State v. Douglas C.

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 STATE v. DOUGLAS C.—CONCURRENCE

MULLINS, J., with whom KELLER, J., joins, concur-
ring in the judgment. I agree with the majority that we
should formally recognize a distinction between two
types of duplicitous charging: (1) the charging of dis-
tinct crimes that violate multiple statutory provisions
or subsections within a single count (which implicates
what the majority terms ‘‘unanimity as to elements’’),
and (2) the charging of multiple instances of the same
crime within a single count (which implicates what the
majority terms ‘‘unanimity as to instances’’). See part
I B of the majority opinion. I also agree with the majori-
ty’s ultimate conclusion that the charges in this case
were not impermissibly duplicitous and, therefore, that
the conviction of the defendant, Douglas C., Jr., on
multiple counts of risk of injury to a child in violation
of General Statutes § 53-21 (a) (2)1 should be affirmed.
I part ways with the majority with respect to its state-
ment of the law that governs duplicity/unanimity as to
multiple instances of the same offense; see id.; and its
application of that law to the present case. See part II
of the majority opinion. Specifically, I believe that this
court should adopt the more flexible, case-by-case
framework used by the United States Court of Appeals
for the Second Circuit, among other courts. We typically
defer to that court’s interpretations of federal law, and
there are compelling reasons—both principled and
practical—to do so with respect to the law of duplicity
and unanimity. I believe that the majority’s approach
will lead to the needless repetitive charging of criminal
defendants and make it virtually impossible to prose-
cute some of the most heinous crimes, especially those
involving the sexual abuse of young children.
I
As I understand it, the majority adopts a two part
test, with one significant exception, to assess challenges
to a criminal prosecution in which a single count
charges the defendant with violating a single statute
in multiple, separate instances. First, we look to see
whether there are multiple instances of conduct
charged in one count, where each instance could estab-
lish a separate violation of the same statute based on
the evidence submitted at trial. If so, the count is pre-
sumptively duplicitous. There is an exception, however,
‘‘when the multiple instances of conduct constitute ‘a
continuing course of conduct, during a discrete period
of time . . . .’ ’’ Part I B of the majority opinion. Course
of conduct charging is not duplicitous, but only so long
as the legislature specifically contemplated that the stat-
ute at issue could be charged as a course of conduct
crime. Second, in the absence of a bill of particulars or
a specific unanimity instruction, all duplicitous charges
violate a defendant’s constitutional right to jury unanim-
ity, but the court then must consider whether that con-
stitutional violation is harmless.
I readily acknowledge that this is one permissible
approach to the issue of duplicitous charging. As I will
discuss, a few of the federal courts of appeals, as well
as a handful of our sister state courts, have adopted
similar frameworks. And it is not without its merits,
primary among them that it purports to be relatively
simple and straightforward to apply. But see part II of
this opinion.
I disagree, however, with the majority’s contention
that the ‘‘federal courts agree’’ with its per se ban on
duplicitous charging. Part I B of the majority opinion.
The very cases on which the majority relies expressly
acknowledge that other courts of appeals apply a differ-
ent framework,2 and the majority concedes that the
Second Circuit approach, among others, differs. See
footnotes 15 and 18 of the majority opinion.
Much of the difference between my view and the
majority’s view centers on how to treat course of con-
duct charging. The framework I would have us adopt
when assessing whether charging multiple instances in
a single count is permissible or impermissible is the
following four step approach: first, pursuant to General
Statutes § 1-2z, if the statute at issue either expressly
permits or expressly bars course of conduct charging,
or if there are other clear indicia of legislative intent,
then courts must defer to the legislative will. Second,
if the statute at issue is silent as to course of conduct
charging, and there are no other clear indicia of legisla-
tive intent, as will most often be the case, then the
prosecutor has the discretion to charge repeated viola-
tions of the statute as individual incidents or as a single
course of conduct. Third, notwithstanding the prosecu-
tor’s charging decision, the trial court should determine
whether such charging (1) would be unreasonable or
unfair under the circumstances or (2) would otherwise
violate the defendant’s fifth and sixth amendment (and
corresponding state constitutional) rights to notice, to
present a defense, to a unanimous jury verdict, and to
not twice be placed in jeopardy for the same offense,
among others. Such determinations must be made on
a case-by-case basis. If, at trial, the judge concludes
that there is potential for unfairness or a constitutional
violation, then the judge should not permit course of
conduct charging and should either order that the
charges be separated or give an instruction to the jury
that it must be unanimous as to at least one specific
incident.3 Fourth, if an appellate court, on review, con-
cludes that the trial court should not have permitted
course of conduct charging, either because the defen-
dant’s conduct cannot fairly be characterized as a single
scheme or pattern under the statute at issue, or because
the constitutional rights that underlie the rule against
duplicity were not adequately secured, then the trial
court’s determination is subject to harmless error analy-
sis.
In other words, then, the two primary differences
between my approach and the majority’s approach are
these. First, the majority agrees with those courts that
have concluded that only the legislature can sanction
course of conduct charging, and it must indicate its
intent to do so. Otherwise, course of conduct charging
is constitutionally impermissible. By contrast, I agree
with those courts that have held that, unless otherwise
specified, the legislature presumptively leaves to the
prosecutor the decision of whether course of conduct
charging is appropriate in a given case. This prosecu-
torial discretion is not unbridled. It is subject to the
discretionary judgment of the trial court as to whether
course of conduct charging is fair and reasonable on
the facts of a particular case.4 The discretion of the
prosecutor is cabined not only by the defendant’s right
to a unanimous jury, but also by the other constitutional
considerations, such as due process concerns, that
underlie the prohibition against duplicity.
At the same time, it is important to point out that
prosecutorial discretion in charging is deeply
entrenched in our state’s jurisprudence. Connecticut
has a long history of permitting prosecutors, who are
constitutional officers with broad discretionary author-
ity over charging,5 to make these sorts of decisions.6 The
discretion not to charge multiple, substantially similar
offenses as separate crimes, thereby exposing the
defendant to multifold punishment, often redounds to
the benefit of criminal defendants: their potential sen-
tencing exposure is not as great, and the jury sees only
one charged crime, rather than multiple, separate
charges repeatedly alleging the same violation and thus
suggesting that the defendant must be guilty if there
are so many charges. Under the majority’s new rule, in
the vast majority of cases, when the legislature has
neither sanctioned nor prohibited course of conduct
charging, prosecutors would be stripped of this tradi-
tional authority.
This leads to the second primary difference between
the majority’s approach and the Second Circuit
approach that I would adopt. Under the majority’s
approach, once it is determined that the state has
charged the defendant with violating a single statute
on multiple occasions and that each violation could
have been charged separately, then the charge is duplic-
itous and, necessarily, a violation of the defendant’s
constitutional rights. That is, unless the legislature has
signaled its assent to charging violations of a criminal
statute as a course of conduct, such charging, in the
absence of a bill of particulars or a specific unanimity
instruction, necessarily offends the sixth amendment
to the federal constitution and/or the corresponding
provision of the state constitution. The majority then
would conduct a harmless error analysis to determine
whether the constitutional violation was harmless
beyond a reasonable doubt. By contrast, if the legisla-
ture has sanctioned course of conduct charging, then
the prosecutor can permissibly so charge, and the
majority’s approach appears to stop there—because
there is no constitutional violation to such a charge—
and there is no further evaluation of whether the defen-
dant’s right to a unanimous jury might nevertheless be
infringed by charging multiple violations of a single
statute in one count. Put differently, application of the
majority’s adopted test not only would prohibit course
of conduct charging in cases in which it may be war-
ranted, but also may permit it in cases in which it could
be unconstitutional.
The approach I favor does not reach a constitutional
violation—or discount the possibility of one—as
quickly. The approach I favor recognizes, as I discuss
in part I A of this opinion, that there is an important
distinction between a duplicitous charge, which poten-
tially violates the rules of criminal procedure, and a
conviction that violates the defendant’s rights to due
process or to a unanimous jury verdict. As many of the
federal courts and our sister state courts have recog-
nized, not all duplicitous charges run afoul of the consti-
tution. The duplicity determination is the beginning of
the determination of whether a criminal defendant’s
constitutional rights have been violated, not the end.
In the present case, I would affirm the defendant’s
conviction because charging each alleged crime as an
ongoing course of conduct involved a reasonable exer-
cise of prosecutorial discretion that did not infringe on
the defendant’s constitutional rights, and not because
the legislature specifically identified § 53-21 (a) (2) as
a course of conduct crime. It did not. See part II of this
opinion.
A
There is one point that I should make clear at the
outset because it is key to understanding all of the
varied case law about these issues. That is, there is an
important conceptual distinction between (1) duplici-
tous charging in an indictment or information and (2)
the constitutional right to a unanimous jury verdict. The
prohibition against duplicitous charging, which arose
in the civil context at common law; see part I B of
this opinion; rests in the rules of criminal procedure:
Practice Book § 36-21 in Connecticut,7 rule 8 (a) of
the Federal Rules of Criminal Procedure in the federal
courts,8 and other rules in other states.9 These rules of
practice differ from one jurisdiction to the next, which
means that cases construing and applying one jurisdic-
tion’s rules are not necessarily directly applicable to
another jurisdiction.
The prohibition embodied in these rules, however,
is grounded in several constitutional protections, one
of which is the defendant’s right to a unanimous jury
verdict. This right is principally secured by the sixth
amendment to the federal constitution, as well as by
article first, §§ 8 and 19, of the Connecticut constitu-
tion.10 As I will discuss, different federal courts treat
differently the relationship between the rule against
duplicitous charging and the sixth (and other) amend-
ment rights that underlie that rule. Some deem any
violation of the procedural rules against duplicitous
charging also to be a per se constitutional violation but
then hold that violation harmless if, in fact, the violation
was cured by the trial court’s giving a specific unanimity
instruction or if such an instruction is deemed unneces-
sary.
Other courts, though, follow the conceptually distinct
approach that I favor. They treat violations of the rules
of practice and of the constitution as different—albeit
related—matters.11 The cure for a violation of the rules
against duplicitous pleading is, typically, reformulation
of the indictment, a bill of particulars, and/or appro-
priate jury instructions, not reversal of the conviction.12
A sixth amendment violation, by contrast, will warrant
reversal if it is not deemed harmless.
B
Before I discuss the Second Circuit approach, which
I would adopt, a brief history of these issues may be
instructive. The rules against duplicity (pleading multi-
ple grounds or offenses in the same count) and multi-
plicity (pleading the same ground or offense in multiple
counts) originated at English common law, in the civil
pleading context. See E. Coke, First Part of the Insti-
tutes of the Lawes of England (1628) p. 304. An excep-
tion to Coke’s rule against duplicity came to be recog-
nized for continuing torts, such as ongoing trespass;
for those claims, the plaintiff could ‘‘[lay] the action
with a continuando’’ (another way of saying continuous
course), alleging in a single count that, for example, the
defendant had trespassed continually—on a particular
date and on ‘‘divers days’’ thereafter. 3 W. Blackstone,
Commentaries on the Laws of England (1768) p. 212.
In the nineteenth century, the new American states
were divided over how to apply these common-law
civil rules to criminal prosecutions. Some, including
Connecticut, allowed the state to lay a broad range of
vice-type and scheme-type crimes with a continuando,
charging repeated violations as one continuing offense
or continuing course of conduct, whereas other states
rejected the practice.13
Early on, Connecticut courts recognized that not all
crimes are either exclusively individual act or course of
conduct crimes. Some crimes that were not inherently
continuing offenses could be charged either as individ-
ual acts or with a continuando. See, e.g., State v. Cook,
75 Conn. 267, 268, 53 A. 589 (1902) (prosecutor charged
cruelty to animals both as individual infraction and
with continuando covering three month period). Child
sexual assault is one common example of a crime the
charging of which traditionally has been subject to pros-
ecutorial discretion, both before and after the enact-
ment of § 1-2z. In fact, Connecticut prosecutors have
consistently charged child sexual assault, along with
risk of injury to a child, as a continuing offense. This
has been equally true when the victims provided only
generic testimony as to an ongoing, undifferentiated
pattern of abuse, when they testified in detail as to a
number of specific assaults that were jointly charged
in a single count, and when the testimony included a
blend of the specific and the generic.14
C
With this history in mind, I turn to the law of the
Second Circuit on duplicity and course of conduct
charging. Although the groundwork was laid in earlier
cases, the Second Circuit’s approach to duplicitous
charging generally is traced to Judge Jon O. Newman’s
majority opinion in United States v. Margiotta, 646 F.2d
729 (2d Cir. 1981). In Margiotta, the government
charged the defendant with sending ‘‘ ‘countless’ ’’ mail-
ings, each in violation of the federal mail fraud statute,
18 U.S.C. § 1341 (1976), over a ten year period. Id.,
730–31. The trial court declined to allow the government
to charge multiple violations in a single count, and the
Second Circuit permitted an interlocutory appeal. See
id., 731. The Second Circuit agreed with the defendant
that each mailing would have provided a ‘‘discrete basis
for the imposition of criminal liability’’; (internal quota-
tion marks omitted) id., 732; but saw nothing improper
with the government instead charging the mailings as
one course of conduct when ‘‘the essence of the alleged
wrong [was] the single scheme to defraud . . . .’’ Id.,
733. In reaching this conclusion, the court never quoted
the language of the statute; nor did it suggest that Con-
gress intended the statute to be charged as a course of
conduct crime. Rather, it relied on the general principle
that, ‘‘[i]f the doctrine of duplicity is to be more than
an exercise in mere formalism, it must be invoked only
when an indictment affects the policy considerations
that underlie that doctrine.’’ (Internal quotation marks
omitted.) Id., 732–33.15
The Second Circuit acknowledged that some courts,
such as the United States Court of Appeals for the Fifth
Circuit, follow the approach that any acts that qualify as
separate offenses must be charged in separate counts,
unless the legislature has authorized otherwise. See id.,
733. This is the approach that the majority has adopted
in the present case. The Second Circuit rejected that
approach, however, concluding that ‘‘a single count of
an indictment should not be found impermissibly
duplicitous whenever it contains several allegations
that could have been stated as separate offenses . . .
but only when the failure to do so risks unfairness to
the defendant.’’ (Citation omitted.) Id.
The Second Circuit court in Margiotta further con-
cluded that there was no risk of unfairness to the defen-
dant in that case; quite the contrary. Charging all of the
illegal mailings in one count, rather than in dozens of
separate counts, benefitted the defendant by ‘‘limiting
the maximum penalties [the] defendant [could] face if
convicted of mail fraud and also [by] avoid[ing] the
unfairness of portraying the defendant to the jury as the
perpetrator of [fifty] crimes.’’ Id.; see also, e.g., United
States v. Walker, 254 Fed. Appx. 60, 62 (2d Cir. 2007)
(‘‘[t]he law does not . . . absolutely proscribe duplici-
tous pleading because it recognizes that such an inflexi-
ble rule could inure to defendants’ detriment by requir
[-ing] exposure to cumulative punishments’’ (internal
quotation marks omitted)); State v. Stanley, 161 Conn.
App. 10, 12–14, 125 A.3d 1078 (2015) (defendant was
convicted of 100 counts of criminal violation of protec-
tive order and, accordingly, sentenced to eighteen years
of imprisonment for making repeated phone calls to
former romantic partner), cert. denied, 320 Conn. 918,
131 A.3d 1154 (2016). Finally, the court suggested that
it would not be error to give the jury an instruction
charging only that the jury must unanimously find that
the defendant mailed at least one item in furtherance
of his scheme to defraud, although the Second Circuit
observed that it would not be improper for the trial
court to submit a special interrogatory to identify one or
more specific mailings. See United States v. Margiotta,
supra, 646 F.2d 733.
1
In decisions both prior and subsequent to Margiotta,
the Second Circuit has clarified several aspects of its
duplicitous charging jurisprudence. First, in Margiotta,
the essence of the alleged crime was the defendant’s
insurance fraud scheme, and the multiple mailings were
relevant mostly because they provided the basis for
federal jurisdiction. See id. Subsequent decisions have
made clear that Margiotta applies even when the dis-
tinct violations ‘‘are an inherent part of the alleged
wrong’’ and not merely jurisdictional prerequisites.
(Internal quotation marks omitted.) United States v.
Upton, 856 F. Supp. 727, 741–42 (E.D.N.Y. 1994).
Second, it is now clear that, unless the legislature
clearly directs otherwise, whether violations of a given
criminal statute may be charged as a course of conduct
in a given case is a matter of prosecutorial discretion.16
The Second Circuit and the district courts in that circuit
have permitted duplicitous charging under a broad
array of federal criminal statutes that do not facially
contemplate course of conduct charging, and, in some
instances, they have done so without any discussion17
of whether Congress intended to permit such charging
under the statute.18 These courts have emphasized that,
‘‘under the law of [the Second] Circuit, acts that could
be charged as separate counts of an indictment may
instead be charged in a single count if those acts could
be characterized as part of a single continuing scheme’’;
(internal quotation marks omitted) United States v.
Aracri, 968 F.2d 1512, 1518 (2d Cir. 1992); and that the
decision whether to so charge is a matter of prosecu-
torial discretion.19 In United States v. Moloney, 287 F.3d
236 (2d Cir.), cert. denied, 537 U.S. 951, 123 S. Ct. 416,
154 L. Ed. 2d 297 (2002), the Second Circuit specifically
rejected the view that an indictment that charges a
continuing offense not expressly prohibited by Con-
gress fails to charge a cognizable offense. See id., 240–
41. The court concluded, rather, that violations of any
criminal statute can be charged as a course of conduct,
in the prosecutor’s discretion, so long as the conduct
reasonably can be characterized as part of a common
scheme. See id., 240 (‘‘[i]n response to certain claims
of duplicity, [the Second] [C]ircuit has adopted a gen-
eral rule that criminal charges may aggregate multiple
individual actions that otherwise could be charged as
discrete offenses as long as all of the actions are part
of a single scheme’’ (emphasis added; internal quotation
marks omitted)); see also, e.g., S. Levy, Federal Money
Laundering Regulation: Banking, Corporate & Securi-
ties Compliance (Supp. 2022) § 20.05, p. 20-16 (Second
Circuit follows ‘‘[u]nified [s]cheme [r]ule’’). For this
reason, ‘‘courts in [the Second] Circuit have repeatedly
denied motions to dismiss a count as duplicitous.’’
United States v. Ohle, 678 F. Supp. 2d 215, 222
(S.D.N.Y. 2010).
Of particular relevance to the present appeal, district
courts in the Second Circuit have applied these princi-
ples to indictments alleging the sexual abuse of minors,
allowing prosecutors to charge a course of conduct
even when there was no indication that Congress specif-
ically intended the statutes at issue to be charged in
that manner. For example, in United States v. Vickers,
Docket No. 13-CR-128-A, 2014 WL 1838255 (W.D.N.Y.
May 8, 2014), the court upheld the validity of a single
count indictment charging the defendant, a truck driver,
with having transported a minor across state lines to
engage in illegal sexual activity on multiple dates
between 2000 and 2004, in violation of 18 U.S.C. § 2423
(a). See id., *1–2, *7. The victim told investigators that
the defendant had taken him on approximately fifty
such trips, for only a few of which could he provide
details of the dates, locations, and abuse involved. See
id., *2, *4. Applying Margiotta and its progeny, the court
in Vickers concluded that the indictment was not imper-
missibly duplicitous because the government alleged a
continuing scheme to transport the victim for illicit
sexual purposes. Id., *7.
Third, the Second Circuit has elucidated the process
by which courts should determine, on a case-by-case
basis, whether duplicitous course of conduct charging
represents an abuse of prosecutorial discretion. If a
trial court determines that the series of offenses in
question can fairly and reasonably be characterized as
a cohesive scheme or single course of conduct; see
footnote 4 and part I C 2 of this opinion; the court must
then consider whether charging the offenses in a single
count comports with due process. In United States v.
Olmeda, 461 F.3d 271 (2d Cir. 2006), the Second Circuit
explained that ‘‘[d]uplicitous pleading . . . is not pre-
sumptively invalid’’ but, rather, is objectionable ‘‘only
when [the] challenged indictment affects [the] doc-
trine’s underlying policy concerns . . . .’’ Id., 281. The
constitutional/policy considerations that speak to
whether course of conduct charging is appropriate
include ‘‘(1) avoiding [the] uncertainty of [a] general
guilty verdict by concealing [a] finding of guilty as to
one crime and not guilty as to [an]other, (2) avoiding
[the] risk that jurors may not have been unanimous as
to any one of the crimes charged, (3) assuring [the]
defendant adequate notice of charged crimes, (4) pro-
viding [a] basis for appropriate sentencing, and (5) pro-
viding adequate protection against double jeopardy in
subsequent prosecution[s] . . . .’’ Id.
2
There is one ambiguity in the Second Circuit
approach that warrants special attention. That court
has, in different instances, given the seemingly paradox-
ical guidance that (1) course of conduct charging should
be permitted by the trial court only when it would not
offend the sixth amendment right to a unanimous jury
verdict; see, e.g., id.; but (2) when the prosecutor
charges a course of conduct, jury unanimity is not a
concern because the jury need only agree that the defen-
dant has committed the charged crime, which is the
course of conduct. See, e.g., United States v. Walker,
supra, 254 Fed. Appx. 62–63. This raises the question
of when and how a trial court is to determine whether
course of conduct charging is proper in a particular
case.
The solution to this enigma, the Second Circuit has
suggested, is that multiple violations of a statute can
reasonably and constitutionally be charged in a single
count when the course of conduct forms the ‘‘essence’’
of the alleged criminality. See, e.g., id.; United States
v. Tutino, 883 F.2d 1125, 1141 (2d Cir. 1989), cert.
denied, 493 U.S. 1081, 110 S. Ct. 1139, 107 L. Ed. 2d
1044 (1990), and cert. denied sub nom. Guarino v.
United States, 493 U.S. 1082, 110 S. Ct. 1139, 107 L. Ed.
2d 1044 (1990); see also, e.g., United States v. Tawik,
391 Fed. Appx. 94, 97 (2d Cir. 2010) (‘‘[a]s long as the
essence of the alleged crime is carrying out a single
scheme . . . then aggregation is permissible’’ (internal
quotation marks omitted)). When the statutory lan-
guage is silent on the issue, courts that follow Margiotta
consider the following nonexhaustive list of factors
when evaluating the essence of the allegations against
the defendant: whether the alleged instances of miscon-
duct involved the same defendants, the same victims,
the same (or similar) conduct, at the same location,
inspired by the same motive or purpose; whether the
misconduct took place over a relatively short period of
time or occurred frequently and more or less regularly
over a longer period of time; whether the individual
instances of misconduct can properly and reasonably
be characterized as part of a common scheme or plan;
whether there is considerable generic trial testimony
and other evidence that is focused on the overall course
of misconduct rather than on specific instances;
whether the individual instances of misconduct were
interrelated or interdependent; whether the individual
instances were not subject to unique defenses or types
of proof; whether charging each alleged violation as a
separate count would unnecessarily cumulate charges
and potential criminal liability or render prosecution
impracticable; whether a juror reasonably could con-
sider the individual instances alleged to be incidental
as merely means of accomplishing the overarching
criminal design; and whether the crime is one that fre-
quently is committed as part of a repetitive pattern or
scheme and that historically has been understood and
charged as a course of conduct.
When most of these factors indicate that the essence
of the charged crime is the pattern of misconduct, rather
than a few individual instances thereof, then it will be
reasonable to think of the course of conduct as the
crime at issue, and the sixth amendment does not
require juror unanimity as to any particular instance.
See, e.g., United States v. Davis, 471 F.3d 783, 790–91
(7th Cir. 2006); United States v. Moloney, supra, 287
F.3d 241; Commonwealth v. Casbohm, 94 Mass. App.
613, 619–21, 116 N.E.3d 633 (2018), review denied, 484
Mass. 1101, 141 N.E.3d 910 (2020); State v. Rucker, 752
N.W.2d 538, 548 (Minn. App. 2008), review denied, 2008
Minn. LEXIS 508 (Minn. September 23, 2008).
D
The Second Circuit thus takes a flexible approach
to duplicitous charging, affording the prosecutor the
discretion to charge a course of conduct when that
reasonably comports with the facts of the case and
does not conflict with the stated intent of the legislature,
and then addressing any potential constitutional con-
cerns pragmatically, on a case-by-case basis. I agree
with that approach. As I noted, to the extent that the
law of duplicity encompasses federal constitutional
considerations, this court gives decisions of the Second
Circuit ‘‘particularly persuasive weight in the resolution
of issues of federal law . . . .’’20 (Internal quotation
marks omitted.) St. Juste v. Commissioner of Correc-
tion, 328 Conn. 198, 210, 177 A.3d 1144 (2018). As I
subsequently discuss, I disagree with the majority’s con-
tention that ‘‘the great weight of federal jurisprudence
conflicts with [the views of the Second Circuit in this
respect].’’ (Internal quotation marks omitted.) Part I C
of the majority opinion.
I also believe that the Second Circuit approach is
fully consistent with Connecticut law; the federal and
state constitutions and rules of pleading have compara-
ble provisions, and, although Connecticut has codified
the plain meaning rule; see General Statutes § 1-2z; the
federal courts of appeals—including the Second Cir-
cuit—follow essentially that same rule when they con-
strue statutes. See, e.g., Springfield Hospital, Inc. v.
Guzman, 28 F.4th 403, 422 (2d Cir. 2022). Indeed, they
are bound to do so. See, e.g., Barnhart v. Sigmon Coal
Co., 534 U.S. 438, 450, 122 S. Ct. 941, 151 L. Ed. 2d
908 (2002).
Of course, I agree that the legislature always, ulti-
mately, has the authority to dictate how a criminal stat-
ute may be applied. Under § 1-2z, if the legislature
expressly defines a course of conduct crime, or makes
clear its intent in the legislative history, then there is
no question that it may—or, more likely, must—be so
charged.21 If the legislature expressly prohibits such
charging, then it is not permissible.22 The legislature’s
authority to make that determination is not in dispute
under the Second Circuit approach. See, e.g., United
States v. Moloney, supra, 287 F.3d 240.
The issue before us is how to proceed in the vast
majority of cases, when the legislature has left the ques-
tion open, neither expressly permitting or requiring nor
expressly prohibiting course of conduct charging on
the face of the statute. I agree with the majority that
the legislative history, if it manifests a clear intent one
way or the other, also can be dispositive in this regard.
In most instances, however, there is no reason to think
that legislators even considered the question of course
of conduct charging when enacting any particular stat-
ute, let alone decided to prohibit such charging. As we
have recently observed, ‘‘[o]ften the inquiry [into the
allowable unit of prosecution] produces few if any
enlightening results. Normally these are not problems
that receive explicit legislative consideration.’’23 (Inter-
nal quotation marks omitted.) State v. Ruiz-Pacheco,
336 Conn. 219, 236 n.12, 244 A.3d 908 (2020).
The majority relies on cases such as State v. Cody
M., 337 Conn. 92, 102–103, 106, 259 A.3d 576 (2020),
for the proposition that Connecticut does not apply a
general presumption that a prosecutor has the discre-
tion to charge a crime as a continuing course of conduct.
Of course, until now, we have not had cause to discuss
any such general presumption because, as the majority
emphasizes, until today, this court did not recognize
duplicity challenges based on unanimity of instances.
There was no need or reason to clarify the scope of an
exception to a rule that did not exist.
 More important, though, cases such as Ruiz-Pacheco
and Cody M. involved the issue of multiplicity, an
entirely different legal question.24 As noted, pleadings
can be challenged both for duplicity (charging multiple
offenses in one count) and for multiplicity (charging
one offense in multiple counts). As I discuss in my
concurring and dissenting opinion in State v. Joseph
V., 345 Conn. , , A.3d (2022) (Mullins,
J., concurring in part and dissenting in part), when, as
in State v. Cody M., supra, 337 Conn. 96–97, a defendant
commits a series of acts against a victim on one occa-
sion, and the state charges the series of acts as multiple,
distinct crimes, the court must determine the permissi-
ble minimum unit of prosecution. That is, we must
determine whether the legislature intended to permit
the state to charge each individual act as a distinct
crime when the defendant contends that each act was
merely part of one criminal episode. The answer to that
question says nothing about the question before us in
the present case and in Joseph V., namely, whether the
legislature intended to require that an ongoing series of
violations, committed over many days, each be charged
individually. That is a question that we have never
addressed, and nothing in Connecticut law bars us from
following the Second Circuit approach.
Contrary to the majority’s approach, we must assume
that legislators, when enacting a new criminal statute,
are aware of our state’s long history of affording prose-
cutors broad discretion in the charging of crimes such
as child sexual assault as continuing courses of con-
duct; see footnote 14 of this opinion and accompanying
text; and that they do not intend to intrude on or restrict
that discretion, unless they clearly state so. Indeed, as
I discuss in my concurring and dissenting opinion in
State v. Joseph V., supra, 345 Conn. (Mullins, J.,
concurring in part and dissenting in part), the fact that
the legislature has, in certain instances, expressly pro-
vided either that a particular statute must be charged
as a continuing offense; see, e.g., General Statutes § 53a-
181d (b) (1) and (2); or that it must not be charged as
a continuing offense; see, e.g., General Statutes § 15-
173; strongly supports applying the Second Circuit pre-
sumption that other statutes, which are silent on the
question, can be charged either way under appropriate
circumstances. In short, when the legislature wishes to
speak on the issue, one way or the other, it knows how
to do so.
For all of these reasons, I would adopt the Second
Circuit’s approach to duplicity. It keeps the charging
decision in the hands of the officers who are responsible
for that decision, the prosecutors, and preserves their
authority to bring charges in the manner most consis-
tent with the interests of justice and the facts and cir-
cumstances of the particular case. The rule that the
majority adopts today, by contrast, would undermine
prosecutors’ well established role in the charging pro-
cess in a manner that the federal constitution does not
require and that our state legislature never mandated
or anticipated.
E
It is not only the Second Circuit that has declined to
follow the majority’s approach. Although the majority
repeatedly contends that most federal courts of appeals
and ‘‘ ‘the great weight’ ’’ of federal authority support
its proposed framework, the truth is that at least five
other federal courts of appeals have relied on Margiotta
and embraced the Second Circuit framework, at least
in some instances. That is, they have permitted course
of conduct charging in the absence of any clear manifes-
tation of legislative intent, and they have recognized
that the charging decision falls within the discretion of
the prosecutor, so long as the charge is not unreason-
able and the defendant’s fundamental rights are
respected.25 As has the Second Circuit, those courts of
appeals have applied this approach across a broad range
of statutory crimes, including those involving the sexual
abuse of young children.26
Accordingly, I cannot agree with the majority’s state-
ment that, ‘‘[w]hen a single count does charge the defen-
dant with having violated a single statute in multiple,
separate instances, each of which could establish a
separate violation of the statute, federal courts agree
that such a count is duplicitous.’’ Part I B of the majority
opinion. I cited numerous federal appellate cases,
across the circuits, that expressly say the exact oppo-
site.27
Outside of the United States Courts of Appeals for
the First, Third, Fifth, and Eleventh Circuits, the major-
ity has not identified one case that broadly and unequiv-
ocally adopts its rule that, unless the legislature clearly
permits it, a crime that could be charged as individual
infractions cannot also be charged, in the alternative,
as a continuing course of conduct. Indeed, even among
those circuits, whose approach to duplicity most closely
approximates that of the majority, some cases take a
more flexible approach.28
F
The same is true of sister state courts. Although some
states have adopted an approach similar to the majori-
ty’s approach, allowing course of conduct charging for
a particular statute only when it is clear that the legisla-
ture so intended,29 others favor the more flexible
approach that I have outlined. See, e.g., Cooksey v. State,
359 Md. 1, 18–19, 752 A.2d 606 (2000) (acknowledging
‘‘split of authority’’ in child sexual abuse context and
citing cases).
There is a particular category of criminal cases in
which I believe the approach I favor clearly demon-
strates its superiority. Those cases involve sexual
assault crimes and, more specifically, the repeated sex-
ual abuse of children. Indeed, our sister state courts
have been especially receptive to applying the Second
Circuit approach when it comes to what the California
Supreme Court has dubbed ‘‘resident child molester’’
cases.30 (Internal quotation marks omitted.) People v.
Jones, 51 Cal. 3d 294, 299, 792 P.2d 643, 270 Cal. Rptr.
611 (1990);31 see footnote 32 of this opinion and accom-
panying text. Prosecutors face a unique challenge when
charging a defendant in a case in which the statute at
issue uses language that, on its face, envisions individ-
ual, discrete sexual violations, but, due to the victim’s
young age and the often recurring nature of such abuse,
the victim can testify only (or primarily) that the defen-
dant abused him or her in a particular way and in a
particular location, during a particular span of time,
but cannot provide sufficient detail to identify each
separate instance of abuse. Although federal cases
occasionally address the issue; see footnote 26 of this
opinion; most cases alleging sexual abuse of children
are prosecuted at the state level. It is to these decisions
that we must look for guidance.
Sister state courts have afforded prosecutors broad
latitude as to whether to charge the sexual abuse of
children as discrete violations or as a course of conduct
crime, recognizing the significant challenges involved
in bringing resident child molesters to justice.32 As these
courts have recognized, the state, the victim, and soci-
ety at large all share a compelling interest in prosecuting
an insidious crime—the repeated sexual abuse of young
children. It can be nearly impossible, however, to
charge and prosecute each individual instance of abuse
when a molester has repeatedly assaulted a child,
whose account of the abuse may be the only evidence
of the crimes. Sister state courts have cautioned, as
have we, that a serial abuser should not benefit and
escape justice by virtue of having repeatedly and
secretly assaulted a young victim who, as the only wit-
ness to the abuse, is incapable of testifying as to dates,
times, and other distinguishing details of each inci-
dent.33 See, e.g., State v. Stephen J. R., 309 Conn. 586,
601, 72 A.3d 379 (2013) (‘‘[t]o require [the complainant],
who was approximately seven years old at the time of
the abuse, to recall specific dates or additional distin-
guishing features of each incident would unfairly favor
the defendant for the commission of repetitive crimes
against a child victim’’). These courts thus afford prose-
cutors broad discretion to decide whether course of
conduct charging is appropriate.34 I fear that the
approach the majority takes today does exactly that
which this court, and other state courts, has cautioned
against, by requiring a child who has been repeatedly
sexually assaulted to clearly delineate multiple
instances of abuse and to recall each with specificity.
None of the state cases cited in footnote 32 of this
opinion was decided on the basis of a close parsing of
the statutory language, and none purported to permit
course of conduct charging as a matter of express legis-
lative intent. Rather, the courts simply considered, on
a case-by-case basis, whether such charging comports
with the constitutional and policy considerations that
underlie the doctrine of duplicity.
In short, in my view, the rule that the majority adopts
hamstrings prosecutors, potentially leaving victims,
and, most especially, victims of resident child molest-
ers, without recourse. It places additional, unnecessary
burdens on the legislature, to amend each statute to
expressly authorize course of conduct charging, and on
our trial courts, to manage unnecessarily complex trials
involving, potentially, dozens of similar charges against
the same defendant. And it does as much to penalize as
to protect criminal defendants, by requiring multicount
charging in legitimate course of conduct cases.
II
An additional flaw in the majority’s approach, I
believe, is that it is deceptively difficult to apply. One
might think the opposite would be true. A framework
providing that course of conduct charging is always
permissible when expressly approved by the legislature
and always impermissible when not expressly approved
by the legislature would seem to boast an enviable
simplicity, if nothing else. In reality, however, except
for the small number of statutes for which the legisla-
ture has clearly evidenced its intention one way or the
other, parsing whether each of the countless facially
silent statutes contemplates course of conduct charging
proves to be an exercise in subjectivity, if not futility.
The present appeal is a case in point.35
Section 53-21 (a) provides in relevant part: ‘‘Any per-
son 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 . . . shall be guilty of
. . . a class B felony . . . .’’ The majority readily
acknowledges that there is nothing in the plain language
of § 53-21 (a) (2) that addresses the issue of duplicity
or course of conduct charging. Moreover, it is well
established that each instance of improper intimate con-
tact can be charged as a discrete crime under § 53-21.36
The majority concedes as much.
Because the statute does not facially authorize course
of conduct charging, I turn to the statutory history for
insight into legislative intent on whether such charging
is permissible. I do not read the majority’s opinion to
have identified any statements in the legislative history
that specifically indicate that the legislature intended
§ 53-21 (a) (2) to be chargeable as a continuing course
of conduct crime. My own review of the history also
has not revealed any statements directed to the course
of conduct issue. Rather, I understand the majority sim-
ply to be stating that this court already had interpreted
an earlier version of the risk of injury statute to permit
charging a continuing course of conduct, and that there
is no indication that the legislature, when it amended
the statute in 1995 to add the language that now appears
in subsection (a) (2); see Public Acts 1995, No. 95-142,
§ 1 (P.A. 95-142); intended to change that interpretation.
The majority states that, although ‘‘[i]t is not clear from
the plain language of § 53-21 (a) (2) [whether] multiple,
separate instances of conduct’’ can be charged as a
continuing offense, ‘‘[i]n case law prior to the 1995
amendment . . . this court held that risk of injury to
a child may be charged under a continuing course of
conduct theory.’’ (Citation omitted.) Part II of the major-
ity opinion. The majority then states that the 1995
amendment ‘‘maintained’’ and ‘‘manifestly [did not]
alter’’ our prior interpretations of the statute—when
subsection (a) (2) did not exist—and that ‘‘[t]here is
no indication that the legislature sought to alter the
substance of the crime.’’ Id. So, the issue, ultimately,
is one of legislative acquiescence.
In this case, however, there are two reasons why
the legislative acquiescence argument is particularly
unpersuasive. First, if there was legislative acquies-
cence in this case, it ratified my approach to the law
of duplicity, rather than that of the majority. When we
initially held that risk of injury can be charged as a
course of conduct, we did not reach that conclusion as
a matter of statutory interpretation; nor did we purport
to divine the intent of the legislature. This is a key point.
The case in which this court first recognized that a
version of the risk of injury statute prior to the 1995
amendment could be charged as a continuing course
of conduct crime was State v. Hauck, 172 Conn. 140,
374 A.2d 150 (1976). The defendant in that case, a middle
school teacher, challenged the trial court’s denial of his
motion for a supplemental bill of particulars when the
state charged him with violating General Statutes (Rev.
to 1972) § 53-21 by forcing a student to pose nude for
him on a regular, sometimes weekly, basis ‘‘on or about
divers dates’’ between November 11, 1971, and June,
1972. (Internal quotation marks omitted.) Id., 150; see
also id., 141–42. This court concluded, in affirming the
conviction, that ‘‘[t]he offenses charged . . . were
obviously of a continuing nature’’; id., 150; and its analy-
sis made no reference whatsoever to the statutory lan-
guage, the legislative history of the statute, or any other
indicia of legislative intent. Rather, in deferring to the
trial court’s discretion in allowing course of conduct
charging, this court relied on purely practical considera-
tions: that the charges were ‘‘clearly reasonable’’ in light
of the trial testimony and that ‘‘it would have been
virtually impossible to provide the many specific dates
[on] which the acts constituting the offenses
occurred.’’37 Id., 150–51; see also State v. Spigarolo,
210 Conn. 359, 391, 556 A.2d 112 (reiterating pragmatic
holding of Hauck), cert. denied, 493 U.S. 933, 110 S. Ct.
322, 107 L. Ed. 2d 312 (1989). If the legislature has, in
the intervening years, placed its imprimatur on Hauck,
as the majority suggests, then it has endorsed not a
statutory analysis of the meaning of § 53-21—Hauck
and the other appellate cases that were decided prior
to the 1995 amendment offered no such analysis38—
but, rather, the very framework that I am supporting,
under which the state has the discretion to charge a
course of conduct when appropriate.
Second, because legislators emphasized, in 1995, that
the new language of P.A. 95-142, § 1, which now appears
in subsection (a) (2) of § 53-21, defined a ‘‘new’’ crime;
38 S. Proc., Pt. 5, 1995 Sess., pp. 1766, 1777, remarks
of Senator Thomas F. Upson; the legislative history
itself contradicts the majority’s position. Prior to the
1995 amendment, General Statutes (Rev. to 1995) § 53-
21 provided: ‘‘Any person who wilfully or unlawfully
causes or permits any child under the age of sixteen
years to be placed in such a situation that its life or
limb is endangered, or its health is likely to be injured,
or its morals likely to be impaired, or does any act
likely to impair the health or morals of any such child,
shall be fined not more than five hundred dollars or
imprisoned not more than ten years or both.’’ (Emphasis
added.) In the legislative history of the 1995 amend-
ment, one of the bill’s authors stated that the new lan-
guage prohibiting intimate contact with a child under
the age of sixteen years defined a ‘‘new’’ risk of injury
crime. 38 S. Proc., supra, pp. 1766, 1777, remarks of
Senator Upson. So, there is no reason to think that the
legislature intended prior judicial interpretations of the
old § 53-21, the first part of which (the situation portion)
may have authorized course of conduct charging, to
apply to the newly added provision.39 For these reasons,
I do not find the majority’s duplicity analysis to be
persuasive.
III
In the present case, the application of the approach
that I favor reaches the same result as does the applica-
tion of the majority’s approach but, I think, in a way that
more directly considers and accounts for the various
practical and constitutional interests at stake. To
review, in multiple instances cases, I would adopt a
framework for evaluating duplicity related challenges
by which (1) unless the legislature specifies otherwise,
the prosecutor has the discretion to charge a pattern
of many similar infractions as a single scheme or as a
course of criminal conduct, (2) the trial court should
not permit course of conduct charging if such charging
would be unreasonable or unfair under the circum-
stances or would violate the defendant’s fifth or sixth
amendment (or other constitutional) rights, and (3) if
an appellate court, on review, concludes that the trial
court should not have permitted course of conduct
charging, either because the defendant’s conduct can-
not fairly be characterized as a single scheme or pattern,
or because the constitutional considerations that under-
lie the rule against duplicity are implicated, then the
trial court’s determination is subject to harmless error
analysis.40
Application of this framework to the present case is
a relatively straightforward matter. First, with respect
to the plain language of the statute, I agree with the
majority that the plain language of § 53-21 (a) (2) ‘‘does
not appear to clarify whether the statute criminalizes
a continuing course of conduct or limits its scope to a
single occurrence.’’41 Part II of the majority opinion. In
addition, as I discussed in part II of this opinion, nothing
in the legislative history suggests that the legislature
resolved—or considered—the course of conduct ques-
tion one way or the other when drafting the statute.
Course of conduct charging is, therefore, left to the
discretion of the prosecutor.
Second, I have little trouble concluding that the vic-
tims’ allegations in the present case reasonably can
be characterized as an ongoing pattern or scheme of
misconduct, such that course of conduct charging was
a reasonable and proper exercise of prosecutorial dis-
cretion. Both N and T, for example, alleged that the
defendant touched their breasts on a regular basis,
between 2005 and 2007, at his residence in Lisbon. They
did not report the abuse until years later, though, and,
with a few notable exceptions, they could not recall
the specific dates or other details of the abuse.
Third, and most important for present purposes, is the
question of whether charging the defendant’s various
abuses of each victim as a course of conduct violated
his sixth amendment right to a unanimous jury verdict.
The defendant contends that, insofar as the victims
identified in counts one (N) and six (T) offered both
generic testimony as to repeated improper contact,
such as breast touching, as well as more detailed
accounts of some specific incidents of abuse, it is
impossible to know whether the jury unanimously
agreed that he committed any one particular act of risk
of injury against each victim.42
As I previously discussed, the Second Circuit has
long held that the sixth amendment right to a unanimous
jury verdict is not implicated when a crime is properly
charged as a course of conduct. The principal rationale
for this rule is that the crime with which the defendant
is being charged in these cases is, in essence, the course
of conduct itself. See, e.g., State v. Hauck, supra, 172
Conn. 151 (series of acts committed during seven month
period, considered ‘‘in toto,’’ constituted risk of injury).
As I noted, however, this principle applies only when
the essence of the charged wrongdoing can fairly be
said to be a scheme or course of criminal conduct. In
the present case, I have no difficulty concluding that
the misconduct alleged in counts one and six was well
suited to course of conduct charging. Each count
charged that a single individual, the defendant, abused
a single victim. Both victims primarily testified to a
pattern of undifferentiated conduct—unwanted touch-
ing of their breasts—which they said occurred numer-
ous times and on a regular basis, over the course of
years, when they were visiting the defendant’s home in
Lisbon. There is no suggestion in the record that any
of the individual assaults were inspired by anything
other than the lecherous motives that one might expect,
and the victims’ testimony that the defendant and his
wife expressed regular appreciation for their breasts
suggests that the misconduct reasonably can be charac-
terized as part of an ongoing pattern or scheme. The
primary evidence for both the specific incidents and
the general course of conduct alleged was simply the
victims’ own testimony, and the defenses offered were
equally generic. Although defense counsel cross-exam-
ined the victims regarding some of the specific details
of the incidents that they described, the defense as to
each of those incidents—as well as to all of the generic
abuse testimony—was the same: a blanket denial of
the accusations, an attack on the victims’ credibility,
and a theory that the victims had fabricated their stories
to retaliate, after a family squabble.
In addition, the sexual abuse of children is a crime
that is commonly understood to occur on an ongoing,
repetitive basis, and there is compelling reason to afford
prosecutors discretion to charge such offenses as
courses of conduct. Cases that involve the sexual abuse
of children, regardless of whether the complainants in
those cases give only generic testimony or also describe
a few particular incidents in addition to a generic pat-
tern of abuse, typically turn on the general credibility
of the complainants, any other witnesses, and, if they
choose to testify, the defendants. To apply strict specific
unanimity requirements in such cases would place an
unwarranted burden on young victims of sexual assault,
essentially penalizing them for providing whatever lim-
ited, specific details they might be able to recall to
corroborate their stories. For this reason, as the United
States Supreme Court explained in Richardson v.
United States, 526 U.S. 813, 119 S. Ct. 1707, 143 L. Ed.
2d 985 (1999), ‘‘[s]tate courts interpreting [sexual abuse
of a minor] statutes have sometimes permitted jury
disagreement about a specific underlying criminal inci-
dent insisting only [on] proof of a continuous course
of conduct in violation of the law. . . . The state prac-
tice may well respond to special difficulties of proving
individual underlying criminal acts . . . .’’43 (Citations
omitted; internal quotation marks omitted.) Id., 821.
That is to say, courts have been loath to force young
victims of sexual abuse to choose between either (1)
testifying as to each individual incident of abuse with
sufficient precision to allow the state to prove it beyond
a reasonable doubt or (2) confining their testimony
entirely to generic assertions and suppressing any sup-
porting details that they are able to recall. For these
reasons, I do not believe that the trial court abused its
discretion in permitting the state to charge all of the
alleged incidents of inappropriate conduct against N
and T in counts one and six, respectively.
Fourth, there is no plausible claim—and the defen-
dant does not contend—that the defendant’s due pro-
cess rights were violated when the state charged his
alleged assaults on each victim as one course of con-
duct. The defendant received adequate notice of the
crimes charged, as the state’s long form substitute infor-
mation identified each victim by her initials and her
date of birth and accused the defendant of violating
§ 53-21 (a) (2), at his home in Lisbon, beginning ‘‘in
or about 2005’’ and continuing through various dates
between 2006 and 2010, depending on when each victim
reached the age of sixteen. Nothing more was required.
Nor did the charges compromise the defendant’s ability
to present a defense, as in cases in which a defendant
claims to have a partial alibi or when the charged con-
duct would not have constituted a crime during some
portion of the alleged course of conduct. In the present
case, the defendant readily conceded that he was regu-
larly present with the victims at his Lisbon home during
the years in question; his defense was that the victims’
accusations were simply false. Finally, there is no dou-
ble jeopardy problem with course of conduct charging
because the defendant cannot subsequently be retried
for any similar conduct that occurred during the time
period at issue. Accordingly, I agree with the majority’s
ultimate conclusion that the defendant’s conviction
should be upheld.
IV
For all of the foregoing reasons, I believe that the
present case is a quintessential example of why prose-
cutors must be given the discretion to charge the ongo-
ing sexual abuse of young children as a single course
of conduct. Permitting such charging, when fair and
appropriate, respects the broad authority traditionally
conferred on prosecutors to levy the appropriate
charges, according to the circumstances of each case.
It ensures that young, repeat victims of these heinous
crimes can have their day in court and not be shut out
because they cannot recall, with specificity, particular
incidents from among an ongoing pattern of repeated
abuse. But, importantly, my view considers the interests
of defendants as well, avoiding needless repetitive
charging, limiting the maximum jail time and criminal
jeopardy to which defendants are exposed, and recog-
nizing that defendants’ sixth amendment rights must
be considered even when course of conduct charging
is appropriate. For these reasons, I respectfully concur
in the judgment.
1
Although § 53-21 has been amended several times since the events under-
lying the present appeal; see Public Acts 2015, No. 15-205, § 11; Public Acts
2013, No. 13-297, § 1; Public Acts 2007, No. 07-143, § 4; those amendments
have no bearing on the merits of this appeal. In the interest of simplicity,
unless otherwise noted, I refer to the current revision of the statute.
2
See, e.g., United States v. Schlei, 122 F.3d 944, 979 (11th Cir. 1997)
(‘‘[s]everal [federal courts of appeals] have rejected the [Fifth Circuit’s]
analysis’’), cert. denied, 523 U.S. 1077, 118 S. Ct. 1523, 140 L. Ed. 2d 674
(1998). As I discuss hereinafter, the duplicity framework that the majority
has adopted largely tracks the approach followed by the Fifth Circuit.
3
Under the Second Circuit approach, specific unanimity instructions gen-
erally are not required; see, e.g., United States v. Natelli, 527 F.2d 311, 325
(2d Cir. 1975), cert. denied, 425 U.S. 934, 96 S. Ct. 1663, 48 L. Ed. 2d 175
(1976); especially when multiple instances are properly charged as a course
of conduct. See, e.g., United States v. Walker, 254 Fed. Appx. 60, 62–63 (2d
Cir. 2007). This court has followed a similar approach. See, e.g., State v.
Sorabella, 277 Conn. 155, 206–207, 891 A.2d 897 (instruction not required
when state charged promotion of obscene materials as course of conduct),
cert. denied, 549 U.S. 821, 127 S. Ct. 131, 166 L. Ed. 2d 36 (2006); State v.
Spigarolo, 210 Conn. 359, 383, 391, 556 A.2d 112 (risk of injury), cert. denied,
493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989).
Nevertheless, in the vast majority of cases, specific unanimity instructions
will be advisable when the prosecutor charges multiple instances. Stated
more directly, when the prosecutor opts to charge multiple instances, it
would be ‘‘sound practice’’ for the trial court to give a specific unanimity
instruction so as to protect the defendant’s right to jury unanimity. United
States v. Natelli, supra, 527 F.2d 325 (although specific unanimity instruction
is not always required, charging multiple instances in one count without
instruction runs risk of violating jury unanimity requirement). When the
prosecutor has charged a course of conduct crime, the trial court may
tailor the instruction so as to ensure jury unanimity under the facts and
circumstances of the case. See, e.g., United States v. Prieto, 812 F.3d 6,
11–12 (1st Cir.), cert. denied, U.S. , 137 S. Ct. 127, 196 L. Ed. 2d 100
(2016); United States v. Margiotta, 646 F.2d 729, 733 (2d Cir. 1981). Ulti-
mately, though, I agree with the majority that the trial court’s failure to
give such an instruction in the present case did not run afoul of the sixth
amendment.
4
Compare, e.g., United States v. Girard, 601 F.2d 69, 72 (2d Cir.) (acts
could reasonably be understood as part of single scheme), cert. denied, 444
U.S. 871, 100 S. Ct. 148, 62 L. Ed. 2d 96 (1979), with United States v. Tanner,
471 F.2d 128, 139 (7th Cir.) (acts could not be so charged), cert. denied,
409 U.S. 949, 93 S. Ct. 269, 34 L. Ed. 2d 220 (1972). Tanner, on which the
majority relies, is an excellent example of a decision in which the prosecutors
were deemed to have abused their discretion in charging a single course
of conduct. Although the United States Court of Appeals for the Seventh
Circuit emphasized the scope and importance of prosecutorial discretion
in this area; see United States v. Tanner, supra, 138–39; the court held that
it was an abuse of that discretion to charge, in a single count, multiple
illegal acts of transporting explosives, when those acts were committed by
different defendants over the course of four months. See id., 139. Although
the majority is correct that the court in Tanner considered the breadth of
the statutory language, it ultimately resolved the case by indicating that, as
the Ninth Circuit held in Cohen v. United States, 378 F.2d 751, 754 (9th
Cir.), cert. denied, 389 U.S. 897, 88 S. Ct. 217, 19 L. Ed. 2d 215 (1967), which
was not a statutory interpretation case, the government has discretion—
albeit cabined discretion—in determining whether to charge a series of
violations as a single scheme. See United States v. Tanner, supra, 138–39.
5
See, e.g., Conn. Const., amend. XXIII; General Statutes § 51-277 (a);
Massameno v. Statewide Grievance Committee, 234 Conn. 539, 563, 574–76,
663 A.2d 317 (1995).
6
As I explain in part I B, Connecticut prosecutors have been charging
crimes as continuing offenses since the nineteenth century, long before the
adoption of the state constitution in 1965, and they have been exercising
their discretion to charge crimes such as sexual assault, which are not
inherently or even primarily ongoing crimes, as course of conduct crimes
for more than seventy years. I agree with the majority that prosecutors’
authority to charge in this manner is not expressly conferred by any constitu-
tional or statutory provision, and I do not mean to imply that it is the result
of a constitutional grant of authority. It is, in my view, an ancient common-
law pleading tradition, one that the legislature is well aware of and continues
to implicitly approve. Nevertheless, I noted the authority conferred on Con-
necticut prosecutors by statute and the constitution because I believe that
their discretion over course of conduct charging decisions is fully consistent
with that broad authority.
7
Practice Book § 36-21 provides: ‘‘Two or more offenses may be charged in
the same information in a separate count for each offense for any defendant.’’
(Emphasis added.)
8
Rule 8 (a) of the Federal Rules of Criminal Procedure provides: ‘‘The
indictment or information may charge a defendant in separate counts with
2 or more offenses if the offenses charged—whether felonies or misdemean-
ors or both—are of the same or similar character, or are based on the same
act or transaction, or are connected with or constitute parts of a common
scheme or plan.’’ (Emphasis added.) It has been broadly accepted, however,
that charging a course of conduct crime in a single count does not violate
the rule. See, e.g., United States v. Conlon, 661 F.2d 235, 239 (D.C. Cir. 1981)
(‘‘[p]erusal of many cases in which error was predicated on the duplicity of
an indictment reveals that an exception [to rule 8 (a)] exists for a continuing
scheme or a course of conduct [that] violates but one criminal statutory
provision’’), cert. denied, 454 U.S. 1149, 102 S. Ct. 1015, 71 L. Ed. 2d 304 (1982).
9
See, e.g., N.Y. Crim. Proc. Law § 200.30 (1) (McKinney 2007).
10
As the majority points out, the defendant has not separately briefed a
state constitutional claim before this court. See footnote 5 of the major-
ity opinion.
11
See, e.g., United States v. Jaynes, 75 F.3d 1493, 1502 n.7 (10th Cir. 1996);
see also, e.g., United States v. Correa-Ventura, 6 F.3d 1070, 1081 (5th Cir.
1993) (‘‘[T]he issues of duplicity and unanimity are evaluated at different
procedural stages of the criminal proceedings—duplicity is generally
reviewed during the pretrial phase, whereas unanimity must be determined
after all the evidence has been introduced at trial. For this reason, the
inquiry as to whether offenses are distinct for purposes of duplicity is
not identical to the analysis employed in determining whether the actions
charged are so dissimilar that unanimity is required.’’); Lane v. Graham,
Docket No. 9:14-cv-01261-JKS, 2016 WL 154111, *10 (N.D.N.Y. January 12,
2016) (‘‘[T]he [United States] Supreme Court has never held that an indict-
ment containing duplicitous counts violates the [d]ue [p]rocess [c]lause.
. . . The Second Circuit has further indicated that duplicitous pleadings
are not even presumptively invalid in and of themselves.’’ (Citation omit-
ted.)); Jones v. Lee, Docket No. 10 Civ. 7915 (SAS), 2013 WL 3514436, *7
(S.D.N.Y. July 12, 2013) (‘‘Procedural rules create the prohibition of duplici-
tous counts—there is no constitutional right against duplicity per se. . . .
However, a duplicitous count may violate a defendant’s constitutional rights
. . . if it violates the [s]ixth [amendment] . . . .’’ (Footnotes omitted; inter-
nal quotation marks omitted.)), appeal dismissed, United States Court of
Appeals for the Second Circuit, Docket No. 13-2970 (October 26, 2013).
12
See, e.g., United States v. Ramirez-Martinez, 273 F.3d 903, 915 (9th
Cir. 2001) (‘‘[t]he rules about . . . duplicity are pleading rules, the violation
of which is not fatal to an indictment’’ (internal quotation marks omitted))
(overruled on other grounds by United States v. Lopez, 484 F.3d 1186 (9th
Cir. 2007)), cert. denied, 537 U.S. 930, 123 S. Ct. 330, 154 L. Ed. 2d 226 (2002);
United States v. Droms, 566 F.2d 361, 363 n.1 (2d Cir. 1977) (‘‘[d]uplicity,
of course, is only a pleading rule and would in no event be fatal to the
count’’); Reno v. United States, 317 F.2d 499, 502 (5th Cir.) (‘‘[d]uplicity is
not a fatal defect’’ (internal quotation marks omitted)), cert. denied, 375
U.S. 828, 84 S. Ct. 72, 11 L. Ed. 2d 60 (1963).
13
Compare State v. Bosworth, 54 Conn. 1, 2, 4 A. 248 (1886) (‘‘all offenses
involving continuous action, and which may be continued from day to day,
may be so alleged’’), and Commonwealth v. Pray, 30 Mass. 359, 362 (1833)
(‘‘[whenever] the crime consists of a series of acts, they need not be specially
described, for it is not each or all the acts of themselves, but the practice or
habit which produces the principal evil and constitutes the crime’’ (emphasis
omitted)), with State v. Munger, 15 Vt. 290, 296–97 (1843) (continuando
must be disregarded as ‘‘surplusage’’).
I do not suggest that Bosworth stood for the proposition that any crime
can be charged by continuando, only that Connecticut has long taken a
more expansive approach than have some other states to course of con-
duct charging.
14
See, e.g., State v. Silver, 139 Conn. 234, 247, 93 A.2d 154 (1952) (O’Sulli-
van, J., concurring) (state charged that, ‘‘ ‘at the [c]ity of Hartford on divers
dates, the [defendant] did commit an indecent assault [on] a minor’ ’’); State
v. Saraceno, 15 Conn. App. 222, 225 n.1, 229, 545 A.2d 1116 (finding no
constitutional violation when state charged defendant with committing sec-
ond degree sexual assault against minor by intercourse ‘‘ ‘on divers uncertain
dates, primarily on weekends, between August 1980 and August 1983,’ ’’
because ‘‘[e]ach count, although alleging repeated commissions of a crime,
charged only a single set of essential elements comprising the offense’’),
cert. denied, 209 Conn. 823, 552 A.2d 431 (1988), and cert. denied, 209 Conn.
824, 552 A.2d 432 (1988); State v. Mancinone, 15 Conn. App. 251, 256 n.5,
545 A.2d 1131 (state charged second degree sexual assault, by intercourse
with minors, ‘‘ ‘on divers dates between August 1983 and November 1984’ ’’),
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); State v. Snook, 210 Conn. 244, 265,
555 A.2d 390 (state charged second and third degree sexual assault when
defendant engaged in sexual intercourse with victim ‘‘on ‘divers days
between June, 1979, and January, 1984’ ’’), cert. denied, 492 U.S. 924, 109
S. Ct. 3258, 106 L. Ed. 2d 603 (1989); State v. Osborn, 41 Conn. App. 287,
295, 676 A.2d 399 (1996) (charging attempted first degree sexual assault of
child ‘‘on diverse dates between June 20, 1986, and June 20, 1991’’); State
v. Vumback, 263 Conn. 215, 217, 219, 819 A.2d 250 (2003) (charging first
and third degree sexual assault of child, as well as risk of injury to child,
‘‘on divers dates between approximately June, 1990 through July, 1996’’
(internal quotation marks omitted)); State v. William B., 76 Conn. App. 730,
735, 822 A.2d 265 (in addition to risk of injury, state charged defendant
with first degree sexual assault, specifically alleging that, ‘‘on divers dates
between 1990 and 1994, as a continuing course of conduct, the defendant
engaged in sexual intercourse with the victim, who was younger than thir-
teen’’ (emphasis added)), cert. denied, 264 Conn. 918, 828 A.2d 618 (2003);
State v. Romero, 269 Conn. 481, 483–84, 504, 849 A.2d 760 (2004) (state
charged that first degree sexual assaults of ten year old boy took place
‘‘ ‘on diverse dates between October, 1999 [and] March, 2000’ ’’); State v.
Marcelino S., 118 Conn. App. 589, 593, 984 A.2d 1148 (2009) (state charged
fourth degree sexual assault of child and risk of injury to child ‘‘on divers
dates, between August 2003 and April 2005’’ (emphasis omitted; internal
quotation marks omitted)), cert. denied, 295 Conn. 904, 988 A.2d 879 (2010);
State v. Jessie L. C., 148 Conn. App. 216, 218–19, 227, 231, 84 A.3d 936 (state
charged defendant with second and fourth degree sexual assault ‘‘ ‘on diverse
dates between’ ’’ 2002 and July of 2009, after complainant ‘‘gave a detailed
account of several specific incidents of sexual assault’’ and, in addition,
alleged that defendant assaulted her two to three times per week at ages
eleven and twelve, and at least daily between ages of thirteen and sixteen,
under at least eleven different factual scenarios, encompassing approxi-
mately 7575 distinct incidents of abuse), cert. denied, 311 Conn. 937, 88
A.3d 551 (2014); State v. Vere C., 152 Conn. App. 486, 508–10, 98 A.3d 884
(charging first degree sexual assault, as well as risk of injury to child, ‘‘ ‘on
diverse dates between’ ’’ 2005 and 2010 based on allegations that defendant
assaulted victim approximately ten times, in different residences and differ-
ent physical positions), cert. denied, 314 Conn. 944, 102 A.3d 1116 (2014);
State v. Michael D., 153 Conn. App. 296, 303, 322, 101 A.3d 298 (state charged
first degree sexual assault and risk of injury to child, basing each charge
on three different assaults of child, over three year period, each of which
was factually distinct), cert. denied, 314 Conn. 951, 103 A.3d 978 (2014);
State v. Joseph V., 196 Conn. App. 712, 733, 230 A.3d 644 (2020) (see compan-
ion case, State v. Joseph V., 345 Conn. , , A.3d (2022)).
The majority’s view, apparently, is that this practice, which is founded in
ancient common law and has been memorialized in our state’s published
appellate decisions for more than seventy years, has always been impermissi-
ble under (unstated) Connecticut law, but that the legislature has simply
never addressed the rogue charging practice. The majority places it in the
same category as unpublished trial court decisions and municipal zoning
regulations, which fly below the legislature’s radar. The more reasonable
explanation, I would submit, is that the legislature, which is presumed to
be aware of the published decisions of this court and the Appellate Court,
is well aware of the practice and has opted not to abrogate the common
law and to undermine the state’s ability to prosecute resident child molesters.
Cf. Pacific Ins. Co., Ltd. v. Champion Steel, LLC, 323 Conn. 254, 264, 146
A.3d 975 (2016) (‘‘if the legislature wishes to abrogate the common law, it
must do so expressly’’).
15
Contrary to the majority’s suggestion, I am fully aware that 18 U.S.C.
§ 1341 (1976) prohibits the use of the mailings in connection with a ‘‘scheme
or artifice to defraud,’’ and, therefore, it might be argued that the language
of the statute itself contemplates course of conduct charging. As I discuss
hereinafter, the Second Circuit and other courts following Margiotta have
subsequently applied the same framework in the absence of any clear mani-
festation of legislative approval or intent, even in cases in which the statutory
language does not prohibit or envision a course of conduct. See footnotes
18 and 25 of this opinion.
16
Of course, if a statute expressly barred course of conduct charging,
then that legislative determination would be binding. Rarely, however, is
that the case.
17
I underscored some federal cases that permit course of conduct charging
without first analyzing the statutory language. The point of these cases is
not that the statutory language is irrelevant, or that statutory analysis is not
appropriate. The point is simply that a statute that is facially silent as to
course of conduct charging presumptively permits it. In Connecticut, we
still may need to go through the legislative history in order to ascertain
legislative intent.
18
See, e.g., United States v. Anson, 304 Fed. Appx. 1, 4 (2d Cir. 2008)
(transportation and receipt of child pornography, in violation of 18 U.S.C.
§ 2252A), cert. denied, 556 U.S. 1160, 129 S. Ct. 1687, 173 L. Ed. 2d 1050
(2009); United States v. Tutino, 883 F.2d 1125, 1128, 1141 (2d Cir. 1989)
(distribution of heroin, in violation of 21 U.S.C. § 841), cert. denied, 493 U.S.
1081, 110 S. Ct. 1139, 107 L. Ed. 2d 1044 (1990), and cert. denied sub nom.
Guarino v. United States, 493 U.S. 1082, 110 S. Ct. 1139, 107 L. Ed. 2d 1044
(1990); United States v. Girard, 601 F.2d 69, 70, 72 (2d Cir.) (unauthorized
sale of government property, in violation of 18 U.S.C. § 641), cert. denied,
444 U.S. 871, 100 S. Ct. 148, 62 L. Ed. 2d 96 (1979); United States v. Natelli,
527 F.2d 311, 314, 325 (2d Cir. 1975) (making material false and misleading
statements in Securities and Exchange Commission proxy statement, in
violation of 15 U.S.C. § 78ff (a)), cert. denied, 425 U.S. 934, 96 S. Ct. 1663,
48 L. Ed. 2d 175 (1976); Lindsey v. Heath, Docket No. 12-CV-2150 (ERK),
2015 WL 3849939, *1, *3 (E.D.N.Y. June 22, 2015) (burglary, in violation of
New York law); United States v. Jordan, Docket No. 08-CR-124 (DLC),
2009 WL 2999753, *6 (S.D.N.Y. August 21, 2009) (communicating kidnapping
threats, in violation of 18 U.S.C. § 875 (c)); United States v. Sattar, 272 F.
Supp. 2d 348, 353, 382 (S.D.N.Y. 2003) (providing support to foreign terrorist
organization, in violation of 18 U.S.C. § 2339B); United States v. Martino,
Docket No. S1-00-CR-389 (RCC), 2000 WL 1843233, *2, *4 (S.D.N.Y. December
14, 2000) (tax evasion and subscribing to false returns, in violation of 26
U.S.C. §§ 7201 and 7206); United States v. Gordon, 990 F. Supp. 171, 177–78
(E.D.N.Y. 1998) (money laundering, in violation of 18 U.S.C. § 1956); United
States v. Mango, Docket No. 96-CR-327, 1997 WL 222367, *1, *6 (N.D.N.Y.
May 1, 1997) (violation of permit requirements imposed by Clean Water Act,
33 U.S.C. § 1319); United States v. Weissman, Docket No. S2-94-CR-760
(CSH), 1996 WL 742844, *1, *25–26 (S.D.N.Y. December 20, 1996) (obstruc-
tion of justice, in violation of 18 U.S.C. § 1505).
19
See, e.g., United States v. Mango, Docket No. 96-CR-327, 1997 WL 222367,
*6 (N.D.N.Y. May 1, 1997) (‘‘Certainly, each violation . . . could have been
charged in a separate count. However, under the law of [the Second] Circuit,
the United States need not do so if it chooses a reasonable method of
aggregating the offenses charged.’’).
20
Notably, the Appellate Court has, on at least one occasion, adopted the
Second Circuit approach and permitted course of conduct charging in the
context of a sexual assault charge. See State v. Saraceno, 15 Conn. App.
222, 228–32, 545 A.2d 1116, cert. denied, 209 Conn. 823, 552 A.2d 431 (1988),
and cert. denied, 209 Conn. 824, 552 A.2d 432 (1988). I disagree with the
majority’s contention that Saraceno is not relevant authority merely because
this court had not yet formally articulated a jurisprudence of unanimity as
to instances. It seems clear to me that, in Saraceno, the Appellate Court
adopted the Second Circuit’s approach to duplicity because it relied on the
same federal cases that I would follow, such as United States v. Margiotta,
supra, 646 F.2d 733, and United States v. Shorter, 608 F. Supp. 871, 879–80
(D.D.C. 1985), aff’d, 809 F.2d 54 (D.C. Cir.), cert. denied, 484 U.S. 817, 108
S. Ct. 71, 98 L. Ed. 2d 35 (1987), as well as the decision of this court in
State v. Bosworth, 54 Conn. 1, 2, 4 A. 248 (1886). See State v. Saraceno,
supra, 228–31. Indeed, the majority quotes Saraceno at some length as an
accurate statement of the governing law.
21
See, e.g., General Statutes § 53a-181d (b) (1) and (2) (stalking in second
degree); see also, e.g., General Statutes § 53-142k (b) (1) (organized retail
theft).
22
When courts and commentators provide examples of that type of law,
they often point to statutes that impose a distinct penalty for each day that
the statute is violated. A Connecticut statute of this kind would be General
Statutes § 15-173, which, for docking violations, imposes a daily fine of up
to $10,000 (or $25,000 for first violations committed wilfully or with criminal
negligence, and $50,000 for subsequent criminal violations); see General
Statutes § 15-173 (b) and (c); and provides expressly that ‘‘[e]ach violation
shall be a separate and distinct offense, and, in the case of a continuing
violation, each day’s continuance thereof shall be deemed to be a separate
and distinct offense.’’ General Statutes § 15-173 (b). Another statute that
uses essentially the same language is General Statutes § 22a-226 (a) (govern-
ing civil violations of solid waste management law).
23
Contrary to the majority’s suggestion, I would not require any ‘‘talis-
manic’’ use of language such as ‘‘continuous course of conduct’’ or ‘‘each
single act’’ by the legislature before concluding that it had spoken definitively
to these issues. (Internal quotation marks omitted.) Part II of the majority
opinion. The majority, however, goes to the opposite extreme, perceiving
meanings and restrictions in the legislative language for which there is
simply no textual support.
24
Although the majority is correct that this court did not find that any
presumption was applicable in Cody M., in light of the clear statutory lan-
guage, this court has applied a presumption in favor of continuous course
of conduct charging in closely related cases, such as Ruiz-Pacheco. See
State v. Ruiz-Pacheco, supra, 336 Conn. 237 (‘‘[a]pplying the rule of lenity
here means interpreting assault to be a [course of conduct] offense’’ (internal
quotation marks omitted)).
25
See, e.g., United States v. Davis, supra, 471 F.3d 790–91 (‘‘[When] the
indictment fairly interpreted alleges a continuing course of conduct, during
a discrete period of time, the indictment is not prejudicially duplicitous.
. . . The [charging] decision is left, at least initially, to the discretion of the
prosecution.’’ (Citation omitted; emphasis added; internal quotation marks
omitted.)); United States v. Denton, 146 Fed. Appx. 888, 890 (9th Cir. 2005)
(extortion indictment was not duplicitous, notwithstanding that defendant
made threats over course of fifty-five days, because threats were made
against single victim, pursuant to one plan, and dangers of duplicity were
not present); see also, e.g., United States v. Kamalu, 298 Fed. Appx. 251,
252 (4th Cir. 2008) (government permissibly charged corruptly obstructing
administration of Internal Revenue Code, on behalf of numerous clients
over multiple years, as one single, continuing scheme); United States v.
Klat, 156 F.3d 1258, 1266–67 (D.C. Cir. 1998) (single count charging threats
against public official over six month period was not duplicitous and failure
to give specific unanimity instruction was not plain error); United States
v. Saunders, 641 F.2d 659, 661–62, 665 (9th Cir. 1980) (single count charging
violation of Mann Act, 18 U.S.C. § 2421 et seq., prohibiting transportation
of women in interstate commerce for purposes of prostitution, was not
duplicitous as continuing course of conduct, without statutory analysis and
despite fact that multiple interstate crossings over course of three months
could have been charged as separate offenses), cert. denied, 452 U.S. 918,
101 S. Ct. 3055, 69 L. Ed. 2d 422 (1981); United States v. Alsobrook, 620 F.2d
139, 142 (6th Cir.) (‘‘The determination of whether a group of acts represents
a single, continuing scheme or a set of separate and distinct offenses is a
difficult one that must be left at least initially to the discretion of the
prosecution. This discretion, however, is not without limits. . . . Ulti-
mately, the indictment must be measured in terms of whether it exposes
the defendant to any of the inherent dangers of a duplicitous indictment.’’
(Citation omitted; emphasis added.)), cert. denied, 449 U.S. 843, 101 S. Ct.
124, 66 L. Ed. 2d 51 (1980); Cohen v. United States, 378 F.2d 751, 754 (9th
Cir.) (concluding, without analysis of statutory language, that, although
each violation of 18 U.S.C. § 1084 (a) could have been charged as separate
violation, prosecutor was free to charge series of violations as single infrac-
tion), cert. denied, 389 U.S. 897, 88 S. Ct. 217, 19 L. Ed. 2d 215 (1967); United
States v. Shorter, 608 F. Supp. 871, 876 (D.D.C. 1985) (‘‘[t]he grand jury,
presumably under the guidance of the prosecutor, may charge few or many
counts depending [on] a variety of factors, and, [in the absence of] oppression
or impermissible duplicity, the decision with respect thereto is within the
realm of grand jury and prosecutorial discretion’’ (emphasis added)), aff’d,
809 F.2d 54 (D.C. Cir.), cert. denied, 484 U.S. 817, 108 S. Ct. 71, 98 L. Ed.
2d 35 (1987).
The majority’s efforts to distinguish these cases are unpersuasive. I do
not dispute that the statutory language can be relevant. My point is simply
that the prosecutor has charging discretion when the statute does not
expressly prohibit it. Although the majority is correct that these decisions,
unlike Moloney, do not expressly adopt a general rule regarding course of
conduct charging, the fairest reading of these decisions is that they are, in
fact, applying the Second Circuit approach. As to the majority’s contention
that none of these cases so much as mentions a presumption of prosecutorial
discretion in these matters, the highlighted language plainly belies that claim.
In support of its contention that the Ninth Circuit follows a different
approach than it did in Cohen, Saunders, and Denton, the majority relies
on United States v. Newson, 534 Fed. Appx. 604 (9th Cir. 2013). But Newson
is a one page, summary affirmance, in which the court merely stated, in
dictum, that, ‘‘[o]f course, jurors cannot be instructed that a defendant can
be convicted of an offense if he committed, for example, crime A or crime
B, unless they are also instructed that there must be unanimous agreement
on which crime it was.’’ Id., 605. Newson says nothing about course of
conduct charging, which was not at issue, and certainly does not purport to
overturn more than forty years of the Ninth Circuit’s duplicity jurisprudence.
Likewise, the Seventh Circuit case on which the majority relies, United
States v. Fawley, 137 F.3d 458, 471 (7th Cir. 1998), is readily distinguishable,
insofar as the analysis in that case is specific to the law of perjury and relies
on United States v. Gipson, 553 F.2d 453, 458–59 (5th Cir. 1977), which, the
majority agrees, does not govern these types of cases.
26
See, e.g., Dyer v. Farris, 787 Fed. Appx. 485, 494–95 (10th Cir. 2019)
(applying Oklahoma law and holding that charging alleged acts of child
sexual abuse committed during six month period as single transaction did
not violate clearly established federal law), cert. denied, U.S. , 140
S. Ct. 1157, 206 L. Ed. 2d 207 (2020); Ives v. Boone, 101 Fed. Appx. 274, 294
(10th Cir.) (similar), cert. denied, 543 U.S. 1001, 125 S. Ct. 609, 160 L. Ed.
2d 460 (2004), and cert. denied, 543 U.S. 1026, 125 S. Ct. 669, 160 L. Ed. 2d
505 (2004); United States v. Klade, Docket No. 95-10213, 1996 WL 115291,
*1 (9th Cir. March 14, 1996) (decision without published opinion, 79 F.3d
1155) (rejecting duplicity claim as to alleged violations of 18 U.S.C. § 2241
(c), which prohibits aggravated sexual abuse of children, and explaining
that, ‘‘[i]n reviewing an indictment for duplicity, our task is not to review the
evidence presented at trial to determine whether it would support charging
several crimes rather than one, but rather solely to assess whether the
indictment itself can be read to charge only one violation to each count’’
(internal quotation marks omitted)), cert. denied, 519 U.S. 850, 117 S. Ct.
141, 136 L. Ed. 2d 88 (1996).
27
See, e.g., United States v. Bowser, Docket No. 96-50889, 1997 WL 802374,
*1 (5th Cir. November 19, 1997) (decision without published opinion, 132
F.3d 1454) (‘‘the indictment [was] not duplicitous even though each bad act
alone could constitute an offense’’); United States v. Berardi, 675 F.2d 894,
898 (7th Cir. 1982) (‘‘two or more acts, each one of which would constitute
an offense standing alone, may be joined in a single count without offending
the rule against duplicity’’); United States v. Alsobrook, 620 F.2d 139, 142–43
(6th Cir.) (concluding that indictment was not duplicitous, even though
offenses could have been charged separately), cert. denied, 449 U.S. 843,
101 S. Ct. 124, 66 L. Ed. 2d 51 (1980); Cohen v. United States, 378 F.2d 751,
754 (9th Cir.) (count was not duplicitous, ‘‘even though each [infraction]
might have been alleged as a separate violation’’), cert. denied, 389 U.S. 897,
88 S. Ct. 217, 19 L. Ed. 2d 215 (1967).
I do not disagree that, as a general matter, duplicity is defined as charging
multiple offenses in a single count. What I take issue with is the majority’s
repeated assertion that a majority of the federal courts of appeals have
adopted a strict approach to course of conduct charging, making such
charging a constitutional violation unless expressly authorized by statute
or unless a bill of particulars was filed or the court gave a specific unanimity
instruction.
28
See, e.g., United States v. Prieto, 812 F.3d 6, 9, 11 (1st Cir.) (rejecting
duplicity challenge, without considering statutory language, because govern-
ment permissibly assumed burden of charging multiple violations of federal
mail fraud statute as one unified scheme), cert. denied, U.S. , 137
S. Ct. 127, 196 L. Ed. 2d 100 (2016); United States v. Moyer, 674 F.3d
192, 204–205 (3d Cir.) (when statutory language was silent, count charging
falsification of multiple police reports was not duplicitous because ‘‘the
government has discretion to draw [t]he line between multiple offenses and
multiple means to the commission of a single continuing offense’’ (emphasis
added; internal quotation marks omitted)), cert. denied, 568 U.S. 846, 133
S. Ct. 165, 184 L. Ed. 2d 82 (2012), and cert. denied sub nom. Nestor v.
United States, 568 U.S. 1143, 133 S. Ct. 979, 184 L. Ed. 2d 760 (2013); United
States v. Root, 585 F.3d 145, 150–53 (3d Cir. 2009) (when statutory language
was silent on issue, government has discretion to charge tax evasion covering
several years as single course of conduct when underlying basis of indict-
ment is consistent, long-term pattern of criminal conduct); United States
v. Baytank (Houston), Inc., 934 F.2d 599, 609 (5th Cir. 1991) (‘‘[n]otwith-
standing that a defendant’s actions, charged in a single count, could have
been charged as separate violations, nevertheless a single count may be
used [when] those actions represent a single, continuing scheme, provided
the indictment (1) notifies the defendant adequately of the charges against
him; (2) does not subject the defendant to double jeopardy; (3) does not
permit prejudicial evidentiary rulings at trial; and (4) does not allow the
defendant to be convicted by a nonunanimous jury verdict’’ (internal quota-
tion marks omitted)).
The United States Court of Appeals for the Eleventh Circuit, although
indicating that it might have followed a different approach as a matter of
first impression, thought that it was compelled to adhere to Fifth Circuit
precedent because of the common lineage of those courts. See United States
v. Schlei, 122 F.3d 944, 979 (11th Cir. 1997) (‘‘Several [federal courts of
appeals] have rejected the [Fifth Circuit’s] analysis . . . . Although the
rationale of [an alternative approach] may be tempting, we are bound by
the decision of the former Fifth Circuit . . . .’’ (Citations omitted; internal
quotation marks omitted.)), cert. denied, 523 U.S. 1077, 118 S. Ct. 1523, 140
L. Ed. 2d 674 (1998).
29
See, e.g., State v. Paulsen, 143 N.H. 447, 449–51, 726 A.2d 902 (1999);
People v. Algarin, 166 App. Div. 2d 287, 287–88, 560 N.Y.S.2d 771 (1990);
State v. Saluter, 715 A.2d 1250, 1253–55 (R.I. 1998).
30
The phrase ‘‘resident child molester’’ describes cases in which the perpe-
trator lives with or has regular access to the child and, thus, is able to
repeatedly sexually abuse the victim in such a way that there are unlikely
to be third-party witnesses and the child is unlikely to be able to recall the
specific dates or details of individual assaults.
31
In State v. Stephen J. R., 309 Conn. 586, 595–601, 72 A.3d 379 (2013), this
court cited Jones with approval, albeit in the converse context of determining
when, and to what extent, generic child abuse testimony can support multi-
ple, independent counts. Although recognizing the need to secure a defen-
dant’s due process rights; see id., 595–97; we have repeatedly emphasized
the need for flexibility in light of the unique challenges involved in prosecut-
ing cases of child sexual abuse.
32
See, e.g., Dell’Orfano v. State, 616 So. 2d 33, 35 (Fla. 1993) (rejecting
bright-line rule in light of state’s strong interest in eliminating sexual abuse
of children and children’s frequent inability to recall details of abuse); Geiser
v. State, 83 So. 3d 834, 835 (Fla. App. 2011) (‘‘in a case of ongoing sexual
abuse of a child, [in which] the child is unable to remember the specific
dates on which he or she was abused, the allegation that the act occurred
on one or more occasions is not, per se, duplicitous’’ (internal quotation
marks omitted)); State v. Generazio, 691 So. 2d 609, 611 (Fla. App. 1997)
(‘‘[w]ith the notable exception of New York, the courts of [other] states
have recognized that child molestation is, by its very nature, a continuous
course of criminality’’); Commonwealth v. King, 387 Mass. 464, 467–68, 441
N.E.2d 248 (1982) (rejecting duplicity challenge in child sexual abuse case
because course of conduct charge was permissible); Commonwealth v.
Joyce, Docket No. 16-P-1531, 2018 WL 3468447, *3 (Mass. App. July 19, 2018)
(decision without published opinion, 93 Mass. App. 1120, 107 N.E.3d 1256)
(applying King), review denied, 482 Mass. 1107, 130 N.E.3d 166 (2019); State
v. Altgilbers, 109 N.M. 453, 465, 786 P.2d 680 (App. 1989) (‘‘courts have
deferred to the prosecutor’s charging pattern in such circumstances’’), cert.
denied, 109 N.M. 419, 785 P.2d 1038 (1990); State v. Cruz, Docket No. A-1-
CA-35877, 2019 WL 5095831, *3 (N.M. App. September 30, 2019) (applying
Altgilbers), cert. denied, New Mexico Supreme Court, Docket No. S-1-SC-
37991 (December 12, 2019); see also, e.g., State v. Hoban, 738 S.W.2d 536,
541 (Mo. App. 1987) (‘‘[l]eeway is necessary in charging sexual abuse and
sexual intercourse with minors because children who are the victims of
abuse may find it difficult to recall precisely the dates of offenses against
them months or even years after the offense has occurred’’); Huddleston
v. State, 695 P.2d 8, 10–11 (Okla. Crim. App. 1985) (‘‘when a child of tender
years is under the exclusive domination of one parent for a definite and
certain period of time and submits to sexual acts at that parent’s demand,
the separate acts of abuse become one transaction’’); State v. Petrich, 101
Wn. 2d 566, 572, 683 P.2d 173 (1984) (giving prosecutor discretion as to
whether to charge individual instances or course of conduct in incest cases
but requiring specific unanimity instruction), overruled in part on other
grounds by State v. Kitchen, 110 Wn. 2d 403, 756 P.2d 105 (1988); State v.
Lomagro, 113 Wis. 2d 582, 589, 335 N.W.2d 583 (1983) (‘‘[w]e . . . adopt
[the] flexible rule that it is initially up to the state to determine the appropriate
charging unit for a particular criminal episode’’).
33
See, e.g., People v. Jones, supra, 51 Cal. 3d 305 (‘‘any constitutional
principles or evidentiary standards we develop should attempt to [ensure]
that the resident child molester is not immunized from substantial criminal
liability merely because he has repeatedly molested his victim over an
extended period of time’’); State v. Cruz, Docket No. A-1-CA-35877, 2019
WL 5095831, *2 (N.M. App. September 30, 2019) (‘‘[Y]oung children cannot
be held to an adult’s ability to comprehend and recall dates and other
specifics. The predictable limitations of young witnesses should not be
turned into a reason to prevent prosecution of their abusers.’’ (Internal
quotation marks omitted.)), cert. denied, New Mexico Supreme Court,
Docket No. S-1-SC-37991 (December 12, 2019).
34
See, e.g., State v. Generazio, 691 So. 2d 609, 611 (Fla. App. 1997) (‘‘other
state courts . . . have allowed the matter of how to charge these sensitive
and [difficult to define] acts of sexual abuse to rest in the discretion of
prosecutors’’); State v. Altgilbers, 109 N.M. 453, 465, 786 P.2d 680 (App.
1989) (‘‘[c]ourts almost uniformly grant prosecutors discretion in how they
frame the charges [of sexual misconduct against children]’’), cert. denied,
109 N.M. 419, 785 P.2d 1038 (1990).
Although the majority is correct that whatever rules we adopt will poten-
tially apply to most crimes, the practical reality is that the scope of the
continuing offense doctrine is most frequently implicated, and most hotly
debated, in cases that involve child sexual abuse. As a practical matter,
regardless of which approach we adopt, course of conduct charging will
not be appropriate for the vast majority of criminal prosecutions.
35
As I demonstrate in my concurring and dissenting opinion in the compan-
ion case, State v. Joseph V., supra, 345 Conn. (Mullins, J., concurring
in part and dissenting in part), the flaw latent in the majority’s approach
comes into sharper contrast when we compare the disparate treatment that
fundamentally comparable statutes—such as child sexual assault and risk
of injury—receive under that duplicity framework.
36
See, e.g., State v. Kulmac, 230 Conn. 43, 68–69, 644 A.2d 887 (1994)
(‘‘Each separate act of . . . risk of injury constituted a separate offense.
. . . Each act can constitutionally support a separate conviction for risk of
injury.’’ (Citations omitted; footnote omitted.)); State v. Snook, 210 Conn.
244, 261–62, 555 A.2d 390 (rejecting argument that § 53-21, as charged,
proscribed continuing course of conduct such that each separate act could
not be charged as separate violation), cert. denied, 492 U.S. 924, 109 S. Ct.
3258, 106 L. Ed. 2d 603 (1989).
37
The court also cited the general principle that, when ‘‘time is not of the
essence or gist of the offense, the precise time at which it is charged to
have been committed is not material.’’ State v. Hauck, supra, 172 Conn. 150.
38
The majority addresses Hauck in a footnote, contending that, ‘‘to the
extent Hauck was ambiguous regarding its reliance on the language of the
statute,’’ cases decided decades later clarified that, in Hauck, we were really
relying on the ‘‘situation’’ language in the statute. (Internal quotation marks
omitted.) Footnote 26 of the majority opinion. I disagree. First, we were
not ‘‘ambiguous’’ in Hauck; surely, the fact that we never mentioned the
language of the statute, and instead provided policy rationales in support
of our decision, is good evidence that Hauck was not a statutory interpreta-
tion case. Second, there is no suggestion in Hauck that the defendant was
prosecuted for placing the victim in a dangerous situation, rather than for
subjecting her to sexual acts likely to impair her morals. Indeed, the word
‘‘situation’’ appears nowhere in the decision. Third, the majority’s suggestion
that Hauck’s successor cases, such as Spigarolo, approved course of conduct
charging on the basis of the ‘‘situation’’ language in § 53-21 is misleading.
As in Hauck, this court relied not on that statutory language but on practical
considerations; see, e.g., State v. Spigarolo, supra, 210 Conn. 391 (‘‘[b]ecause
the state was unable to specify with greater precision the times of the alleged
incidents, it necessarily proceeded under a theory that the defendant’s con-
duct was in the nature of a continuing offense’’); as well on the conceptual
distinctness principles that the majority repudiates. See, e.g., id., 391–92.
39
The majority relies on language in the legislative history reflecting the
fact that, prior to the 1995 amendment of § 53-21, that statute, which prohib-
ited both acts likely to impair the health or morals of children and the placing
of children in dangerous or unwholesome situations, did not distinguish
between sexual and nonsexual risk of injury. Legislators divided the statute
into sexual and nonsexual parts at that time, so that individuals convicted of
inappropriate sexual contact with children could be subjected to mandatory
minimum sentences and sex offender registration requirements. All this is
true. But it provides little support for the majority’s position. The bill’s
sponsor indicated that the legislature was not merely separating out sexual
from nonsexual harms to children but was making a ‘‘change in the definition
of risk of injury . . . so that the offense can be more carefully delineated.’’
38 S. Proc., supra, pp. 1769–70, remarks of Senator Martin M. Looney. In
addition, unlike the original statute, which is now subsection (a) (1), the
sexual misconduct component of the statute, subsection (a) (2), makes no
mention of situations, only of specific acts. The fact that the legislature
expressly prohibited both dangerous situations and inappropriate acts in
subsection (a) (1), but only inappropriate sexual acts in subsection (a) (2),
cannot have been accidental. See, e.g., Rutter v. Janis, 334 Conn. 722, 739,
224 A.3d 525 (2020).
To be clear, I agree with the majority that course of conduct charging is
permissible under § 53-21 (a) (2). I just do not perceive anything in the plain
language of the statute or the legislative history that resolves, or even
contemplates, the issue, one way or the other. I conclude that, as with most
criminal statutes that are silent on this issue, the legislature has left the
charging of these crimes to the discretion of the prosecutor, subject always
to judicial supervision.
40
See, e.g., United States v. Webster, 231 Fed. Appx. 606, 607 (9th Cir. 2007)
(even if it was assumed, arguendo, that failure to give specific unanimity
instruction was error in view of specific facts of case, error was harmless
because evidence of guilt was overwhelming).
Note that, even when course of conduct charging is unsuitable, I would
conclude that duplicitous charging represents a violation of the rules of
criminal procedure and not a per se constitutional violation. In practice,
however, in most cases in which the multiple violations charged in one
count cannot reasonably be characterized as part of a single scheme or
plan, the defendant’s sixth amendment rights will be violated in the absence
of a specific unanimity instruction or election by the state to proceed only
on one allegation.
41
Compare statutes in which a legislature expressly authorizes course of
conduct charging, such as § 53a-181d (b), which provides in relevant part:
‘‘A person is guilty of stalking in the second degree when:
‘‘(1) Such person knowingly engages in a course of conduct directed at
or concerning a specific person . . . .’’
Section 53a-181d (a) (1) provides in relevant part that ‘‘ ‘[c]ourse of con-
duct’ means two or more acts . . . .’’
42
S, the victim of the charges in count five, claimed only that the defendant
touched her inappropriately in a series of interactions on one summer
evening after her eighth grade year. I agree with the majority that there is
no unanimity problem with respect to count five because, among other
things, the jury reasonably could have found that the testimony related to
one ongoing incident of abuse. See, e.g., Steele v. State, 523 S.W.2d 685, 687
(Tex. Crim. App. 1975); State v. Lomagro, 113 Wis. 2d 582, 594–95, 598, 335
N.W.2d 583 (1983).
43
Although the sixth amendment right to a unanimous jury was not yet
fully incorporated when Richardson was decided, the federal courts have
not questioned this analysis in the wake of Ramos v. Louisiana, U.S.
, 140 S. Ct. 1390, 1397, 206 L. Ed. 2d 583 (2020).