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STATE OF CONNECTICUT v. DOUGLAS C., JR.*
(SC 20456)
Robinson, C. J., and McDonald, D’Auria,
Mullins, Ecker and Keller, Js.
Argued November 15, 2021—officially released December, 13, 2022**
Procedural History
Substitute information charging the defendant with
five counts of the crime of risk of injury to a child and
with one count of the crime of sexual assault in the
second degree, brought to the Superior Court in the
judicial district of New London and tried to the jury
before Jongbloed, J.; thereafter, the court granted the
defendant’s motion for a judgment of acquittal as to
the charge of sexual assault in the second degree; ver-
dict and judgment of guilty of five counts of risk of
injury to a child, from which the defendant appealed
to the Appellate Court, Alvord, Prescott and Sullivan,
Js., which affirmed the trial court’s judgment, and the
defendant, on the granting of certification, appealed to
this court. Affirmed.
Dina S. Fisher, assigned counsel, for the appellant
(defendant).
Michele C. Lukban, senior assistant state’s attorney,
with whom, on the brief, were Michael L. Regan, former
state’s attorney, and Theresa Ferryman, senior assis-
tant state’s attorney, for the appellee (state).
Opinion
D’AURIA, J. It is well established that a criminal infor-
mation is duplicitous1 when it charges the defendant
in a single count with two or more distinct and separate
criminal offenses, thereby implicating the defendant’s
constitutional right to jury unanimity. What is not clear,
and what we must decide in this certified appeal, is
whether a defendant charged in a single count with a
single statutory violation faces a duplicitous informa-
tion when the evidence at trial supports multiple, sepa-
rate incidents of conduct, each of which could indepen-
dently establish a violation of the charged statute. We
conclude as a matter of federal law that such a count
is duplicitous and, if not cured by a bill of particulars
or a specific unanimity instruction, violates the defen-
dant’s constitutional right to jury unanimity, thereby
requiring reversal of the defendant’s conviction if this
duplicity creates the risk that the conviction will result
from different jurors concluding that the defendant
committed different criminal acts.
The defendant, Douglas C., Jr., appeals from the
Appellate Court’s judgment upholding his conviction,
after a jury trial, of five counts of risk of injury to a
child in violation of General Statutes § 53-21 (a) (2).2
The defendant claims that counts one, five, and six
were duplicitous because each count charged him with
a single violation of § 53-21 (a) (2), despite evidence at
trial of multiple, separate incidents of conduct. As a
result, he argues that the trial court improperly declined
to give the jury a specific unanimity instruction as to
these counts. We disagree and, accordingly, affirm the
judgment of the Appellate Court.
The jury reasonably could have found the following
facts. The defendant had sexual and indecent contact
with the intimate parts of five female children—N, C,
O, S and T—on various dates while they were under
the age of sixteen. State v. Douglas C., 195 Conn. App.
728, 731, 227 A.3d 532 (2020). The five children would
often be in the defendant’s presence at the numerous
gatherings he had at his home in Lisbon. Id. At these
gatherings, the defendant would serve them alcohol,
although they were under the legal age to consume
alcoholic beverages. Id., 731–32. The children also
would be in the defendant’s presence when babysitting
his own children at his home or on other occasions.
Id. When the defendant was in the company of the
children, he had contact with their intimate parts on
multiple occasions. Id.
Relevant to this appeal, on multiple occasions
between 2005 and January 8, 2007, the defendant
touched N’s breasts. This occurred with frequency
when N was at the defendant’s residence, which
occurred every weekend for years. Because of the fre-
quency of this contact, N could not recall specific dates
or incidents, with the exception of the first time the
defendant ever touched her breasts—in a car after get-
ting fast food—and the one and only time that the defen-
dant touched her vagina—when he performed oral sex
on her—although she could not recall the dates with
any specificity. Additionally, during a single evening
on a date between 2005 and September 15, 2008, the
defendant touched S’s vagina multiple times and made
contact with her breasts. Specifically, after the defen-
dant provided her with alcohol, S was running up and
down a hill in the defendant’s backyard. She fell twice,
and, each time, as the defendant helped S to her feet,
he touched her intimate parts—the first time he helped
her up, he touched her vagina, and the second time
he helped her up, he grabbed her breasts. After the
defendant’s wife called S and the defendant to come
inside, the defendant provided S with more alcohol and
sent her to bed. A few minutes later, the defendant
entered the room where S was sleeping, lied down in
bed with her, and touched her vagina twice. Finally, on
multiple occasions between 2005 through October 23,
2007, the defendant touched T’s breasts. This occurred
with such regularity that T could not recall specific
dates or incidents, with the exception of one specific
incident. Specifically, she was present when the defen-
dant performed oral sex on N, and, during this incident,
the defendant touched her breasts, but she could not
recall the date of that incident.
The five minor victims did not disclose the defen-
dant’s inappropriate contact with their intimate parts
until years later. The defendant subsequently was
arrested and charged with five separate counts of risk
of injury to a child in violation of § 53-21 (a) (2), with
each count involving a different child. In addition, he
was charged with one count of sexual assault in the
second degree in violation of General Statutes § 53a-71
(a) (3), in relation to N, but the trial court granted the
defendant’s motion for a judgment of acquittal as to
this count.3
At trial, the state offered the testimony of N, S and
T, as detailed previously, to establish that, on multiple
occasions, the defendant had contact with their inti-
mate parts. As a result, defense counsel requested that
the court provide a specific unanimity instruction to
the jury on counts one, three, four, five, and six. He
argued that the evidence showed there were discrete
incidents, not a continuing course of conduct, and thus
‘‘the danger that arises if the jury isn’t instructed that
[it has] to be unanimous on at least one of those events
for each of the complainants with respect to each count
is that we could imagine, easily imagine, a situation in
which a certain number of jurors may believe beyond
a reasonable doubt that, you know, one of those
described events happened, and other jurors may not
believe that that particular event happened, whereas
another set of jurors may believe that a second event,
as described by the complaining witnesses, happened
beyond a reasonable doubt but doesn’t agree with the
first, you know, three jurors as to one of the other
events.’’ The prosecutor agreed that a specific unanim-
ity instruction should be given as to count four, which
charged the defendant with both having had contact
with the intimate parts of O and subjecting O to contact
with his intimate parts but objected to the court’s giving
a specific unanimity instruction on the other counts
because there was testimony that ‘‘this happened all
the time,’’ every time the five children saw the defen-
dant. The court agreed that it would provide a specific
unanimity instruction as to count four but not as to
the other counts because they did not involve multiple
statutory subsections.
During closing argument, regarding multiple inci-
dents of the defendant’s having touched each child’s
intimate parts, the prosecutor argued that, ‘‘[b]ecause
of the nature of the allegations here—the state is permit-
ted to charge in this fashion—it is impossible for the
state, the state contends, to prove individual episodes
through the course of this period of time—so that, if
you were to consider the evidence and decide that an
incident of sexual contact occurred within this time
period, and you’re convinced beyond a reasonable
doubt that at least one episode occurred, you would
find the defendant guilty. . . . This is not a case that
involves an episode that happened one evening with
crime tape around it. It’s about a period of time in which
the defendant had access to these young women and
in which he had sexual contact with them. That’s the
state’s contention.’’ More specifically, the prosecutor
argued that the children had testified that this touching
occurred regularly any time they were with the defen-
dant.
In response, defense counsel, in closing, argued that
the children had fabricated their testimony and focused
also on whether there was reasonable doubt that the
children were under the age of sixteen at the time of
the alleged incidents, as required by § 53-21 (a) (2).
In rebuttal, the prosecutor again emphasized that this
conduct did not occur on a single occasion but that the
defendant continuously engaged in this inappropriate
touching ‘‘weekend after weekend . . . .’’
When instructing the jury, the trial court included
only a general unanimity charge.4 The jury returned a
guilty verdict on counts one, three, four, five, and six.
The court imposed a total effective sentence of eighteen
years of incarceration, execution suspended after ten
years, followed by ten years of probation.
The defendant appealed to the Appellate Court,
claiming that he was deprived of his constitutional right
to a unanimous jury verdict because the trial court
improperly denied his request for a specific unanimity
instruction as to counts one, three, five, and six.5 State
v. Douglas C., supra, 195 Conn. App. 745. Addressing
this claim, the Appellate Court held that, under govern-
ing case law from this state, a specific unanimity
instruction was not required because unanimity con-
cerns arise only when the state charges the defendant
in a single count with having violated multiple statutes,
statutory subsections, or statutory clauses. Id., 752. The
Appellate Court stated that unanimity issues do not
arise when a defendant is charged in a single count
with violating a single statute, statutory subsection, or
statutory clause on multiple occasions. Id., 754. As a
result, the Appellate Court held that, because the state
charged the defendant under each count with having
violated only a single statutory subsection, the defen-
dant’s right to jury unanimity was not violated. The
defendant sought certification to appeal to this court,
which we granted.
The defendant claims that counts one, five, and six
were duplicitous because each count charged him with
a single violation of § 53-21 (a) (2) but that there was
evidence presented of multiple, distinct acts. According
to the defendant, because the counts at issue were
premised on these multiple acts, only the conceptual
distinction portion of the test for unanimity announced
in State v. Famiglietti, 219 Conn. 605, 619–20, 595 A.2d
306 (1991), which followed the test detailed in United
States v. Gipson, 553 F.2d 453 (5th Cir. 1977), applies
to his claim.6 Under this modified version of the Gipson
test, the defendant argues, counts one, five, and six are
duplicitous. Although we agree with the defendant that
claims of unanimity as to multiple, separate instances
of conduct, which the defendant refers to as multiple
acts, are analyzed under a different test than claims of
unanimity as to elements, we disagree with both the
test he urges this court to apply and the outcome under
the proper test.
I
The defendant argues that his right to jury unanimity
was violated because each risk of injury count was
premised on multiple, separate incidents of criminal
conduct. In making this argument, he asserts that a
different standard applies to his claim than to unanimity
claims that involve a single count alleging the violation
of multiple statutes or statutory subsections. We thus
begin by determining whether there are different kinds
of unanimity claims and, if so, the legal test applicable
to the defendant’s unanimity claim. We conclude that
there are two distinct kinds of unanimity claims—una-
nimity as to elements and unanimity as to instances of
conduct—and that different tests apply to these claims.
In determining the proper test for analyzing the defen-
dant’s claim, it is useful to begin with a review of the
definition of a ‘‘duplicitous’’ count and the principles
underpinning the federal right to a unanimous jury ver-
dict. From there, we synthesize the case law from the
federal courts of appeals, which recognizes that duplici-
tous indictments may implicate unanimity principles
in two distinct ways: unanimity as to elements and
unanimity as to instances of conduct. Because of the
unique nature of these two unanimity issues, federal
courts have applied different tests to these distinct cir-
cumstances to determine whether a defendant’s right
to jury unanimity has been violated. Until today, courts
of this state have not recognized this distinction. We
now conform our case law to this well established fed-
eral jurisprudence.
A
‘‘Duplicity occurs when two or more offenses are
charged in a single count of the accusatory instrument.
. . . [A] single count is not duplicitous merely because
it contains several allegations that could have been
stated as separate offenses. . . . Rather, such a count
is . . . duplicitous [only when] the policy considera-
tions underlying the doctrine are implicated. . . .
These [considerations] include avoiding the uncertainty
of whether a general verdict of guilty conceals a finding
of guilty as to one crime and a finding of not guilty as
to another, avoiding the risk that the jurors may not
have been unanimous as to any one of the crimes
charged, assuring the defendant adequate notice, pro-
viding the basis for appropriate sentencing, and pro-
tecting against double jeopardy in a subsequent prose-
cution.’’ (Citations omitted; internal quotation marks
omitted.) State v. Saraceno, 15 Conn. App. 222, 228–29,
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); see also United States v. Jaynes, 75 F.3d
1493, 1502 n.7 (10th Cir. 1996); United States v. Brow-
ning, Inc., 572 F.2d 720, 725 (10th Cir.), cert. denied,
439 U.S. 822, 99 S. Ct. 88, 58 L. Ed. 2d 114 (1978). In
the present case, the defendant argues only that the
allegedly duplicitous counts implicate his right to a
unanimous jury verdict. A duplicitous information, how-
ever, may be cured either by a bill of particulars or a
specific unanimity instruction. See, e.g., State v. Conley,
31 Conn. App. 548, 558, 627 A.2d 436 (when count of
information is duplicitous, ‘‘defendant’s recourse is to
file a motion for a bill of particulars’’), cert. denied, 227
Conn. 907, 632 A.2d 696 (1993); State v. Markham, 12
Conn. App. 306, 311, 530 A.2d 660 (1987) (same); see
also United States v. Newson, 534 Fed. Appx. 604, 604–
605 (9th Cir. 2013) (specific unanimity instruction can
cure juror confusion as to which crime defendant is
alleged to have committed); United States v. White, 766
F. Supp. 873, 893 (E.D. Wn. 1991) (bill of particulars
rendered moot defendant’s claim that count of indict-
ment was duplicitous). Only in the absence of such
remedies does a duplicitous count violate a defendant’s
right to jury unanimity.7 See part I B of this opinion.
The defendant argues that, because the information
was duplicitous, the trial court erroneously denied his
request for both a bill of particulars and a specific
unanimity instruction and that this error resulted in a
verdict that violated his right to jury unanimity.
Although we generally review the denial of a motion
for a bill of particulars for abuse of discretion; see, e.g.,
State v. Vumback, 263 Conn. 215, 221, 819 A.2d 250
(2003); because this claim is premised on an alleged
infringement of the defendant’s constitutional rights,
our review is plenary. See, e.g., State v. Jodi D., 340
Conn. 463, 476, 264 A.3d 509 (2021) (constitutional issue
presents legal question subject to de novo review); see
also United States v. Newell, 658 F.3d 1, 20 (1st Cir.),
cert. denied, 565 U.S. 955, 132 S. Ct. 430, 181 L. Ed. 2d
280 (2011), and cert. denied sub nom. Parisi v. United
States, 565 U.S. 1137, 132 S. Ct. 1069, 181 L. Ed. 2d
783 (2012).
The United States Supreme Court recently detailed
the history of the federal constitutional right to jury
unanimity: ‘‘The [s]ixth [a]mendment promises that ‘[i]n
all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury
of the [s]tate and district wherein the crime shall have
been committed, which district shall have been pre-
viously ascertained by law.’ The [a]mendment goes on
to preserve other rights for criminal defendants but
says nothing else about what a ‘trial by an impartial
jury’ entails.’’ Ramos v. Louisiana, U.S. , 140 S.
Ct. 1390, 1395, 206 L. Ed. 2d 583 (2020). Although the
sixth amendment says nothing about the need for a
unanimous verdict, the court has noted that ‘‘[t]he text
and structure of the [c]onstitution clearly suggest that
the term ‘trial by an impartial jury’ carried with it some
meaning about the content and requirements of a jury
trial.’’ (Emphasis omitted.) Id. ‘‘One of these require-
ments was unanimity. Wherever we might look to deter-
mine what the term ‘trial by an impartial jury trial’ meant
at the time of the [s]ixth [a]mendment’s adoption—
whether it’s the common law, state practices in the
founding era, or opinions and treatises written soon
afterward—the answer is unmistakable. A jury must
reach a unanimous verdict in order to convict.’’ Id.8
This constitutional requirement has come to apply
equally to state and federal criminal trials. See id., 1397.
Specifically, in Duncan v. Louisiana, 391 U.S. 145, 88
S. Ct. 1444, 20 L. Ed. 2d 491 (1968), the United States
Supreme Court held that the right to a trial by jury
guaranteed by the sixth amendment applies to ‘‘serious
criminal cases’’ tried in state court.9 Id., 156. Subse-
quently, in Burch v. Louisiana, 441 U.S. 130, 99 S. Ct.
1623, 60 L. Ed. 2d 96 (1979), the court held that the
sixth amendment requires a six person jury in state
court to be unanimous before finding a defendant guilty
of a ‘‘nonpetty offense . . . .’’ Id., 134. Most recently,
in Ramos, the court clarified that the sixth amendment
requires a jury in a state court to be unanimous before
finding a criminal defendant guilty of a ‘‘serious
offense.’’10 Ramos v. Louisiana, supra, 140 S. Ct. 1394;
see Edwards v. Vannoy, U.S , 141 S. Ct. 1547,
1551, 209 L. Ed. 2d 651 (2021). Although there has been
a good deal of litigation involving what constitutes a
‘‘serious criminal case,’’ a ‘‘nonpetty offense’’ and a
‘‘serious offense,’’ it is not disputed that this case quali-
fies and that the right to jury unanimity applies.
B
Although the federal constitutional right to jury una-
nimity clearly applies in both state and federal courts,
what is less clear is precisely what the jury must be
unanimous about. Detailing the scope of the unanimity
requirement, the United States Supreme Court has
explained that a jury ‘‘cannot convict unless it unani-
mously finds that the [g]overnment has proved each
element’’ of the offense charged. Richardson v. United
States, 526 U.S. 813, 817, 119 S. Ct. 1707, 143 L. Ed. 2d
985 (1999). Nevertheless, the court has recognized that
‘‘different jurors may be persuaded by different pieces
of evidence, even when they agree [on] the bottom line.
Plainly there is no general requirement that the jury
reach agreement on the preliminary factual issues [that]
underlie the verdict.’’ (Internal quotation marks omit-
ted.) Schad v. Arizona, 501 U.S. 624, 631–32, 111 S. Ct.
2491, 115 L. Ed. 2d 555 (1991) (opinion announcing
judgment). In other words, a jury must agree ‘‘on the
principal facts underlying its verdict—what courts have
tended to call the elements of the offense. But that
requirement does not extend to subsidiary facts—what
the [Supreme] Court has called ‘brute facts.’ ’’ United
States v. Lee, 317 F.3d 26, 36 (1st Cir.), cert. denied,
538 U.S. 1048, 123 S. Ct. 2112, 155 L. Ed. 2d 1089 (2003).
‘‘[I]n the routine case, a general unanimity instruction
will ensure that the jury is unanimous on the factual
basis for a conviction, even [when] an indictment
alleges numerous factual bases for criminal liability.’’
(Internal quotation marks omitted.) United States v.
Holley, 942 F.2d 916, 925–26 (5th Cir. 1991), quoting
United States v. Beros, 833 F.2d 455, 460 (3d Cir. 1987).
The court has clarified that alternative means of com-
mitting a crime constitute underlying brute facts: ‘‘[F]or
example, [the court has] sustained a murder conviction
against the challenge that the indictment on which the
verdict was returned was duplicitous in charging that
death occurred through both shooting and drowning.
In holding that the [g]overnment was not required to
make the charge in the alternative . . . [the court]
explained that it was immaterial whether death was
caused by one means or the other. . . . This fundamen-
tal proposition is [also] embodied in Federal Rule of
Criminal Procedure 7 (c) (1), which provides that [i]t
may be alleged in a single count that the means by which
the defendant committed the offense are unknown or
that the defendant committed it by one or more speci-
fied means.’’ (Citations omitted; internal quotation
marks omitted.) Schad v. Arizona, supra, 501 U.S. 631
(opinion announcing judgment).
A majority of unanimity cases involve this ‘‘crucial
distinction . . . between a fact that is an element of
the crime and one that is ‘but the means’ to the commis-
sion of an element.’’ United States v. Verrecchia, 196
F.3d 294, 299 (1st Cir. 1999). The line between means
and element may be unclear at times, and courts have
divided over the appropriate test to apply to distinguish
between means and elements. See Schad v. Arizona,
supra, 501 U.S. 641–42 (opinion announcing judgment).
Indeed, Ramos, Schad and Richardson all involved
indictments that charged a defendant in a single count
with violating multiple statutory provisions, subsec-
tions, or clauses, and thus the court had to determine
whether the statutory provisions, subsections, or
clauses constituted elements or alternative means. As
a result, those cases raised unanimity as to elements
claims—unlike the present case, which involves una-
nimity as to instances of conduct. Although those cases
did not raise claims of unanimity as to instances of
conduct, the court implicitly acknowledged that, if an
indictment charged a defendant in a single count with
violating a single statutory provision, subsection, or
clause on multiple occasions, the jury must agree unani-
mously as to which instance of conduct the defendant
committed.
For example, in Schad, the Supreme Court rejected
a challenge to Arizona’s first degree murder statute,
which permitted conviction on a theory of either pre-
meditation or felony murder. See id., 627 (opinion
announcing judgment). In his concurrence, which was
necessary to the court’s judgment, Justice Scalia
warned that ‘‘[w]e would not permit . . . an indictment
charging that the defendant assaulted either X on Tues-
day or Y on Wednesday . . . .’’ Id., 651 (Scalia, J., con-
curring in part and concurring in the judgment). Subse-
quently, the majority in Richardson specifically cited
Justice Scalia’s warning in Schad in support of the prop-
osition that ‘‘the [c]onstitution itself limits a [s]tate’s
power to define crimes in ways that would permit juries
to convict while disagreeing about means, at least
[when] that definition risks serious unfairness and lacks
support in history or tradition.’’ Richardson v. United
States, supra, 526 U.S. 820.
Relying on these admonitions, a majority of federal
courts of appeals have recognized that a duplicitous
indictment may raise two distinct and separate kinds of
unanimity issues: (1) unanimity as to a crime’s elements,
which was the kind of unanimity claim raised in Ramos,
Schad and Richardson; and (2) unanimity as to
instances of conduct, also known as a multiple acts or
multiple offense claim, which was the kind of claim the
court implicitly acknowledged in Schad and Richard-
son. These courts have explained that this first kind of
unanimity claim involves the question of ‘‘when is a
disputed fact—e.g., whether the crime occurred on a
Monday or a Tuesday, with a knife or a gun, against
this or that victim—one that the jury must unanimously
agree [on], and when is it merely dispensable detail
[i.e., element vs. means]? And the second [involves the
question]: when is a defendant’s conduct one violation
of a statute, and when is it many?’’ United States v.
Newell, supra, 658 F.3d 20.
The federal courts of appeals not only have recog-
nized that a duplicitous indictment may raise these two
distinct unanimity issues, but they also have recognized
that a claim of unanimity as to elements implicates
different concerns than a claim of unanimity as to
instances of conduct. Specifically, for claims of unanim-
ity as to elements, unanimity concerns arise from the
statutory language or scheme at issue. See Schad v.
Arizona, supra, 501 U.S. 631–32 (opinion announcing
judgment). The concern in those cases is whether the
statutory language creates multiple elements, each of
which the government must charge as a separate
offense, or alternative means of committing an element.
In contrast, for claims of unanimity as to instances,
unanimity concerns arise from the evidence of the
defendant’s conduct, viewed in light of the statutory
language. In the latter situation, there is no dispute over
whether the defendant violated multiple subsections of
a statute, each of which constitutes a separate offense;
rather, the dispute is over whether the defendant may
be convicted of a single count of violating a statute
based on evidence of multiple, separate occurrences of
the prohibited act or acts. See United States v. Correa-
Ventura, 6 F.3d 1070, 1080 (5th Cir. 1993) (discussing
difference between unanimity as to elements cases and
unanimity as to instances cases). For example, a claim
of unanimity as to instances of conduct may arise in a
case in which the defendant is charged with a single
count of assault but there was evidence presented to
the jury that the defendant assaulted the victim three
separate times on three separate dates. In such a case,
the concern arises that the jury may have agreed that the
defendant committed assault but may not have agreed
which assault the defendant committed. Because of the
distinct nature of these two unanimity claims, federal
courts have applied a different test to claims of unanim-
ity as to elements than to claims of unanimity as to
instances.
In the present case, the defendant argues that counts
one, five, and six were duplicitous because each was
premised on multiple, separate instances of conduct,
and thus the lack of a bill of particulars or a specific
unanimity instruction led to a verdict that violated his
right to jury unanimity. In other words, he claims that
these counts violated his right to unanimity as to
instances of conduct, not his right to unanimity as to
elements. As we will discuss in detail, federal courts
apply a multipart test to claims of unanimity as to
instances of conduct to determine whether the defen-
dant’s constitutional right to jury unanimity was vio-
lated.
First, a court must determine whether a single count
is premised on multiple, separate instances of conduct.
If the answer is yes, then the court next must determine
if each instance could establish a separate violation of
the statute at issue. At times, it may be easy to make
this second determination. That is because, ‘‘[i]n some
cases the standard for individuating crimes is obvious—
we count murders, for instance, by counting bodies.
But in other cases, determining how many crimes were
committed is much less clear.’’ United States v. Newell,
supra, 658 F.3d 23–24. For example, it may be difficult
to determine whether a single count is premised on
multiple acts, each of which is committed in the course
of a single criminal episode of relatively brief temporal
duration, and thus constitutes alternative means of
committing the elements at issue, or whether it is prem-
ised on multiple, separate and distinct acts, each of
which could constitute a separate statutory violation.
In these more difficult cases, courts have examined the
statute’s language, its legislative history, and case law
regarding similar statutes to help determine whether the
charge is duplicitous. See id.; United States v. Correa-
Ventura, supra, 6 F.3d 1082.
In examining the statutory language at issue, a major-
ity of federal courts of appeals have explained that, if
the underlying criminal statute contemplates crimi-
nalizing a continuing course of conduct and the defen-
dant has been charged with violating the statute by a
continuing course of conduct, a single count premised
on multiple, separate instances of conduct is not duplic-
itous when the multiple instances of conduct constitute
‘‘a continuing course of conduct, during a discrete
period of time . . . .’’ (Internal quotation marks omit-
ted.) United States v. Davis, 471 F.3d 783, 790 (7th Cir.
2006); see also United States v. O’Brien, 953 F.3d 449,
455 (7th Cir. 2020), cert. denied, U.S. , 141 S.
Ct. 1128, 208 L. Ed. 2d 565 (2021); United States v.
Prieto, 812 F.3d 6, 12 (1st Cir.), cert. denied, U.S.
, 137 S. Ct. 127, 196 L. Ed. 2d 100 (2016); United
States v. Mancuso, 718 F.3d 780, 792 (9th Cir. 2013);
United States v. Moyer, 674 F.3d 192, 205 (3d Cir.), 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. Kamalu, 298 Fed. Appx. 251,
254 (4th Cir. 2008); United States v. Wiles, 102 F.3d
1043, 1062 (10th Cir. 1996), cert. denied, 522 U.S. 947,
118 S. Ct. 363, 139 L. Ed. 2d 283 (1997), and vacated
sub nom. United States v. Schleibaum, 522 U.S. 945,
118 S. Ct. 361, 139 L. Ed. 2d 282 (1997); United States
v. Berardi, 675 F.2d 894, 898 (7th Cir. 1982); United
States v. Alsobrook, 620 F.2d 139, 142–43 (6th Cir.), cert.
denied, 449 U.S. 843, 101 S. Ct. 124, 66 L. Ed. 2d 51
(1980).11 To determine if a statute criminalizes only a
single act, a continuous course of conduct, or both,
courts must interpret the statute’s language in the man-
ner directed by General Statutes § 1-2z.12 See, e.g., State
v. Cody M., 337 Conn. 92, 102–103, 259 A.3d 576 (2020);
id., 106 (holding, based on interpretation of language
of General Statutes § 53a-223a as required by § 1-2z,
that legislature intended to criminalize each separate
offense under § 53a-223a, not continuous course of con-
duct).13 If a statute does criminalize a continuing course
of conduct, then the court must determine whether the
multiple instances of conduct alleged in fact constitute
a continuous course of conduct by examining, among
other things, whether the acts occurred within a rela-
tively short period of time, were committed by one
defendant, involved a single victim, and furthered a
single, continuing objective. See, e.g., United States v.
O’Brien, supra, 455; United States v. Davis, supra,
790–91; United States v. Berardi, supra, 898.
When a single count does charge the defendant 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. See, e.g., United States v. Mancuso,
supra, 718 F.3d 792; United States v. Moyer, supra, 674
F.3d 204–205; United States v. Kamalu, supra, 298 Fed.
Appx. 254–55; United States v. Sturdivant, 244 F.3d 71,
75 (2d Cir. 2001); United States v. Schlei, 122 F.3d 944,
979 (11th Cir. 1997), cert. denied, 523 U.S. 1077, 118 S.
Ct. 1523, 140 L. Ed. 2d 674 (1998); United States v.
Correa-Ventura, supra, 6 F.3d 1081–82; United States
v. Holley, supra, 942 F.2d 927–29; United States v. Tan-
ner, 471 F.2d 128, 138–39 (7th Cir.), cert. denied, 409
U.S. 949, 93 S. Ct. 269, 34 L. Ed. 2d 220 (1972).
A determination of duplicity does not end the analy-
sis, however. Contrary to the concurrence’s dire warn-
ing that we are stripping prosecutors of their ‘‘tradi-
tional authority’’ and placing ‘‘an unwarranted burden
on young victims,’’ a duplicitous count does not neces-
sarily violate a defendant’s right to jury unanimity. As
explained, a duplicitous count may be cured by a bill
of particulars or a specific unanimity instruction.14 Thus,
as long as one of these remedies is given, the state may
continue to charge a defendant with a single count
premised on multiple, separate incidents of conduct
without violating his right to jury unanimity. In the
absence of one of those remedies, however, a majority
of federal courts of appeals have held that a duplicitous
count violates a defendant’s right to jury unanimity.15
See, e.g., United States v. Newell, supra, 658 F.3d 28
(single count premised on multiple acts was duplici-
tous, and thus trial court’s failure to give unanimity
instruction violated defendant’s right to jury unanim-
ity); United States v. Fawley, 137 F.3d 458, 471 (7th
Cir. 1998) (trial court’s failure to give specific unanimity
instruction violated defendant’s right to jury unanimity
when single count was premised on multiple, separate
acts); United States v. Schlei, supra, 122 F.3d 979–80
(single count was duplicitous, and thus trial court’s
failure to cure with specific unanimity instruction vio-
lated defendant’s right to jury unanimity); United States
v. Holley, supra, 942 F.2d 928–29 (single count based
on multiple, separate acts was duplicitous, and thus
trial court’s failure to give specific unanimity instruction
violated defendant’s right to jury unanimity); United
States v. Beros, supra, 833 F.2d 460–63 (single count
based on multiple, separate acts was duplicitous and
implicated defendant’s right to jury unanimity, and thus
trial court’s failure to give specific unanimity instruction
was error and not harmless). But cf. United States v.
Sarihifard, 155 F.3d 301, 310 (4th Cir. 1998) (although
defendant was charged with single count of perjury
premised on multiple, separate instances of conduct,
right to jury unanimity was not violated because trial
court gave specific unanimity instruction); United
States v. Alsobrook, supra, 620 F.2d 142–43 (same).
But even then, reversal of the defendant’s conviction
is required only if the defendant establishes prejudice,
namely, that the duplicity created the genuine possibil-
ity that the conviction resulted from different jurors
concluding that the defendant committed different
acts.16 See United States v. Sarihifard, supra, 155 F.3d
310; United States v. Correa-Ventura, supra, 6 F.3d
1082; United States v. Holley, supra, 942 F.2d 926;
United States v. Beros, supra, 833 F.2d 460–63. But see
United States v. Sturdivant, supra, 244 F.3d 75; United
States v. Margiotta, 646 F.2d 729, 733 (2d Cir. 1981).
In such cases, courts have invoked principles of fairness
in requiring a specific unanimity instruction to avoid
any potential for juror confusion.17
In sum, to determine if a defendant was entitled to
a specific unanimity charge, we apply the following
three-pronged test: (1) Considering the allegations in
the information and the evidence admitted at trial, does
a single count charge the defendant with violating a
single statute in multiple, separate instances? (2) If so,
then does each instance of conduct establish a separate
violation of the statute? If the statute contemplates
criminalizing a continuing course of conduct, then each
instance of conduct is not a separate violation of the
statute but a single, continuing violation. To determine
whether the statute contemplates criminalizing a con-
tinuing course of conduct, we employ our well estab-
lished principles of statutory interpretation. Only if each
instance of conduct constitutes a separate violation of
the statute is a count duplicitous. And (3) if duplicitous,
was the duplicity cured by a bill of particulars or a
specific unanimity instruction? If yes, then there is no
unanimity issue. If not, then a duplicitous count violates
a defendant’s right to jury unanimity but reversal of the
defendant’s conviction is required only if the defendant
establishes prejudice.
C
The concurrence disagrees with the test we adopt,
despite the fact that it is followed by a majority of
federal courts of appeals, and would instead adopt the
test applied by the United States Court of Appeals for
the Second Circuit. See footnotes 12 and 15 of this
opinion. Specifically, the concurrence contends that
the test that court applies regarding unanimity as to
instances of conduct differs from, and is superior to,
the test the majority of federal courts of appeals apply
because, in determining whether a statute contemplates
criminalizing a continuing course of conduct under the
second prong of the test the majority of federal courts
apply, the Second Circuit relies on a presumption in
favor of prosecutorial discretion when the statute at
issue is silent—meaning that, when the legislature’s
intent regarding whether a statute criminalizes a single
act, a continuous course of conduct, or both remains
ambiguous after a full analysis pursuant to § 1-2z,
including an examination of the relevant legislative his-
tory, we should apply a presumption in favor of the
prosecutor’s having discretion to charge a defendant
with a single count of the crime at issue based on either
a single act or a continuous course of conduct. The
concurrence argues that adopting this presumption is
the better approach because of its utility in sexual
assault cases.
At the outset, we must immediately correct the con-
curring opinion’s erroneous suggestion that we have
adopted our own presumption that silence on this issue
means that a prosecutor may charge the crime only as
a single act and not as a continuing course of conduct.
That is not it at all. Rather, our holding in the present
case that the defendant properly could be charged with
having engaged in a continuous course of conduct under
§ 53-21 (a) (2) is not based on any presumption but,
rather, on our interpretation of the statute under § 1-
2z, including our review of the statute’s legislative his-
tory. See part II of this opinion. Use of a presumption is
neither necessary nor warranted in the present context.
At any rate, we decline to apply the concurrence’s
presumption for four reasons.18 First, as we will explain
in part II of this opinion, based on the language of § 53-
21 (a) (2), case law interpreting this statute, and relevant
legislative history, it is clear that our legislature specifi-
cally intended to criminalize both single acts and a
continuous course of conduct under subsection (a) (2)
of our risk of injury statute. Contrary to the concur-
rence’s assertion, a full and complete analysis pursuant
to § 1-2z does not end in silence on this issue, thereby
requiring this court to resort to any kind of presumption.
What the concurrence calls silence is not silence but
the absence of explicit language specifically stating that
the statute criminalizes only a continuous course of
conduct or only single acts. Rather than conduct a full
analysis pursuant to § 1-2z and come to a conclusion
about the statute’s meaning, as we are obliged to do,
the concurrence’s rule would hold that, if the statute
is ‘‘facially silent’’—in other words, if explicit language
is not used, such as the phrase ‘‘course of conduct’’—
then a criminal statute is silent regarding whether it
criminalizes a single act, a continuous course of con-
duct, or both, and a prosecutor can choose which charg-
ing method to apply. We decline to apply such a rule
and instead follow the dictates of § 1-2z. Thus, we need
not decide whether a presumption exists and should
apply when the legislature is arguably silent as to its
intent regarding whether a statute criminalizes a single
act, a continuous course of conduct, or both.
Second, although, as the concurrence suggests, this
court does at times ‘‘[give] decisions of the Second
Circuit ‘particularly persuasive weight in the resolution
of issues of federal law,’’ we are hesitant to adopt the
case law of the Second Circuit when ‘‘the great weight’’
of federal jurisprudence conflicts with it. Saunders v.
Commissioner of Correction, 343 Conn. 1, 17, 272 A.3d
169 (2022). As discussed previously, the majority of
federal courts of appeals apply the test that we adopt
today and do not adopt, apply, or even reference any
presumption in the event of legislative silence on this
issue.19
Third, whether to apply a presumption in interpreting
a criminal statute to determine if it criminalizes a contin-
uous course of conduct is an issue of state law, even
though this determination is necessary to the adjudica-
tion of the defendant’s federal unanimity claim. In other
words, under the second prong of the federal test for
a unanimity claim regarding instances of conduct, the
court must determine if the statute criminalizes a con-
tinuous course of conduct. However, whether the stat-
ute in fact criminalizes a continuous course of conduct
is an issue of state law, as it involves the interpretation
of our own statutes. The concurrence contends that
there is ‘‘an ancient common-law pleading tradition,
one of which the legislature is well aware and that
it continues to implicitly approve,’’ pursuant to which
prosecutors have discretion to charge a crime based
on a single act or a continuous course of conduct when
a statute is silent on the issue. Although this ‘‘tradition’’
is not so well established that it is written anywhere,
the concurrence derives this ‘‘tradition’’ from the fact
that ‘‘prosecutors have been charging crimes as continu-
ing offenses since the early 1800s,’’ and thus our state
has a ‘‘long history of affording prosecutors broad dis-
cretion in the charging of crimes . . . .’’
The presumption that the concurrence touts is not
one that any of our state decisions supports and cer-
tainly not one that we would credit the legislature with
being aware of at the time it enacted the statute at
issue. Even if the charging practices of prosecutors, or
the litigation positions of any parties, were the stuff
of legislative acquiescence,20 any history of the state’s
routinely charging in this fashion has more obvious
explanations than legislative acceptance of an unarticu-
lated presumption of prosecutorial discretion found
nowhere in the decisions of this court, namely, that (1)
defendants may not often have challenged this method
of charging because, if successful, it would likely result
in multiple charges and greater exposure, as the concur-
rence points out, and (2) only recently, since federal
unanimity case law has developed to recognize claims
of unanimity as to instances of conduct, has the proper
interpretation of the statute had unanimity implications.
Thus, the fact that we have cases that merely state
that a prosecutor charged a defendant under a single
count based on a continuous course of conduct but the
nature of the charging was not challenged on appeal
does not support the concurrence’s proposed presump-
tion. See, e.g., State v. Vumback, supra, 263 Conn. 217,
219–20 (although defendant was charged with 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,’’ and challenged trial
court’s denial of request for bill of particulars, court did
not address whether statutes criminalized continuous
course of conduct or whether prosecutor had discretion
in this regard (internal quotation marks omitted)); State
v. Snook, 210 Conn. 244, 263, 265–66, 555 A.2d 390
(although state charged defendant with sexual assault
in second degree and sexual assault in third degree for
engaging in sexual intercourse with victim ‘‘on divers
days between June, 1979, and January, 1984,’’ defendant
raised only double jeopardy claim, which did not require
court to decide if statutes criminalized continuous
course of conduct (internal quotation marks omitted)),
cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed.
2d 603 (1989); State v. Silver, 139 Conn. 234, 247, 93
A.2d 154 (1952) (O’Sullivan, J., concurring) (merely
mentioning that state charged that, ‘‘at the [c]ity of
Hartford on divers dates, the [defendant] did commit
an indecent assault upon a minor’’ but not deciding if
this was proper or analyzing statute to determine if it
criminalized course of conduct); State v. William B.,
76 Conn. App. 730, 735, 822 A.2d 265 (although state
charged specifically that, ‘‘on divers dates between 1990
and 1994, as a continuing course of conduct, the defen-
dant engaged in sexual intercourse with the victim, who
was younger than thirteen, in violation of § 53a-70 (a)
(2),’’ defendant did not challenge state’s method of
charging), cert. denied, 264 Conn. 918, 828 A.2d 618
(2003); State v. Osborn, 41 Conn. App. 287, 295, 676
A.2d 399 (1996) (although state charged defendant with
attempt to commit sexual assault of child ‘‘on diverse
dates between June 20, 1986, and June 20, 1991,’’ defen-
dant did not challenge state’s method of charging); State
v. Mancinone, 15 Conn. App. 251, 256 n.5, 545 A.2d 1131
(although state charged defendant with two counts of
sexual assault in second degree by alleging that he
engaged in sexual intercourse with minors ‘‘on divers
dates between August 1983 and November 1984,’’
because defendant was acquitted on those charges,
appeal did not involve challenge to state’s method of
charging or require court to decide whether statute
criminalized continuous course of conduct (internal
quotation marks omitted)), 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). That is not the same
as this court holding that such an interpretation is
proper or that a presumption of prosecutorial discretion
exists. Most important, for purposes of determining
legislative intent, of course, the past practice of prose-
cutors is not a relevant factor under § 1-2z in ascertain-
ing whether a statute criminalizes a continuing course
of conduct.
Additionally, contrary to the concurrence’s con-
tention, there is no case law adopting and applying this
presumption. For example, the concurrence cites to a
nineteenth century case as proof that this court histori-
cally has afforded prosecutors discretion to charge
crimes based either on a single act or a continuous
course of conduct when a statute is silent in this regard.
See 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’’).
In Bosworth, the state charged the defendant with a
single count of cruelly overworking animals, one count
of neglecting animals, and one count of depriving ani-
mals of sustenance, with each count premised on multi-
ple acts of cruelty to animals. Id. The court explained
that the crime of cruelty to animals ‘‘may consist of
overworking, [underfeeding], or depriving of proper
protection, or all these elements may combine and con-
stitute the offense.’’ Id. In other words, the court exam-
ined the nature of what the statute criminalized and
determined that it criminalized both each single act of
cruelty, as well as a continuous course of these acts of
cruelty. Thus, the offense at issue was one that may
involve continuous action. An examination of the deci-
sion shows that, when the court stated that ‘‘all offenses
involving continuous action, and which may be contin-
ued from day to day, may be so alleged,’’ it did not
mean that any crime involving continuous action may
be charged as such but, rather, that any statutory
offense that criminalizes continuous action may be
charged as such. Id.
Similarly, the concurrence cites to State v. Cook, 75
Conn. 267, 53 A. 589 (1902), in support of its argument
that, for decades, ‘‘Connecticut courts [have] recog-
nized 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 individual acts or with a continuando.’’ Cook,
however, does not support adopting a presumption in
favor of prosecutorial discretion when a criminal stat-
ute is silent regarding whether it criminalizes each act
individually or a continuing course of conduct.
Although the precise statute at issue is not cited or
quoted in Cook, this court explained in that case that
‘‘[t]he statute under which the accused [was] prose-
cuted enumerates various acts of cruelty to animals for
which a punishment is imposed, among which are the
depriving [of] an animal of necessary sustenance, and
the unnecessary failure, by one having the charge or
custody of any animal, to provide it with proper food,
drink, or protection from the weather.’’ Id., 268. This
language is consistent with the language of our animal
cruelty statute at that time; see General Statutes (1902
Rev.) § 1331;21 which obviously could be interpreted as
criminalizing both a course of conduct and a single act.
Moreover, not only did the court’s decision in Cook not
refer to, adopt, or apply any presumption, it also did
not involve a challenge to the state’s method of charging
or contain any statutory interpretation, which is critical
to an analysis of a claim of unanimity as to instances
of conduct.
It is true that a handful of Appellate Court cases
have held that there is no unanimity violation when
a defendant has been charged in a single count with
violating the same statute based on multiple acts, espe-
cially in the context of ongoing sexual assault of chil-
dren. See, e.g., State v. Saraceno, 15 Conn. App. 222,
225–27 and n.1, 545 A.2d 1116 (decided prior to recogni-
tion of claims of unanimity as to instances of conduct,
not deciding whether statute criminalized continuing
course of conduct, and not applying any presumption
in favor of prosecutorial discretion), cert. denied, 209
Conn. 823, 552 A.2d 431 (1988), and cert. denied, 209
Conn. 824, 552 A.2d 432 (1988); see also State v. Romero,
269 Conn. 481, 504, 849 A.2d 760 (2004) (same); State
v. Michael D., 153 Conn. App. 296, 322, 101 A.3d 298
(same), cert. denied, 314 Conn. 951, 103 A.3d 978 (2014);
State v. Vere C., 152 Conn. App. 486, 508–10, 98 A.3d
884 (same), cert. denied, 314 Conn. 944, 102 A.3d 1116
(2014); State v. Jessie L. C., 148 Conn. App. 216, 227,
84 A.3d 936 (same), cert. denied, 311 Conn. 937, 88 A.3d
551 (2014). These cases do not support adopting the
concurrence’s proposed presumption, as they do not
apply a presumption. Rather, these cases were decided
under the test set forth in Gipson and before this court
recognized claims of unanimity as to instances of con-
duct. As we explained, the Gipson test did not require
that a court analyze whether the statute at issue crimi-
nalizes a continuous course of conduct and is not the
proper test for determining claims of unanimity regard-
ing instances of conduct.
Moreover, we disagree with the concurrence that its
presumption is supported by ‘‘the fact that the legisla-
ture has, in certain instances, expressly provided either
that a particular statute must be charged as a continuing
offense; see, e.g., General Statutes § 53a-181d (b); or
that it must not be charged as a continuing offense;
see, e.g., General Statutes § 15-173’’; because this shows
that, ‘‘when the legislature wishes to speak to the issue,
one way or the other, it knows how to do so.’’ These
statutes do show that, when the legislature explicitly
intends to allow a charge to be based only on a continu-
ous course of conduct or a single act, it knows how to
do so. This does not prove, however, that the legislature
intended that other statutes would provide prosecutors
with discretion. For example, under our second degree
stalking statute, § 53a-181d, the legislature specifically
proscribed certain continuous courses of conduct; see
General Statutes § 53a-181d (b) (1), as amended by Pub-
lic Acts 2021, No. 21-56, § 2 (‘‘knowingly engages in a
course of conduct directed at or concerning a specific
person that would cause a reasonable person to (A)
fear for such specific person’s physical safety or the
physical safety of a third person; (B) suffer emotional
distress; or (C) fear injury to or the death of an animal
owned by or in possession and control of such specific
person’’ (emphasis added)); as well as certain kinds
of single acts. See General Statutes § 53a-181d (b) (3)
(‘‘[s]uch person, for no legitimate purpose and with
intent to harass, terrorize or alarm, by means of elec-
tronic communication, including, but not limited to,
electronic or social media, discloses a specific person’s
personally identifiable information without consent of
the person’’). Similarly, under subsection (a) (1) of our
risk of injury statute, the legislature specifically crimi-
nalized both a single act and a continuous course of
conduct through the use of the terms ‘‘act’’ and ‘‘situa-
tion,’’ respectively. See General Statutes § 53-21 (a) (1)
(‘‘wilfully or unlawfully causes or permits any child
under the age of sixteen years to be placed in such a
situation that the life or limb of such child is endan-
gered, the health of such child is likely to be injured
or the morals of such child are likely to be impaired,
or does any act likely to impair the health or morals
of any such child’’ (emphasis added)). Thus, by the
concurrence’s own logic, these statutes show that,
when the legislature intends to explicitly criminalize
both an act and a continuous course of conduct, it
knows how to do so. That does not mean that such
explicit statutory language is required to interpret a
statute as criminalizing both an act and a continuous
course of conduct. As previously discussed, we by no
means are adopting a presumption against such charg-
ing when the plain language of a statute is not explicit
in this regard. Rather, courts must closely analyze the
language of the statute, case law interpreting the stat-
ute, the statutory scheme and, if needed, the legislative
history to determine if a statute criminalizes both an
act and a continuous course of conduct.
Finally, the concurrence asserts that adopting this
presumption is the superior approach based largely on
how it believes the majority test will apply to sexual
assault cases involving children. There are indeed
unique challenges to proving charges involving child
victims of sexual assault. Legislatures and courts can,
should, and often have responded appropriately, includ-
ing by extending statutes of limitations, or by modifying
rules of evidence.22 See General Statutes § 54-193; see
also Conn. Code Evid. § 4-5 (b). However, the concur-
rence’s proposed presumption would not apply only in
child sexual abuse cases. For this reason alone, it is
more prudent for us to defer to the legislature to address
this specific issue than to adopt a general presumption
that would apply to all criminal statutes.
As we discuss in the companion case we also decide
today, State v. Joseph V., 345 Conn. , A.3d
(2022), the test we adopt today does not necessarily lead
to the hypothetical parade of horribles the concurrence
portends. In particular, the test we apply does not result
in a prohibition on the state’s charging a defendant
with a single count of sexual assault premised on a
continuous course of contact, as long as there is either
a specific unanimity instruction or an instruction that
the jury must be unanimous that all alleged acts
occurred. Moreover, in Joseph V., we leave open the
possibility that ‘‘there [may exist] a common-law excep-
tion to the right to jury unanimity for a continuing
course of conduct of sexual assault of children when
there is only general testimony.’’ Id., n.20. We note
that, in sexual assault cases involving only general testi-
mony, a duplicitous count that is not cured by a specific
unanimity instruction likely will not be harmful.
D
Before applying the foregoing federal law to the
defendant’s specific claims, we note that appellate
courts in this state have not recognized or applied this
case law to claims of unanimity as to instances of con-
duct. In particular, this court has not distinguished
between unanimity of elements and unanimity of
instances of conduct but, rather, has treated them simi-
larly. Compare State v. Niemeyer, 258 Conn. 510, 525,
782 A.2d 658 (2001) (unanimity of elements case), State
v. Dyson, 238 Conn. 784, 793, 680 A.2d 1306 (1996)
(same), State v. Tucker, 226 Conn. 618, 646, 629 A.2d
1067 (1993) (same), State v. Reddick, 224 Conn. 445,
452–53, 619 A.2d 453 (1993) (same), State v. Famiglietti,
supra, 219 Conn. 618 (same), State v. Smith, 212 Conn.
593, 606, 563 A.2d 671 (1989) (same), State v. James,
211 Conn. 555, 584–85, 560 A.2d 426 (1989) (same), and
State v. Suggs, 209 Conn. 733, 760–61, 553 A.2d 1110
(1989) (same), with State v. Sorabella, 277 Conn. 155,
206–207, 891 A.2d 897 (multiple acts case), cert. denied,
549 U.S. 821, 127 S. Ct. 131, 166 L. Ed. 2d 36 (2006),
State v. Ceballos, 266 Conn. 364, 368–69, 417–20 and
n.55, 832 A.2d 14 (2003) (same),23 State v. Jennings,
216 Conn. 647, 661–64, 583 A.2d 915 (1990) (same), and
State v. Spigarolo, 210 Conn. 359, 388–92, 556 A.2d 112
(same), cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107
L. Ed. 2d 312 (1989).24
These cases have failed to heed the relevant federal
precedent discussed in part I B of this opinion, which
clearly distinguishes between unanimity claims involv-
ing a single count premised on multiple, separate
instances of conduct, and unanimity claims involving
a single count premised on the violation of multiple
statutes, statutory subsections, or statutory clauses. See
United States v. Correa-Ventura, supra, 6 F.3d 1080
(noting that Schad test applies to cases involving single
count premised on violation of multiple statutes, statu-
tory subsections, or statutory clauses but that different
test applies in cases involving single count premised
on multiple, separate instances of conduct). In light
of the unique nature of these two different unanimity
issues, we are persuaded by and agree with the distinc-
tion federal courts have drawn between claims of una-
nimity as to elements and claims of unanimity as to
instances, with separate tests applying to each type of
claim. As a result, we adopt the foregoing federal test
for claims of unanimity as to instances of conduct. To
the extent that our prior case law or that of the Appellate
Court has ignored this distinction, we overrule those
cases.
II
Applying the federal test articulated in part I B of
this opinion to each count at issue in the present case,
in turn, we disagree with the defendant that counts one,
five, and six, which each alleged risk of injury to a child,
were duplicitous. Because both counts one and six were
premised on similar testimony about the frequent touch-
ing of N’s and T’s breasts in a sexual and indecent
manner, we first analyze these two counts together.
Under the first prong of the test, we determine that both
of these counts were premised on multiple, separate
incidents of conduct. As to count one, there was testi-
mony that the defendant touched N’s breasts in a sexual
and indecent manner frequently during weekly visits to
his residence, with this inappropriate touching ulti-
mately escalating to oral sex. Therefore, clearly as to
count one, evidence was presented to the jury of multi-
ple, separate incidents of conduct, not a single incident.
The same is true of count six, in support of which there
was testimony that the defendant touched T’s breasts
in a sexual and indecent manner frequently whenever
she was at his residence where she regularly attended
gatherings and parties, and babysat. This evidence
shows that, as the case was presented to the jury, each
count was premised on evidence of multiple, separate
incidents of conduct, not a single incident.
Because counts one and six were premised on multi-
ple, separate incidents of conduct, we must proceed to
the second prong of the test and determine whether
each incident could establish an independent violation
of § 53-21 (a) (2). We hold that, although the state has
discretion to charge the defendant with violating § 53-
21 (a) (2) as to each incident of conduct that occurred,
that statute also permits the state to properly charge
and present to the jury these incidents as a continuing
course of conduct.
Section 53-21 (a) prohibits ‘‘[a]ny person . . . (2)
[from having] contact with the intimate parts, as defined
in section 53a-65, of a child under the age of sixteen
years or subject[ing] 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 . . . .’’ General Statutes § 53a-
65 (8) defines ‘‘intimate parts’’ as ‘‘the genital area or
any substance emitted therefrom, groin, anus or any
substance emitted therefrom, inner thighs, buttocks or
breasts.’’25
It is not clear from the plain language of § 53-21 (a)
(2) that the multiple, separate instances of conduct at
issue in the present case were separate and distinct
violations of that statute. At first blush, the phrase ‘‘con-
tact with the intimate parts’’ in the risk of injury statute
does not appear to clarify whether the statute crimi-
nalizes a continuing course of conduct or limits its
scope to a single occurrence. Because of this, the con-
currence concludes that the statute is ambiguous or
silent on this issue. The problem is that the statute is
not silent. The fact that the legislature did not explicitly
use the phrase ‘‘continuous course of conduct’’ or ‘‘each
single act’’ does not end our analysis. Such talismanic
phrases are not required. Rather, we must look to the
definitions of the terms used. Although ‘‘contact’’ is not
defined by the statute, the plain meaning of this term,
as defined by a dictionary, includes a ‘‘union or junction
of body surfaces . . . a touching or meeting . . . .’’
Webster’s Third New International Dictionary (2002)
p. 490. This definition suggests that the act of having
‘‘contact’’ is a singular incident—a single touching or
meeting of body parts. This definition of ‘‘contact’’ as
referring to each singular incident is consistent with
this court’s prior case law interpreting § 53-21, which
this court must consider in determining under § 1-2z
whether the statute is plain and unambiguous. See, e.g.,
State v. Moreno-Hernandez, 317 Conn. 292, 299, 118
A.3d 26 (2015) (‘‘[i]n interpreting the [statutory] lan-
guage . . . we do not write on a clean slate, but are
bound by our previous judicial interpretations of the
language and the purpose of the statute’’ (internal quota-
tion marks omitted)). In case law prior to the 1995
amendment of § 53-21; see Public Acts 1995, No. 95-
142, § 1 (P.A. 95-142); this court held that risk of injury
to a child may be charged under a continuing course
of conduct theory. See State v. Spigarolo, supra, 210
Conn. 390–92 (noting that state charged risk of injury
count under ‘‘situation’’ prong of § 53-21 premised on
multiple acts of sexual contact and presented it to jury
as continuing course of conduct crime, and court cited
to State v. Hauck, 172 Conn. 140, 150, 374 A.2d 150
(1976), which held that violation of situation prong of
§ 53-21 may be premised on continuing course of con-
duct).26 Since the enactment of P.A. 95-142, § 1, we never
have held that the legislature no longer intended that
risk of injury to a child would be a continuing course
of conduct crime. Thus, the plain language of the statute
is ambiguous.
The legislative history demonstrates that, when what
is now subsection (a) (2) was established in 1995 by
P.A. 95-142, § 1, the purpose of the amendment was to
‘‘[divide] the risk of injury . . . [statute] into two parts
. . . .’’ 38 H.R. Proc., Pt. 7, 1995 Sess., p. 2590, remarks
of Representative James A. Amann. The purpose of the
statute was manifestly not to alter the state’s ability to
charge risk of injury as a continuing course of conduct
crime when the facts involved sexual contact. Specifi-
cally, prior to the amendment, the statute had been
used to charge both sexual and nonsexual offenses.
The statute generally criminalized conduct by one who
wilfully or unlawfully placed a child ‘‘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 . . . .’’ General Statutes (Rev. to 1993)
§ 53-21. Prior to the enactment of P.A. 95-142, § 1, this
court had interpreted § 53-21 as criminalizing a continu-
ing course of sexual contact in which a child was placed
in a situation that was likely to be harmful to the child’s
health and morals. See State v. Payne, 240 Conn. 766,
774–75, 695 A.2d 525 (1997) (citing State v. Velez, 17
Conn. App. 186, 199, 551 A.2d 421 (1988), cert. denied,
210 Conn. 810, 556 A.2d 610, cert. denied, 491 U.S. 906,
109 S. Ct. 3190, 105 L. Ed. 2d 698 (1989), which stated
that sexual activity with children, prior to enactment
of P.A. 95-142, § 1, created situation likely to be harmful
to their physical, moral, and emotional well-being),
overruled in part on other grounds by State v. Romero,
269 Conn. 481, 849 A.2d 760 (2004).
Prior to 1995, § 53-21 criminalized both sexual con-
tact and nonsexual contact without distinction, and
thus it was not clear from the conviction itself whether
the defendant had been convicted of a crime that was
sexual in nature. This made it difficult to place defen-
dants, who were convicted of risk of injury to a child
because of sexual contact, on the sex offender registry.
For ease of identifying sex offenders, P.A. 95-142, § 1,
divided the statute into sexual contact offenses under
what is now subsection (a) (2) and nonsexual contact
offenses under what is now subsection (a) (1), allowing
for the classification of sex offenders. See 38 S. Proc.,
Pt. 5, 1995 Sess., pp. 1769–70, remarks of Senator Martin
M. Looney (‘‘what the first part of the bill deals with
[is] the change in the definition of risk of injury to a
minor, and we have a, separating into sections that
deal with a, a sexual component, and a [nonsexual]
component, so that the offense can be more carefully
delineated’’); 38 H.R. Proc., Pt. 7, 1995 Sess., p. 2590,
remarks of Representative Amann (‘‘Section one divides
the risk of injury to a minor into two parts, which by
the way, is not on the list of current sex offender crimes.
One [risk of injury] crime is going to be classified as a
sex offender crime and one is not.’’).27
By dividing sexual and nonsexual contact offenses
with the enactment of P.A. 95-142, § 1, the legislature
maintained in subsection (a) (1), for nonsexual contact,
the distinction between the creation of a ‘‘situation’’
and the commission of an act. See General Statutes
§ 53-21 (a) (1) (‘‘wilfully or unlawfully causes or permits
any child under the age of sixteen years to be placed
in such a situation that the life or limb of such child is
endangered, the health of such child is likely to be
injured or the morals of such child are likely to be
impaired, or does any act likely to impair the health or
morals of any such child’’); see also State v. Payne,
supra, 240 Conn. 774 (‘‘[a]lthough both parts of the
statute are intended to protect children from predatory
and potentially harmful conduct of adults, the two parts
nonetheless are directed at different kinds of harm to
children’’). The legislature did not draw this distinction
in criminalizing sexual contact under subsection (a)
(2). Nothing in this legislative history suggests that the
legislature intended to distinguish between the creation
of a situation and the performance of a single act under
subsection (a) (2) or that the legislature intended to no
longer criminalize a continuing course of conduct of
sexual and indecent touching of intimate parts. There
is no indication that the legislature sought to alter the
substance of the crime. Rather, the legislative history
shows that the legislature intended only to separate
sexual and nonsexual contact. By not explicitly making
the distinction between an act and a situation, and in the
absence of any evidence that the legislature intended
to alter the scope of the crime of risk of injury to
a child in sexual contact cases to only acts and not
situations, it is clear that the legislature, in P.A. 95-142,
§ 1, intended to criminalize both situations and acts
without treating them as separate elements. Thus, this
legislative history shows that, in enacting § 53-21 (a)
(2), the legislature intended to continue to criminalize
both a single instance of contact as well as an ongoing
course of conduct.
Not only does § 53-21 (a) (2) contemplate criminaliz-
ing a continuing course of conduct, but, in the present
case, the state charged the defendant under such a
theory in counts one, five, and six. Specifically, in count
one, the state charged the defendant with committing
risk of injury to a child by having ‘‘contact with the
intimate parts’’ of N ‘‘in or about 2005 through January 8,
2007,’’ and, in count six, the state charged the defendant
with committing risk of injury to a child ‘‘in or about
2005 through October 23, 2007,’’ by having ‘‘contact
with the intimate parts’’ of T. This language put the
defendant on notice that he was charged with touching
the intimate parts of N and T in a sexual and indecent
manner over a period of time, rather than being charged
with a single instance of contact as to each child on a
single date. This is consistent with how the prosecutor
presented and argued these counts to the jury. The
prosecutor argued that, although the jury needed to find
that only a single incident of sexual contact occurred
to find the defendant guilty under each count, the state’s
theory was that the defendant continuously engaged in
this inappropriate touching during the alleged time
period.
Moreover, based on the evidence admitted at trial,
as to counts one and six, the jury reasonably could have
found that the multiple, separate incidents of conduct
did indeed constitute a continuing course of conduct.
As to count one, the testimony of N and other victims
showed that, although the multiple incidents of sexual
and indecent touching of N’s intimate parts occurred for
a prolonged period of time—approximately two years—
there was only a relatively short period of time between
the occurrence of each incident, as this conduct hap-
pened on a weekly basis. See United States v. Berardi,
supra, 675 F.2d 898 (concluding that ‘‘three alleged acts
of obstruction occurred within a relatively short period
of time’’ despite each act having occurred months
apart); see also United States v. Root, 585 F.3d 145, 155
(3d Cir. 2009) (multiple acts may be considered part of
continuous course of conduct even if conduct spanned
years). Additionally, these incidents were committed
by a single defendant, involved a single victim (N), and
furthered a single, continuing objective to touch N in
a sexual and indecent manner.
Similarly, as to count six, the testimony of T and
other victims showed that the multiple incidents of
sexual and indecent touching of T’s intimate parts
occurred frequently during a relatively short period of
time (on a regular basis when T was at the defendant’s
residence during the span of two years), were commit-
ted by a single defendant, involved a single victim (T),
and furthered a single, continuing objective to touch T
in a sexual and indecent manner whenever other adults
were unaware. Accordingly, counts one and six were
premised on a continuing course of conduct. As a result,
these counts were not duplicitous, and thus the trial
court’s failure to grant the defendant’s requests for a
bill of particulars or a specific unanimity instruction
did not violate his right to jury unanimity.
Count five, however, differs from counts one and six
in that it is premised on multiple acts of sexual and
indecent contact with S’s vagina and breasts during a
single evening. As noted previously in this opinion, at
times, ‘‘it may be difficult to determine whether a single
count is premised on multiple acts, each of which is
committed in the course of a single criminal episode of
relatively brief temporal duration and thus constitutes
alternative means of committing the elements at issue,
or whether it is premised on multiple, separate and
distinct acts, each of which could constitute a separate
statutory violation.’’ Part I B of this opinion; see United
States v. Newell, supra, 658 F.3d 23–24. In the present
case, the jury reasonably could have interpreted the
evidence admitted in only one of two ways. Although
the length of time is unclear, the testimony of S shows
that this touching occurred during the course of a single
evening. From this evidence, the jury reasonably could
have found that these acts constituted a single criminal
episode of relatively brief, temporal duration and thus
did not constitute multiple, separate incidents of con-
duct under the first prong of the applicable test. Alterna-
tively, from this evidence, even if the jury found under
prong one of the applicable test that there was enough
time between each act for the acts to constitute multi-
ple, separate incidents of conduct, the jury reasonably
could have found under prong two of the applicable
test that these acts constituted a continuing course of
conduct, not separate violations of § 53-21 (a) (2),
because this touching occurred during a relatively short
period of time (multiple times during a single evening),
was committed by a single defendant, involved a single
victim (S), and furthered a single, continuing objective
to touch S in a sexual and indecent manner. Addition-
ally, as it did with counts one and six, the state charged
and argued count five under a continuing course of
conduct theory. As a result, count five was not duplici-
tous and thus did not violate the defendant’s right to
jury unanimity.
The judgment of the Appellate Court is affirmed.
In this opinion ROBINSON, C. J., and McDONALD
and ECKER, Js., concurred.
* In accordance with our policy of protecting the privacy interests of
victims of the crime of risk of injury to a child, we decline to use the
defendant’s full name or to identify the victims or others through whom
the victims’ identities may be ascertained. See General Statutes § 54-86e.
Moreover, in accordance with federal law; see 18 U.S.C. § 2265 (d) (3)
(2018), as amended by the Violence Against Women Act Reauthorization
Act of 2022, Pub. L. No. 117-103, § 106, 136 Stat. 49, 851; we decline to
identify any person protected or sought to be protected under a protection
order, protective order, or a restraining order that was issued or applied
for, or others through whom that person’s identity may be ascertained.
** December 13, 2022, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
We note that the word ‘‘duplicitous’’ has a unique legal definition that
differs from its common dictionary definition. Compare Black’s Law Diction-
ary (11th Ed. 2019) p. 635 (‘‘alleging two or more matters in one plea’’;
and ‘‘characterized by double pleading’’), with Merriam-Webster’s Collegiate
Dictionary (11th Ed. 2014) p. 387 (defining ‘‘duplicitous’’ as ‘‘marked by
duplicity’’ and ‘‘deceptive in words or action’’).
2
Although § 53-21 has been amended numerous times since the defen-
dant’s commission of the crimes that formed the basis of his conviction;
see, e.g., Public Acts 2015, No. 15-205, § 11; Public Acts 2013, No. 13-297,
§ 1; and Public Acts 2007, No. 07-143, § 4; those amendments have no bearing
on the merits of this appeal. In the interest of simplicity, we refer to the
current revision of § 53-21.
3
The defendant was charged with five counts of risk of injury to a child,
with each count pertaining to each different child. Specifically, count one
charged the defendant with violating § 53-21 (a) (2) as to N. Count three
charged the defendant with violating § 53-21 (a) (2) as to C. Count four
charged the defendant with violating § 53-21 (a) (2) as to O. Count five
charged the defendant with violating § 53-21 (a) (2) as to S. Count six charged
the defendant with violating § 53-21 (a) (2) as to T.
Counts one, five, and six charged the defendant with having violated a
single statutory subdivision: subdivision (2) of subsection (a) of § 53-21.
Specifically, as to count one, the information charged that, at the defendant’s
residence in Lisbon, ‘‘in or about 2005 through January 8, 2007, the said
[defendant] did commit the crime of injury or risk of injury to or impairing
the morals of a child in that he had contact with the intimate parts of a
child under the age of sixteen years, the minor female [N], in a sexual and
indecent manner likely to impair the health and morals of said child, in
violation of § 53-21 (a) (2) of the . . . General Statutes.’’
Similarly, as to count five, the information charged that, at the defendant’s
residence in Lisbon, ‘‘in or about 2005 through September 15, 2008, the said
[defendant] did commit the crime of injury or risk of injury to or impairing
the morals of a child in that he had contact with the intimate parts of a
child under the age of sixteen years, the minor female [S], in a sexual and
indecent manner likely to impair the health and morals of said child, in
violation of § 53-21 (a) (2) of the . . . General Statutes.’’
As to count six, the information charged that, at the defendant’s residence
in Lisbon, ‘‘in or about 2005 through October 23, 2007, the said [defendant]
did commit the crime of injury or risk of injury to or impairing the morals
of a child in that he had contact with the intimate parts of a child under
the age of sixteen years, the minor female [T], in a sexual and indecent
manner likely to impair the morals of said child, in violation of § 53-21 (a)
(2) of the . . . General Statutes.’’
On appeal, the defendant challenges the judgment of conviction only as
to counts one, five, and six. He concedes that because his request for a
specific unanimity instruction as to count four was granted, he has no claim
as to that count. Additionally, in his reply brief, he concedes that he has
no claim as to count three.
4
The trial court instructed the jury: ‘‘As to each count, if you unanimously
find that the state has proved beyond a reasonable doubt each of the elements
of the crime of risk of injury to a minor, then you shall find the defendant
guilty. On the other hand, if you unanimously find that the state has failed
to prove beyond a reasonable doubt any of the elements, you shall then
find the defendant not guilty. . . . When you reach a verdict, it must be
unanimous.’’
5
The defendant also stated in his brief to the Appellate Court that his
right to a unanimous jury verdict was protected under article first, § 8, of
the Connecticut constitution, but he failed to analyze this claim separately
under the state constitution, and thus the Appellate Court did not address
the state constitutional claim. On appeal to this court, the defendant has
not raised a separate state constitutional claim.
6
We have described the Gipson test as follows: ‘‘We first review the
instruction that was given to determine whether the trial court has sanc-
tioned a nonunanimous verdict. If such an instruction has not been given,
that ends the matter. Even if the instructions at trial can be read to have
sanctioned such a nonunanimous verdict, however, we will remand for a
new trial only if (1) there is a conceptual distinction between the alternative
acts with which the defendant has been charged, and (2) the state has
presented evidence to support each alternative act with which the defendant
has been charged.’’ (Internal quotation marks omitted.) State v. Reddick,
224 Conn. 445, 453, 619 A.2d 453 (1993).
7
The concurrence is correct that the issues of duplicity and unanimity
are ‘‘different—albeit related—matters. The cure for a violation of the rules
against duplicitous pleading is, typically, reformulation of the indictment,
a bill of particulars, and/or appropriate jury instructions, not reversal of the
conviction.’’ (Footnote omitted.) In the present case, the issue of duplicity
was raised and evaluated at the pretrial phase of the criminal proceedings.
The trial court, however, declined to cure any alleged duplicity. This court
must now determine whether the counts were duplicitous and thus violated
the defendant’s right to jury unanimity, posttrial, based on all the evidence
admitted at trial. See United States v. Correa-Ventura, 6 F.3d 1070, 1086–87
(5th Cir. 1993).
8
‘‘The requirement of juror unanimity emerged in [fourteenth] century
England and was soon accepted as a vital right protected by the common
law. . . . This [c]ourt has, repeatedly and over many years, recognized that
the [s]ixth [a]mendment requires unanimity. As early as 1898, the [c]ourt
said that a defendant enjoys a ‘constitutional right to demand that his liberty
should not be taken from him except by the joint action of the court and
the unanimous verdict of a jury of twelve persons.’ A few decades later,
the [c]ourt elaborated that the [s]ixth [a]mendment affords a right to ‘a trial
by jury as understood and applied at common law . . . includ[ing] all the
essential elements as they were recognized in this country and England when
the [c]onstitution was adopted.’ And, the [c]ourt observed, this includes a
requirement ‘that the verdict should be unanimous.’ ’’ (Footnotes omitted.)
Ramos v. Louisiana, supra, 140 S. Ct. 1395–97.
9
In Apodaca v. Oregon, 406 U.S. 404, 411, 92 S. Ct. 1628, 32 L. Ed. 2d 184
(1972), however, the court upheld criminal convictions under Oregon law
that required the agreement of only ten members of a twelve person jury
in certain noncapital cases. The court explicitly had acknowledged in Ramos
that its decision in Apodaca was mistaken. See Ramos v. Louisiana, supra,
140 S. Ct. 1405; see also id., 1410 (Sotomayor, J., concurring as to all but
part IV A); id., 1416 (Kavanaugh, J., concurring in part).
10
We note that, although the United States Supreme Court has classified
the right to unanimity as a sixth amendment right, there has been some
confusion regarding whether the right to jury consensus as to a defendant’s
course of action is protected under the sixth amendment or under the
due process clauses of the fifth and fourteenth amendments. See Schad v.
Arizona, 501 U.S. 624, 634 n.5, 111 S. Ct. 2491, 115 L. Ed. 2d 555 (1991)
(opinion announcing judgment). Prior to Ramos, the defendant in Schad
claimed that Arizona’s first degree murder statute violated his sixth amend-
ment right to jury unanimity because it did not require the jurors to be
unanimous as to one of the alternative theories of premeditated and felony
murder. Id., 630 (opinion announcing judgment). The court in Schad, how-
ever, reframed the defendant’s claim as a due process challenge, explaining:
‘‘Even assuming a requirement of jury unanimity arguendo, that assumption
would fail to address the issue of what the jury must be unanimous about.
[The] jury was unanimous in deciding that the [s]tate had proved what,
under state law, it had to prove: that [the defendant] murdered either with
premeditation or in the course of committing a robbery. The question still
remains whether it was constitutionally acceptable to permit the jurors to
reach one verdict based on any combination of the alternative findings. . . .
In other words, [the defendant’s] real challenge is to Arizona’s characteriza-
tion of [first degree] murder as a single crime as to which a verdict need
not be limited to any one statutory alternative, as against which he argues
that premeditated murder and felony murder are separate crimes as to which
the jury must return separate verdicts.’’ Id., 630–31 (opinion announcing
judgment). The court noted, however, that characterizing the right at issue
as a sixth amendment right or as a due process right was ‘‘immaterial to
the problem of how to go about deciding what level of verdict specificity
is constitutionally necessary.’’ Id., 634 n.5 (opinion announcing judgment).
The United States Court of Appeals for the Third Circuit, however, has
reconciled the confusion in the case law in a way we find persuasive: ‘‘[R]ead
as a whole, we think that [Schad’s] emphasis on the [d]ue [p]rocess [c]lause
does not mean that the [s]ixth [a]mendment is irrelevant here. Rather, we
conclude that the [s]ixth [a]mendment does require unanimity, in federal
[and state] criminal trials, on all elements of the offense. However, because
what constitutes an ‘element’ is purely a matter of legislative intent, the
[s]ixth [a]mendment places no limit on the legislature’s power to make
alternative facts ‘means’ not subject to a unanimity requirement. The limit
on the legislature’s definitional power, then, comes from the [d]ue [p]rocess
[c]lause. . . . As [Schad] pointed out, ‘this difference in characterization
. . . is immaterial to the problem of how to go about deciding what level
of verdict specificity is constitutionally necessary.’ ’’ United States v.
Edmonds, 80 F.3d 810, 823 n.17 (3d Cir.), cert. denied, 519 U.S. 927, 117 S.
Ct. 295, 136 L. Ed. 2d 214 (1996).
11
Additionally, some federal courts have noted that some state courts
have relied on their own common law to hold that a statute encompasses
a continuing course of conduct. See Dyer v. Farris, 787 Fed. Appx. 485,
495 (10th Cir. 2019) (Under Oklahoma law, ‘‘the general rule requiring the
[s]tate to elect which offense it will prosecute is not in force when separate
acts are treated as one transaction. . . . [W]hen 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 within the meaning of this
rule.’’ (Citation omitted; internal quotation marks omitted.)), cert. denied,
U.S. , 140 S. Ct. 1157, 206 L. Ed. 2d 207 (2020); id. (citing Gilson v.
State, 8 P.3d 883, 899 (Okla. Crim. App. 2000), cert. denied, 532 U.S. 962,
121 S. Ct. 1496, 149 L. Ed. 2d 381 (2001), which stated that, generally, under
Oklahoma law, rape was not considered continuing offense, but that, under
Oklahoma’s common law, court had recognized exception for ongoing sexual
abuse of minors under certain circumstances). Because neither party argues
that any common-law exception applies, we need not decide today whether
creating or applying common-law exceptions in interpreting statutes is
proper.
12
Both the majority and the concurrence agree that, whether a statute
criminalizes a single act, a continuous course of conduct, or both is a matter
of legislative intent and that this court’s first task is to interpret the statute
at issue, as directed by § 1-2z. If the statute’s clear language, its relationship
to other statutes, its legislative history or other extrinsic sources make the
legislature’s intent clear, then that controls, and the prosecutor’s discretion
in charging is limited, as made clear by the statute. The concurrence, how-
ever, citing to case law from the United States Court of Appeals for the
Second Circuit, argues that, in the event that the legislature is silent with
respect to its intent, we should adopt and apply a presumption in favor of
granting prosecutors discretion to charge crimes based on either a single
act or a continuous course of conduct.
We have discovered no support for such a presumption in our case law
or in the case law of a majority of the federal courts of appeals. We will
discuss this in greater detail in part I C of this opinion. Nevertheless, we
need not decide the issue of whether any presumption should apply in the
event the legislature is silent with respect to its intent regarding whether a
statute criminalizes a single act, a continuous course of conduct, or both
because we hold that the legislature’s intent under subsection (a) (2) of our
risk of injury statute is clear based on the statutory language, case law
defining that statute, and relevant legislative history. See part II of this opin-
ion.
13
In State v. Cody M., supra, 337 Conn. 92, the defendant argued that his
two convictions under § 53a-223a for violating a standing criminal protective
order twice in one transaction violated the constitutional prohibition against
double jeopardy because, in his view, violating a protective order is a continu-
ing offense, and the two statements that formed the basis of his convictions—
one in which he simply contacted the victim, and the other in which he
threatened her—were part of a single conversation that should be viewed
as a single violation. Id., 98, 101. In deciding this claim, this court analyzed the
language of § 53a-223a pursuant to § 1-2z and determined that the legislature
intended to criminalize each separate offense, not a continuous course of
conduct. Id., 102–103, 106. We did not apply any presumption or determine
that the state had discretion in deciding whether to charge the defendant
with multiple single counts or a single count premised on a continuous
course of conduct. Thus, we have treated the question of whether a single
count may be premised on a continuous course of conduct as a matter of
statutory interpretation, requiring us ‘‘in the first instance’’ to follow the
admonition of § 1-2z. Id., 104.
14
For claims of unanimity as to instances of conduct, even if the precise,
specific unanimity instruction the defendant requested was not given, no
prejudice exists if the jury is instructed that it must be unanimous either
as to which instance of conduct occurred or that all of the alleged instances
of conduct occurred. See, e.g., United States v. Sarihifard, 155 F.3d 301,
310 (4th Cir. 1998).
15
The United States Court of Appeals for the Second Circuit, along with
a minority of other federal courts of appeals, has held that, although a single
count premised on multiple, separate acts, each of which could constitute
a violation of the same statute, statutory subsection, or statutory clause is
duplicitous, the defendant’s right to jury unanimity is violated only if his
conviction on the basis of multiple acts prejudiced the defendant by creating
the genuine possibility that the conviction occurred as the result of different
jurors concluding that the defendant committed different acts. See, e.g.,
United States v. Sturdivant, supra, 244 F.3d 75; United States v. Margiotta,
646 F.2d 729, 733 (2d Cir. 1981). Thus, under this test, the trial court’s failure
to grant a defendant’s request for a bill of particulars or a specific unanimity
instruction to cure this duplicity does not mean that the duplicitous count
necessarily violates the defendant’s right to jury unanimity. A constitutional
error arises only if the duplicitous count prejudices the defendant. As we
will explain in part I C of this opinion, we do not adopt the Second Circuit’s
test for claims of unanimity as to instances of conduct.
16
The defendant argues that a trial court’s failure to give a specific unanim-
ity instruction when a single count is premised on multiple, separate
instances of conduct constitutes structural error, regardless of prejudice to
the defendant. The defendant’s position, however, conflicts with the test
established by the federal courts of appeals for constitutional claims. Addi-
tionally, our appellate courts have never applied structural error to unanimity
claims. Accordingly, we reject the defendant’s argument.
17
As one federal court of appeals has stated: ‘‘The risks of serious
unfairness presented by a duplicitous indictment are apparent. In conditions
where jurors disagree among themselves as to just which offenses the
evidence supports, the defendant may nevertheless wind up convicted
because the jurors agree that the evidence showed that he had committed
an offense, even if it was ambiguous as to which one. . . . In other words,
although a jury may return a guilty verdict even if the jurors disagree about
how a specific crime was committed, this is quite different from allowing
a jury to return a guilty verdict when they disagree even as to which crime
or crimes were committed. . . . [T]he lack of a unanimity instruction [under
these circumstances] could cover up wide disagreement among the jurors
about just what the defendant did, or did not, do.’’ (Citation omitted; empha-
sis omitted; internal quotation marks omitted.) United States v. Newell,
supra, 658 F.3d 27.
18
In declining to adopt the test used by the Second Circuit, we assume
that the concurrence accurately has recited it. In arguing that the Second
Circuit has adopted this presumption, the concurrence relies on United
States v. Margiotta, supra, 646 F.2d 729. Contrary to the concurrence’s
assertion, in holding that a duplicitous count—a single count of mail fraud
based on multiple, separate acts—created no risk of a nonunanimous verdict,
the court explained that this ‘‘risk [was] slight in a case . . . [in which] the
essence of the alleged wrong is the single scheme to defraud . . . .’’ (Empha-
sis added.) Id., 733. In other words, the court relied on the language of the
federal mail fraud statute, which specifically criminalizes ‘‘any scheme . . .
to defraud . . . .’’ 18 U.S.C. § 1341 (1976). Thus, the holding in Margiotta
was premised on the fact that the statute specifically contemplated crimi-
nalizing a ‘‘scheme’’ of activity, rather than only a single act. Moreover, the
court in Margiotta never mentions prosecutorial discretion or any kind of
presumption.
Nevertheless, the concurrence is correct that the Second Circuit, in at
least one case, has held that Margiotta created a ‘‘general rule’’ that a single
count may be premised on multiple acts if the acts constitute ‘‘a scheme,’’
regardless of whether the statute actually criminalizes a scheme or a continu-
ing course of conduct, and thus no duplicity or unanimity issue arises. See
United States v. Moloney, 287 F.3d 236, 239 (2d Cir.) (acknowledging ‘‘general
rule’’ that, unless explicitly prohibited by legislature, ‘‘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’ ’’),
cert. denied, 537 U.S. 951, 123 S. Ct. 416, 154 L. Ed. 2d 297 (2002).
19
The concurrence cites to cases from the United States Courts of Appeals
for the Fourth, Sixth and Seventh Circuits in an attempt to show that the
Second Circuit is not an outlier in adopting a presumption in favor of
affording prosecutors discretion in charging a crime based on a single act
or on a continuous course of conduct when the statutory language and
legislative history are silent regarding whether a crime may be charged as
a single act, a continuous course of conduct, or both. See footnotes 4 and
25 of the concurring opinion; see also United States v. Kamalu, supra, 298
Fed. Appx. 254; United States v. Davis, supra, 471 F.3d 790–91; United
States v. Alsobrook, supra, 620 F.2d 142; United States v. Tanner, supra,
471 F.2d 138. In none of these cases, however, did the courts mention, let
alone apply, a presumption affording prosecutors discretion in the event of
legislative silence regarding whether the statute criminalized a continuous
course of conduct, a single act, or both. Rather, the holdings of most of
these cases relied on the plain language of the statutes at issue.
The concurrence is correct, however, that the court in Tanner noted that
the prosecutor had discretion in that case. But the concurrence takes this
statement out of context. The court stated this only after noting the broad
language of the statute at issue: ‘‘The prohibited conduct is described in 18
U.S.C. § 837 [1964] as the act of transporting explosives in interstate com-
merce for the purpose of destroying any building or other real or personal
property. Differentiating single offenses under this section requires defining
at what point the act of transporting explosives is completed.’’ United States
v. Tanner, supra, 471 F.2d 138. The Seventh Circuit held that prosecutors had
discretion in making this determination because ‘‘[t]he act of transporting
explosives’’ could be defined to include both a single incident and a continu-
ous course of conduct. Id., 139. Thus, Tanner does not support the concur-
rence’s argument that a presumption in favor of prosecutorial discretion
should apply if the statute is silent in this regard.
Similarly, the concurrence is correct that the court in Alsobrook stated
that ‘‘[t]he 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.’’
United States v. Alsobrook, supra, 620 F.2d 142. The court, however, immedi-
ately followed this statement by stating that ‘‘[t]his discretion . . . is not
without limits’’; id.; with a citation to United States v. Tanner, supra, 471
F.2d 128, which, as discussed, examined the statutory language in determin-
ing that the prosecutor could charge a crime as a continuing course of con-
duct.
Finally, we note that United States v. Kamalu, supra, 298 Fed. Appx. 254,
does not support the concurrence’s proposed test. Rather than apply the
concurrence’s test, the Fourth Circuit held that the government had improp-
erly charged the defendant with a duplicitous single count ‘‘despite the
allegation of a continuing scheme . . . .’’ Id. The court, however, held that
this duplicity was not prejudicial. Id.
20
This court has limited the scope of the legislative acquiescence doctrine.
For example, this court has explained that the doctrine applies to decisions
of the appellate courts but not to unofficially reported trial court decisions.
See Chestnut Point Realty, LLC v. East Windsor, 324 Conn. 528, 544 n.9,
153 A.3d 636 (2017); see also Mayer v. Historic District Commission, 325
Conn. 765, 778, 160 A.3d 333 (2017) (under doctrine of legislative acquies-
cence, court ‘‘may infer that the failure of the legislature to take corrective
action within a reasonable period of time following a definitive judicial
interpretation of a statute signals legislative agreement with that interpreta-
tion’’ (internal quotation marks omitted)). Although this court has not been
explicitly asked to determine if this doctrine applies to parties’ litigation
practices or the practices of constitutional officers, including prosecutors,
we have held that this doctrine does not extend ‘‘to presume the legislature’s
awareness of municipal legislation that has not been subjected to judicial
scrutiny and that may vary in form among municipalities,’’ such as zoning
regulations. Kuchta v. Arisian, 329 Conn. 530, 547, 187 A.3d 408 (2018).
21
General Statutes (1902 Rev.) § 1331 provides: ‘‘Every person who over-
drives, drives when overloaded, overworks, tortures, deprives of necessary
sustenance, mutilates, or cruelly beats, or kills, any animal, or causes it to
be done; and every person who, having the charge or custody of any such
animal, inflicts unnecessary cruelty upon it, or unnecessarily fails to provide
it with proper food, drink, or protection from the weather, or who cruelly
abandons it, or carries it in an unnecessarily cruel manner, shall be fined
not more than two hundred and fifty dollars, or imprisoned not more than
one year, or both.’’
22
Adopting the concurrence’s presumption that, in the event of the legisla-
ture’s silence, prosecutors may choose to charge a course of conduct in
their discretion might impact policies the legislature has already considered,
including those involving sexual assault. For example, in 2019, the legislature
extended the statute of limitations for sexual assault in which the victim
was age twenty-one or older from five years to twenty years, and abolished
the statute of limitations for sexual assault in which the victim was a minor
at the time of the offense. See Public Acts 2019, No. 19-16, § 17, codified at
General Statutes (Supp. 2020) § 54-193 (a) (1) (B) and (b). At the time the
legislature made this policy decision, our case law was clear that sexual
assault is a single act crime, not a continuous course of conduct crime. See
State v. Joseph V., 345 Conn. , A.3d (2022). Allegations of a
continuous course of conduct can operate to toll the statute of limitations
or, as a practical matter, reach back and capture acts beyond the statute
of limitations. See 1 C. Torcia, Wharton’s Criminal Law (15th Ed. 1993) § 92,
p. 631 (‘‘A statutory period of limitation begins to run on the day after the
offense is committed. An offense is deemed committed when every element
thereof has occurred or, if the offense is based [on] a continuing course of
conduct, when the course of conduct is terminated.’’ (Footnote omitted.)).
If the legislature had thought that the concurrence’s proposed presumption
would become the law, it might have considered that in establishing a statute
of limitations.
23
In Ceballos, the defendant argued that we should follow case law from
other states requiring the jury to agree on the underlying act when determin-
ing if the defendant was guilty of each count charged. State v. Ceballos,
supra, 266 Conn. 420–21 n.55. We rejected this argument on the ground that
these precedents conflicted with the federal test announced in Gipson,
which this court had adopted without considering any federal precedent on
this issue. Id., 421 n.55.
24
The Appellate Court even has suggested that unanimity concerns arise
only when a single count is premised on multiple statutes, statutory subsec-
tions, or statutory clauses, not when a single count is premised on multiple
instances of conduct, each of which could establish a violation of a single
statute, statutory subsection, or statutory clause. See State v. Mancinone,
supra, 15 Conn. App. 276–77; see also State v. Joseph V., supra, 196 Conn.
App. 740 (requirement that court give jury specific unanimity charge ‘‘comes
down to whether the defendant’s criminal liability for each offense was
premised on his having violated one of multiple statutory subsections’’);
State v. Douglas C., supra, 195 Conn. App. 747, 752 (unanimity instruction
is necessary only if count of information at issue is based on multiple,
factual allegations that amount to multiple statutory subsections or multiple
statutory elements of offense). This court has not addressed this issue. See
State v. Spigarolo, supra, 210 Conn. 391 (‘‘[w]e need not determine whether
Mancinone’s primary analysis of the unanimity requirement is correct’’).’’
25
Although § 53a-65 (8) has been amended since the defendant’s commis-
sion of the crimes that formed the basis of his conviction; see Public Acts
2006, No. 06-11, § 1; that amendment has no bearing on the merits of this
appeal. In the interest of simplicity, we refer to the current revision of § 53a-
65 (8).
26
The concurrence asserts that, in Hauck, this court presumed that the
prosecution had discretion in the absence of specific language permitting
or prohibiting charging the crime as a continuing course of conduct because
the court in that case did not rely on the statutory language but on only
policy rationales in holding that risk of injury may be charged as a continuing
course of conduct crime. It is true that the analysis in Hauck is very short
and does not specifically address the language of the risk of injury statute.
Neither does the court in Hauck refer to a presumption in favor of prosecu-
torial discretion, however. All that this court said in that case was that ‘‘[t]he
offenses charged here were obviously of a continuing nature and it would
have been virtually impossible to provide the many specific dates [on] which
the acts constituting the offenses occurred.’’ State v. Hauck, supra, 172
Conn. 150.
It is important to note that, in Hauck, the applicable risk of injury statute
criminalized sexual contact as both an act and a situation. See General
Statutes (Rev. to 1972) § 53-21. A situation can certainly involve a continuing
course of conduct. This is supported by case law that followed Hauck, in
which this court held that a single count of risk of injury to a child under
the situation prong premised on ongoing sexual contact could be charged
as a continuing course of conduct. See State v. Spigarolo, supra, 210 Conn.
383–84, 391–92. Thus, to the extent Hauck was ambiguous regarding its
reliance on the language of the statute, subsequent case law clarifies that
a continuing course of conduct is contemplated by the statutory term ‘‘situa-
tion.’’ See, e.g., id.; see also State v. Payne, 240 Conn. 766, 775, 695 A.2d
525 (1997) (citing State v. Velez, 17 Conn. App. 186, 198–99, 551 A.2d 421
(1988), cert. denied, 210 Conn. 810, 556 A.2d 610, cert. denied, 491 U.S. 906,
109 S. Ct. 3190, 105 L. Ed. 2d 698 (1989), in which court determined that
sexual activity with children created situation that was likely to be harmful
to their physical, moral, and emotional well-being).
27
This statement does not show that the legislature intended to alter the
substance of the statute but, rather, that it intended to separate sexual and
nonsexual contact. The fact that this amendment allows the new subdivision
pertaining to sexual contact to be classified as a sex offender crime does
not indicate that the substance of the crime itself was altered.
Nevertheless, the concurrence contends that the legislature intended to
create a ‘‘new’’ risk of injury statute regarding sexual contact, and thus our
prior case law should not apply, because, in two instances in the legislative
history, Senator Thomas F. Upson referred to the risk of injury statute as
‘‘new . . . .’’ See 38 S. Proc., Pt. 5, 1995 Sess., p. 1766, remarks of Senator
Upson (‘‘[b]ecause while the original bill talks about a new risk-of-injury
statute, risk of injury by having contact with the intimate parts of a child
under sixteen, becomes a [c]lass C felony’’); id., p. 1777, remarks of Senator
Upson (‘‘[f]irst of all, it creates a new crime, risk of injury, explained a little
earlier, by having contact with the intimate parts of a child under sixteen,
in a sexual and indecent manner, likely to impair the health or morals of
the child’’). The concurrence cherry-picks the term ‘‘new’’ out of these
quotations without reference to the broader context. As explained, the
legislative history makes clear that a ‘‘new’’ crime was created solely to
distinguish sexual contact and nonsexual contact. Nothing in the legislative
history manifested a legislative intent to otherwise alter the substance of
the crime itself. The ‘‘change in the definition of risk of injury’’ was limited
to the distinction between sexual and nonsexual contact, as Senator Looney
immediately clarified. See 38 S. Proc., supra, p. 1769, remarks of Senator
Looney (‘‘what the first part of the bill deals with [is] the change in the
definition of risk of injury to a minor, and we have a, separating into sections
that deal with a, a sexual component, and a [nonsexual] component’’).