State v. Joseph V. ( 2020 )

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STATE OF CONNECTICUT v. JOSEPH V.*
(AC 42295)
Keller, Bright and Flynn, Js.
Syllabus
Convicted of the crimes of sexual assault in the first degree, risk of injury
to a child and conspiracy to commit risk of injury to a child in connection
with his abuse of the minor victim, the defendant appealed. He claimed,
inter alia, that the trial court improperly sanctioned a nonunanimous
jury verdict against him when it denied his motion for a bill of particulars
and his request that the court give the jury a specific unanimity instruc-
tion as to the sexual assault charge. The defendant and the victim were
first cousins. The defendant and T, who also were first cousins, had
had an ongoing sexual relationship since childhood. After T and the
victim’s father moved to a new residence when the victim was seven
years old, the defendant began to sexually abuse the victim there when
the victim stayed overnight during visits with his father. The defendant’s
sexual abuse of the victim lasted until the victim was ten years old and
involved the victim’s performing oral sex on the defendant and the
defendant’s anal penetration of the victim. During that period of time,
the defendant and T often sexually abused the victim together. The
victim testified that the first incident of sexual abuse occurred after he
saw the defendant and T exchange a ‘‘look.’’ The state’s information
alleged that the defendant had engaged in sexual intercourse with the
victim through fellatio and anal intercourse in violation of subdivision
(2) of the statutory (§ 53a-70 (a)) subsection proscribing sexual assault
in the first degree. The information also alleged that the defendant
violated subdivision (2) of the statutory (§ 53-21 (a)) subsection proscrib-
ing risk of injury to a child, in that he had contact with the victim’s
intimate parts and subjected the victim to contact with his intimate parts.
The conspiracy count alleged that the defendant and T had conspired
to commit risk of injury to a child in the manner alleged in the risk of
injury count. The defendant filed a motion for a bill of particulars prior
to trial, claiming that the information was duplicitous in that it contained
allegations that could have been stated as separate offenses and gave
rise to a risk that he would not be afforded a unanimous verdict because
different jurors could reach a guilty verdict on the same count on the
basis of findings as to different incidents of abuse. The trial court con-
cluded, inter alia, that the information was not duplicitous and that the
jury was not required to unanimously agree that the defendant had
engaged in a specific act among different acts that would give rise to
criminal liability. The court thereafter denied the defendant’s request
for a specific unanimity instruction as to the crime of sexual assault in
the first degree, reasoning that the jury did not have to agree unanimously
as to whether the sexual intercourse consisted of fellatio or anal inter-
course. The court instructed the jury that, to find the defendant guilty
of each offense, it must unanimously agree that the state proved each
essential element of the charged offense beyond a reasonable doubt
and that, if it were unable to do so, it must find him not guilty. The
court also denied the defendant’s motion to preclude evidence that he
had had an ongoing sexual relationship with T from childhood through
the time of the sexual assaults of the victim. Held:
1. The defendant could not prevail on his claim that the trial court sanctioned
a nonunanimous verdict when it denied his motion for a bill of particulars
and his request for a specific unanimity instruction as to the charge of
sexual assault in the first degree: the court properly instructed the jury
with respect to the charge of sexual assault in the first degree, as § 53a-
70 (a) (2) proscribed a single type of conduct, sexual intercourse, which
can be proven by different types of specific acts, including fellatio and
anal intercourse, and, although the risk of injury and conspiracy counts
potentially were premised on the violation of alternative statutory subdi-
visions and, thus, gave rise to a risk that the jurors were not unanimous
with respect to the alternative bases of criminal liability, it was of no
consequence that the defendant was charged with having engaged in
those acts at different times and in distinct scenarios, as the state
presented evidence of both types of violations of § 53-21 (a) in that the
defendant had contact with the victim’s intimate parts and subjected
the victim to contact with the defendant’s intimate parts; moreover,
although the information was duplicitous as to the risk of injury and
conspiracy counts, a specific unanimity instruction was not required
with respect to those counts, as the court’s instructions did not expressly
sanction a nonunanimous verdict, and the court provided general una-
nimity instructions to the jury as well as unanimity instructions in the
context of the instructions pertaining to those counts.
2. The trial court did not abuse its discretion when it admitted evidence
that the defendant and T had had a sexual relationship since childhood:
the long-term sexual relationship between the defendant and T was
relevant to the jury’s assessment of T’s credibility, it was probative,
circumstantial evidence that the defendant and T had intended to con-
spire to engage in conduct constituting the crime of risk of injury to a
child and that their sexual activities with the victim were overt acts in
furtherance of the conspiracy, the evidence was relevant to whether
the defendant and T could have discussed matters of a sexual nature,
whether they were likely to trust one another to conspire to commit a
crime of a sexual nature against a child, and the evidence made it more
likely that the ‘‘look’’ the defendant and T shared before they sexually
abused the victim together for the first time was evidence that they
had agreed to sexually abuse the victim and engaged in conduct in
furtherance of the conspiracy; moreover, the court minimized the risk
of prejudice by limiting T’s testimony about his sexual relationship with
the defendant and expressed its readiness to provide the jury with a
limiting instruction, which the defendant requested not be delivered,
and the graphic evidence of the sexual activities the defendant and T
engaged in with the victim undermined the possibility that the limited
evidence of the sexual relationship between the defendant and T unduly
aroused the jurors’ emotions; furthermore, the evidence, which was
not of a violent or sexually graphic nature, was not introduced as or
characterized as prior misconduct by the defendant or evidence of his
propensity to sexually abuse the victim, and, contrary to the defendant’s
assertion, the trial court never suggested that the sexual relationship
between the defendant and T was a basis from which to infer that they
were motivated to engage in sexual conduct with children, as the jury
reasonably may have inferred that the relationship between the defen-
dant and T began as sexual exploration between young children, and
the potential that the fact that the defendant and T were first cousins
could arouse negative emotions in the jurors was not so significant that
it outweighed the probative value of the evidence of their sexual rela-
tionship.
Argued October 9, 2019—officially released March 31, 2020
Procedural History
Substitute information charging the defendant with
the crimes of sexual assault in the first degree, risk of
injury to a child and conspiracy to commit risk of injury
to a child, brought to the Superior Court in the judicial
district of Waterbury, where the court, K. Murphy, J.,
denied the defendant’s motions for a bill of particulars
and to preclude certain evidence; thereafter, the matter
was tried to the jury; verdict and judgment of guilty,
from which the defendant appealed. Affirmed.
Megan L. Wade, assigned counsel, with whom were
James P. Sexton, assigned counsel, and, on the brief,
Matthew C. Eagen, assigned counsel, and Emily L.
Graner Sexton, assigned counsel, for the appellant
(defendant).
Jennifer F. Miller, assistant state’s attorney, with
whom, on the brief, were Maureen Platt, state’s attor-
ney, and Amy L. Sedensky and Don E. Therkildsen, Jr.,
senior assistant state’s attorneys, for the appellee
(state).
Opinion
KELLER, J. The defendant, Joseph V., appeals from
the judgment of conviction, rendered following a jury
trial, of sexual assault in the first degree in violation
of General Statutes § 53a-70 (a) (2), risk of injury to a
child in violation of General Statutes § 53-21 (a) (2),
and conspiracy to commit risk of injury to a child in
violation of General Statutes §§ 53a-48 (a) and 53-21
(a) (2).1 The defendant claims that the trial court
improperly (1) sanctioned a nonunanimous verdict and
(2) denied his motion to preclude evidence that he was
engaged in a sexual relationship with his coconspirator,
T. We affirm the judgment of the trial court.
On the basis of the evidence presented at trial, the
jury reasonably could have found the following facts.
The male victim has a half brother, T, and a first cousin,
the defendant. T and the defendant, who are first cous-
ins, were born two days apart. The victim is more than
eight and one-half years younger than T and the
defendant.
When the victim was four or five years of age, T
began frequently abusing the victim in a sexual manner.2
This included T’s taking advantage of moments alone
with the victim to engage in a variety of sexual acts
that included rubbing his penis between the victim’s
legs, causing the victim to touch his penis, performing
oral sex on the victim, and causing the victim to perform
oral sex on him. Later, T anally penetrated the victim
with his penis.
Prior to 2006, the victim lived with his mother, father,
and T In 2006, when the victim was approximately seven
years of age, the victim’s mother and father ended their
relationship and decided to live separately. The victim’s
father moved to a new residence. T, at that time a
sophomore in high school, lived at the new residence
with his father. T had his own bedroom at the residence,
as did his father. The victim, who continued to reside
with his mother, frequently visited his father and stayed
at the new residence for overnight visits. The victim,
however, did not have his own bedroom at the new
residence but slept on a sofa or in his father’s bedroom.
The defendant lived at the new residence for a period
of time, but he did not have his own bedroom and slept
on a downstairs sofa. T’s abuse of the victim continued
at the new residence.
Both prior to and following the time that the victim’s
father and T moved to the new residence, the defendant
had a close relationship with T. The defendant and T
spent a lot of time together while engaging in activities
such as playing baseball, basketball, and video games.
From a young age, the defendant and T had an ongoing
sexual relationship, as well. After the victim’s father
and T moved to the new residence, when the defendant
was fifteen years of age, the defendant began to sexually
assault the victim. Frequent sexual abuse of the victim
by the defendant, which often involved simultaneous
sexual abuse of the victim by T, occurred until the
victim was ten years of age.3
The first time that the defendant sexually abused the
victim occurred in T’s bedroom after the defendant, T,
and the victim had been playing video games. After the
gaming system was turned off, the victim was on T’s
bed. The defendant and T exchanged a knowing glance
just before the defendant put his hand on the victim’s
hand and made the victim stroke his penis.4 Thereafter,
T and the defendant took turns rubbing their penises
between the victim’s legs, near his buttocks. At one
point during this incident, T attempted to anally pene-
trate the victim with his penis while the defendant made
the victim perform oral sex on him.
Another incident involving the defendant occurred
when he and the victim were watching television in the
bedroom of the victim’s father. While the defendant and
the victim were lying in bed, the defendant took the
victim’s hand and made the victim stroke his penis.
Then, the defendant made the victim, who was fully
clothed, perform oral sex on him. When the defendant
heard someone approaching the bedroom, he quickly
closed his pants to avoid detection by another person.
The defendant sexually abused the victim during
another incident that occurred in T’s presence, although
T did not participate.5 This incident occurred at night,
after the victim, the defendant, and T had been watching
television in the living room, which was downstairs
at the residence of the victim’s father. The defendant
partially undressed himself and partially undressed the
victim before making the victim perform oral sex on
him. The defendant also rubbed his penis between the
victim’s legs. The defendant quickly stopped his sexual
activity when he heard the victim’s father, who was on
the second floor of the residence, walking toward the
staircase that led to the living room.
In another incident involving the defendant, which
occurred when the victim was ten years of age, the
defendant and the victim were alone together at the
residence of the victim’s father after other family mem-
bers had left to purchase food. The defendant, who was
on the couch in the living room with the victim, partially
removed his pants and the victim’s pants and anally
penetrated the victim with his penis. Thereafter, the
defendant made the victim perform oral sex on him.
When the defendant completed the assault, he closed
his pants and instructed the victim not to tell the victim’s
father what had occurred.
Between the ages of ten and thirteen, the victim came
to recognize that the sexual contact had been wrong,
and he was left with many unanswered questions about
what had occurred between him, T, and the defendant.
The victim, however, did not yet feel comfortable telling
anyone close to him about what had occurred. He first
revealed the sexual abuse to a third party in 2013, when
he was thirteen years of age. The victim visited a website
that was operated by The Trevor Project, which, as
testified to by its vice president of programs, is a Califor-
nia based ‘‘accredited, national suicide prevention and
crisis intervention organization for lesbian, gay, bisex-
ual, transgender and questioning youth.’’6 The victim
sent a digital correspondence to the organization in
which, among other things, he revealed that he had
been sexually abused from a young age by his brother
and his cousin, that he grappled with emotional issues,
and that he sometimes thought about harming himself
and about suicide. After he did not receive an immediate
response, the victim visited the website once again and
used an instant messaging feature to speak with a coun-
selor. During the instant messaging conversation
between the victim and the counselor, the victim reiter-
ated that his brother and cousin had abused him sexu-
ally until he was ten years of age, stated that he pre-
viously had suicidal thoughts, and that he still had
questions about what had occurred. At one point during
the conversation, he questioned whether it was ‘‘[his]
fault for letting it happen for all those years.’’ The vic-
tim’s goal in reaching out to the organization was to
share his experiences with a third party who might be
able to help him feel better, but he was afraid of the
consequences of involving anyone who had the ability
to take action against his abusers.
Unbeknownst to the victim, the counselor that he
spoke with at The Trevor Project was required by law to
report allegations of child sexual abuse to the California
Department of Children and Family Services (depart-
ment) in Los Angeles. After the counselor concluded
his conversation with the victim, he reported the abuse
to the department. The department contacted the police
department for the Connecticut municipality in which
the victim resided and provided information that led
the police to the residence of the victim and his mother.
Thus, within hours of the victim’s instant messaging
conversation with a counselor, police officers were at
his residence to investigate the representations of sex-
ual abuse, at which time the victim admitted that he
had been sexually abused by the defendant and T. The
arrests of the defendant and T followed.
I
First, the defendant claims that the court improperly
sanctioned a nonunanimous jury verdict in violation of
his constitutional right to a unanimous jury verdict.7
We disagree.
The following additional facts are relevant to this
claim. On November 2, 2015, during a prior trial related
to the events underlying the charges of which the defen-
dant stands convicted,8 the state filed a substitute infor-
mation, which consisted of four counts, against the
defendant.9 On December 15, 2015, following a mistrial
in the prior action and before the commencement of
the present trial, the defendant filed a motion for a bill
of particulars, as provided for in Practice Book § 41-
20.10 Essentially, the motion sought to compel the state
to provide additional information with respect to each
of the charges.11 On September 2, 2016, before the court
heard argument on the defendant’s motion, the state
filed a substitute information that was the operative
information at the time of the present trial. This infor-
mation consisted of three counts.12
On September 6, 2016, the defendant filed a memoran-
dum of law in support of his motion for a bill of particu-
lars. On September 14, 2016, the court heard argument
on the motion. Consistent with the arguments set forth
in the memorandum of law, defense counsel, relying
primarily on State v. Saraceno, 15 Conn. App. 222, 545
A.2d 1116, cert. denied, 209 Conn. 823, 824, 552 A.2d
431 (1988), argued that the state’s information, which
contained ‘‘several allegations that could have been
stated as separate offenses,’’ was duplicitous in light
of the policy considerations set forth in Saraceno.13
Defense counsel argued that the information gave rise
to a ‘‘grave concern’’ that, in light of the anticipated
evidence to be presented at trial, the jury might arrive
at a finding of guilt with respect to one or more counts
without having agreed on specific conduct or facts as
to each count.
Defense counsel, referring to the evidence presented
during the prior trial, observed that, on the one hand,
the state was expected to present testimony that the
defendant had engaged in sexual activities with the
victim during three or four separate incidents. On the
other hand, the victim was expected to testify that
countless other incidents of abuse occurred in which
the defendant engaged in such criminal acts but that
he was unable to describe these incidents in any detail.
Defense counsel argued that the state, in its substitute
information, provided few details concerning the man-
ner in which the defendant committed the crimes
alleged. Thus, defense counsel argued, there was a risk
that one or more jurors could reach a guilty verdict
with respect to a count on the basis of their findings
with respect to an incident of abuse proven by the state,
and one or more jurors could reach a guilty verdict on
the same count, but on the basis of their findings with
respect to a different incident of abuse proven by the
state. Defense counsel stated: ‘‘That is our concern here,
that [the defendant would] not be afforded a unanimous
verdict because the jurors would not agree as to a
particular factual basis for each and every count
. . . .’’ (Emphasis added.)
Defense counsel stated that, if the court denied the
motion for a bill of particulars, the defense would
request that the court remedy the risk of a nonunani-
mous verdict by providing a specific unanimity instruc-
tion to the jury ‘‘to ensure that the jurors are unanimous
as to what specific conduct occurred [with respect to
each] count.’’ Defense counsel argued that the request
for a specific unanimity instruction was being made
pursuant to State v. Famiglietti, 219 Conn. 605, 595
A.2d 306 (1991). Defense counsel clarified that she did
not take issue with the fact that, in the information, the
state was relying on the fact that the alleged criminal
conduct occurred on ‘‘diverse dates’’ but argued that
the state needed to provide a bill of particulars to be
more succinct in terms of the ‘‘actual underlying con-
duct’’ that formed the basis of each charge.
The prosecutor argued that the information was
legally sufficient. Relying on the theory of defense
raised during the prior trial, the prosecutor argued that
the defense was expected to argue that the state had not
proven any allegation of sexual assault by the defendant
because the victim was not credible. The prosecutor,
relying on case law, argued that because the theory of
defense ‘‘turns 100 percent on the credibility of the
[victim], the concern [about unanimity] that [defense]
counsel has does not exist.’’
The court, in denying the motion, stated that the
information was not duplicitous simply because it was
based on several criminal acts that could have been
stated as separate offenses. Additionally, the court
stated that it had considered the five policy implications
discussed in Saraceno; see footnote 13 of this opinion;
and concluded that they did not warrant the giving of
a specific unanimity instruction in the present case.
With respect to the policy implication on which the
defendant most heavily relied, jury unanimity, the court
explained that, contrary to the arguments advanced by
defense counsel, the law did not require the jury to
unanimously agree that the defendant had engaged in
conduct that violated the statutes at issue on a specific
date or by engaging in a specific act among different
acts that would give rise to criminal liability. Instead,
the court stated, that, before returning a finding of guilt,
the jury was required to unanimously agree that the
defendant had engaged in the type of conduct that was
proscribed by the statutes during the time frame
alleged. The court stated that, for example, if the state
bore the burden of proving that an act was committed
in furtherance of the conspiracy count, it was not neces-
sary for the jury to agree unanimously with respect to
a particular act. Similarly, if the state bore the burden
of proving that sexual intercourse occurred, it was not
necessary for the jury to agree unanimously with
respect to whether sexual intercourse consisted of fella-
tio or anal intercourse. The court also stated that ‘‘the
issue in this case is going to be whether the main wit-
ness, [the victim], is telling the truth. So, this is not
a situation where the defendant is going to take the
[witness] stand and say, well, yeah, I did X, which might
constitute a crime, but I didn’t do Y. Sometimes, that
does happen, but in this case, the defense, in the last
trial, and what I assume will be the defense in this trial,
is that he didn’t do it at all, didn’t touch [the victim] in
a sexual way. And [the victim’s] position is, he did. It’s
really going to come down to whether the jury believes
[the victim] or does not. So, with that in mind, there
really isn’t an issue regarding unanimity.’’ The court,
however, stated that it would consider requests for a
specific unanimity instruction if either the state or the
defendant believed such an instruction was required.
Thereafter, the defendant filed a request to charge
that included a specific unanimity instruction for the
crime of sexual assault in the first degree.14 Although
defense counsel’s prior arguments concerning unanim-
ity expressly encompassed all three counts of the state’s
substitute information, the defendant did not file a simi-
lar request for a specific unanimity instruction with
respect to the other two counts, namely, risk of injury
to a child and conspiracy to commit risk of injury to
a child.
The court provided counsel with a copy of its pro-
posed jury charge and, later, outside of the presence
of the jury, held a charge conference. The court
addressed the defendant’s request that the court deliver
a specific unanimity instruction with respect to the
sexual assault count. The court, referring to relevant
precedent,15 stated that it was not inclined to deliver
the proposed instruction. Reiterating the rationale that
it had set forth previously, the court stated that, with
respect to the sexual assault count, the jury had to
agree unanimously that the defendant engaged in the
statutorily prohibited conduct of sexual intercourse
with the underage victim at the time and place alleged,
but the jury did not have to agree unanimously with
respect to the specific conduct that constituted sexual
intercourse. Specifically, the court stated that the jury
did not have to agree unanimously with respect to
whether sexual intercourse consisted of fellatio or anal
intercourse. The court reasoned that, in the present
case, the charged offense was not premised on the
defendant’s having committed alternative types of statu-
torily prohibited conduct but on his commission of a
single type of statutorily prohibited conduct, namely,
sexual intercourse, regardless of the fact that sexual
intercourse could be proven through the defendant’s
commission of different proscribed actions. Defense
counsel asked the court for additional time to respond
to its ruling, and the court consented to that request.
The following day, outside the presence of the jury,
defense counsel revisited the request for a specific una-
nimity instruction. Defense counsel broadened her
argument by expressly linking the request to the argu-
ments advanced in support of her motion for a bill of
particulars and emphasizing that the defendant sought
a specific unanimity instruction that pertained to all
three counts of the substitute information. In relevant
part, defense counsel stated: ‘‘[B]ecause we made the
argument for . . . specificity with the bill of particu-
lars, we would also want to be consistent in asking for
a separate unanimity [instruction] in keeping with the
argument that was made for the bill of particulars, in
that it is the defense contention that there’s a fear that
there could be a conviction on one of [the] . . . three
charges, and yet the factual underpinnings that are
agreed upon by the jurors would not be the same.’’
(Emphasis added.) Defense counsel attempted to distin-
guish the present case from those cases in which
defense counsel, for the first time on appeal, raised a
claim related to a trial court’s failure to deliver a specific
unanimity instruction. As defense counsel observed,
and the court agreed, in the present case, defense coun-
sel both moved for a bill of particulars and requested
a specific unanimity instruction.
The court did not deliver the specific unanimity
instruction requested by defense counsel. Prior to deliv-
ering to the jury instructions concerning each of the
three offenses with which the defendant was charged,
the court instructed the jury that it must consider each
count separately and return a separate, unanimous ver-
dict for each count.16 In the context of its detailed
instructions with respect to each of the three counts, the
court also instructed the jury that, to find the defendant
guilty of each offense, it must unanimously agree that
the state proved each essential element of the offense
beyond a reasonable doubt and that, if it is unable to
do so, it must find the defendant not guilty.17 At the
conclusion of the court’s charge, defense counsel took
an exception to the court’s failure to deliver a specific
intent instruction, as had been requested earlier that
day.
In arguing before this court that the trial court sanc-
tioned a nonunanimous verdict, the defendant reiter-
ates many of the arguments that he advanced before
the trial court. His appellate argument consists of two
legal arguments that are inherently intertwined. First,
he argues that the state relied on a duplicitous informa-
tion and that the court erroneously denied his request
for a bill of particulars. In relevant part, he argues:
‘‘[T]he jury was presented with evidence of four inci-
dents, any of which could have served as the basis for
a conviction of sexual assault and risk of injury [as]
presented to [it] in the state’s information. Additionally,
the jurors were presented, through the testimony of
[T] with multiple possibilities of conspiracy. Defense
counsel requested, first, a bill of particulars that would
have more clearly delineated the criminal conduct [that]
the state sought to prove, and then, after the close of
evidence, a jury charge to ensure that the jury under-
stood [that] it needed to be unanimous as to the specific
conduct that formed the basis of the criminal charge.
Both requests were denied by the trial court . . . .
Because multiple allegations were combined into a sin-
gle count of the information, and because the facts of
this case implicate the policy considerations behind the
prohibition against duplicitous charging documents, the
jury may not have been unanimous as to any one count
of the crimes charged.’’ (Citation omitted.) See footnote
13 of this opinion.
Second, the defendant argues that he took steps to
lessen the risk of a nonunanimous verdict by requesting
that a specific unanimity instruction be given to the
jury. The defendant suggests that, after the court denied
his motion for a bill of particulars, the court erred in
failing to deliver a specific unanimity instruction. This
error, the defendant argues, tainted the conviction of
all three offenses, as he advanced a concern at trial
‘‘that the jury would convict the defendant of a charge,
but that it would not be unanimous in the factual under-
pinnings of such a charge.’’ The defendant argues that
the court ‘‘created a significant possibility that the jury
convicted [him] without being unanimous as to the
criminal conduct that served as the basis for the convic-
tions.’’ Specifically addressing the sexual assault count,
the defendant argues that ‘‘[t]he problems created by
the state’s duplicitous information were exacerbated
by the trial court’s jury instructions. In its jury charge,
the trial court instructed that, ‘in order to convict the
defendant [of sexual assault in the first degree], you
must be unanimous that at least one violation of this
statute by one of the methods alleged occurred between
the defendant and [the victim] during the time frame
indicated.’ . . . [T]he plain meaning of the trial court’s
words made clear that the jury must agree that at least
one violation of the statute occurred, but not necessar-
ily the same one. Indeed, the trial court made clear to
both parties that it did not believe that the jury had to
be unanimous as to which criminal act occurred, [as]
long as they were unanimous that a criminal act
occurred.’’ (Citation omitted; emphasis in original.) The
defendant reiterates that it was imperative that the jury
unanimously agree with respect to the manner in which
he committed prohibited acts, not merely that he had
engaged in one or more acts prohibited by the statute
during the time frame alleged by the state. He argues:
‘‘In this case, the specific incidents the state focused
on were separated by time and intervening events, but
the jury instruction did not require the jury to agree
upon the specific criminal conduct that took place in
order to find the defendant guilty.’’
We observe that ‘‘[t]he denial of a motion for a bill
of particulars is within the sound discretion of the trial
court and will be overturned only upon a clear showing
of prejudice to the defendant. . . . A defendant can
gain nothing from [the claim that the pleadings are
insufficient] without showing that he was in fact preju-
diced in his defense on the merits and that substantial
injustice was done to him because of the language of
the information.’’ (Internal quotation marks omitted.)
State v. Joseph B., 187 Conn. App. 106, 117, 201 A.3d
1108, cert. denied, 331 Conn. 908, 202 A.3d 1023 (2019);
see also State v. Caballero, 172 Conn. App. 556, 564,
160 A.3d 1103 (whether to grant a ‘‘motion for a bill of
particulars is addressed to the sound discretion of the
trial court’’ (internal quotation marks omitted)), cert.
denied, 326 Conn. 903, 162 A.3d 725 (2017).
As our previous discussion of what transpired at trial
reflects, the defendant’s arguments with respect to the
motion for a bill of particulars were based on the belief
that, unless the state more specifically tailored the
counts in the information to allege the exact nature of
the prohibited acts constituting the crimes charged,
the risk of the jury’s returning a nonunanimous verdict
existed. The defendant argued that it was necessary for
the court to take steps to ensure that individual jurors
unanimously agreed on the manner in which prohibited
acts were committed in light of the fact that the state
might rely on multiple factual allegations for each
count. The defendant’s arguments in support of the
motion were of constitutional dimension. Thus, despite
the fact that whether to grant a motion for a bill of
particulars is left to the sound discretion of the trial
court, we recognize that the court’s exercise of discre-
tion must be evaluated on appeal in light of the underly-
ing constitutional claim, that is, whether the informa-
tion was duplicitous because it infringed on the
defendant’s constitutional right to a unanimous verdict.
See State v. Kemah, 289 Conn. 411, 422, 957 A.2d 852
(2008) (reviewing court affords plenary review to ques-
tions of law).
‘‘Duplicity occurs when two or more offenses are
charged in a single count of the accusatory instrument.
. . . It is now generally recognized 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 considerations underlying the doctrine
are implicated. . . . These [considerations] include
avoiding the uncertainty of whether a general verdict
of guilty conceals a finding of guilty as to one crime
and a finding of not guilty as to another, avoiding the
risk that the jurors may not have been unanimous as
to any one of the crimes charged, assuring the defendant
adequate notice, providing the basis for appropriate
sentencing, and protecting against double jeopardy in
a subsequent prosecution.’’ (Citations omitted; internal
quotation marks omitted.) State v. Saraceno, supra, 15
Conn. App. 228–29.
In the present case, counts one, two, and three of
the state’s substitute information of September 2, 2016,
each alleged multiple commissions of the same
offense.18 In count one, the state alleged that the defen-
dant, ‘‘on or about diverse dates between August 23,
2006 and December 25, 2010,’’ engaged in ‘‘sexual inter-
course (fellatio and anal intercourse)’’ with the victim.
In count two, the state alleged that, ‘‘on or about diverse
dates between August 23, 2006, and December 25, 2010,’’
the defendant had contact with the victim’s intimate
parts and subjected the victim to contact with his inti-
mate parts. In count three, the state alleged that, ‘‘on
or about diverse dates between August 23, 2006, and
December 25, 2010,’’ the defendant and T conspired to
commit the crime of risk of injury to a child. As defense
counsel anticipated in arguments on the motion for a
bill of particulars, in light of the evidence presented
during the prior trial, the state thereafter presented
testimony in the present trial from the victim as well
as T that multiple incidents of sexual abuse occurred
during the time frames alleged.
We focus, as does the defendant, on the risk of a
nonunanimous verdict. This court has addressed a
claim of this nature in several prior decisions. For exam-
ple, in Saraceno, the state’s information contained
counts, under which the defendant was convicted, that
alleged multiple violations of the same offense.19 State
v. Saraceno, supra, 15 Conn. App. 228. The court deter-
mined, however, that the consideration related to the
possible lack of unanimity did not render the informa-
tion duplicitous. Id., 231. The court reasoned: ‘‘[W]ith
regard to the evidence adduced in this case, it was not
possible for the jury to return a verdict which was
not unanimous. Given the complainant’s age and her
relative inability to recall with specificity the details of
separate assaults, the jury was not presented with the
type of detail laden evidence which would engender
differences of opinion on fragments of her testimony.
In other words, the bulk of the state’s case rested on
the credibility of the young complainant. When she testi-
fied, for example, that on many occasions the defendant
forced her to engage in fellatio while in a motor vehicle
parked on the banks of the Connecticut River, the jury
was left, primarily, only with the decision of whether
she should be believed. With such general testimony,
the spectre of lack of unanimity cannot arise.’’ Id., 230.
Presented with a similar claim of constitutional mag-
nitude, this court, in State v. Marcelino S., 118 Conn.
App. 589, 595–97, 984 A.2d 1148 (2009), cert. denied, 295
Conn. 904, 988 A.2d 879 (2010), followed the rationale
of Saraceno and rejected a claim that a defendant, who
was convicted of committing sexual offenses against a
victim who was between approximately nine and eleven
years of age, was prejudiced by a duplicitous informa-
tion.20 This court stated: ‘‘In the present case, [the vic-
tim] testified that the defendant touched her breasts,
buttocks and vagina, over her clothes, on more than
one occasion over a period of time. Of course, [t]he state
has the duty to inform a defendant, within reasonable
limits, of the time when the offense charged was alleged
to have been committed. The state does not have a
duty, however, to disclose information which the state
does not have. Neither the sixth amendment [to] the
United States constitution nor article first, [§ 8, of] the
Connecticut constitution requires that the state choose
a particular moment as the time of an offense when
the best information available to the state is imprecise.
. . . [I]n a case involving the sexual abuse of a very
young child, that child’s capacity to recall specifics, and
the state’s concomitant ability to provide exactitude in
an information, are very limited. The state can only
provide what it has. This court will not impose a degree
of certitude as to date, time and place that will render
prosecutions of those who sexually abuse children
impossible. To do so would have us establish, by judicial
fiat, a class of crimes committable with impunity.’’ (Cita-
tions omitted; emphasis omitted; internal quotation
marks omitted.) Id., 596–97. The court rejected the argu-
ment that there was a danger that the members of the
jury did not agree unanimously on the acts that consti-
tuted the basis for two offenses of which the defendant
was convicted, reasoning that ‘‘the bulk of the state’s
case rested on the credibility of [the victim]; the primary
decision for the jury was whether [the victim] should
be believed.’’ Id., 597.
Also, in State v. Michael D., 153 Conn. App. 296, 322,
101 A.3d 298, cert. denied, 314 Conn. 951, 103 A.3d 978
(2014), this court considered a defendant’s claim that
the state’s information was duplicitous because it posed
the risk that the jury would not unanimously agree on
the manner in which the offenses were committed.21
The defendant argued that, ‘‘because the consolidated
counts of the substituted information were premised
on separate and distinct incidents, some jurors may
have credited the victim’s testimony as to one act, but
not all, whereas other jurors may have credited her
testimony as to other acts, thereby giving rise to con-
cerns that the jury’s verdict was not unanimous.’’ Id.,
325.
In Michael D., this court, although it held that the
information was duplicitous, rejected the argument that
the information, considered in light of the evidence
presented at trial, gave rise to a concern that the jury’s
verdict was not unanimous.22 The court stated: ‘‘The
record reflects that the question of the victim’s credibil-
ity was front and center throughout the trial. The defen-
dant took particular aim at the victim’s testimony in
closing argument, where he repeatedly suggested that
she was not believable, and that she had manufactured
her testimony. The defendant implored the jury to con-
sider the question of his guilt, mindful that his fate
ultimately came down to the victim’s word . . . .
‘‘As the defendant argued to the jury, the state’s case
rested on the victim’s testimony. . . . He cannot now
argue, convincingly, that the jury reviewed his case and
the evidence, and arrived at a verdict without unani-
mously agreeing on the factual basis for it. In a case
such as this, the spectre of lack of unanimity cannot
arise.’’ (Citations omitted; internal quotation marks
omitted.) Id., 325–26.
The state urges us to conclude that the circumstances
at issue in the present case are similar to those in
Saraceno, Marcelino S., and Michael D., and that this
court likewise should conclude that the information
was not duplicitous or that any duplicity did not create
a risk of a nonunanimous verdict. The state argues: ‘‘The
defendant did not present a particularized challenge to
any of the individual incidents of sexual assault. Rather,
he merely attempted to portray the victim as a troubled
teenager whose testimony was riddled with inconsisten-
cies. Therefore, because there is no indication that the
jury would have credited some, but not all, of the vic-
tim’s testimony, this case did not present a circum-
stance that created a risk of a nonunanimous verdict.’’
Beyond arguing that the facts of the present case are
distinguishable from those at issue in cases such as
Saraceno, Marcelino S., and Michael D., the defendant
urges us to reject what he characterizes as ‘‘flawed’’
logic in Saraceno. The defendant argues that this court’s
all or nothing view of evaluating credibility, as reflected
in Saraceno and its progeny, is at odds with the well
settled principle that a fact finder properly may choose
to credit all, part, or none of the testimony of any wit-
ness.23 The defendant posits that, ‘‘[i]n this case, where
[the victim] provided extensive testimony about the
various alleged incidents that formed the basis of the
charged conduct, it is not inconceivable that some
jurors credited certain aspects of his testimony, while
other jurors discredited those aspects and instead cred-
ited different aspects of [the victim’s] testimony in arriv-
ing at the guilty verdicts.’’
Beyond questioning the rationale in Saraceno and
its progeny, the defendant argues that the rationale, if
legally sound, is inapplicable to the present case
because, at trial, defense counsel cross-examined the
victim with respect to the three specific incidents that
he described in his testimony. Additionally, the defen-
dant argues that the fact that the state presented some
evidence concerning specific incidents of abuse in the
present case, rather than simply generalized testimony
that abuse had occurred several times, distinguishes
the present case from cases such as Saraceno, in which
the victim did not describe specific incidents of abuse
but a general pattern of abuse.
Setting aside any doubts that we may share with the
defendant concerning the ‘‘all or nothing’’ approach to
credibility, as is set forth in Saraceno and as followed
in cases that included Marcelino S. and Michael D., we
agree with the defendant that the rationale does not
neatly apply to the circumstances in the present case.
As we have set forth previously, in the present case,
the state presented generalized testimony from the vic-
tim that multiple instances of abuse involving the defen-
dant had occurred.24 The state, however, also presented
evidence that four specific instances of abuse involving
the defendant had occurred; the victim described three
of the four specific instances and T described two of
the four specific instances. Not surprisingly, because
the state’s case rested on the testimony of the victim
and T, at trial, defense counsel vigorously attempted to
demonstrate that neither the victim nor T were credible
witnesses. As the defendant argues, at trial, defense
counsel attempted to undermine the credibility of the
victim and T not merely in general terms but with
respect to their testimony concerning specific instances
of abuse. It suffices to observe that, by the use of ques-
tioning and argument, defense counsel attempted to
cast doubt on the ability of the victim and T to recall
accurately the events at issue and whether they
occurred in the manner described. In light of the forego-
ing, we are not persuaded that it is fair to characterize
the situation as one in which the jury was presented
with an all or nothing credibility assessment of a witness
who allegedly was sexually abused as a child. The state
presented testimony concerning, inter alia, four distinct
incidents in which the defendant sexually abused the
victim. It belies the manner in which we expect juries
to carefully weigh the evidence to presume that the
jury was required to find that, if the state had proven
one or more factually distinct incidents of sexual abuse,
then it was required to find that they all had been
proven. Rather, it was within the jury’s prerogative as
the finder of fact to draw reasonable inferences from
its finding that testimony concerning one or more of
the incidents was credible. Certainly, the fact that the
state’s key witness was a child when the sexual abuse
occurred did not immunize his testimony from the scru-
tiny that the jury was expected to apply to the testimony
of all of the state’s witnesses, and the court did not
suggest otherwise. Thus, we do not conclude that the
jury was left, primarily, only with the decision of
whether the victim was credible generally. This conclu-
sion, though, does not end our inquiry.
The dispositive consideration in our evaluation of
whether the state’s substitute information posed a risk
that the jurors may not have been unanimous in their
finding of guilt with respect to any one of the offenses
with which the defendant was charged, thus requiring
the court to deliver a specific unanimity instruction,
comes down to whether the defendant’s criminal liabil-
ity for each offense was premised on his having violated
one of multiple statutory subsections or elements.
In State v. Benite, 6 Conn. App. 667, 674–75, 507 A.2d
478 (1986), in considering of a claim that the trial court
improperly failed to deliver a specific unanimity instruc-
tion, this court stated: ‘‘If the actions necessary to con-
stitute a violation of one statute or subsection of a
statute are distinct from those necessary to constitute
a violation of another, then jurors who disagree on
which one the state proves cannot be deemed to agree
on the actus reus: the conduct the defendant committed.
Where the evidence presented supports both alterna-
tives, the possibility that the jurors may actually dis-
agree on which alternative, if either, the defendant vio-
lated is the highest. Under such circumstances, the
jurors should be told that they must unanimously agree
on the same alternative. . . . [A specific unanimity
instruction] is required only where a trial court charges
a jury that the commission of any one of several alterna-
tive actions would subject a defendant to criminal liabil-
ity, and those actions are conceptually distinct from
each other, and the state has presented some evidence
supporting each alternative. The determination of
whether actions are conceptually distinct must be made
with reference to the purpose behind the proposed
charge: to ensure that the jurors are in unanimous agree-
ment as to what conduct the defendant committed.’’
This court, in Benite, analyzed and relied heavily on
United States v. Gipson, 553 F.2d 453 (5th Cir. 1977).
See State v. Benite, supra, 6 Conn. App. 672–73. ‘‘In
essence, the unanimity requirement as enunciated in
Gipson and its progeny requires the jury to agree on
the factual basis of the offense. The rationale underlying
the requirement is that a jury cannot be deemed to be
unanimous if it applies inconsistent factual conclusions
to alternative theories of criminal liability.’’ State v.
Bailey, 209 Conn. 322, 334, 551 A.2d 1206 (1988).
This court has further explained the relevant princi-
ple: ‘‘The rule which we articulated in Benite is limited
to a case in which the actions necessary to constitute
a violation of one statute or subsection of a statute are
distinct from those necessary to constitute a violation
of another . . . . The word another as used in Benite
obviously refers to another subsection of the same stat-
ute, or to another statutory way of committing a viola-
tion of the same statutory subsection. Thus, the Benite
rule, which requires the trial court in appropriate cir-
cumstances to give, even in the absence of a proper
request or exception, a fact-specific and closely focused
unanimity instruction, only applies where the particular
count under consideration by the jury is based on multi-
ple factual allegations which amount to multiple statu-
tory subsections or multiple statutory elements of the
offense involved. It does not apply, and such an instruc-
tion is not required of the court, where the multiple
factual allegations do not amount to multiple statutory
subsections or to multiple statutory elements of the
offense.’’ (Citation omitted; internal quotation marks
omitted.) State v. Mancinone, 15 Conn. App. 251, 273–
74, 545 A.2d 1131, cert. denied, 209 Conn. 818, 551 A.2d
757 (1988), cert. denied, 489 U.S. 1017, 109 S. Ct. 1132,
103 L. Ed. 2d 194 (1989); see also State v. Douglas C.,
195 Conn. App. 728, 754, A.3d (trial court ‘‘is
not required . . . to provide a specific unanimity
instruction when the state charges a defendant with
having violated one statutory subsection one time and
proffers evidence at trial that amounts to the defendant
having violated that single statutory subsection on mul-
tiple occasions’’), cert. granted on other grounds, 335
Conn. 904, A.3d (2020).
‘‘This limitation on the Benite rule, moreover, com-
ports with common sense and sound principles by
which to view jury verdicts. In most criminal trials, the
evidence will allow to one degree or another differing
but reasonable views regarding what specific conduct
the defendant engaged in which formed the basis of
the jury’s verdict of guilt. For example, different wit-
nesses may present different versions of the defendant’s
conduct; and the same witness may testify inconsis-
tently in his description of that conduct, and thus pres-
ent differing versions of that conduct. In such cases, it
is a familiar principle that the jury is free to accept or
reject all or any part of the evidence. . . . In such
cases, however, there is nothing in the constitutional
requirement of jury unanimity that requires a specific
instruction that the jury must be unanimous with regard
to any one of those varying factual versions. As long
as the jurors are properly instructed on the legal ele-
ments of the crime which must be proved beyond a
reasonable doubt, they need not be further instructed
that they must all agree that the exact same conduct
constituted the prohibited act. In such cases, we safely
rely on the presumption that the jury understands and
properly follows the court’s instruction that its verdict
must be unanimous . . . and we do not attempt to
divine whether that presumption is valid.
‘‘Where, however, the jury is presented with alterna-
tive, conceptually distinct statutory subsections, or with
alternative, conceptually distinct elements of the same
statute, as possible bases for guilt, the principles of
Benite come into play, because it is in those situations
that the possibility that the jurors may actually disagree
on which alternative, if either, the defendant violated
is the highest. . . . In those situations, therefore, we
require a specific unanimity instruction as an additional
corollary to the usual unanimity instruction.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Mancinone, supra, 15 Conn. App. 275–76.
In State v. Famiglietti, supra, 219 Conn. 619–20, our
Supreme Court clarified the analysis that a reviewing
court should apply to a claim that a trial court violated
a defendant’s sixth amendment right to due process by
failing to deliver a specific unanimity instruction. The
analysis applies in the types of cases governed by Benite
and its progeny, specifically, cases in which criminal
liability may be premised on the violation of one of
several alternative subsections of a statute. Our
Supreme Court explained in relevant part: ‘‘[W]e have
not required a specific unanimity charge to be given in
every case in which criminal liability may be premised
on the violation of one of several alternative subsections
of a statute. We have instead invoked a multipartite test
to review a trial court’s omission of such an instruction.
We first review the instruction that was given to deter-
mine whether the trial court has sanctioned a nonunani-
mous 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 conceptual distinction between the
alternative acts with which the defendant has been
charged, and (2) the state has presented evidence to
support each alternative act with which the defendant
has been charged.’’ Id.; see also State v. Dyson, 238
Conn. 784, 791–94, 680 A.2d 1306 (1996) (applying Fam-
iglietti test); State v. Anderson, 211 Conn. 18, 34–35,
557 A.2d 917 (1989) (discussing principles codified in
Famiglietti test); State v. Bailey, supra, 209 Conn.
334 (same).
Having set forth relevant principles of law, we turn
to the charges at issue in the present case. With respect
to sexual assault in the first degree in violation § 53a-
70 (a) (2),25 we observe that the court properly
instructed the jury that the state bore the burden of
proving beyond a reasonable doubt that (1) the defen-
dant engaged in sexual intercourse with the victim, (2)
the victim was younger than thirteen years of age at
the time of the sexual intercourse, and (3) the defendant
was more than two years older than the victim. The
statutory subsection under which the defendant was
charged was not comprised of conceptually distinct
alternative methods for committing the offense. The
single type of criminal conduct that is prohibited by
§ 53a-70 (a) (2) is sexual intercourse, which may be
proven by different types of specific acts, including
fellatio and anal intercourse. Thus, by its nature, this
charge is not implicated by the rule in Benite. Contrary
to the defendant’s arguments, the claim that the sexual
assault count was duplicitous and required the use of
a specific intent instruction lacks merit. With respect
to the sexual assault count, the defendant has not dem-
onstrated that a risk of a nonunanimous verdict existed
and, thus, that the court erred in denying the motion
for a bill of particulars or in not delivering the specific
unanimity instruction that he requested.
We next turn to the second count, in which the defen-
dant was charged with risk of injury to a child in viola-
tion of § 53-21 (a) (2),26 and the third count, in which
the defendant was charged with conspiracy to commit
risk of injury to a child in violation of §§ 53a-48 (a) and
53-21 (a) (2).27 With respect to the risk of injury charge,
the court properly instructed the jury that the state bore
the burden of proving beyond a reasonable doubt that
(1) the defendant had contact with the victim’s intimate
parts or subjected the victim to contact with his intimate
parts, (2) the contact with intimate parts took place in
a sexual and indecent manner, (3) the contact was likely
to injure or weaken the health or morals of the victim,
and (4) the victim was younger than sixteen years of
age. Unlike the statutory subsection underlying count
one, the statutory subsection that formed the basis of
count two prohibited two types of conduct, namely, the
defendant’s making contact with the victim’s intimate
parts and, in the alternative, the defendant’s subjecting
the victim to contact with his intimate parts. With
respect to the conspiracy to commit risk of injury
charge, the court properly instructed the jury that the
state bore the burden of proving beyond a reasonable
doubt that the defendant (1) agreed with one or more
persons to engage in conduct constituting the crime of
risk of injury to a child, (2) at least one of the coconspir-
ators committed an overt act in furtherance of the con-
spiracy, and (3) the defendant specifically intended that
every element of the planned offense be committed.
Because, as alleged in the present case, the charge of
risk of injury to a child could have been based on alter-
native types of statutorily prohibited conduct, the con-
spiracy count likewise rested on alternative bases of
criminal liability. Moreover, as our recitation of the
facts reflects, the state presented evidence of both types
of violations of the risk of injury statute. The state
presented evidence that, in a statutorily prohibited man-
ner, the defendant had contact with the victim’s inti-
mate parts and that the defendant subjected the victim
to contact with his intimate parts. This increased the
possibility that the jury was not unanimous with respect
to the specific type of statutorily prohibited conduct
that occurred.
Because the second and third counts potentially were
premised on the violation of alternative portions of the
risk of injury statute, these counts are encompassed by
the rule in Benite because there was a risk that the
jurors were not unanimous with respect to the alterna-
tive bases of criminal liability. Contrary to the argu-
ments that he advanced before the trial court, the defen-
dant argues before this court that the Famiglietti test
does not apply in the present situation because ‘‘[he]
was not charged with alternative acts but, rather, with
. . . committing the same criminal act at different
times and in distinct scenarios.’’ For the reasons we
previously have discussed, the defendant’s argument in
this regard is not persuasive. In counts two and three,
the defendant was charged with having committed alter-
native types of criminal acts, and it is of no consequence
to our analysis of the issue of unanimity that the state
charged him with having engaged in these acts at differ-
ent times and in distinct scenarios.
Relying on the portions of the court’s charge set forth
previously in this claim, we observe that our careful
review of the court’s charge reflects a complete absence
of language sanctioning a nonunanimous verdict, thus
compelling a conclusion that the defendant cannot pre-
vail in demonstrating that a specific unanimity instruc-
tion was required.28 See, e.g., State v. Senquiz, 68 Conn.
App. 571, 589, 793 A.2d 1095, cert. denied, 260 Conn.
923, 797 A.2d 519 (2002); State v. Cramer, 57 Conn.
App. 452, 461, 749 A.2d 60, cert. denied, 253 Conn. 924,
754 A.2d 797 (2000). As we have stated previously, the
court, in its general instructions, charged the jury in
relevant part: ‘‘You must consider each count separately
and return a separate verdict for each count. . . .
Remember that your verdict as to each count must be
unanimous; all six jurors must agree as to the verdict
as to each separate count.’’ (Emphasis added.) See foot-
note 16 of this opinion. With respect to the risk of injury
count, the court instructed the jury in relevant part: ‘‘In
order to convict the defendant on this count you must
be unanimous that at least one violation of this statute
occurred between the defendant and [the victim] during
the time frame indicated.’’ (Emphasis added.) See foot-
note 17 of this opinion. With respect to the conspiracy
count, the court instructed the jury in relevant part: ‘‘If
you unanimously find that the state has proved beyond
a reasonable doubt each of the elements of the crime
of conspiracy to commit risk of injury to a child, then
you shall find the defendant guilty.’’ (Emphasis added.)
See id. Thus, the court’s instructions with respect to the
risk of injury and conspiracy counts did not expressly
sanction a nonunanimous verdict, and the court pro-
vided general unanimity instructions to the jury as well
as unanimity instructions in the context of the instruc-
tions pertaining to the counts at issue. Even though the
court did not provide a specific unanimity instruction
with respect to the statutory alternatives that were pos-
sible in the jury’s evaluation of counts two and three,
we decline to interpret the instruction provided as
implicitly sanctioning a nonunanimous verdict. As our
Supreme Court explained in State v. Dyson, supra, 238
Conn. 793, it is not appropriate for a reviewing court
to conclude that a charge implicitly sanctioned a non-
unanimous verdict; a trial court’s ‘‘silence’’ with respect
to the need for unanimity regarding statutory alterna-
tives is not the equivalent of an instruction that
expressly sanctions a nonunanimous verdict. Id.
Thus, despite the fact that the information was duplic-
itous with respect to counts two and three, the defen-
dant is unable to demonstrate that a specific unanimity
instruction was required. See, e.g., State v. Famiglietti,
supra, 219 Conn. 619–20. Accordingly, the defendant has
failed to demonstrate that the risk of a nonunanimous
verdict existed and, thus, that he is entitled to relief
with respect to the court’s denial of his motion for a
bill of particulars or his request that a specific unanimity
instruction be given to the jury.
II
Next, the defendant claims that the court improperly
denied his motion to preclude evidence that he had
been engaged in a sexual relationship with his cocon-
spirator, T. We disagree.
The following additional facts are relevant to this
claim. Prior to trial, the defendant filed a motion in
limine in which he asked the court to prohibit the state
from presenting testimony from T. ‘‘regarding his
claimed past sexual involvement with the defendant.’’
The motion stated: ‘‘The state has indicated that, during
interviews with [T], he has revealed information regard-
ing claims of his own sexual involvement with the defen-
dant dating back to a time when they were seven or
eight years old. The defendant and [T] were born two
days apart.’’ In the motion, the defendant objected to the
evidence on the ground that it was unduly prejudicial,
it was ‘‘irrelevant and immaterial to the allegations of
sexual assault or conspiracy alleged to have occurred
when the defendant and [T] were between the ages of
fifteen and nineteen’’ and that it ‘‘improperly places the
defendant’s character in evidence.’’
During oral argument with respect to the motion in
limine, the prosecutor represented that, during the prior
trial, which resulted in a mistrial, the court had permit-
ted the state to ask T only whether ‘‘the defendant and
[T] had had an ongoing sexual relationship from the
ages of seven or eight that continued up until their teen
years.’’ The prosecutor argued that she sought similar
leeway in her examination of T during the present trial
because, pursuant to §§ 4-1 through 4-3 of the Connecti-
cut Code of Evidence, the evidence of an intimate sex-
ual relationship was relevant to the issues before the
jury.
The prosecutor explained that the state would pres-
ent evidence that, during one of the specific incidents
of abuse, T given ‘‘a look’’ to the defendant before T
and the defendant began to sexually assault the victim.
The prosecutor argued that this evidence was relevant
to proving that a conspiracy existed, ‘‘but the fact [that]
these two gentlemen had an already existing sexual
relationship amongst themselves clearly makes the fact
of the conspiracy more probable, the fact [that] they
had engaged in sexual relations themselves. Clearly,
that particular relationship is probative of the con-
spiracy.
‘‘And while the state agrees . . . there’s prejudice to
the defendant in that it is an embarrassing, perhaps,
thing to them, or some jurors might find that it’s some-
thing that they perhaps would not engage in, the proba-
tive value . . . based on the fact [that] we have charged
conspiracy, based on the fact [that] conspiracy is a
charge which generally is proven by evidence such as
this, the relationship of the two parties as opposed
to written agreement, it’s clearly probative. And that
probative value outweighs the prejudicial effect. . . .
‘‘[I]t’s the state’s position . . . [that] this is not
uncharged misconduct. There’s no violation of the law
here. So, we are proceeding under just a relevancy
argument and probative value outweighing prejudi-
cial effect.’’
Defense counsel responded that the evidence at issue
was not relevant for purposes of proving that a conspir-
acy existed. Defense counsel argued that, essentially,
the state was attempting to introduce the evidence for
the improper purpose of demonstrating the defendant’s
propensity to engage in the conduct with which he was
charged. Moreover, defense counsel argued that the
probative value of the evidence, if any, was outweighed
by the prejudice it would likely cause the defendant.
Defense counsel stated in relevant part: ‘‘It’s not mis-
conduct when they reach a certain age and it’s consen-
sual between them, if, in fact, it occurred. It does not
show a propensity to engage in aberrant and compulsive
sexual misconduct. And certainly children who are
under the age . . . of fifteen years old cannot be
charged with a crime for this kind of sexual conduct
or misconduct, however it’s classified. . . .
‘‘[T]his wasn’t criminal conduct. If there were certain
other allegations, it may have been considered delin-
quency conduct. But there’s no bad act here. This is
something that, if it’s testified to, becomes public. We
seek to protect children from behaviors that are repug-
nant in society, whether they be the perpetrator or the
victim. And I would argue the public policy behind
the juvenile laws that [seeks] to protect any kind of
identification of children under the age of fifteen who
engage in sexual behavior. It is not part of our . . .
civilized society where that would be acceptable to
anybody. It’s repugnant information. It’s private infor-
mation. . . .
‘‘We recognize that children do not have the capacity
to understand the right and wrong of that type of behav-
ior. Certainly, seven and eight year olds, which is what
the state is seeking to get in, up through the teenage
years, where, at a certain age then, under our law, it
becomes consensual behavior. However . . . many
people in our society still hold to the belief that same sex
relationships are also repugnant. Certainly, the behavior
that they are alleging when they were young children
should not be revealed, should not be allowed, whether
it’s true or not . . . . It has nothing to do with conspir-
acy.’’ Defense counsel then argued that the evidence
tended to malign the defendant’s character and was
inadmissible under § 4-4 of the Connecticut Code of
Evidence,29 and that the evidence was not relevant to
proving motive, intent, or identity.
The prosecutor responded to the arguments of
defense counsel by reiterating that the state did not
seek to present the evidence to show the defendant’s
propensity to engage in aberrant sexual behavior with
children. Instead, the prosecutor argued, the state
sought to introduce the evidence for the purpose of
demonstrating that there was an agreement between
the defendant and T, which was highly relevant to dem-
onstrating that the state had proven its conspiracy
charge. The prosecutor proposed that the court could
deliver a limiting instruction in this regard. Finally, the
prosecutor expressed her belief that the evidence was
not as prejudicial as defense counsel believed it to be
in light of current societal norms.
The court stated that it did not believe that it was
appropriate to view the evidence as misconduct evi-
dence, for ‘‘a relationship between two consenting indi-
viduals at one time seven or eight years old and, later,
at the outside, fifteen years old, sixteen years old or a
little older, [was not] something of such a shocking
nature that it should be analyzed according to the mis-
conduct [case law].’’ The court stated that the sexual
relationship between the defendant and T was relevant
for two reasons. First, ‘‘it goes to the credibility of [T],
that is . . . [it] could be argued that [T] had a lack of
motive to falsify [his testimony] and a lack of animus
toward the defendant. So, that relationship, which is
of an intimate and positive nature, I think goes to the
credibility of [T].’’ Second, the court found that the
evidence was relevant to explaining the circumstances
in which the defendant and T engaged in sexual abuse
of the victim. The court explained: ‘‘[T]he jury is going
to wonder how, out of the blue, the defendant and [T]
would have started to engage in this type of conduct
with [the victim]. And . . . the fact that the defendant
and [T] had previously engaged in some type of sexual
relationship prior to this event that occurred with [the
victim], it makes much more sense to the trier of fact
that there is an ongoing or, had been, an ongoing sexual
relationship between the defendant and [T] and that
[the victim] was somehow drawn into that. So, I think
that fact is very relevant. I think it’s extremely relevant.’’
The court stated that it was not persuaded by the
arguments advanced by defense counsel that the evi-
dence was unduly prejudicial. The court stated that ‘‘the
fact that they were seven or eight when they started
this and fifteen or sixteen when it ended, I think that
actually makes the nature of that relationship even less
prejudicial. . . . [I]t’s not outrageous, it’s not shocking
. . . and it is consensual.’’
The court denied the motion in limine, stating that
it would permit the state to engage in a very limited
inquiry with respect to this issue during its direct exami-
nation of T but would permit further inquiry if it was
warranted by the questions asked, if any, during cross-
examination. The court stated that a limited inquiry that
did not explore any details of the relationship ‘‘balances
and filters out any undue prejudice.’’
During the state’s direct examination of T, the follow-
ing colloquy between the prosecutor and T occurred:
‘‘Q. Now, you know, we just talked a minute ago
about sort of fun things you and the defendant would
do as boys—playing baseball, hanging out—but isn’t it
true that in addition to that, that for a number of years,
from the time that you were really small, you and the
defendant had an ongoing sexual relationship as well?
‘‘A. Correct.’’
Shortly thereafter, while T was testifying with respect
to the first time that he and the defendant abused the
victim while in T’s bedroom, the following colloquy
between the prosecutor and T occurred:
‘‘Q. And at this point in your life, as you said before,
you and the defendant had, since you were younger,
been engaging in sexual activity between the two of
you?
‘‘A. Correct.’’
The prosecutor did not conduct a further inquiry with
respect to the sexual relationship that existed between
the defendant and T. Prior to T’s direct examination,
the court asked if defense counsel sought a limiting
instruction related to the evidence at issue. Defense
counsel stated that she would decide later that day.
Later that day, prior to T’s cross-examination, the court,
in the absence of the jury, noted that it had conferred
with counsel concerning a potential limiting instruction
regarding the proper use of the evidence at issue, and
that defense counsel had ‘‘indicated that they would
prefer an instruction at the end or that they will decide
by the end of the case as opposed to [the court deliv-
ering] one right now.’’ During a charge conference sev-
eral days later, defense counsel stated that she had
reviewed a proposed limiting instruction that was
drafted by the court but that her preference was that
the court not deliver the instruction because it would
‘‘highlight’’ the evidence at issue. The court stated that
it would delete the proposed limiting instruction from
its draft jury charge and made clear that it would con-
sider alternative language. The court stated, ‘‘[i]f there
is any other instruction that you’re requesting, please
let me know . . . .’’ Thereafter, no request for a limiting
instruction was made, the court did not deliver a lim-
iting instruction in its charge, and the defendant did
not take an exception on that ground.
The defendant’s arguments on appeal, which were
adequately preserved at trial, are slightly narrower than
those that he raised before the trial court. He argues
that the court erroneously determined that the evidence
had any probative value with respect to the conspiracy
charge. He argues: ‘‘[T]here is simply no basis in Con-
necticut or federal case law that supports the proposi-
tion that two people in a sexual relationship are more
likely to engage in a conspiracy to commit risk of injury
to a [child] as a result of that relationship.’’ The defen-
dant argues that the evidence did not provide a motive
for the defendant and T to engage in sexual abuse of
the victim. Additionally, the defendant argues that
because T testified that his relationship with the defen-
dant came to an end after he agreed to cooperate with
the police in the present case, to the defendant’s detri-
ment, the evidence was not relevant to demonstrate
that T may have had any lingering affection for the
defendant and, thus, may have lacked the motive to
testify untruthfully. The defendant urges us to conclude
that ‘‘there remains a significant cultural taboo concern-
ing sexual relationships with first cousins’’ and that the
notion of first cousins marrying or having children is
not socially acceptable but is ‘‘disturbing or even
repulsive.’’30
We begin our analysis of the claim by observing that
there is no claim that the court misinterpreted a rule
of evidence but, rather, that the court abused its discre-
tion in applying relevant rules of evidence. It is well
settled that ‘‘[t]he trial court has broad discretion in
ruling on the admissibility . . . of evidence. . . . The
trial court’s ruling on evidentiary matters will be over-
turned only upon a showing of a clear abuse of the
court’s discretion. . . . We will make every reasonable
presumption in favor of upholding the trial court’s rul-
ing, and only upset it for a manifest abuse of discretion.
. . . Moreover, evidentiary rulings will be overturned
on appeal only where there was an abuse of discretion
and a showing by the defendant of substantial prejudice
or injustice.’’ (Internal quotation marks omitted.) State
v. Anwar S., 141 Conn. App. 355, 374–75, 61 A.3d 1129,
cert. denied, 308 Conn. 936, 66 A.3d 499 (2013).
First, we address the defendant’s argument that the
court improperly determined that the evidence at issue
was relevant. ‘‘ ‘Relevant evidence’ means evidence hav-
ing any tendency to make the existence of any fact that
is material to the determination of the proceeding more
probable or less probable than it would be without the
evidence.’’ Conn. Code Evid. § 4-1. Unless there is a
basis in law to exclude relevant evidence, it is admissi-
ble. See Conn. Code Evid. § 4-2. ‘‘Relevant evidence is
evidence that has a logical tendency to aid the trier in
the determination of an issue . . . . One fact is rele-
vant to another if in the common course of events the
existence of one, alone or with other facts, renders
the existence of the other either more certain or more
probable. . . . Evidence is irrelevant or too remote if
there is such a want of open and visible connection
between the evidentiary and principal facts that, all
things considered, the former is not worthy or safe to
be admitted in the proof of the latter. . . . The trial
court has wide discretion to determine the relevancy
of evidence and [e]very reasonable presumption should
be made in favor of the correctness of the court’s ruling
in determining whether there has been an abuse of
discretion. . . . [A]buse of discretion exists when a
court could have chosen different alternatives but has
decided the matter so arbitrarily as to vitiate logic, or
has decided it based on improper or irrelevant fac-
tors. . . .
‘‘Evidence is not rendered inadmissible because it is
not conclusive. All that is required is that the evidence
tend to support a relevant fact even to a slight degree,
so long as it is not prejudicial or merely cumulative.
. . . Furthermore, [t]he fact that the [trier of fact]
would have . . . to rely on inferences to make [a]
determination does not preclude the admission of . . .
evidence. . . . The trial court [however] properly
could [exclude] evidence where the connection
between the inference and the fact sought to be estab-
lished was so tenuous as to require the [trier of fact]
to engage in sheer speculation. . . . Because the law
furnishes no precise or universal test of relevancy, the
question must be determined on a case by case basis
according to the teachings of reason and judicial experi-
ence. . . .
‘‘[P]roof of a material fact by inference from circum-
stantial evidence need not be so conclusive as to
exclude every other hypothesis. It is sufficient if the
evidence produces in the mind of the trier a reasonable
belief in the probability of the existence of the material
fact. . . . Thus, in determining whether the evidence
supports a particular inference, we ask whether that
inference is so unreasonable as to be unjustifiable. . . .
In other words, an inference need not be compelled by
the evidence; rather, the evidence need only be reason-
ably susceptible of such an inference. Equally well
established is our holding that a jury may draw factual
inferences on the basis of already inferred facts.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Halili, 175 Conn. App. 838, 862–64, 168 A.3d 565,
cert. denied, 327 Conn. 961, 172 A.3d 1261 (2017).
We agree with the trial court that the evidence at
issue was relevant to one or more issues before the jury
with respect to the conspiracy charge. ‘‘[C]onspiracy is
a specific intent crime, with the intent divided into two
elements: [1] the intent to agree or conspire and [2] the
intent to commit the offense which is the object of the
conspiracy. . . . Thus, [p]roof of a conspiracy to com-
mit a specific offense requires proof that the conspira-
tors intended to bring about the elements of the con-
spired offense.’’ (Emphasis omitted; internal quotation
marks omitted.) State v. Pond, 315 Conn. 451, 460, 108
A.3d 1083 (2015). ‘‘The existence of a formal agreement
between the parties, however, need not be proved; it
is sufficient to show that they are knowingly engaged
in a mutual plan to do a forbidden act. . . . Because
of the secret nature of conspiracies, a conviction is
usually based on circumstantial evidence. . . . Conse-
quently, it is not necessary to establish that the defen-
dant and his coconspirators signed papers, shook
hands, or uttered the words we have an agreement.
. . . Indeed, a conspiracy can be inferred from the con-
duct of the accused.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Elijah, 42 Conn. App. 687,
695–96, 682 A.2d 506, cert. denied, 239 Conn. 936, 684
A.2d 709 (1996).
Here, the state bore the burden of demonstrating
beyond a reasonable doubt that the defendant con-
spired with another person, T, to engage in the crime
of risk of injury to a child. The nature of the relationship
between the defendant and T was highly relevant to
proving that a conspiracy existed because it was proba-
tive circumstantial evidence that made it more likely
that the defendant specifically intended to conspire
with T to engage in conduct constituting the crime of
risk of injury to a child and whether, when the defendant
and T participated in sexual activities with the victim,
such conduct was an overt act in furtherance of the
conspiracy. We are persuaded that the court reasonably
determined that the evidence helped to provide an
explanation of how the victim was ‘‘drawn into’’ the
existing sexual relationship because it would have been
reasonable for the jury to infer that the lengthy sexual
relationship made it more likely that the defendant and
T would have discussed matters of a sexual nature with
each other and that they had agreed to engage in sexual
activities not only with one another, but with a third
person.
As we have explained, circumstantial evidence to
prove a fact, such as the conspiracy at issue, is relevant
if it tends to support a relevant fact even to a slight
degree. Such evidence need not be conclusive proof of
the fact for which it is offered or susceptible to just
one reasonable interpretation. Viewed in the context
of the unique factual issues that existed in the present
case, the existence of a long-term sexual relationship
tended to reflect that the defendant and T had trust
and confidence in each other and, thus, made it more
likely than it would have been in the absence of the
evidence at issue that they would feel more comfortable
agreeing to commit a crime of a sexual or forbidden
nature. The evidence also shed light on the meaning of
the ‘‘look’’ that was shared between the defendant and
T immediately before they first sexually abused the
victim together. It made it more likely that the ‘‘look’’
was evidence that T and the defendant, who were sexual
partners, had agreed to commit sexual abuse against
the victim and were engaging in conduct in furtherance
of the conspiracy.
According to the state’s proffer, the sexual aspect of
the relationship between the defendant and T was not
fleeting, but had lasted for years prior to the time at
which the defendant and T sexually abused the victim.
Beyond the evidence of the familial relationship, the
evidence of the sexual aspect of their relationship was
highly relevant to an evaluation of whether they would
have been likely to have trusted one another to conspire
to commit a crime of a sexual nature against a child.
As the court aptly observed, it would have been logical
for the jury to have questioned the circumstances under
which the defendant and T had agreed to conspire to
commit the crime at issue. The evidence that the defen-
dant and T had been engaged in a lengthy sexual rela-
tionship was probative circumstantial evidence in
this regard.
We briefly address the defendant’s argument that the
prior sexual relationship between the defendant and T
‘‘did not provide a motive that would explain why the
defendant and [T] would have entered into an agree-
ment to sexually assault [the victim].’’ (Emphasis
added.) The court never stated that the evidence was
relevant to motive to enter into the conspiracy. Instead,
the evidence was relevant because it made the existence
of a conspiracy more likely than it would be without
the evidence. Neither the prosecutor nor the trial court
suggested, and we certainly do not suggest, that evi-
dence that the defendant and T were in a long-term
sexual relationship was a basis on which to infer that
they were motivated to engage in sexual conduct with
children. Like the trial court, we merely conclude, for
the reasons already explained, that the sexual relation-
ship tended to make the existence of a conspiracy more
likely than it would be without the evidence.
Similarly, we agree with the court that the evidence
of the lengthy sexual relationship was relevant to the
jury’s assessment of T’s credibility. Evidence of such a
relationship reasonably suggested that, at some point
in time, T had a romantic or an emotional bond with
the defendant. It can hardly be disputed that if the
historical relationship between the defendant and T
was distant or merely familial, it would not have pro-
duced the type of emotional bond that logically could
be inferred from a sexual relationship. The existence
of an emotional bond or strong feelings, in turn, was
relevant to an assessment of whether T lacked a motive
to testify unfavorably against the defendant.
The defendant urges us to consider as dispositive the
fact that, during the state’s direct examination of T at
trial, T testified that, after he provided a statement to
the police in which he implicated the defendant in the
crimes, his relationship with the defendant came to an
end.31 The defendant argues that this testimony under-
mined the court’s belief that the evidence of a sexual
relationship bolstered a finding that T lacked a motive
to testify falsely. This argument is not persuasive
because the jury could have discredited T’s testimony
in this regard and found the evidence of the long-term
sexual relationship that existed between the defendant
and T to be more probative circumstantial evidence
with respect to the affection, if any, that T felt for the
defendant. Setting that rationale aside, however, the
flaw in the defendant’s argument is that we must evalu-
ate the court’s ruling to admit the evidence at the time
that the ruling was made, not in light of evidence that
was presented at a later time. See, e.g., State v. Harris,
32 Conn. App. 476, 481 n.4, 629 A.2d 1166 (‘‘[w]e are
bound to evaluate the propriety of the trial court’s rul-
ings on the basis of the facts known to the court at the
time of its rulings’’), cert. denied, 227 Conn. 928, 632
A.2d 706 (1993).
Having concluded that the evidence of a conspiracy
was relevant, we address the defendant’s remaining
argument that the court abused its discretion by failing
to conclude that the evidence should not be admitted
because it was unduly prejudicial. ‘‘Relevant evidence
may be excluded if its probative value is outweighed
by the danger of unfair prejudice . . . .’’ Conn. Code
Evid. § 4-3. As this court frequently has observed, ‘‘[a]ll
evidence adverse to a party is, to some [degree, prejudi-
cial]. To be excluded, the evidence must create preju-
dice that is undue and so great as to threaten injustice
if the evidence were to be admitted.’’ (Internal quotation
marks omitted.) State v. Bullock, 155 Conn. App. 1, 40,
107 A.3d 503, cert. denied, 316 Conn. 906, 111 A.3d
882 (2015).
‘‘The test for determining whether evidence is unduly
prejudicial is not whether it is damaging to the defen-
dant but whether it will improperly arouse the emotions
of the jur[ors]. . . . The trial court . . . must deter-
mine whether the adverse impact of the challenged
evidence outweighs its probative value. . . .
‘‘Our Supreme Court has identified four factors rele-
vant to determining whether the admission of otherwise
probative evidence is unduly prejudicial. These are: (1)
where the facts offered may unduly arouse the [jurors’]
emotions, hostility or sympathy, (2) where the proof
and answering evidence it provokes may create a side
issue that will unduly distract the jury from the main
issues, (3) where the evidence offered and the count-
erproof will consume an undue amount of time, and
(4) where the defendant, having no reasonable ground
to anticipate the evidence, is unfairly surprised and
unprepared to meet it.’’ (Citation omitted; internal quo-
tation marks omitted.) State v. Urbanowski, 163 Conn.
App. 377, 404, 136 A.3d 236 (2016), aff’d, 327 Conn. 169,
172 A.3d 201 (2017).
The defendant’s arguments are limited to the risk
that the evidence at issue aroused in the jurors negative
emotions or hostility that was prejudicial to him. The
evidence related to the existence of a sexual relation-
ship between first cousins of the same age that began
when they were ‘‘really small’’ or ‘‘younger.’’ The evi-
dence was not introduced as or characterized as prior
misconduct or propensity evidence on the part of the
defendant relative to the sexual abuse of a much
younger, nonconsenting child, nor was it of a violent
or sexually graphic nature.
The court carefully considered the risk of prejudice
to the defendant and took steps to minimize the risk
of prejudice by limiting the testimony in the manner
that it did. The court expressed its readiness to provide
the jury with a limiting instruction with respect to the
evidence but the defendant requested that it not be
delivered to the jury. Even in the absence of such an
instruction, we are not persuaded that the generalized
description of when the sexual relationship began was
likely to have aroused the emotions of the jurors, for
the general details provided in the evidence reasonably
may have led the jurors to infer that the relationship
began as sexual exploration between young children.
Although the sexual relationship that continued beyond
childhood was not characterized by anyone at trial as
being akin to incest,32 we recognize that the fact that
it existed between first cousins had the potential to
arouse negative emotions in the jurors. However, we
are not persuaded that this potential was so significant
that it outweighed the probative value of the evidence.
Also, we are mindful that the jury was presented with
a great deal of graphic evidence that the defendant and
T had engaged in a variety of sexual activities with the
victim, who was a child at the time that the events
in question occurred. The fact that this other graphic
evidence was before the jury undermines the possibility
that the extremely limited evidence of the sexual rela-
tionship between the defendant and T unduly aroused
the jurors’ emotions.
For the foregoing reasons, we conclude that the
court’s admission of the evidence at issue did not reflect
an abuse of its discretion.
The judgment is affirmed.
In this opinion the other judges concurred.
* 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.
1
The court imposed a total effective sentence of twenty years of incarcera-
tion, execution suspended after ten years, followed by ten years of probation
with special conditions, including lifetime inclusion on the state’s sex
offender registry. For the offense of sexual assault in the first degree, the
court imposed a sentence of twenty years of incarceration, execution sus-
pended after ten years, followed by ten years of probation with special
conditions, including lifetime inclusion on the state’s sex offender registry.
For the offense of risk of injury to a child, the court imposed a sentence
of five years of incarceration. For the offense of conspiracy to commit risk
of injury to a child, the court imposed a sentence of five years of incarcera-
tion. All three sentences were to run concurrent to each other.
2
Prior to the trial, T entered into a written plea agreement with the state
in which he agreed to cooperate fully and truthfully with respect to the
investigation and charges brought against the defendant. In exchange for
T’s cooperation and testimony at the defendant’s trial, the state agreed to
limit the charges against T to risk of injury to a child in violation of § 53-
21 (a) (1) and sexual assault in the fourth degree in violation of General
Statutes § 53a-73a (a) (1) (A). The state also agreed that, following T’s guilty
plea, it would recommend to the sentencing court that he receive a total
effective sentence of five years of incarceration, execution suspended after
eighteen months, followed by five years of probation, including sex
offender registration.
3
As we discuss in this opinion, the victim testified concerning three
distinct incidents of abuse at the hands of the defendant. T testified with
respect to a fourth distinct incident. The victim also testified that, beyond
the incidents he described, many other incidents of sexual abuse involving
the defendant and T had ‘‘blurred together because there [were] too many
to count and distinguish between.’’ These incidents, which always occurred
at the home of the victim’s father, involved the touching of intimate parts,
oral sex, and anal sex. The victim recalled that the defendant and T abused
him simultaneously and would frequently take turns or ‘‘trade off’’ in terms
of the sexual acts that they committed against him.
4
Both the victim and T testified about this incident of abuse. The victim
testified that the defendant initiated the abuse. T, however, testified that
he had initiated the abuse. T testified in relevant part: ‘‘Me and the defendant
looked at each other, and I believe I started touching [the victim’s] butt at
that point.’’ With respect to the ‘‘look’’ that he and the defendant shared
just prior to their abuse of the victim, T explained, ‘‘I don’t know how to
describe it. It’s just like you can’t describe a look that a mom would give
to a daughter to let you know that there’s trouble. . . . It’s a look.’’
5
The victim did not refer to this incident during his testimony. T, however,
described this incident during his testimony.
6
The victim testified that he did not tell anyone about the sexual abuse
he endured until he contacted The Trevor Project when he was thirteen
years of age. The victim’s mother, however, testified that when the victim
was ‘‘a baby,’’ perhaps three years of age, he told one of his two older sisters
that T had touched his private parts. The victim’s mother testified that the
victim’s father promptly addressed the matter at that time by having a
conversation with the victim. Following the conversation, the victim’s father
told her that everything was ‘‘fine.’’ The victim’s mother testified that she
had no reason to suspect or even imagine that T had touched the victim in
a sexual manner, and she believed that the victim’s complaint was the result
of ‘‘how boys can play around with each other.’’ Accordingly, the victim’s
mother did not take any further action.
7
The defendant has not set forth an independent analysis of the present
claim under our state constitution. Thus, our analysis is limited to the rights
afforded under the federal constitution. The sixth amendment to the United
States constitution, made applicable to the states by the fourteenth amend-
ment, guaranteed the defendant, who was tried by a jury comprised of six
members, the right to a unanimous verdict. See Burch v. Louisiana, 441
U.S. 130, 131–34, 99 S. Ct. 1623, 60 L. Ed. 2d 96 (1979) (‘‘conviction by a
nonunanimous [six member] jury in a state criminal trial for a nonpetty
offense deprives an accused of his constitutional right to trial by jury’’).
8
The prior trial ended in a mistrial after the jury was unable to reach a
unanimous verdict.
9
In count one, the substitute information of November 2, 2015, stated:
‘‘That the said [defendant] did commit the crime of sexual assault in the
first degree in violation of [§] 53a-70 (a) (2) in that on or about diverse
dates between August 23, 2006, and December 25, 2010, at or near [the new
residence of the victim’s father], the said [defendant] did engage in sexual
intercourse (fellatio) with another person [the victim], and such other person
was under thirteen years of age and [the defendant] was more than two
years older than such person.’’
Count two provided: ‘‘That the said [defendant] did commit the crime of
sexual assault in the first degree in violation of [§] 53a-70 (a) (2) on a date
between December 26, 2009, and December 25, 2010, at or near [the new
residence of the victim’s father], the said [defendant] did engage in sexual
intercourse (anal intercourse) with another person [the victim], and such
other person was under thirteen years of age and [the defendant] was more
than two years older than such person.’’
Count three provided: ‘‘That the said [defendant] did commit the crime
of risk of injury to a child in violation of [§] 53-21 (a) (2) in that on or about
diverse dates between August 23, 2006, and December 25, 2010, at or near
[the new residence of the victim’s father], the said [defendant] did have
contact with the intimate parts of a child under the age of sixteen years
[the victim], and subjected a child under sixteen years of age [the victim]
to contact with [the defendant’s] intimate parts, in a sexual and indecent
manner likely to impair the health and morals of such child.’’
Count four provided: ‘‘That the said [defendant] did commit the crime of
conspiracy to commit risk of injury to a child in violation of [§§] 53a-48 (a)
and 53-21 (a) (2) in that on or about diverse dates between August 23, 2006,
and December 25, 2010, at or near [the new residence of the victim’s father],
the said [defendant], with intent that conduct constituting the crime of risk
of injury to a child be performed, did agree with one or more persons,
namely, [T], to engage in and cause the performance of such conduct, and
any one of them committed an overt act in pursuance of such conspiracy.’’
10
‘‘The purpose of a bill of particulars is to inform the defendant of the
charges against him with sufficient precision to enable him to prepare his
defense and to avoid prejudicial surprise. . . . A bill of particulars limits
the state to proving that the defendant has committed the offense in substan-
tially the manner described.’’ (Citation omitted; internal quotation marks
omitted.) State v. Steve, 208 Conn. 38, 44, 544 A.2d 1179 (1988).
11
The motion for a bill of particulars stated in relevant part: ‘‘In order to
properly prepare a defense, the defendant, by his attorney, moves that the
state of Connecticut make more particular its charges by stating:
‘‘(1) The specific nature of the offense or offenses which the defendant
is charged with.
‘‘(2) The time, place and manner in which this offense was committed.
‘‘(3) The specific acts performed by the defendant which constitute all
necessary elements of the crime charged.
‘‘(4) The general circumstances surrounding the alleged crime.
‘‘(5) State with particularity, the date, time of said alleged violation and
the section of the Connecticut General Statutes violated.
‘‘(6) State with particularity, the name or names, including addresses, of
all persons the state alleges were involved in said violations.’’
12
In count one, the substitute information of September 2, 2016, provided
in relevant part: ‘‘That the said [defendant] did commit the crime of sexual
assault in the first degree in violation of [§] 53a-70 (a) (2) in that on or
about diverse dates between August 23, 2006, and December 25, 2010, at
or near [the new residence of the victim’s father], the said [defendant] did
engage in sexual intercourse (fellatio and anal intercourse) with another
person [the victim], and such other person was under thirteen years of age
and [the defendant]was more than two years older than such person.’’
Count two provided: ‘‘That the said [defendant] did commit the crime of
risk of injury to a child in violation of [§] 53-21 (a) (2) in that on or about
diverse dates between August 23, 2006, and December 25, 2010, at or near
[the new residence of the victim’s father], the said [defendant] did have
contact with the intimate parts of a child under the age of sixteen years
[the victim], and subjected a child under the age of sixteen years of age
[the victim] to contact with [the defendant’s] intimate parts, in a sexual and
indecent manner likely to impair the health and morals of such child.’’
Count three provided: ‘‘That the said [defendant] did commit the crime
of conspiracy to commit risk of injury to a child in violation of [§§] 53a-48
(a) and 53-21 (a) (2) in that on or about diverse dates between August 23,
2006, and December 25, 2010, at or near [the new residence of the victim’s
father], the said [defendant], with intent that conduct constituting the crime
of risk of injury to a child be performed, did agree with one or more persons,
namely, [T], to engage in and cause the performance of such conduct, and
any one of them committed an overt act in pursuance of such conspiracy.’’
13
In Saraceno, the court stated that the policy considerations underlying
the doctrine against duplicitous charges ‘‘include avoiding the uncertainty
of whether a general verdict of guilty conceals a finding of guilty as to one
crime and a finding of not guilty as to another, avoiding the risk that the
jurors may not have been unanimous as to any one of the crimes charged,
assuring the defendant adequate notice, providing the basis for appropriate
sentencing, and protecting against double jeopardy in a subsequent prosecu-
tion.’’ (Internal quotation marks omitted.) State v. Saraceno, supra, 15 Conn.
App. 229.
14
The requested instruction provided in relevant part: ‘‘The state has
alleged that the defendant . . . has committed the offense of sexual assault
in the first degree. The state alleges in the first count the act of sexual
assault in the first degree by way of fellatio and anal intercourse.
‘‘You may find the defendant guilty of the offense of sexual assault in the
first degree only if you all unanimously agree on the manner in which the
state alleges the defendant committed the offense and that it occurred during
the time and place alleged by the state.
‘‘This means you may not find the defendant guilty on the first count of
sexual assault in the first degree unless you all agree that the state has
proved beyond a reasonable doubt that the [defendant] did engage in sexual
intercourse by fellatio and anal intercourse with [the victim] and [the victim]
was under [thirteen] years of age and [the defendant] was more than [two]
years older than [the victim]. The state alleges these crimes were committed
between August 23, 2006, and December 25, 2010, at or near [the new
residence of the victim’s father]. If the state has not met its burden of proving
sexual assault in the first degree by way of fellatio and anal intercourse at
said time and place, you must return a verdict of not guilty. As I have
instructed you, when you reach a verdict, it must be unanimous on all
elements of the offense.’’
15
The court referred to United States v. Schiff, 801 F.2d 108 (2d Cir. 1986),
cert. denied, 480 U.S. 945, 107 S. Ct. 1603, 94 L. Ed. 2d 789 (1987); United
States v. Gipson, 553 F.2d 453 (5th Cir. 1977); State v. Dyson, 238 Conn.
784, 680 A.2d 1306 (1996); State v. Tucker, 226 Conn. 618, 629 A.2d 1067
(1993); State v. Famiglietti, supra, 219 Conn. 605; State v. Jennings, 216
Conn. 647, 583 A.2d 915 (1990); State v. James, 211 Conn. 555, 560 A.2d
426 (1989); State v. Bailey, 209 Conn. 322, 551 A.2d 1206 (1988); State v.
Mancinone, 15 Conn. App. 251, 545 A.2d 1131, cert. denied, 209 Conn. 818,
551 A.2d 757 (1988), cert. denied, 489 U.S. 1017, 109 S. Ct. 1132, 103 L. Ed.
2d 194 (1989); and State v. Flynn, 14 Conn. App. 10, 539 A.2d 1005, cert.
denied, 488 U.S. 891, 109 S. Ct. 226, 102 L. Ed. 2d 217 (1988).
16
The court stated: ‘‘The defendant is charged with three counts in the
information. The defendant is entitled to and must be given by you a separate
and independent determination of whether he is guilty or not guilty as to
each of the counts. Each of the counts charged is a separate crime. The
state is required to prove each element in each count beyond a reasonable
doubt. Each count must be deliberated upon [by] you separately. The total
number of counts charged does not add to the strength of the state’s case.
‘‘You may find that some evidence applies to more than one count. The
evidence, however, must be considered separately as to each element in
each count. Each count is a separate entity.
‘‘You must consider each count separately and return a separate verdict
for each count. This means that you may reach opposite verdicts on different
counts. A decision on one count does not bind your decision on another
count. Remember that your verdict as to each count must be unanimous;
all six jurors must agree as to the verdict as to each separate count.’’
17
During its instructions with respect to the sexual assault count, the
court instructed the jury that the first element of the offense was that ‘‘the
defendant engaged in sexual intercourse with the [victim]. In this count,
sexual intercourse means fellatio or anal intercourse.’’ The court also stated:
‘‘In order to convict the defendant on this count, you must be unanimous
that at least one violation of this statute by one of the methods alleged
occurred between the defendant and [the victim] during the time frame
indicated.
‘‘You will note that each count in the information contains within it the
alleged time, date and location of the offense. The state does not have to
prove the exact time, date or location of the offense beyond a reasonable
doubt. However, the state must prove each element of each offense, including
identification of the defendant, beyond a reasonable doubt.
‘‘If you unanimously find that the state has proved beyond a reasonable
doubt each of the elements of the crime of sexual assault in the first degree,
then you shall find the defendant guilty. On the other hand, if you unani-
mously find that the state has failed to prove beyond a reasonable doubt
any of the elements, you shall then find the defendant not guilty.’’
During the court’s instruction with respect to the second count, which
alleged risk of injury to a child, the court stated in relevant part that the
state bore the burden of proving the essential element of contact with
intimate parts. The court stated that this required proof beyond a reasonable
doubt ‘‘that the defendant had contact with the intimate parts of the minor
or subjected the minor to contact with the defendant’s intimate parts . . . .’’
With respect to the risk of injury charge, the court also stated in relevant
part: ‘‘In order to convict the defendant on this count, you must be unanimous
that at least one violation of this statute occurred between the defendant
and [the victim] during the time frame indicated. The state does not have
to prove the exact time, date or location of the offense beyond a reasonable
doubt. However, the state must prove each element of each offense, including
identification of the defendant, beyond a reasonable doubt.
‘‘If you unanimously find that the state has proved beyond a reasonable
doubt each of the elements of the crime of risk of injury to a [child], then
you shall find the defendant guilty. On the other hand, if you unanimously
find that the state has failed to prove beyond a reasonable doubt any of the
elements, you shall then find the defendant not guilty.’’
During its instruction with respect to the charge of conspiracy to commit
risk of injury to a child, the court instructed the jury in relevant part that
the state bore the burden of proving beyond a reasonable doubt that (1)
‘‘there was an agreement between the defendant and one or more persons
to engage in conduct constituting the crime of risk of injury to a child,
which conspiracy the defendant specifically intended to join’’; (2) ‘‘there
was an overt act in furtherance of the subject of the agreement by any of
those persons’’; and (3) ‘‘the defendant specifically intended to commit the
crime of risk of injury to a child.’’
Later, in the context of its instructions concerning conspiracy to commit
risk of injury to a child, the court stated: ‘‘The state does not have to prove
the exact time, date or location of the offense beyond a reasonable doubt.
However, the state must prove each element of each offense, including
identification of the defendant, beyond a reasonable doubt.
‘‘If you unanimously find that the state has proved beyond a reasonable
doubt each of the elements of the crime of conspiracy to commit risk of
injury to a child, then you shall find the defendant guilty. On the other hand,
if you unanimously find that the state has failed to prove beyond a reasonable
doubt any of the elements, you shall then find the defendant not guilty.’’
18
See footnote 12 of this opinion.
19
In Saraceno, the defendant was convicted of three counts of sexual
assault in the second degree and two counts of risk of injury to a child.
State v. Saraceno, supra, 15 Conn. App. 224.
20
In Marcelino S., the defendant was convicted of risk of injury to a child
and sexual assault in the fourth degree. State v. Marcelino S., supra, 118
Conn. App. 590–91.
In Marcelino S., ‘‘[t]he state’s long form information, dated December 17,
2007, stated in relevant part: In the Superior Court of Connecticut, judicial
district of New Haven . . . [the assistant state’s attorney] accuses the defen-
dant . . . of risk of injury to a minor, and charges that on divers dates,
between August, 2003, and April, 2005 . . . the defendant . . . had contact
with the intimate parts of a child under the age of sixteen, to wit: a minor
. . . child . . . in a sexual and indecent manner likely to impair the health
and morals of such child, in violation of [subdivision] (2) of subsection (a)
of section 53-21 of the Connecticut General Statutes. . . .
‘‘[The assistant state’s attorney] further accuses the defendant . . . of
sexual assault in the fourth degree, and charges that on divers dates, between
August, 2003, and April, 2005 . . . the defendant . . . intentionally sub-
jected another person to sexual contact who was under fifteen years of age,
to wit: a minor . . . child . . . in violation of [subparagraph] (A) of [subdi-
vision] (1) of subsection (a) of section 53a-73a of the Connecticut General
Statutes.’’ (Emphasis omitted; internal quotation marks omitted.) Id., 593.
21
In Michael D., ‘‘[t]he state based each of its charges on three separate
incidents of sexual misconduct allegedly occurring in 2001, 2002, and 2003.
The state initially charged the defendant in a fifteen count information with
several different charges, each of which was alleged to have been committed
in the course of one of the three incidents identified therein by the year of
its alleged occurrence. Prior to trial . . . the state filed a substitute informa-
tion, consolidating the fifteen counts into the three counts on which he
went to trial.
‘‘In the first count of the substitute information, the state charged the
defendant with sexual assault in the first degree. In the second count of
the substitute information, the state charged the defendant with risk of
injury to a child, and alleged that ‘on . . . diverse dates from 2001–2003
. . . the [defendant] had contact with the intimate parts, as defined in
[General Statutes §] 53a-65, of a child under the age of sixteen years or
subjected 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, said conduct being in violation of section
53-21 (2) of the Connecticut General Statutes.’
‘‘In the third count, the state charged the defendant with risk of injury
to a child, and alleged that ‘on . . . diverse dates from 2001–2003 . . . the
[defendant] did wilfully or unlawfully cause or permit a child under the age
of sixteen years to be placed in such a situation that its life or limb was
endangered, or its health was likely to be injured, or its morals likely to be
impaired, or did an act likely to impair the health or morals of such child,
such conduct being in violation of section 53-21 (1) of the Connecticut
General Statutes.’ ’’ State v. Michael D., supra, 153 Conn. App. 321–22.
22
In Michael D., this court, citing State v. Benite, 6 Conn. App. 667, 674,
507 A.2d 478 (1986), observed that ‘‘[t]he unanimity requirement mandates
that the jury agree on the factual basis of the charge.’’ State v. Michael D.,
supra, 153 Conn. App. 324. Because this court explicitly relied on Benite
for this proposition, and mindful of the well settled interpretation of Benite
and its progeny that we will discuss in detail in our analysis of the present
claim, we construe this statement to mean that a jury must unanimously
agree on the statutorily prohibited conduct in which a defendant engaged,
not necessarily the specific manner in which a defendant engaged in the
statutorily prohibited conduct. Stated otherwise, when a defendant is
charged with committing an offense that may be proven by alternative types
of statutorily prohibited conduct, the jury is required to agree unanimously
only on the type of statutorily prohibited conduct that underlies a finding
of guilt.
23
As the defendant correctly observes, the court delivered the following
instruction to the jury in the present case: ‘‘In deciding what the facts are,
you must, of course, consider all the evidence. In doing so, you must decide
which testimony to believe and which testimony not to believe. You may
believe all, any part of, or none of any witness’ testimony.’’
24
See footnote 3 of this opinion.
25
General Statutes § 53a-70 provides in relevant part: ‘‘(a) A person is
guilty of sexual assault in the first degree when such person . . . (2) engages
in sexual intercourse with another person and such other person is under
thirteen years of age and the actor is more than two years older than such
person . . . .’’
26
General Statutes § 53-21 provides in relevant part: ‘‘(a) Any person who
. . . (2) has contact with the intimate parts, as defined in section 53a-65,
of a child under the age of sixteen years or subjects a child under sixteen
years of age to contact with the intimate parts of such person, in a sexual and
indecent manner likely to impair the health or morals of such child . . . .’’
27
General Statutes § 53a-48 provides in relevant part: ‘‘(a) A person is
guilty of conspiracy when, with intent that conduct constituting a crime be
performed, he agrees with one or more persons to engage in or cause the
performance of such conduct, and any one of them commits an overt act
in pursuance of such conspiracy. . . .’’
28
Accordingly, we need not consider whether the defendant can satisfy
the remaining parts of the Famiglietti test, including whether he can demon-
strate that the alternative acts prohibited by § 53-21 (a) (2), for which the
state presented evidence, are conceptually distinct. See, e.g., State v. Dyson,
supra, 238 Conn. 793 (discussing fact that General Statutes § 53a-8 (a) does
not present conceptually distinct bases of liability); State v. Smith, 212
Conn. 593, 606–607, 563 A.2d 671 (1989) (same).
29
Section 4-4 (a) of the Connecticut Code of Evidence provides in relevant
part: ‘‘Evidence of a trait of character of a person is inadmissible for the
purpose of proving that the person acted in conformity with the character
trait on a particular occasion . . . .’’
30
The defendant supports his arguments in this regard by citing to a 2009
New York Times newspaper article that discussed societal views toward
sexual relations involving first cousins. Setting aside any concern that the
2009 article on which the defendant relies may not apply to societal views
of jurors empaneled in 2016, we observe that this article was not presented
to the trial court and, thus, is not part of the grounds on which the defendant
objected to the evidence at issue.
31
The defendant refers us to the following colloquy between the prosecu-
tor and T:
‘‘Q. . . . Once you gave the additional information and cooperated [with
the police with respect to the sexual abuse allegations of the victim], so to
speak, and you told the police that the defendant had done what he did,
did [the defendant] have any relationship with you after that? . . .
‘‘A. No . . . there was nothing after that. We were done.’’
32
General Statutes § 53a-191 (a) provides: ‘‘A person is guilty of incest
when he marries a person whom he knows to be related to him within any
of the degrees of kindred specified in [General Statutes §] 46b-21.’’
General Statutes § 46b-21 provides: ‘‘No person may marry such person’s
parent, grandparent, child, grandchild, sibling, parent’s sibling, sibling’s
child, stepparent or stepchild. Any marriage within these degrees is void.’’
Although § 46b-21 was amended during the time frame within which the
crimes at issue were alleged to have occurred, because that amendment is
not relevant to the claims on appeal we refer to the current revision of
§ 46b-21.