State v. Vere C.

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STATE OF CONNECTICUT v. VERE C.1
(AC 36407)
Alvord, Keller and Harper, Js.
Argued April 10—officially released August 26, 2014
(Appeal from Superior Court, judicial district of
Fairfield, Kavanewsky, J.)
Janice N. Wolf, assistant public defender, for the
appellant (defendant).
James M. Ralls, assistant state’s attorney, with
whom, on the brief, were John C. Smriga, state’s attor-
ney, and Cornelius P. Kelly, senior assistant state’s
attorney, for the appellee (state).
Opinion
KELLER, J. The defendant, Vere C., appeals from the
judgment of conviction, rendered following a jury trial,
of four counts of sexual assault in the first degree in
violation of General Statutes § 53a-70 (a) (1), three
counts of sexual assault in the first degree in violation
of General Statutes § 53a-70 (a) (2), three counts of risk
of injury to a child in violation of General Statutes § 53-
21 (a) (2), and one count each of attempt to commit
sexual assault in the first degree in violation of General
Statutes § 53a-49 (a) (2) and § 53a-70 (a) (1), attempt
to commit risk of injury to a child in violation of General
Statutes § 53a-49 (a) (2) and § 53-21 (a) (2), and sexual
assault in the third degree in violation of General Stat-
utes § 53a-72a (a) (1) (A) or (B).2 This case concerns
offenses committed by the defendant against three
minor children, namely, S.G., N.W., and K.C. The defen-
dant claims that (1) the trial court improperly admitted
certain prior misconduct evidence, (2) the court
improperly admitted certain constancy of accusation
evidence, (3) the court improperly limited his cross-
examination of a witness, (4) his conviction under three
counts of the state’s amended substitute information
violated his constitutional right to a unanimous jury
verdict, (5) the court improperly denied his motion to
sever certain counts of the information, and (6) the
evidence was insufficient for a conviction under two
counts of the information. We affirm the judgment of
the trial court.
The jury reasonably could have found the following
facts. When S.G. was approximately five years old in
the spring of 2003, she was living with her mother, U.G.,
in an apartment in Bridgeport. At about this time, the
defendant moved into an adjacent apartment with his
girlfriend, M.S., and three minor children: M.S.’ son,
N.W., who was approximately one year older than S.G.;
the defendant’s son, K.C., who was approximately one
year older than S.G.; and the defendant’s daughter, S.F.,
who was approximately four to five years older than
S.G. The defendant began a relationship with U.G. and,
in 2005, both U.G. and M.S. gave birth to children who
were fathered by the defendant.
The defendant began providing child care for S.G.,
S.F., N.W., and K.C. during the week and on weekends
while M.S. and U.G. worked outside of the home. After
this child care arrangement began, the defendant began
to sexually abuse S.G. during a series of incidents that
occurred over the next several years.
During one incident, S.G. was playing with S.F. when
the defendant entered the room, physically restrained
S.G. on a bed, removed his pants, and attempted to
undress S.G. S.G. pulled away from the defendant, who
proceeded to undress S.F. before physically and sexu-
ally abusing her while S.G. watched. The defendant
made S.G. promise not to tell anyone what had
occurred.
In a second incident, S.G. was alone with S.F. when
the defendant, who was not wearing pants, entered the
room. The defendant held S.G. and S.F. and forced them
to perform oral sex on him.
In a third set of incidents, the defendant compelled
N.W. to undress and insert his penis into S.G.’s vagina.
At one point during this incident, he pushed N.W. so
that he could perform this act. N.W. submitted to the
defendant because he had been physically assaulted by
the defendant, he had observed the defendant physi-
cally assault others, and he feared retribution from the
defendant. Also, the defendant compelled S.G. to
undress while K.C. touched S.G.’s private parts. The
defendant pushed and verbally insulted K.C. during this
incident, and K.C. complied with the defendant because
he feared physical retribution if he did not do so.
In a fourth set of incidents, which occurred after the
defendant began to live with U.G., the defendant forced
S.G. to perform oral sex on him, typically in a closed
room. The defendant threatened to harm S.G.’s family
if she told anyone about the abuse, and S.G. feared
physical abuse by the defendant.
A fifth incident occurred when S.G. was eight years
of age. S.G. and the defendant returned from a fishing
trip at which time the defendant physically restrained
her on a bed, removed her pants, and inserted his penis
into her vagina. Again, S.G., fearing the defendant, did
not report the abuse.
The sixth set of incidents, which occurred when S.G.
was approximately ten years old, took place at S.G.’s
residence when the defendant would visit her family.
These incidents consisted of forcible vaginal inter-
course with S.G. The last of these incidents occurred
after Christmas, 2009. S.G. continued to remain silent
in the face of the defendant’s sexual assaults because
she feared that he would physically retaliate against
her or her family. Additional facts will be set forth
as necessary.
I
First, the defendant claims that the court improperly
admitted certain prior misconduct evidence related to
his sexual abuse of S.F. Specifically, the defendant
claims that the court improperly admitted testimony
from S.G. that, in connection with the first incident
described previously in this opinion, after the defendant
attempted to assault her in S.F.’s bedroom, she wit-
nessed the defendant remove his pants, climb on top
of S.F., remove S.F.’s clothing, and that he ‘‘pretty much
raped [S.F.] . . . .’’ We do not agree that this evidence
was improperly admitted.
The record reflects that, prior to the presentation of
evidence at trial, the court heard the state’s proffer with
regard to the uncharged misconduct evidence at issue.
As relevant to this claim, the state argued that it
intended to present evidence that the defendant ‘‘tried
to do something with [S.G.], was unsuccessful and then
[S.G.] saw the defendant, as she puts it, hump [S.F.].’’
The defendant’s attorney objected to this evidence. The
defendant’s attorney argued that the incident described
therein was remote in time because, given the lack of
precision as to the dates on which the charged offenses
were committed, it may not have occurred close in
time to when the defendant committed the crimes with
which he was charged. Also, the defendant’s attorney
argued that S.F. was too dissimilar to S.G. to warrant
the admission of the evidence because S.F. was four
or five years older than S.G., and was the defendant’s
biological daughter.
The court admitted the uncharged misconduct testi-
mony pursuant to State v. DeJesus, 288 Conn. 418, 953
A.2d 45 (2008) (en banc), as evidence of the defendant’s
criminal propensity to engage in sexual misconduct.
The court found that the incident at issue was not
remote in time in relation to the other acts of charged
misconduct in this case. The court found that the sexual
conduct at issue, against a minor, was similar to the
charged offenses; the court stated: ‘‘You know, in a
nutshell, the claim is that the defendant sexually abused
not simply the complaining witness or witnesses here,
but another witness at or about the same time in circum-
stances similar to that of the complaining witness
. . . .’’ The court indicated that it would deliver a lim-
iting instruction.3
We begin our analysis of the court’s ruling by setting
forth the applicable legal principles. ‘‘Evidence of other
crimes, wrongs or . . . acts of a person is inadmissible
to prove the bad character or criminal tendencies of
that person. Conn. Code Evid. § 4-5 (a). Evidence of
other crimes, wrongs or acts of a person is admissible
for purposes . . . such as to prove intent, identity, mal-
ice, motive, common plan or scheme, absence of mis-
take or accident, knowledge, a system of criminal
activity, or an element of the crime, or to corroborate
crucial prosecution testimony. Conn. Code Evid. § 4-5
(b). In State v. DeJesus, [supra, 288 Conn. 470] . . .
our Supreme Court effectively carved out an additional
exception to [those listed in] § 4-5 (b) of the Connecticut
Code of Evidence when it recognized a limited excep-
tion to the prohibition on the admission of uncharged
misconduct evidence in sex crime cases to prove that
the defendant had a propensity to engage in aberrant
and compulsive criminal sexual behavior.’’ (Emphasis
in original; internal quotation marks omitted.) State v.
Allen, 140 Conn. App. 423, 432, 59 A.3d 351, cert. denied,
308 Conn. 934, 66 A.3d 497 (2013).
In DeJesus, the court recognized that evidence in sex
crime cases routinely admitted under the common plan
or scheme exception typically is unrelated to the exis-
tence of an overall scheme or plan in the defendant’s
mind that encompasses the commission of the charged
and uncharged crimes, and that evidence admitted
under this standard ordinarily does not fall within the
true common scheme or plan exception. See State v.
DeJesus, supra, 288 Conn. 466–68. ‘‘Citing a variety of
public policy reasons, the court concluded that evi-
dence of uncharged misconduct in sex crime cases may
be admitted to demonstrate a defendant’s propensity
to engage in sexual misconduct. . . .
‘‘The court in DeJesus determined that evidence of
this nature is admissible if three conditions are satisfied.
First, the evidence must be relevant to prove that the
defendant had a propensity or a tendency to engage in
the type of aberrant and compulsive criminal sexual
behavior with which he or she is charged. Relevancy
is established by satisfying the liberal standard pursuant
to which evidence previously was admitted under the
common scheme or plan exception. Accordingly, evi-
dence of uncharged misconduct is relevant to prove
that the defendant had a propensity or a tendency to
engage in the crime charged only if it is: (1) . . . not
too remote in time; (2) . . . similar to the offense
charged; and (3) . . . committed upon persons similar
to the prosecuting witness. . . . Second, the evidence
must be more probative than prejudicial. . . . In bal-
ancing the probative value of such evidence against its
prejudicial effect . . . trial courts must be mindful of
the purpose for which the evidence is to be admitted,
namely, to permit the jury to consider a defendant’s
prior bad acts in the area of sexual abuse or child
molestation for the purpose of showing propensity.
. . . Third, to minimize the risk of undue prejudice to
the defendant, the admission of evidence of uncharged
sexual misconduct under the limited propensity excep-
tion . . . must be accompanied by an appropriate cau-
tionary instruction to the jury. . . .
‘‘The trial court’s ruling on evidentiary matters will
be overturned only upon a showing of a clear abuse of
the court’s discretion. . . . We will make every reason-
able presumption in favor of upholding the trial court’s
ruling, and only upset it for a manifest abuse of discre-
tion. . . . [Thus, our] review of such rulings is limited
to the questions of whether the trial court correctly
applied the law and reasonably could have reached the
conclusion that it did.’’ (Citation omitted; emphasis in
original; internal quotation marks omitted.) State v.
Allen, supra, 140 Conn. App. 432–33.
On appeal, the defendant argues that the evidence
was inadmissible because (1) S.G. and S.F. are not simi-
lar to each other due to differences in their age and in
their relationship to the defendant, (2) the nature of
the misconduct involving S.F. was not similar to the
charged misconduct in this case, and (3) the prejudicial
effect of the evidence outweighed any probative value
of the evidence.
Here, the court reasonably concluded that the victims
were similar enough to warrant the admission of the
evidence. The charged misconduct involved S.G.,
another female child who was only four to five years
younger than S.F. The male victims, N.W. and K.C.,
were approximately one year older than S.G. All of the
victims in this case, like S.F., were left in the defendant’s
care, and the allegations reflected that the defendant
abused the victims while they were in his care. The
evidence reflects that, at one point, the defendant was
in a sexual relationship with the mothers of the victims
as well as the mother of S.F. Accordingly, the defendant
is unable to demonstrate that it was unreasonable for
the court to have determined that S.F. was similar to
the victims in this case.
We likewise reject the defendant’s argument that the
uncharged misconduct was too different from the
charged misconduct to warrant its admission under
DeJesus. ‘‘[T]here is no bright line test for determining
whether alleged acts of uncharged sexual misconduct
and those involving the complaining witness in a sexual
assault case are sufficiently similar. What is clear, how-
ever, is that the law requires similar acts of misconduct,
not identical acts of misconduct.’’ (Emphasis in origi-
nal.) State v. L.W., 122 Conn. App. 324, 333, 999 A.2d
5, cert. denied, 298 Conn. 919, 4 A.3d 1230 (2010). When
the court heard argument concerning this evidence, the
state indicated that S.G. would testify that, during the
incident at issue, the defendant was unsuccessful in his
attempt to undress her and that she then observed him
‘‘humping [S.F.].’’ During her testimony, S.G. testified
that the defendant threw her on a bed, got on top of
her, tried to remove her clothing, and that she ‘‘managed
to get out of the room before he raped me.’’ S.G. testified
that the defendant remained in the room with S.F., and
that subsequently she observed the defendant ‘‘get on
top of her and take her clothes off.’’ She stated that the
defendant ‘‘pretty much raped [S.F.] . . . .’’ In light of
all of the evidence of the manner in which the defendant
committed sexual assaults of S.G., the court reasonably
could have determined that the uncharged misconduct
witnessed by S.G. was similar in nature to one or more
of the acts of charged misconduct in this case.4
Finally, the defendant argues that the evidence was
unduly prejudicial because S.F. is his biological daugh-
ter, the state’s case was not strong due to S.G.’s inability
to recall specific ages and dates when abuse occurred,
and the court’s limiting instructions were inadequate.
Of these contentions, the only one that is relevant to
a reasoned evaluation of the character of the evidence
is that S.F. is the defendant’s biological daughter. The
evidence, of course, was probative simply because it
was evidence of the defendant’s proclivity to sexually
abuse children, particularly those in his care. It was
particularly probative because it was sexual miscon-
duct that occurred just moments after S.G. fled from
the defendant, and it occurred in her presence. The
evidence tended to explain S.G.’s feelings of fear toward
the defendant because she observed him striking and
sexually abusing another female child. Although the
evidence was prejudicial in that it involved the defen-
dant’s sexual abuse of his daughter, in light of the other
evidence of the defendant’s sexual misconduct toward
S.G., K.C., and N.W., we are not convinced that it was
unduly prejudicial. The evidence of the defendant’s con-
duct toward S.F. was no more egregious than the evi-
dence of the defendant’s sexual conduct toward S.G.,
a younger child, which included instances of oral and
vaginal intercourse. See, e.g., State v. Allen, supra, 140
Conn. App. 440–41 (uncharged misconduct evidence
not unduly prejudicial when not more egregious than
evidence related to charged misconduct). The defen-
dant’s contention concerning weaknesses in S.G.’s abil-
ity to recall ages and dates when abuse occurred is not
compelling in light of her tender age when the abuse
at issue occurred.
Furthermore, we are not persuaded by the defen-
dant’s argument, raised for the first time on appeal, that
the evidence was unduly prejudicial because the court’s
limiting instruction was ineffective. We note that in this
appeal the defendant has not properly raised a challenge
to the propriety of the court’s limiting instruction, but
discusses this issue in terms of undue prejudice in the
admission of the uncharged misconduct evidence. The
record reflects that the court delivered a limiting
instruction concerning the prior uncharged misconduct
during S.G.’s testimony, during S.F.’s testimony, and
during its final charge to the jury. These instructions,
viewed in their entirety, adequately conveyed to the jury
that the evidence, if believed by the jury, was relevant to
demonstrating the defendant’s predisposition to com-
mit the charged sexual offenses, and that it was not
evidence that the defendant committed the charged
offenses. Accordingly, the instructions, viewed as a
whole, tended to reduce the prejudice of which the
defendant complains. In light of the foregoing, we con-
clude that the court’s admission of the uncharged mis-
conduct evidence did not reflect an abuse of its
discretion.
II
Next, the defendant claims that the court improperly
admitted certain constancy of accusation evidence,
namely, testimony from S.F.’s mother, E.F., relating to
complaints made by S.F. We disagree.
The following facts underlie this claim. As set forth
in part I of this opinion, the court permitted the state
to present evidence of uncharged misconduct by the
defendant involving S.F. S.F. testified concerning the
incident observed by S.G. in which the defendant
assaulted her on the bed. S.F. testified that, while she
was living at the residence at which this assault
occurred, the defendant frequently beat her and
engaged in sexual activities with her. Also, S.F.
described an incident during which the defendant made
her and S.G. perform oral sex on him at the same time.
S.F. testified that when she was living in New York
State, she provided information to E.F. about the abuse,
and that a complaint was filed with the police.
At trial, E.F. testified about the period of time in
which S.F. resided with the defendant. E.F. testified
that, later, in 2005, after S.F. began to live with her in
New York, she questioned S.F. with regard to certain
behavioral issues, and that S.F. conveyed to her that
something of a sexual nature happened when she lived
with the defendant. The defendant’s attorney objected
to this testimony on the ground that E.F. appeared to
be providing what was akin to constancy of accusation
testimony concerning S.F., who was not a complainant
in the present prosecution. The defendant’s attorney
stated that he did not believe that evidence of this nature
was appropriate, but he could not provide the court
with any authority for his objection. The court overruled
the objection on the ground that it was unaware of any
authority that barred the testimony. Thereafter, E.F.
testified that S.F. told her that the defendant was
responsible for things of a sexual nature, and that the
very next day she made a complaint with the Bridgeport
Police Department. E.F. testified that the report did not
result in an arrest.
As he did at trial, the defendant claims that the court
abused its discretion in admitting this evidence. He
argues that E.F. was not a constancy of accusation
witness for any of the complainants in this case, but
that her testimony related to S.F., who merely was a
noncomplaining prior misconduct witness.
‘‘Generally, [t]rial courts have wide discretion with
regard to evidentiary issues and their rulings will be
reversed only if there has been an abuse of discretion
or a manifest injustice appears to have occurred. . . .
Every reasonable presumption will be made in favor of
upholding the trial court’s ruling, and it will be over-
turned only for a manifest abuse of discretion.’’ (Inter-
nal quotation marks omitted.) State v. O’Neil, 67 Conn.
App. 827, 831, 789 A.2d 531 (2002). Under Connecticut
Code of Evidence § 6-11 (c), ‘‘[a] person to whom a
sexual assault victim has reported the alleged assault
may testify that the allegation was made and when it
was made, provided the victim has testified to the facts
of the alleged assault and to the identity of the person
or persons to whom the assault was reported. Any testi-
mony by the witness about details of the assault shall
be limited to those details necessary to associate the
victim’s allegations with the pending charge. The testi-
mony of the witness is admissible only to corroborate
the victim’s testimony and not for substantive pur-
poses.’’ Under the controlling case law, ‘‘any testimony
by the witness regarding the details surrounding the
assault must be strictly limited to those necessary to
associate the victim’s complaint with the pending
charge . . . .’’ State v. Troupe, 237 Conn. 284, 304, 677
A.2d 917 (1996).
The parties have not directed us to, nor have we
found, any authority directly on point in which the court
admitted constancy of accusation testimony in the con-
text of uncharged misconduct. Although the defendant
urges us to interpret the word ‘‘victim’’ in our prior case
law and the Connecticut Code of Evidence to refer
solely to the complaining victim in a sexual assault
case, we, like the trial court, are not persuaded that
such a narrow interpretation is required.
Nonetheless, we need not resolve this novel eviden-
tiary issue because, in the present case, the defendant is
unable to successfully undermine the judgment because
he is unable to demonstrate that any error in the admis-
sion of the evidence was harmful. ‘‘When an improper
evidentiary ruling is not constitutional in nature, the
defendant bears the burden of demonstrating that the
[impropriety] was harmful. . . . [T]he proper standard
for determining whether an erroneous evidentiary rul-
ing is harmless [is] . . . whether the jury’s verdict was
substantially swayed by the error. . . . [A] nonconsti-
tutional error is harmless when an appellate court has
a fair assurance that the error did not substantially
affect the verdict. . . . [W]hether [the improper admis-
sion of a witness’ testimony] is harmless in a particular
case depends upon a number of factors, such as the
importance of the witness’ testimony in the prosecu-
tion’s case, whether the testimony was cumulative, the
presence or absence of evidence corroborating or con-
tradicting the testimony of the witness on material
points, the extent of cross-examination otherwise per-
mitted, and, of course, the overall strength of the prose-
cution’s case. . . . Most importantly, we must examine
the impact of the [improperly admitted] evidence on
the trier of fact and the result of the trial.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Graham S., 149 Conn. App. 334, 341–42, 87 A.3d 1182,
cert. denied, 312 Conn. 912, A.3d (2014).
E.F.’s testimony, insofar as it disclosed the fact that
S.F. made similar accusations concerning the defen-
dant, merely was cumulative. Testimony from S.G. and
K.C. supported a finding that S.F. made similar accusa-
tions concerning the defendant. Furthermore, at trial,
the parties agreed to a stipulation of fact, which the
court read to the jury as follows: ‘‘During the course
of testimony in the state’s case-in-chief, there has been
reference to [E.F.] making a complaint to the Bridgeport
police in 2005 concerning a disclosure made to her by
her daughter, [S.F.]. The parties, both the defense and
the state, stipulate to the following concerning that
issue: That a complaint was made to the Bridgeport
Police Department on September 5, 2005, by [E.F.]; that
the defendant was arrested for matters in this prosecu-
tion on or about December 22, 2010; that due to Con-
necticut statute of limitations, [S.F.] is not a
complainant that you need to consider in your delibera-
tions. You are not to speculate the reasons for this,
but ask you to keep in mind the limited purpose and
admonitions the court gave to you when her testimony
was offered.’’ E.F. did not provide any testimony that
bore on the material issues of fact before the jury con-
cerning the alleged sexual abuse of the complainants
in the present case. Her testimony was merely cumula-
tive of the undisputed fact that S.F. made allegations
of abuse against the defendant in 2005, and that such
allegations did not result in the defendant’s arrest. And,
as the defendant emphasizes, the testimony of E.F., at
best, strengthened the jury’s assessment of a witness,
S.F., who, herself, provided prior misconduct evidence.
The defendant does not assert that he was unable to
cross-examine E.F., and the state presented ample evi-
dence, apart from E.F.’s testimony, that supported a
finding of guilt. On this record, we conclude that any
error in the admission of the testimony was harmless
because it cannot be said that E.F.’s testimony likely
swayed the jury as it reached its verdict.
III
Next, the defendant claims that the court improperly
limited his cross-examination of S.G. with regard to a
false statement she made about her mother, U.G. The
defendant argues that the court’s ruling deprived him
of his right to confront his accuser, as guaranteed by
the state and federal constitutions. We disagree.
The defendant’s lengthy cross-examination of S.G.
covered many topics, including the fact that following
the incidents of alleged abuse, S.G. made several state-
ments in which she spoke favorably about the defen-
dant. During the cross-examination, S.G. testified that
her mother went to the police to report the abuse in
2010. The defendant’s attorney asked S.G. about a prior
incident involving the Department of Children and Fam-
ilies (department) in March, 2010. The state objected
to the inquiry and, outside of the presence of the jury,
the defendant’s attorney made the following proffer:
‘‘[S.G.] made an allegation at school that her mother
had been beating her and her brothers with a belt and
had tried to kill her the night before, and she told the
people at school that she was afraid to go home. [The
department] got involved, and they did an investigation
that day. It turned out that [S.G.] lied, and that did not
happen; so, it goes to credibility. They also asked her
some questions about the defendant at the time,
whether she had any problems with him, if she’s afraid
of him, and the reports that we have indicate that she
indicated that he’s a good father, he’s always nice to
her and her family, and she has no concerns about
her brother being with [the defendant]. And she also
indicated that she can’t remember the last time that
she saw him.’’ The defendant’s attorney indicated that,
with regard to S.G.’s complaint about her mother, ‘‘she
admitted that she lied, that she made the whole thing
up.’’
The court sustained the state’s objection on the
ground of relevance. The court stated that the allega-
tions about U.G. were distinct from those concerning
the defendant. The court stated that it would disallow
any questions concerning the allegedly false statement
concerning S.G.’s mother, but that it would allow
inquiry into any statements that S.G. made concerning
the defendant. Thereafter, before the jury, the defen-
dant’s attorney pursued an inquiry related to the fact
that S.G. had made favorable comments to the depart-
ment about the defendant in March, 2010. Specifically,
S.G. acknowledged that she stated that the defendant
was ‘‘a good dad,’’ ‘‘[t]hat he was nice,’’ and that, at that
time, she did not recall the last time she had seen him.
Although the defendant couches his claim in constitu-
tional terms, he did not do so at trial. Before the court,
he merely stated that the evidence at issue ‘‘goes to
credibility.’’ The defendant affirmatively seeks review
pursuant to the doctrine set forth in State v. Golding,
213 Conn. 233, 239–40, 567 A.2d 823 (1989). The record
is adequate for our review, and the defendant’s claim,
implicating the rights to confrontation and to present
a defense, is of constitutional magnitude. See State v.
Marcelino S., 118 Conn. App. 589, 599, 984 A.2d 1148
(2009), cert. denied, 295 Conn. 904, 988 A.2d 879 (2010).
The defendant, however, is unable to satisfy Golding’s
third prong by demonstrating that a constitutional viola-
tion clearly exists and clearly deprived him of a fair trial.
As we turn to the merits of the claim, we set forth
some applicable principles. ‘‘The right to cross-examine
a witness concerning specific acts of misconduct is
limited in three distinct ways. First, cross-examination
may only extend to specific acts of misconduct other
than a felony conviction if those acts bear a special
significance upon the [issue] of veracity . . . . Second,
[w]hether to permit cross-examination as to particular
acts of misconduct . . . lies largely within the discre-
tion of the trial court. . . . Third, extrinsic evidence
of such acts is inadmissible.’’ (Internal quotation marks
omitted.) State v. Morgan, 70 Conn. App. 255, 272–73,
797 A.2d 616, cert. denied, 261 Conn. 919, 806 A.2d 1056
(2002); see also Conn. Code Evid. § 6-6 (b) (1) (‘‘[a]
witness may be asked, in good faith, about specific
instances of conduct of the witness, if it is probative
of the witness’ character for untruthfulness’’).
‘‘The sixth amendment to the [United States] constitu-
tion guarantees the right of an accused in a criminal
prosecution to confront the witnesses against him
. . . . Nonetheless . . . [t]he defendant’s right to con-
front witnesses against him is not absolute, but must
bow to other legitimate interests in the criminal trial
process. . . .
‘‘In order to comport with the constitutional stan-
dards embodied in the confrontation clause, the trial
court must allow a defendant to expose to the jury facts
from which [the] jurors, as the sole triers of fact and
credibility, could appropriately draw inferences relating
to the reliability of the witness. . . . We have empha-
sized in numerous decisions, however, that the confron-
tation clause does not give the defendant the right to
engage in unrestricted cross-examination. . . . A
defendant may elicit only relevant evidence through
cross-examination. . . . The court determines
whether the evidence sought on cross-examination is
relevant by determining whether that evidence renders
the existence of [other facts] either certain or more
probable.’’ (Citations omitted; internal quotation marks
omitted.) State v. Crespo, 303 Conn. 589, 610–11, 35
A.3d 243 (2012).
‘‘Even when the proffered testimony is relevant . . .
the confrontation clause is offended only when a trial
court precludes defense counsel from exposing to the
jury facts from which jurors, as the sole triers of fact and
credibility, could appropriately draw inferences relating
to the reliability of the witness. . . . In such cases,
constitutional prejudice is established where a reason-
able jury might have received a significantly different
impression of [a witness’] credibility had [defense]
counsel been permitted to pursue his proposed line of
cross-examination. . . .
‘‘This analysis necessarily involves a case-and-fact-
specific balancing test, weighing the relevance of the
proposed cross-examination to the defendant’s case
against the potential to cause unfair prejudice to the
victim and the extent to which the inquiry would be
repetitive or duplicative of other evidence. . . . In
determining whether a defendant’s right of cross-exami-
nation has been unduly restricted, we consider the
nature of the excluded inquiry, whether the field of
inquiry was adequately covered by other questions that
were allowed, and the overall quality of the cross-exami-
nation viewed in relation to the issues actually litigated
at trial. . . . Finally, trial judges retain wide latitude
insofar as the [c]onfrontation [c]lause is concerned to
impose reasonable limits on such cross-examination
based on concerns about, among other things, harass-
ment, prejudice, confusion of the issues, the witness’
safety, or interrogation that is repetitive or only margin-
ally relevant.’’ (Citations omitted; internal quotation
marks omitted.) State v. Mark R., 300 Conn. 590, 609–10,
17 A.3d 1 (2011).
Here, the excluded evidence, which was that S.G.
made a dishonest statement about her mother to some
unknown persons at her school,5 tended to demonstrate
that S.G. had an untruthful character. Yet, this evidence
was relevant to an assessment of S.G.’s credibility gen-
erally, for the defendant’s proffer did not suggest that
the evidence was in any way related to S.G.’s complaints
about the defendant or the sexual abuse she allegedly
suffered. The court permitted the defendant to inquire
into the substance of the statements that S.G. made
about him at the time of this incident at school.
In considering whether the exclusion of the evidence
was an improper infringement of the defendant’s right
to confront S.G., we pay particular attention to the
nature of the cross-examination that was undertaken
by the defense. At trial, the defendant’s attorney con-
ducted a lengthy cross-examination of S.G. Topics cov-
ered included dates and ages when abuse allegedly
occurred, the physical locations where abuse allegedly
occurred, as well as the nature of the living arrange-
ments when abuse occurred. The defendant’s attorney
inquired with regard to the specific allegations of abuse
and the manner in which S.G. reacted to them. The
defendant’s attorney brought out inconsistencies in
S.G.’s testimony and pursued inquiry into statements
made by S.G. prior to trial that were favorable to the
defendant. Additionally, the defendant’s attorney
emphasized the fact that, during pretrial investigations
into the abuse, S.G. did not disclose all of the facts that
she testified to during her trial testimony. Specifically,
the defendant’s attorney inquired about the potentially
consequential fact that, during a 2010 forensic inter-
view, at which time S.G. was made aware of the fact
that she should fully disclose details of the abuse, S.G.
did not disclose that the defendant had abused S.F.,
N.W., or K.C. The defendant’s attorney also inquired
into the fact that, in 2005, S.G. stated to U.G. and the
department that the defendant was nice to her and that
nothing had happened involving the defendant. These
themes were echoed during the closing argument of
the defendant’s attorney.
The defendant aptly notes that in a case such as the
present, in which S.G.’s allegations of abuse were not
corroborated by physical evidence and her credibility
was of paramount importance, it was necessary that
he be afforded an ample opportunity to confront S.G.
The record, however, reflects that the court permitted
vigorous cross-examination and that the defendant
inquired into several topics that shed light on the verac-
ity of S.G.’s allegations and testimony. The defendant’s
proffer concerning the excluded evidence was that S.G.
was untruthful to someone at her school about her
mother, this triggered a response by the school, and
S.G. admitted that she had told a lie. This evidence does
not strongly call into doubt her veracity, and in light
of the fact that the excluded evidence did not pertain
to the allegations made by S.G. against the defendant,
but to her credibility generally, we do not conclude
that the evidence likely would have affected the jury’s
assessment of S.G. or its verdict. Accordingly, we con-
clude that a constitutional violation does not exist. The
claim fails under Golding’s third prong.
IV
Next, the defendant claims that his conviction under
three counts of the state’s amended substitute informa-
tion violated his right to a unanimous jury verdict.
We disagree.
In the operative amended substitute information, the
state charged in count seven that in Bridgeport ‘‘on
diverse dates between 2005 and 2010, [the defendant]
compelled another person, [S.G.], to engage in sexual
intercourse by the use of force or by the threat of the
use of force against such other person, [S.G.], which
reasonably caused such person, [S.G.], to fear physical
injury to such person, [S.G.], in violation of [General
Statutes §] 53a-70 (a) (1) . . . .’’ In count eight, the
state charged that in Bridgeport ‘‘on diverse dates
between 2005 and the spring of 2010, the [defendant]
engage[d] in sexual intercourse with another person,
[S.G.], and such other person, [S.G.], was under thirteen
years of age and the actor was more than two years
older than such other person, [S.G.], in violation of
[General Statutes §] 53a-70 (a) (2) . . . .’’ In count nine,
the state charged that in Bridgeport ‘‘on diverse dates
between 2005 and the spring of 2010, the [defendant]
had contact with the intimate parts . . . of a child,
[S.G.], under sixteen (16) years of age, or subjected a
child, [S.G.], under sixteen (16) years of age to contact
with the intimate parts . . . of such person, in a sexual
and indecent manner likely to impair the health or mor-
als of such child, [S.G.], in violation of [General Statutes
§] 53-21 (a) (2) . . . .’’
Prior to the start of trial, the defendant filed a motion
for a bill of particulars. In support of the motion, the
defendant’s attorney stated that counts seven, eight,
and nine of the complaint ‘‘are all catch-all phrases . . .
encompassing the same time period for counts one
through six. There is no specificity in regard to the
allegations in those three counts . . . . We are going
to ask for those three counts to be stricken from the
information.’’ The prosecutor replied that the counts at
issue reflected the extent of the information known to
the state. Specifically, the prosecutor replied that these
counts reflected S.G.’s general allegations that abuse
had occurred approximately ten times during the time
period of 2005 to 2010, and that she was not specific
as to the physical location where the abuse occurred
in Bridgeport because she alleged that abuse occurred
in several residences. After hearing argument, the court
stated that these counts reflected the fact that the state,
dealing with young complainants, lacked more specific
information, but that in contrast to the other counts of
the information, for which the state had more precise
information, these counts ‘‘are intended to embrace
other information given by the complainants, which is
less specific.’’ Accordingly, the court denied the defen-
dant’s request to strike the counts or to compel the
state to replead these counts.
On appeal, the defendant raises a claim of a constitu-
tional character, asserting that the court deprived him
of his right to a unanimous verdict because, in connec-
tion with counts seven, eight, and nine, the state’s infor-
mation was ‘‘too broadly worded’’ and ‘‘these counts
. . . could encompass a variety of instances [of con-
duct by the defendant].’’ The evidence relevant to these
counts, the defendant argues correctly, involved acts
of oral sex performed by S.G. on the defendant. The
evidence supported a finding that the defendant
received oral sex while he was in different physical
positions, that the incidents occurred in different loca-
tions, and that, in one instance, the defendant received
oral sex from S.G. and S.F. simultaneously. The defen-
dant asserts that because S.G. testified about factually
distinct instances of abuse that possibly could have
been encompassed by the broadly worded counts
seven, eight, and nine of the information, there existed
a risk that the jury could have found him guilty without
agreeing unanimously as to the criminal conduct under-
lying each of these counts. The defendant asserts that
‘‘[he] was likely convicted on the basis of juror votes
relating to entirely separate incidents.’’
Although the defendant’s attorney argued before the
trial court that the counts at issue should be ordered
repleaded or stricken from the information, the record
does not reflect that the defendant raised the constitu-
tional claim at trial that he advances in this claim before
this court. The claim advanced before the trial court
reasonably could be interpreted as being limited to an
issue of notice to the defense of the nature of the
charges. In contrast, the claim raised here is based on
the defendant’s right to be convicted by a unanimous
jury. While not conceding that the issue is unpreserved,
the defendant affirmatively requests review pursuant
to Golding, and such review is warranted because the
record is adequate for review and the claim is of consti-
tutional magnitude. See State v. Griffin, 97 Conn. App.
169, 182, 903 A.2d 253 (‘‘[a] claim bearing on the defen-
dant’s right to a unanimous verdict implicates a funda-
mental constitutional right to a fair trial’’ [internal
quotation marks omitted]), cert. denied, 280 Conn. 925,
908 A.2d 1088 (2006).
Before considering the merits of the claim, we set
forth the basic principles that apply. ‘‘Duplicity occurs
when two or more offenses are charged in a single
count of the accusatory instrument.’’ (Internal quota-
tion marks omitted.) State v. Saraceno, 15 Conn. App.
222, 228, 545 A.2d 1116, cert. denied, 209 Conn. 823,
824, 552 A.2d 431, 432 (1988). ‘‘It is now generally recog-
nized that [a] single count is not duplicitous merely
because it contains several allegations that could have
been stated as separate offenses. . . . Rather, such a
count is only duplicitous where the policy considera-
tions underlying the doctrine are implicated. . . .
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, pro-
viding the basis for appropriate sentencing, and pro-
tecting against double jeopardy in a subsequent
prosecution.’’ (Citations omitted; internal quotation
marks omitted.) Id., 228–29. Here, the defendant argues
that the policy consideration implicated is that of
avoiding the risk of a nonunanimous verdict because
the jury may have agreed that he was guilty under each
of the counts at issue but that it may not have reached
unanimous agreement about which specific acts sup-
ported that verdict.
In evaluating the risk of a nonunanimous verdict, it
is appropriate that ‘‘[w]e first review the instruction
that was given to determine whether the trial court
has sanctioned a nonunanimous verdict. If such an
instruction has not been given, that ends the matter.
Even if the instructions at trial can be read to have
sanctioned such a nonunanimous verdict, however, we
will remand for a new trial only if (1) there is a concep-
tual distinction between the alternative acts with which
the defendant has been charged, and (2) the state has
presented evidence to support each alternative act with
which the defendant has been charged.’’ (Emphasis
added; internal quotation marks omitted.) State v.
Dyson, 238 Conn. 784, 792, 680 A.2d 1306 (1996).
Our careful review of the court’s instructions in the
present case reveals that the court did not sanction a
nonunanimous verdict. When the court delivered its
instructions, it repeatedly stated that the jury must con-
sider each count ‘‘separately and independently’’ from
the other counts. The court’s instructions, viewed as a
whole, impressed upon the jury that it must consider
the defendant’s conduct as it related to each count of
the information. As it pertained to the counts at issue,
the court reminded the jury that, although the offenses
charged in counts seven, eight, and nine, were alleged
to have been committed during the same time period
in which other offenses were alleged to have been com-
mitted, the state bore the burden of proving that the
criminal acts at issue in these charges were ‘‘separate
and distinct’’ from the acts at issue in the other charges.
The court repeatedly instructed the jury when
instructing it as to each count in the state’s information,
including counts seven, eight, and nine, that it must
reach a unanimous verdict. After instructing the jury
with regard to the specific counts, the court stated: ‘‘I
want to impress upon you that you are [duty] bound
as jurors to apply the law as I outlined it to determine
the facts on the basis of the evidence as has been pre-
sented, and then to render a verdict fairly, uprightly,
and without any prejudice. When you reach a verdict
as to any count it must be unanimous. All of you must
agree to it whether that verdict is guilty or not guilty.’’
(Emphasis added.)
The court’s charge not only reminded the jury as to
the importance of keeping each of the charges distinct
in terms of its findings, but the court repeatedly and
unambiguously conveyed that the jury must return a
unanimous verdict on each count of the information.
Moreover, there is nothing in the record to suggest that
the jury disregarded the court’s instructions; after the
verdict was delivered, the jury panel affirmed that its
verdict as to each count was unanimous. ‘‘[G]iven the
court’s admonitions concerning unanimity, we must
presume that the jury, in the absence of a fair indication
to the contrary . . . followed the court’s instruction
as to the law.’’ (Internal quotation marks omitted.) State
v. Jessie L. C., 148 Conn. App. 216, 233, 84 A.3d 936,
cert. denied, 311 Conn. 937, 88 A.3d 551 (2014). Accord-
ingly, we conclude that the claim fails under Golding’s
third prong.6
V
Next, the defendant claims that the court improperly
denied his motion to sever counts alleging criminal
conduct against S.G. from counts alleging criminal con-
duct against N.W. and K.C. We disagree.
Counts one through eleven of the information alleged
crimes committed against S.G., namely, six counts alleg-
ing sexual assault in the first degree, three counts alleg-
ing risk of injury to a child, one count alleging attempted
sexual assault in the first degree and one count of
attempted risk of injury to a child. Count twelve alleged
that the defendant committed the crime of sexual
assault in the first degree in that he compelled N.W. to
engage in intercourse by the use of force or by the
threat of the use of force against S.G. Count thirteen
alleged that the defendant committed the crime of
attempted sexual assault in the first degree in that he
attempted to compel K.C. to engage in sexual inter-
course by the use of force or by the threat of the use
of force against S.G. Count fourteen alleged that the
defendant committed the crime of sexual assault in the
third degree in that he compelled K.C. to engage in
sexual contact by the use of force or by the threat of
the use of force against S.G. The jury found the defen-
dant guilty under counts twelve and fourteen, but found
him not guilty under count thirteen.
Prior to trial, the defendant filed a motion pursuant
to Practice Book § 41-18 to sever counts twelve, thir-
teen, and fourteen from the remainder of the informa-
tion, and to order that the severed counts be adjudicated
in a separate trial. The defendant asserted therein that
counts one through eleven alleged that the defendant
engaged in sexual crimes that occurred between 2004
and 2010 against S.G., when she was between approxi-
mately seven through twelve years of age. Count twelve
alleged that the defendant forced N.W., who was
approximately seven years of age, to engage in sexual
intercourse with S.G. in 2004 or 2005. Counts thirteen
and fourteen alleged that the defendant forced K.C.,
who was approximately seven years of age, to engage
or attempt to engage in sexual intercourse with S.G. in
or about 2004 through 2007. The defendant argued that
he was prejudiced by the joinder of these ‘‘qualitatively
different offenses’’ and argued that the charges should
be severed. In argument on the motion, the defendant’s
attorney stated that counts twelve through fourteen
were qualitatively different, that the evidence for these
charges would not be cross admissible at a separate
trial on the remaining eleven counts, and that counts
one through eleven were of a ‘‘more severe’’ nature in
that they alleged that the defendant had sex with a
young child over a long period of time. The defendant
argued that counts twelve through fourteen were of a
less serious nature, they related to acts which occurred
less frequently, and that they were ‘‘qualitatively differ-
ent’’ inasmuch as they involved the defendant forcing
a child to have sexual intercourse with another child.
The defendant’s attorney noted his concern that if the
charges were not severed, it would be difficult for the
jurors to separate them in their minds and to find the
defendant not guilty generally. The state objected to
the motion to sever and, during the hearing, argued
against it.
After hearing argument, the court denied the motion,
stating: ‘‘I understand the defense argument that
[counts] twelve, thirteen and fourteen . . . pled . . .
that the defendant compelled one minor to engage in
sex with another minor, whereas the prior counts essen-
tially allege that the defendant had sex with or sexual
contact with a minor directly.
‘‘The record should be clear that . . . this is not a
motion for joinder. The matter has apparently always
been pled in a like fashion. Rather, this is the defense’s
motion to sever these last three counts out.
‘‘I . . . don’t see that the last three counts of the
information are . . . legally qualitatively different than
the prior counts. Most importantly, I think that the jury
can give a fair and independent consideration to all of
the counts individually, and obviously the court is going
to instruct the jury to do just that, that their consider-
ation of each count is separate and independent of the
others, and that a verdict on one count doesn’t suggest
what a verdict on another count should be. I’ll remind
the jury of that more than once.
‘‘I don’t believe that—certainly these are all in the
context of sexual misconduct allegations—I don’t know
that the jury hearing allegations that the defendant com-
pelled one minor to engage in sex with another,
although certainly serious, I don’t know that it is more
serious than the defendant’s claimed direct sexual mis-
conduct toward another minor directly. In fact . . .
they’re pled within the context, some of them, of the
same statute, and the legislature has . . . deemed them
to be equally severe.
‘‘I don’t think this is a case where the jury is going
to confuse the evidence. It’s not going to be a trial of
great, great length. I think they’ll be able to keep the
evidence separate and distinct in their minds, and for
that reason I believe that I think the touchstone is,
again, not the fact that there may be prejudice resulting
to the defendant as a result of the manner in which the
information is pled or the counts that are pled . . . but
whether or not there’s undue prejudice to the defendant
so that his right to a fair consideration of the case by
the jury would be affected. And I don’t believe that
there’s undue prejudice to the defendant in this particu-
lar situation.’’
Echoing the arguments for severance that he
advanced before the trial court, the defendant argues
that the court’s analysis was deficient. He asserts that
severance was required for a variety of reasons. He
argues that the charges at issue involved discrete factual
scenarios. He argues that the victims were not similarly
situated in terms of age, relationship to the defendant
and the types of sexual abuse alleged. In this regard, he
reiterates his argument that the types of abuse alleged in
counts one through eleven were more shocking than
the types of abuse alleged in counts twelve through
fourteen. Also, he argues that evidence related to the
counts involving S.G. would not have been cross admis-
sible in a trial concerning the counts involving N.W. or
K.C., and vice versa. Finally, the defendant argues that
the trial, which took place over the course of six days,
involved several incidents and was complex in nature.
‘‘The principles that govern our review of a trial
court’s ruling on a motion for joinder or a motion for
severance are well established. Practice Book § 41-19
provides that, [t]he judicial authority may, upon its own
motion or the motion of any party, order that two or
more informations, whether against the same defendant
or different defendants, be tried together. See also Gen-
eral Statutes § 54-57 ([w]henever two or more cases
are pending at the same time against the same party in
the same court for offenses of the same character,
counts for such offenses may be joined in one informa-
tion unless the court orders otherwise). In deciding
whether to sever informations joined for trial, the trial
court enjoys broad discretion, which, in the absence of
manifest abuse, an appellate court may not disturb.
. . . The defendant bears a heavy burden of showing
that the denial of severance resulted in substantial injus-
tice, and that any resulting prejudice was beyond the
curative power of the court’s instructions. . . .
‘‘Substantial prejudice does not necessarily result
from a denial of severance even [if the] evidence of one
offense would not have been admissible at a separate
trial involving the second offense. . . . Consolidation
under such circumstances, however, may expose the
defendant to potential prejudice for three reasons: First,
when several charges have been made against the defen-
dant, the jury may consider that a person charged with
doing so many things is a bad [person] who must have
done something, and may cumulate evidence against
him . . . . Second, the jury may have used the evi-
dence of one case to convict the defendant in another
case even though that evidence would have been inad-
missible at a separate trial. . . . [Third] joinder of
cases that are factually similar but legally unconnected
. . . present[s] the . . . danger that a defendant will
be subjected to the omnipresent risk . . . that
although so much [of the evidence] as would be admissi-
ble upon any one of the charges might not [persuade
the jury] of the accused’s guilt, the sum of it will con-
vince them as to all. . . .
‘‘The court’s discretion regarding joinder, however,
is not unlimited; rather, that discretion must be exer-
cised in a manner consistent with the defendant’s right
to a fair trial. Consequently, [in State v. Boscarino,
204 Conn. 714, 722–24, 529 A.2d 1260 (1987)], we have
identified several factors that a trial court should con-
sider in deciding whether a severance may be necessary
to avoid undue prejudice resulting from consolidation
of multiple charges for trial. These factors include: (1)
whether the charges involve discrete, easily distinguish-
able factual scenarios; (2) whether the crimes were of
a violent nature or concerned brutal or shocking con-
duct on the defendant’s part; and (3) the duration and
complexity of the trial. . . . If any or all of these factors
are present, a reviewing court must decide whether the
trial court’s jury instructions cured any prejudice that
might have occurred.’’ (Citation omitted; internal quota-
tion marks omitted.) State v. Davis, 286 Conn. 17, 27–29,
942 A.2d 373 (2008).
In State v. Payne, 303 Conn. 538, 549, 34 A.3d 370
(2012), our Supreme Court rejected the presumption in
favor of joinder that had previously been expressed in
the law. The court stated: ‘‘[W]e now reject the blanket
presumption in favor of joinder and establish the burden
of proof concerning joinder at trial as follows: In the
trial court, when multiple charges have already been
joined in a single information by the state pursuant
to § 54-57, and the defendant has filed a motion to
sever the charges for trial pursuant to Practice Book
§ 41-18, the defendant bears the burden of proving that
the offenses are not of the ‘same character’; General
Statutes § 54-57; and therefore that the charges should
be tried separately. On the other hand, when charges
are set forth in separate informations, presumably
because they are not of the same character, and the
state has moved in the trial court to join the multiple
informations for trial, the state bears the burden of
proving that the defendant will not be substantially
prejudiced by joinder pursuant to Practice Book § 41-
19. The state may satisfy this burden by proving, by a
preponderance of the evidence, either that the evidence
in the cases is cross admissible or that the defendant
will not be unfairly prejudiced pursuant to the Boscar-
ino factors.’’ (Emphasis added; footnotes omitted.)
State v. Payne, supra, 549–50. With regard to situations,
like the situation that existed in the present case, in
which the prosecutor has joined multiple charges in a
single information prior to trial, the court stated:
‘‘Because § 54-57 restricts prosecutors to joining multi-
ple charges in a single information only when, in good
faith, they find that the offenses were ‘of the same
character,’ we are not concerned that prosecutors will
do so in all cases in order to pass the burden on to the
defendant.’’ Id., 549 n.9.
In accordance with the foregoing authority, we begin
our analysis by examining whether the offenses at issue
were of the same character. Despite the defendant’s
arguments to the contrary, we conclude that he failed
to demonstrate before the trial court that the offenses
charged in counts one through eleven were of a different
character than those charged in counts twelve through
fourteen. The defendant states that S.G. was ‘‘subjected
to a type of abuse that was qualitatively different from
that of the other victims,’’ namely, N.W. and K.C. (Inter-
nal quotation marks omitted.) The defendant states:
‘‘[S.G.] was alleged to have been sexually assaulted by
a grown man, [the] defendant, in counts [one] through
[eleven] over the course of several years in several
different ways. [N.W.] and K.C. on the other hand, were
alleged to have been told to sexually assault [S.G.]. . . .
Neither of the two boys alleged that they were directly
abused by [the] defendant.’’ (Internal quotation marks
omitted.) This argument simply misses the fact that all
fourteen counts of the information were of the same
character—they related to offenses that reflected his
propensity to commit sexual misconduct against the
children in his care. Alternatively, the evidence was
indicative of a scheme, perpetrated by the defendant,
to subject S.G. to sexual abuse. S.G. was at the center
of all of the instances of sexual abuse that occurred in
this case.
Additionally, the defendant is unable to demonstrate
injustice or substantial prejudice. This is because, in
accordance with the liberal standard of relevance gov-
erning evidence of uncharged sexual misconduct dis-
cussed in part I of this opinion, which applies with equal
force to evidence of sexual misconduct with which a
defendant is charged,7 the evidence related to counts
one through eleven would have been cross admissible in
a second trial involving counts twelve through fourteen.
The evidence was relevant to demonstrating that the
defendant had a propensity to engage in aberrant and
compulsive sexual behavior with children. There can
be no dispute that the sexual events in counts twelve
through fourteen occurred during the same period of
time in which the state alleged that the defendant was
committing sexual assaults upon S.G. personally. The
offenses were similar in that they involved the sexual
abuse of S.G., and the crimes were committed by means
of the defendant exercising his control over children
in his care. Furthermore, S.G., N.W., and K.C. were
similar in age. Although N.W. and K.C. were not victims
in the offenses charged in counts one through eleven,
S.G. was integral to the commission of the crimes in
counts twelve through fourteen. Here, there is no diffi-
culty concluding that all of the crimes were committed
against similar persons.
‘‘Our Supreme Court has determined that [w]here
evidence of one incident can be admitted at the trial
of the other, separate trials would provide the defendant
no significant benefit. It is clear that, under such circum-
stances, the defendant would not ordinarily be substan-
tially prejudiced by joinder of the offenses for a single
trial.’’ (Emphasis in original; internal quotation marks
omitted.) State v. Webb, 128 Conn. App. 846, 858, 19
A.3d 678, cert. denied, 303 Conn. 907, 32 A.3d 961 (2011).
That is the case here and, accordingly, we need not
engage in an evaluation of the Boscarino factors. In
light of the foregoing, we conclude that the defendant
has not demonstrated that the denial of the motion for
severance reflected an abuse of discretion.8
VI
Finally, the defendant claims that the evidence was
insufficient for a conviction under counts twelve and
fourteen of the information. We disagree.
Count twelve of the state’s amended substitute infor-
mation, which involved the victim N.W. and alleged the
crime of sexual assault in the first degree, provides in
relevant part that the defendant ‘‘compelled another
person, [N.W.], to engage in sexual intercourse by the
use of force or by the threat of the use of force against
another person, [S.G.], which reasonably caused such
person, [N.W.], to fear physical injury to such person,
[S.G.], in violation of [General Statutes §] 53a-70 (a) (1)
. . . .’’ Count fourteen of the state’s amended substitute
information, which involved the victim, K.C., and
alleged the crime of sexual assault in the third degree,
provides in relevant part that the defendant ‘‘compelled
another person, [K.C.], to engage in sexual contact by
the use of force or by the threat of the use of force
against such other person, [S.G.], which reasonably
caused such person, [K.C.], to fear physical injury to
such person, [S.G.], in violation of [General Statutes §]
53a-72a (a) (1) (A) (B) . . . .’’
Relevant to count twelve, S.G. testified that, while
she was in the bedroom of N.W.’s mother in Bridgeport,
‘‘[N.W.] was forced to put his penis in my vagina.’’ She
testified that at the time of the offense, she and N.W.
were crying and that the defendant ‘‘pushed’’ N.W. on
top of her, at which time his penis ‘‘was forced’’ into
her vagina. S.G. testified that she did not remember the
defendant saying anything during this event, but that
the conduct at issue occurred ‘‘[m]ore than one time.’’
N.W. testified with regard to this incident as follows:
‘‘Q. All right. Now, do you ever recall a time that you
were alone with [S.G.]?
‘‘A. Yes.
‘‘Q. Okay; and could you tell us what happened on
that occasion?
‘‘A. One day after school, [the defendant] had picked
me up . . . and then he brought us back to the house
and stuff, and he brought me in a room and [S.G.] was
there. She was naked on the bed.
‘‘Q. Okay; and then what happened?
‘‘A. And then . . . he told me take my clothes off
and stuff, and then he was telling me to put my [penis]
in [S.G.’s vagina]. . . .
‘‘Q. All right; and tell me what happened then.
‘‘A. And then . . . I didn’t want to do it, but he was
calling me names and stuff.
‘‘Q. What kind of names was he calling you?
‘‘A. Punk and pussy and faggot and stuff. So, I did it
for a little bit, then I was getting scared and, like—and
then he told her to get on top of me and she did, and
I pushed her off, I ain’t want to do it no more.
‘‘Q. Okay.
‘‘A. After that, I just went outside.
‘‘Q. And what was [S.G.] doing? What was her emo-
tional state when this was going on?
‘‘A. Well, I could tell she was scared, too.’’
N.W. testified that he did not engage in the foregoing
conduct willingly, but that he was afraid that if he did
not comply with the defendant that the defendant would
‘‘beat [him] or something.’’ He stated that he feared the
defendant and that he, S.G. and K.C. had been physically
disciplined by the defendant.
With regard to count fourteen, S.G. testified that,
while she was in the bedroom of N.W.’s mother in
Bridgeport, ‘‘[K.C.] was forced to touch my private
parts’’ in the defendant’s presence. S.G. testified that
K.C. ‘‘was pushed toward me . . . and he was hit.’’ S.G.
testified that she did not remember the defendant saying
anything during this event.
With regard to this incident, K.C. testified that his
father, the defendant, was in a bedroom with S.G., at
which time the defendant told S.G. to remove her cloth-
ing. He testified that the defendant asked him ‘‘[t]o feel
up on her,’’ in response to which K.C. touched S.G.’s
‘‘private areas’’ with his hands. K.C. testified that this
conduct occurred more than once. K.C. stated that he
was forced to do these things with S.G., that he was
‘‘scared,’’ and that, if he did not comply, the defendant
would call him names such as ‘‘[p]unk’’ or ‘‘[p]ussy.’’
K.C. testified that he did not report this type of activity
because the defendant beat him and the other children
‘‘a lot.’’
At the close of the state’s case-in-chief, the defendant
moved for a judgment of acquittal. With regard to counts
twelve and fourteen, the defendant’s attorney argued
that the evidence failed to demonstrate that either N.W.
or K.C. acted toward S.G. in the sexual manner that
they did because they feared physical injury to S.G.
Reasoning that the defendant’s argument was premised
on an unreasonably narrow interpretation of the evi-
dence, the court denied the motion.
As he did at trial, the defendant argues on appeal
that, contrary to the manner in which the state drafted
its allegations in counts twelve and fourteen,9 the evi-
dence did not demonstrate that either N.W. or K.C.
acted in the manner that they did because they feared
physical injury to S.G. Accordingly, the defendant
claims that the state failed to satisfy its burden of proof
with regard to both counts and, thus, his conviction
under these counts cannot stand.
‘‘The standard of review employed in a sufficiency
of the evidence claim is well settled. [W]e apply a two
part test. First, we construe the evidence in the light
most favorable to sustaining the verdict. Second, we
determine whether upon the facts so construed and the
inferences reasonably drawn therefrom the [trier of
fact] reasonably could have concluded that the cumula-
tive force of the evidence established guilt beyond a
reasonable doubt. . . . The trier may draw whatever
inferences from the evidence or facts established by
the evidence it deems to be reasonable and logical. . . .
Our review is a fact based inquiry limited to determining
whether the inferences drawn by the [trier of fact] are
so unreasonable as to be unjustifiable. . . . This court
cannot substitute its own judgment for that of the [trier
of fact] if there is sufficient evidence to support [its]
verdict.’’ (Citations omitted; internal quotation marks
omitted.) State v. Sadowski, 146 Conn. App. 693, 695–96,
79 A.3d 136 (2013), cert. denied, 311 Conn. 903, 83 A.3d
604 (2014).
An understanding of the essential elements of the
crime or crimes at issue is the necessary starting point
of any sufficiency of the evidence analysis. At this junc-
ture, the parties disagree. The defendant asserts that
the state had a duty to prove counts twelve and fourteen
in accordance with the factual manner in which they
were alleged in the information. The state asserts that
its burden was to prove only the essential elements of
the crimes as set forth in the specific portions of the
statute alleged in the information, and that although
the state alleged that N.W. and K.C. acted out of fear
for S.G., such factual details were not essential elements
of the crimes. We agree with the state.
Section 53a-70 (a) provides in relevant part: ‘‘A person
is guilty of sexual assault in the first degree when such
person (1) compels another person to engage in sexual
intercourse by the use of force against such other per-
son or a third person, or by the threat of use of force
against such other person or against a third person
which reasonably causes such person to fear physical
injury to such person or a third person . . . .’’ Thus,
§ 53a-70 (a) (1) requires proof that a defendant (1) com-
pelled another person to engage in sexual intercourse
and (2) that he did so either by using force against such
person or a third person or by using the threat of use
of force, which reasonably caused such person to fear
physical injury to themselves or to a third person.
Section 53a-72a (a) provides in relevant part: ‘‘A per-
son is guilty of sexual assault in the third degree when
such person (1) compels another person to submit to
sexual contact (A) by the use of force against such
other person or a third person, or (B) by the threat of
use of force against such other person or against a third
person, which reasonably causes such other person to
fear physical injury to himself or herself or a third
person . . . .’’ Thus, § 53a-72a (a) (1) (A) and (B)
require proof that a defendant (1) compelled another
person to submit to sexual contact and (2) that he did
so either by using force against such other person or
a third person or by using the threat of the use of
force against such other person or a third person, which
reasonably caused such other person to fear physical
injury to themselves or to a third person.
The evidence, viewed in the light most favorable to
sustaining the verdict, readily supported a finding that
N.W. and K.C. acted in the manner that they did because
they feared physical retribution at the hands of the
defendant. The cumulative force of the evidence, includ-
ing the ages of the victims involved, their knowledge
of the defendant’s propensity to inflict physical abuse
and their testimony that they did not act willingly, but
out of fear, reflects that the defendant compelled their
behavior by means of threatened use of force. Accord-
ingly, the evidence readily supported the conviction
under both counts at issue.
The defendant’s argument that, consistent with the
information, the state was bound to prove that N.W.
and K.C. were compelled to act out of a fear of the use
of force against S.G. is unavailing. ‘‘[G]enerally speak-
ing, the state is limited to proving that the defendant
has committed the offense in substantially the manner
described in the information. . . . Despite this general
principle, however, both this court and our Supreme
Court have made clear that [t]he inclusion in the state’s
pleading of additional details concerning the offense
does not make such allegations essential elements of
the crime, upon which the jury must be instructed. . . .
Our case law makes clear that the requirement that the
state be limited to proving an offense in substantially
the manner described in the information is meant to
assure that the defendant is provided with sufficient
notice of the crimes against which he must defend. As
long as this notice requirement is satisfied, however,
the inclusion of additional details in the charge does
not place on the state the obligation to prove more than
the essential elements of the crime.’’ (Citations omitted;
emphasis added; footnote omitted; internal quotation
marks omitted.) State v. Sam, 98 Conn. App. 13, 38, 907
A.2d 99, cert. denied, 280 Conn. 944, 912 A.2d 478 (2006);
see also State v. King, 289 Conn. 496, 522 n.16, 958 A.2d
731 (2008); State v. Beavers, 99 Conn. App. 183, 192–93,
912 A.2d 1105, cert. denied, 281 Conn. 925, 918 A.2d
276 (2007). Accordingly, we reject the claim of insuffi-
cient evidence.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse and the crime of risk of injury to a child, we decline
to identify the three victims in this case or others through whom the victims’
identities may be ascertained. See General Statutes § 54-86e.
2
The jury returned a verdict of not guilty with regard to one count of
attempted sexual assault in the first degree. The trial court imposed a
sentence of thirty years incarceration, seventeen years of which were manda-
tory, followed by fifteen years of special parole.
3
At trial, immediately after S.G. described the events at issue, the court
stated: ‘‘Okay. Ladies and gentlemen, the witness has testified about events
concerning [S.F.], who is not a complainant in this particular case. And
you’re not to speculate or infer or conclude anything by virtue of that alone,
that she is not a complainant in this case.
‘‘But I wanted to say this to you. In a criminal case in which a defendant
is charged with a crime exhibiting anything abhorrent or compulsive criminal
sexual behavior, evidence of the admission of another offense, uncharged
offense, and here that would be acts directed toward S.F., is admissible and
may be considered for its bearing on any matter which is relevant. However,
evidence of this uncharged offense on its own is not sufficient to prove the
defendant guilty of the crimes charged in the information. Bear in mind
that, as you consider this evidence, that at all times the state has the burden
of proving the defendant committed each of the elements of the crimes
charged in this information.
‘‘And I remind you that the defendant is not on trial for any act or claimed
offenses not charged in the information. And, of course, the credibility and
the weight you give to this evidence is for you and you alone to decide.
‘‘So, this uncharged misconduct, meaning it’s not part—that is, any acts,
any evidence of acts directed toward [S.F.]—is not charged in this informa-
tion but may be considered by you for matters which are relevant. Okay.
We’ll go on.’’ The court delivered a materially similar instruction during its
final charge to the jury.
4
We note that the defendant primarily attempts to differentiate the
uncharged misconduct on the basis of S.F.’s subsequent trial testimony,
which obviously was unknown to the court at the time that it made its
ruling. S.F. testified that, during the incident at issue, the defendant became
upset because he wanted to molest S.G., but S.G. ran away from him. S.F.
testified that ‘‘[t]he defendant beat on me because he was upset . . . and
then he molested me.’’ The defendant suggests that the charged allegations
of sexual misconduct did not involve this degree of violence.
5
In his brief, the defendant states that the evidence at issue was that
‘‘[S.G.] had lied to her school officials and [the department],’’ and asserts
that ‘‘[l]ying under oath is a clear example of lack of veracity.’’ (Internal
quotation marks omitted.) The defendant’s proffer before the trial court,
however, merely included the fact that S.G. had lied to persons at her school
and later recanted. There was no suggestion in the proffer that S.G. had
made an untruthful statement while under oath.
6
In our resolution of the defendant’s claim, we are guided by this court’s
analyses in State v. Jessie L. C., supra, 148 Conn. App. 226–33, and State
v. Marcelino S., supra, 118 Conn. App. 592–97, cases that involved charges
analogous to those at issue in the present case. In rejecting the defendant’s
claim of prejudice as a result of a duplicitous information in Marcelino S.,
this court, quoting appellate precedent, observed: ‘‘[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.’’ (Internal quotation marks omitted.) State v. Marcelino S.,
supra, 597.
7
See, e.g., State v. Johnson, 289 Conn. 437, 452, 958 A.2d 713 (2008).
8
Although our conclusion that the evidence was cross admissible obviates
the need to discuss potential prejudice in any greater detail, we observe
that the jury’s finding of not guilty with regard to count thirteen dramatically
weakens the force of the defendant’s argument that the trial on all fourteen
counts likely confused the jury and led it to return a verdict that was based
on its prejudice against the defendant rather than a rational consideration
of the evidence.
9
The defendant argues that the state chose to draft its information in this
manner after significant pretrial discussion. Our review of the record reveals
that these discussions took place in the context of clarifying the nature of
the state’s allegations. At the present juncture, the defendant does not claim
prejudice resulting from the details included in the information, nor does
he claim that he lacked sufficient notice of the manner in which the state
proved the counts at issue. Instead, he raises a claim that is based on the
sufficiency of the evidence. Thus, our analysis is unaffected by this aspect
of his argument.