State v. Jessie L. C. , 148 Conn. App. 216 ( 2014 )

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STATE OF CONNECTICUT v. JESSIE L. C.1
(AC 35388)
DiPentima, C. J., and Gruendel and West, Js.
Argued October 17, 2013—officially released February 18, 2014
(Appeal from Superior Court, judicial district of
Fairfield, Kavanewsky, J.)
Katherine C. Essington, assigned counsel, for the
appellant (defendant).
Adam E. Mattei, deputy assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, and Margaret E. Kelley, senior assistant
state’s attorney, for the appellee (state).
Opinion
WEST, J. The defendant, Jessie L. C., appeals 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), three
counts of sexual assault in the second degree in viola-
tion of General Statutes § 53a-71 (a) (4), two counts of
sexual assault in the fourth degree in violation of Gen-
eral Statutes § 53a-73a (a) (1) (E), and one count of
risk of injury to a child in violation of General Statutes
§ 53-21 (a) (1). On appeal, the defendant claims that
the trial court (1) violated his sixth amendment right
to confrontation by improperly restricting his cross-
examination of the complaining witness, and (2) vio-
lated his constitutional right to notice and a unanimous
verdict by using a duplicitous amended information.
We affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. The defendant is the uncle of the victim, N, and
her older brother, K. The defendant is also the adoptive
father of S, who is N and K’s younger half sister. N, K,
and S lived with the defendant and his wife, B, on the
second and third floors of a two-family home. On the
second floor, N and S shared a bedroom, and the defen-
dant and B slept in the dining room, which they had
converted into a bedroom. K’s room was on the third
floor.
At some point, the defendant and B separated and B
moved into the apartment located on the first floor of
the house. Accordingly, N, K, and S were living solely
with the defendant. The first incident of sexual abuse
occurred when N was ten years old. One day, the defen-
dant awoke N from a nap and told her to go sleep in
his bed. After falling asleep in the defendant’s bed, N
woke up with the defendant’s penis inside of her vagina.
The defendant apologized and told N that he was dream-
ing and thought that she was B. He instructed N not to
tell anyone about the incident.
When N was eleven and twelve years old, the defen-
dant sexually assaulted her about two to three times
per week, although he did not penetrate her again until
she was thirteen years old. The majority of incidents
occurred at nighttime; however, the abuse sometimes
occurred during the daytime prior to the defendant’s
leaving to work the night shift. Generally, the defendant
would make sure that S and K were distracted by televi-
sion or video games, and would then tell N that he
needed help relieving his stress. N would pull down her
pants and underwear and lie down on the defendant’s
bed. The defendant would rub his penis against the
outside of her vagina until he ejaculated.
When N was approximately twelve or thirteen years
old, she began sleeping in the defendant’s room every
night—the defendant had told her that she could no
longer share a bed with S because the bed squeaked
and disturbed the downstairs neighbors. When N was
between the ages of thirteen and sixteen years old,
the defendant sexually assaulted her every day, and
sometimes multiple times a day. During this three year
time period, the assault largely consisted of vaginal
penetration, but in some instances, the defendant would
also put his mouth on N’s breasts and nipples. In an
effort to escape the sexual abuse, N frequently ran away
from home. The last instance of sexual assault occurred
when N was sixteen years old, the day before she and
K left for a Christian summer camp in Pennsylvania.
N disclosed the sexual abuse on two occasions. Her
first disclosure was made in June, 2009, to a childhood
friend, J, with whom she recently had reconnected. N
called J on the telephone and told him about the sexual
assault. He advised her to stand up for herself. The
second disclosure occurred in August, 2009, while N
was attending a Christian summer camp. During a group
session pertaining to physical and sexual abuse, N stood
before a group of approximately thirty girls and counsel-
ors and disclosed that the defendant physically, men-
tally, and sexually abuses her. She subsequently
discussed the abuse with a camp counselor and other
camp leaders. Also, on the final day of camp, she dis-
closed the abuse to the entire camp, including K, in
her closing ‘‘testimonial.’’ When N returned from camp,
members of the Department of Children and Families
(department) intervened and placed her and her siblings
in the temporary custody of a family friend. Thereafter,
N was interviewed by a police officer, and ultimately
placed in the custody of B, along with S. K lived with
another family before returning to live with the
defendant.
The defendant was arrested on January 14, 2010, and
charged with one count of sexual assault in the first
degree, three counts of sexual assault in the second
degree, two counts of sexual assault in the fourth
degree, and one count of risk of injury to a child. Follow-
ing a five day trial, the jury returned a verdict of guilty
on all counts. The court accepted the verdict and sen-
tenced the defendant to a total effective term of twenty-
five years imprisonment, execution suspended after
eighteen years, followed by twenty years of special pro-
bation. This appeal followed. Additional facts will be
set forth as they pertain to each claim.
I
The defendant first claims that the court violated his
sixth amendment right to confrontation by improperly
restricting his cross-examination of N with respect to
her relationship with J, and her truthfulness toward
various parties following her allegations of sexual
assault. Specifically, the defendant argues that he was
unlawfully restricted from cross-examining N about the
lies she purportedly told to her department caseworker
with respect to her school grades, relationship with J,
and computer usage. He also claims that N lied to B
with respect to J, and to the police regarding an incident
wherein N was locked out of B’s house. Consequently,
the defendant contends that he was deprived of his
constitutional right to impeach N’s credibility and to
expose her alleged motive to fabricate the sexual
assault allegations—namely, revenge for the defen-
dant’s refusal to allow her to date J. We disagree with
the defendant.
The following additional procedural history and facts,
as the jury reasonably could have found them, are rele-
vant to our disposition of this claim. On direct examina-
tion, N testified that J, who is four years older than her,
was a childhood friend who lived across the street from
her when she was about five years old. When J’s mother
was at work, the defendant would often baby-sit J along
with N and K. Although they lost touch over the years,
N and J reconnected when N was sixteen years old. In
June, 2009, N called J and told him that the defendant
‘‘has sex with me all the time.’’ J advised N to stand up
for herself.
At approximately that time, N asked the defendant
for permission to date J, and the defendant said no. On
one occasion in July, 2009, N saw J at a parade she
was attending with her siblings, and he inquired as to
whether the defendant continued to sexually abuse her.
When N and her siblings returned home, N’s brother,
K, told the defendant that N was conversing with J at
the parade. Consequently, the defendant forced N to
take off her belt and he beat her with it. Near the
conclusion of her direct examination, N testified that
she and J were romantically involved and living
together, and that they had had a child together. N
further testified that she was arrested on April 5, 2011,
due to a fight she had had with J, and that charges
against her were pending.
On cross-examination, the defendant asked N several
questions pertaining to her truthfulness and her rela-
tionship with J. For example, the defendant asked N
whether she was angry that the defendant would not
allow her to date J, and whether she asked the depart-
ment to place her with J’s mother following her disclo-
sure of sexual abuse. Additionally, the defendant asked
N whether she snuck out of the defendant’s house to
party with friends. The defendant also asked N about
several promises that she made to the defendant and
had broken, including a promise not to disclose the
sexual abuse, not to sneak out at night, and not to
use the computer at night. Furthermore, the defendant
asked N whether she was concerned that her sexual
assault allegations would be disbelieved because she
had a history of lying.
In addition to these and other questions intended to
impeach N’s credibility, the defendant asked N whether,
during the time she was living with B, following her
disclosure of sexual assault, she broke B’s house rules.
The state objected and the jury was excused for argu-
ment on the objection. The state argued that the ques-
tion was neither relevant nor probative of whether the
defendant committed the crimes charged. Conversely,
the defendant argued that N’s anticipated answer would
reveal a pattern of breaking promises, which was rele-
vant to her credibility. The court sustained the objec-
tion, stating, ‘‘[Y]ou’ve elicited that [N] promised to tell
the defendant that she wouldn’t tell anybody about what
she says was the sexual abuse. . . . You’ve elicited that
she promised not to use the computer . . . she said,
yeah, I broke that promise, too. . . . So . . . you’ve
demonstrate[d] that she made several promises to the
defendant about these things and that she didn’t keep
a couple of these promises. I think that’s fine. I let it go
in. But . . . we’re not going to . . . try a case within a
case about what promises she kept or didn’t keep in
some other household. I don’t think it has any probative
value. So, I’m going to sustain the objection. I think
you’ve made your point with your initial round, but I
think that once we get outside the household, I think,
it becomes much less probative and collateral.’’
Prior to the jury’s return following this ruling, the
defendant proffered several questions to the court
regarding N’s truthfulness and her relationship with J.
The court determined that several of these questions
were permissible. Accordingly, the defendant was per-
mitted to ask whether: (1) N ran away from B’s house
on two occasions, and whether she was with J during
those times; (2) pursuant to S’s complaint to the depart-
ment about being spanked by the defendant, N told a
department caseworker that she had not been physi-
cally abused by the defendant; (3) N told the defendant
she lost a camera he had lent her for summer camp,
and whether a department caseworker later found the
camera in N’s backpack.
The court determined, however, that several prof-
fered questions were impermissible because they were
irrelevant and their prejudicial effect outweighed their
probative value. The precluded questions included
whether: (1) N lied to B and the department about
taking the bus to and from work, when in fact, J was
transporting her; (2) J would pick N up from school
shortly after the start of the school day and drop her
off before a department worker would arrive to pick
her up; (3) N lied to a department worker about calling
her caseworker, when in fact she was calling J; (4) N
lied to a department caseworker about getting good
grades when she was failing the majority of her classes;
(5) N told her foster family that a friend gave her twenty
dollars, when in fact, her friend gave her three hundred
dollars; and (6) N lied to the police about an incident
that occurred six weeks after her disclosure of sexual
assault, when she told them that she was locked out
of B’s house because she was with a girlfriend, when
in fact, she was with J.
The court stated that because this line of questioning
pertained to events that purportedly occurred following
N’s displacement from the defendant’s household, they
did not have any probative value and were likely to
confuse the jury in its determination of whether the
defendant committed the crimes charged. The court
did, however, allow the defendant to question N about
whether, following her disclosure of sexual assault, she
was always truthful to people in other households and
the police, but stated that the defendant would not be
allowed further inquiry into N’s responses because the
questions pertained to ‘‘very remote collateral, nonpro-
bative events.’’
As previously indicated, the defendant contends on
appeal that the court violated his sixth amendment right
to confrontation by deeming irrelevant several prof-
fered questions intended to impeach N’s credibility and
expose her purported motive to fabricate the sexual
assault allegations against him. The following legal prin-
ciples guide our analysis of the defendant’s claim. ‘‘The
sixth amendment to the [United States] constitution
guarantees the right of an accused in a criminal prosecu-
tion to confront the witnesses 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’ moti-
vation in testifying. . . . Cross-examination to elicit
facts tending to show motive, interest, bias and preju-
dice is a matter of right and may not be unduly
restricted. . . . The right of confrontation is preserved
if defense counsel is permitted to expose to the jury
the facts from which jurors, as the sole triers of fact and
credibility, could appropriately 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 par-
ticular matter tending to show motive, bias and interest
may result in a violation of the constitutional require-
ments [of the confrontation clause] of the sixth amend-
ment. . . .
‘‘[T]he confrontation clause does not [however] sus-
pend the rules of evidence to give the defendant the
right to engage in unrestricted cross-examination . . .
[or] to present every piece of evidence he wishes. . . .
To the contrary, [t]he [c]onfrontation [c]lause guaran-
tees only an opportunity for effective cross-examina-
tion, not cross-examination that is effective in whatever
way, and to whatever extent, the defense might wish.
. . . Thus, [i]f the proffered evidence is not relevant
. . . the defendant’s right to confrontation is not
affected, and the evidence was properly excluded. . . .
[W]e first review the trial court’s evidentiary rulings
. . . if premised on a correct view of the law . . . for
an abuse of discretion. . . .
‘‘The trial court has wide discretion to determine the
relevancy of evidence and the scope of cross-examina-
tion. . . . Thus, [w]e will make every reasonable pre-
sumption in favor of upholding the trial court’s ruling[s]
[on these bases] . . . . In determining whether there
has been an abuse of discretion, the ultimate issue is
whether the court . . . reasonably [could have] con-
clude[d] as it did. . . . If, after reviewing the trial
court’s evidentiary rulings, we conclude that the trial
court properly excluded the proffered evidence, then
the defendant’s constitutional claims necessarily fail.’’
(Citations omitted; internal quotation marks omitted.)
State v. Davis, 298 Conn. 1, 8–11, 1 A.3d 76 (2010); see
State v. David N.J., 301 Conn. 122, 132–33, 19 A.3d
646 (2011).
We conclude that the court’s limitation of the defen-
dant’s cross-examination of N did not constitute an
abuse of discretion. The court engaged in a discerning
analysis of the defendant’s proffered line of questioning,
disallowing only those questions pertaining to events
allegedly occurring after N’s disclosure of sexual abuse
and her consequent removal from the defendant’s
home. The court reasonably could have determined
that, given the temporal nature of the precluded ques-
tions with respect to the crimes charged, such questions
were collateral, nonprobative, and likely to confuse the
jury. Moreover, contrary to the defendant’s contentions,
he was afforded the opportunity to conduct a compre-
hensive cross-examination of N’s credibility and alleged
motive. The court permitted the defendant to inquire
into whether N was angry that the defendant would not
allow her to date J, whether she asked the department
to be placed in the custody of J’s mother, and whether
she ran away from B’s house, where she was not being
abused, to be with J. Additionally, the court allowed
the defendant to conduct a limited cross-examination
into N’s truthfulness with respect to whether, following
her disclosure of sexual assault, she ever lied to B,
members of other households, or the police.
Once again, ‘‘[t]he confrontation clause does not . . .
suspend the rules of evidence to give the defendant
the right to engage in unrestricted cross-examination.’’
(Internal quotation marks omitted.) State v. Davis,
supra, 298 Conn. 9. Because the proffered evidence was
reasonably excluded in accordance with the rules of
evidence, the court neither abused its discretion nor
violated the defendant’s right to confrontation.
II
The defendant next claims that the court violated his
fifth amendment right to due process and his sixth
amendment right to notice by improperly permitting
the state to charge him on the basis of a duplicitous
amended information. In particular, the defendant con-
tends that the court should have required the state
to set forth the specific facts underlying the identical
counts of sexual assault in the second and fourth degree
in order to apprise the defendant of the charges against
him. Additionally, the defendant claims that the court
violated his fifth amendment right to a unanimous ver-
dict by failing to instruct the jury that its verdict must be
unanimous with respect to the specific facts supporting
each count for which it returned a guilty verdict.
As a preliminary matter, the defendant concedes that
he did not preserve these claims on appeal. The defen-
dant did not file a motion for a bill of particulars or a
written request asking the state to specify the facts
underlying the contested counts. See Practice Book
§§ 41-5, 41-20 and 36-19. The defendant accordingly
seeks review pursuant to State v. Golding, 213 Conn.
233, 567 A.2d 823 (1989).2 We will review these claims
because the record is adequate for review and they are
of constitutional magnitude. See State v. Marcelino S.,
118 Conn. App. 589, 594, 984 A.2d 1148 (2009) (applying
Golding review to unpreserved duplicity claim), cert.
denied, 295 Conn. 904, 988 A.2d 879 (2010). We con-
clude, however, that the defendant’s claims fail under
the third prong of Golding. The following procedural
history and facts, as the jury reasonably could have
found them, are relevant to our review of this claim.
The state’s amended information charged the defen-
dant, in pertinent part, with three identical counts of
sexual assault in the second degree, alleging that the
assault occurred ‘‘on diverse dates between 2002 and
prior to July of 2009 . . . .’’ It additionally charged the
defendant with two identical counts of sexual assault
in the fourth degree, alleging that the assault occurred
‘‘on diverse dates between 2002 and July of 2009 . . . .’’
At trial, N gave a detailed account of several specific
incidents of sexual assault. She testified that the defen-
dant often required N to return home early from playing
in the park with her siblings, at which time he would
sexually assault her. Additionally, she testified about
an instance when she was sexually assaulted in S’s bed
and the defendant broke the bed frame. Further, N
testified as to a few instances where S had cracked open
the defendant’s bedroom door while he was sexually
assaulting N. On those occasions, the defendant
responded by covering himself and N with blankets, or
by running to close the door before S could enter the
room or witness the assault. N also testified that the
sexual assault often occurred when the defendant sent
K to run errands at Walgreens, Burger King, or a nearby
corner store.
On cross-examination, the defendant questioned N
regarding an incident of alleged anal sexual assault.
The defendant elicited testimony that, pursuant to her
interview with a police officer, N disclosed that she
had a scar on her anus due to an instance of anal
sexual assault by the defendant. Thereafter, during the
defendant’s cross-examination of Janet Murphy, a pedi-
atric nurse practitioner who conducted a physical
examination of N, the defendant elicited that Murphy
did not detect any anal scarring. During closing argu-
ment, the defendant argued that this lack of physical
evidence impugned N’s credibility.
In its charge to the jury, the court gave only one
instruction with respect to the three identical counts
of sexual assault in the second degree, but stated that
the jury must consider each count separately. The court
stated that the state ‘‘must prove beyond a reasonable
doubt, first, sexual intercourse took place between the
defendant and [N] and, second [N] was less than eigh-
teen years old and the defendant was her guardian or
was otherwise responsible for the general supervision
of her welfare. If you unanimously find that the state
has proved beyond a reasonable doubt each of the ele-
ments of sexual assault in the second degree as to count
two, three, or four, then you should find the defendant
guilty as to that particular count. On the other hand, if
you unanimously find that the state has failed to prove
beyond a reasonable doubt any of the elements as to
count two, three, or four, then you shall find the defen-
dant not guilty as to that particular count.’’3
Similarly, with respect to the two identical counts of
sexual assault in the fourth degree, the court delivered
only one jury instruction but told the jury that it must
consider each count separately. It stated that the state
‘‘must prove beyond a reasonable doubt, first, the defen-
dant intentionally subjected the complainant to sexual
contact; second, he specifically intended to obtain sex-
ual gratification; and, third, the complainant was less
than eighteen years old at the time the offense was
committed and the defendant was her guardian or was
otherwise responsible for the general supervision of
her welfare.’’4
Additionally, the court instructed the jury that if it
returned a verdict of guilty as to any or all of the counts
of sexual assault in the second and fourth degree, it
must complete an interrogatory regarding whether N
was under the age of sixteen at the time of the offenses
charged. It instructed that ‘‘[t]he interrogatory would
be answered yes or no, and any answer must be unani-
mous.’’ Before excusing the jury to conduct its delibera-
tions, the court emphasized, ‘‘[w]hen you reach a verdict
as to any count, it must be unanimous. All of you must
agree to it whether that verdict is guilty or not guilty.’’
Subsequently, when the jury returned its verdict, the
court clerk questioned the panel as to whether its ver-
dict was unanimous on each count and interrogatory for
which it returned a guilty verdict. The panel responded,
‘‘[y]es,’’ with respect to each count.
Our analysis begins with an examination of the
duplicity doctrine. ‘‘Duplicity occurs when two or more
offenses are charged in a single count of the accusatory
instrument.’’ (Internal quotation marks omitted.) State
v. Marcelino S., supra, 118 Conn. App. 594. In this case,
the defendant contends that the identical counts of
sexual assault in the second and fourth degree within
the amended information contained two or more
offenses because each count could have been supported
by various factual scenarios. See State v. Bazemore,
107 Conn. App. 441, 454–55, 945 A.2d 987 (defendant
argued that long form information was duplicitous
where it set forth two counts of robbery without identi-
fying robbery victims and defendant allegedly robbed
various individuals), cert. denied, 287 Conn. 923, 951
A.2d 573 (2008). However, ‘‘[i]t is now generally recog-
nized that [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 only duplicitous where the policy considera-
tions underlying the doctrine are implicated.’’ (Internal
quotation marks omitted.) State v. Marcelino S., supra,
594–95. Here, the defendant claims that the two policy
considerations implicated are the policies of assuring
his right to adequate notice and avoiding the risk of
a nonunanimous verdict. See id. (setting forth policy
considerations underlying duplicity doctrine).
In particular, the defendant argues that the amended
information did not set forth the factual basis underly-
ing each count of sexual assault in the second and fourth
degree. By the defendant’s account, N’s testimony that
the defendant assaulted her every day and sometimes
multiple times a day for a period of six years amounts to
approximately 7575 instances of alleged sexual assault.
Moreover, the defendant asserts that there were at least
eleven factual scenarios that could have supported the
charges of sexual assault in the second degree. He
argues that, because the state did not set forth the
specific factual underpinnings of each count of sexual
assault, he was unable to narrowly tailor his defense
‘‘to challenge [N’s] veracity with respect to [the alleged]
incidents.’’ Specifically, the defendant argues that some
of the jurors may have ‘‘disbelieved [N’s] claim of anal
penetration based on a complete lack of physical evi-
dence supporting this claim, while others may have
used it as a factual basis for convicting the defendant
of counts two, three, or four,’’ which alleged sexual
assault in the second degree. Consequently, the defen-
dant argues, the jury may have returned a nonunani-
mous verdict by agreeing that the defendant was guilty
of each count, but disagreeing about which acts sup-
ported that verdict.
We first conclude that the defendant’s claim that he
was deprived of his constitutional right to notice fails
under the third prong of Golding. If the defendant
desired greater specificity with respect to the facts
underlying each claim, then he should have filed a
motion for a bill of particulars or a written request
for the facts underlying each count. See Practice Book
§§ 41-5, 41-20 and 36-19. His failure to avail himself of
these procedural protections constituted waiver, and
thus, this claim fails under the third prong of Golding.
See State v. Holness, 289 Conn. 535, 543, 958 A.2d 754(2008) (‘‘a constitutional claim that has been waived
does not satisfy the third prong of the Golding test’’
[emphasis omitted]); State v. Young, 191 Conn. 636, 646,
469 A.2d 1189 (1983); State v. Bazemore, supra, 107
Conn. App. 454–55 (defendant waived claim that duplic-
itous information deprived him of constitutional right
to notice where he failed to file motion for bill of particu-
lars). We thus conclude that the defendant was not
deprived of his constitutional right to notice.
We further conclude that the defendant’s right to a
unanimous verdict was not violated when the court
failed to instruct the jury that its verdict must be unani-
mous as to the facts underlying each count for which
it returned a guilty verdict. ‘‘Regarding a court’s instruc-
tion to a jury prior to its deliberations, we have not
required a specific unanimity charge to be given in every
case . . . .’’ (Internal quotation marks omitted.) State
v. Senquiz, 68 Conn. App. 571, 589, 793 A.2d 1095, cert.
denied, 260 Conn. 923, 797 A.2d 519 (2002). ‘‘In State
v. Famiglietti, 219 Conn. 605, 619–20, 595 A.2d 306(1991), we set forth a multipartite test to determine
whether a trial court’s omission of a specific unanimity
charge warrants a new trial. We first review the instruc-
tion that was given to determine whether the trial court
has sanctioned a nonunanimous verdict. If such an
instruction has not been given, that ends the matter.
Even if the instructions at trial can be read to have
sanctioned such a nonunanimous verdict, however, we
will remand for a new trial only if (1) there is a concep-
tual distinction between the alternative acts with which
the defendant has been charged, and (2) the state has
presented evidence to support each alternative act with
which the defendant has been charged.’’ (Internal quota-
tion marks omitted.) State v. Dyson, 238 Conn. 784,
792, 680 A.2d 1306 (1996).
‘‘This court is required to conclude, when reviewing
a court’s instruction to the jury, that [t]he absence of
language expressly sanctioning a nonunanimous verdict
means that the defendant has not met the first part of the
Famiglietti test.’’ (Internal quotation marks omitted.)
State v. Senquiz, supra, 68 Conn. App. 589; see State
v. Reddick, 224 Conn. 445, 454, 619 A.2d 453 (1993);
State v. Cramer, 57 Conn. App. 452, 461, 749 A.2d 60,
cert. denied, 253 Conn. 924, 754 A.2d 797 (2000). Here,
there is no express language in the court’s jury charge
sanctioning a nonunanimous verdict. Cf. United States
v. Gipson, 553 F.2d 453, 458–59 (5th Cir. 1977), dis-
cussed in State v. Anderson, 211 Conn. 18, 34–35, 557
A.2d 917 (1989) (court instructed jurors that they could
disagree as to particular acts constituting violation of
crimes charged and still return guilty verdict). To the
contrary, the court instructed the jury that each count
of sexual assault must be considered separately and
independently of the other counts; that the jury must
unanimously agree that each element of the crimes
charged was proven beyond a reasonable doubt; and
that the interrogatories for each count must be
answered unanimously. Before releasing the jury into
deliberations, the court emphasized that its verdict
must be unanimous. Moreover, following the jury’s ver-
dict, the panel affirmed that its verdict was unanimous
on each count.
Therefore, ‘‘[g]iven the court’s admonitions concern-
ing unanimity, we must presume that the jury, in the
absence of a fair indication to the contrary . . . fol-
lowed the court’s instruction as to the law.’’ (Internal
quotation marks omitted.) State v. Senquiz, supra, 68
Conn. App. 590. Thus, we conclude that the defendant’s
claim fails under the third prong of Golding because
the court did not expressly sanction a nonunanimous
verdict.5
The judgment is affirmed.
In this opinion the other judges concurred.
1
In accordance with our policy of protecting the privacy interests of the
victims of sexual assault and the crime of risk of injury to a child, we decline
to use the defendant’s full name or to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
2
‘‘Under the familiar principle established in Golding, a defendant can
prevail on an unpreserved claim of constitutional error only if each of four
conditions is 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 clearly exists
and clearly 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.’’ (Internal
quotation marks omitted.) State v. Marcelino S., 118 Conn. App. 589, 594,
984 A.2d 1148 (2009), cert. denied, 295 Conn. 904, 988 A.2d 879 (2010).
3
In another portion of the jury charge on the crime of sexual assault
in the second degree, the court defined sexual intercourse as ‘‘vaginal or
anal intercourse.’’
4
In a separate portion of the jury charge on the crime of sexual assault
in the fourth degree, the court defined sexual contact as ‘‘any contact by
the defendant with the intimate parts of the complainant or contact of the
intimate parts of the defendant with the complainant. Intimate parts means
the genital area, groin, inner thighs, buttocks, or breasts.’’
5
Even if the defendant had satisfied the threshold requirement of the
Famiglietti test, his claim nevertheless fails under the test’s first prong
because case law provides that alternative means of performing unlawful
sexual intercourse and sexual contact are not conceptually distinct. See
State v. Anderson, supra, 211 Conn. 35 (‘‘[t]he several ways in which sexual
intercourse may be committed under General Statutes § 53a-65 [2] are only
one conceptual offense’’); State v. Hufford, 205 Conn. 386, 397, 533 A.2d
866 (1987) (no specific unanimity instruction required for charge of sexual
assault in fourth degree); State v. Griffin, 97 Conn. App. 169, 184 n.7,
903 A.2d 253 (‘‘alternative means of performing sexual intercourse are not
conceptually distinct’’), cert. denied, 280 Conn. 925, 908 A.2d 1088 (2006);
State v. William C., 71 Conn. App. 47, 79, 801 A.2d 823 (2002) (‘‘[t]here is
no conceptually alternative theory as to how [§ 53a-73a] could be violated
notwithstanding the state’s presentation of evidence of two different occa-
sions on which the defendant unlawfully touched the victim’s breasts’’),
rev’d on other grounds, 267 Conn. 686, 841 A.2d 1144 (2004). Therefore, the
court’s jury instructions did not violate the defendant’s right to a unani-
mous verdict.