence
outweighs its prejudicial effect.
‘‘(c) When evidence of other crimes, wrongs or acts is admissible. Evidence
of other crimes, wrongs or acts of a person is admissible for purposes other
than those specified in subsection (a), such as to prove intent, identity,
malice, motive, common plan or scheme, absence of mistake or accident,
knowledge, a system of criminal activity, or an element of the crime, or to
corroborate crucial prosecution testimony. . . .’’
11
The court explained that, ‘‘[t]o the extent that the subsequent sexual
activity between the defendant and [E] is not viewed as misconduct, the
issue becomes one of relevancy. . . . Evidence that the defendant and [E]
had a sexual relationship after the alleged sexual misconduct in this case
is probative of the full nature of their relationship and the prior sexual
misconduct as well as the reason why [E] did not immediately report the
sexual misconduct to the police.’’
12
The court stated: ‘‘You’re now going to be hearing evidence where . . .
the witness is going to claim that he had sexual relations with the defendant
after he turned sixteen. . . . [The defendant is] not charged with any crimes
related to that, but you will be hearing about that.
‘‘It’s not being offered to show the bad character of the defendant, it’s
not being offered to show his propensity to commit crimes. It’s being offered
to show—it’s being offered for a limited purpose; one, to show the complete
nature of relationship between this witness and the defendant, and the
state’s also offering it to show that the defendant had in his mind a common
plan to continue to have sexual relations and to have sexual relationships
with [E]. I’ll give you further instructions on this when I give you my final
instructions on the law that applies to this case.’’
13
In State v. Ortiz, 343 Conn. 566, 601–602, A.3d (2022), which
was decided after the present appeal had been argued, our Supreme Court
reaffirmed its holding in Cutler. The court explained that, in Cutler, it had
expressly rejected a claim that the trial court was required to instruct the
jury that it must find prior misconduct evidence to be proven by a heightened
standard and emphasized that ‘‘it saw no reason to impose on trial courts
a jury instruction that requires jurors to consider the properly admissible
prior misconduct evidence at a higher standard.’’ (Emphasis in original;
internal quotation marks omitted.) Id., 602 n.13.
14
With respect to evidence of uncharged misconduct, the model jury
instructions provide in relevant part: ‘‘You may consider such evidence if
you believe it and further find that it logically, rationally and conclusively
supports the issue[s] for which it is being offered by the state, but only as
it may bear on the issue[s] [for which it was admitted]. . . .’’ Connecticut
Criminal Jury Instructions 2.6-5, available at https://www.jud.ct.gov/JI/Crimi-
nal/Criminal.pdf (last visited July 11, 2022).