State v. Douglas C.

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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.

Syllabus

A criminal information is duplicitous when it charges a defendant in a single

count with two or more distinct and separate criminal offenses, thereby

implicating the defendant’s constitutional right to a unanimous jury

verdict.

Convicted of five counts of the crime of risk of injury to a child in connection

with the sexual abuse of five victims, including N, S, and T, the defendant

appealed to the Appellate Court. The defendant allegedly had sexual

and indecent contact with the intimate parts of the victims, all of whom

were under sixteen years of age at the time, on multiple occasions over

the course of several years, while at the defendant’s home. Each of the

five risk of injury counts pertained to a different child. At the defendant’s

trial, N and T testified regarding the defendant’s frequent touching of

their breasts, and S testified about a single evening during which the

defendant touched her vagina multiple times and made contact with

her breasts. During the defendant’s trial, defense counsel requested that

the court provide a specific unanimity jury instruction on each of the

risk of injury counts, claiming that the evidence demonstrated that there

were discrete incidents of abuse and not a continuing course of conduct,

which could cause the jurors to reach a guilty verdict on a particular

count on the basis of findings as to different incidents of abuse. The

trial court nevertheless denied the request for a unanimity instruction

with respect to the counts pertaining to N, S, and T. On appeal to the

Appellate Court from the judgment of conviction, the defendant claimed,

inter alia, that the risk of injury counts pertaining to N, S, and T were

duplicitous insofar as each count charged him with a single violation

of the risk of injury to a child statute (§ 53-21 (a) (2)), even though

there was evidence that he had engaged in multiple, separate instances

of unlawful conduct, and that the trial court, therefore, improperly had

declined defense counsel’s request for a specific unanimity instruction

as to those counts, in violation of his right to a unanimous jury verdict

on each count. The Appellate Court affirmed the trial court’s judgment,

and the defendant, on the granting of certification, appealed to this

court. Held:

1. This court’s review of federal case law concerning the scope of the

unanimity requirement led it to clarify that a duplicitous information

may raise two distinct and separate kinds of unanimity issues, that is,

unanimity as to the elements of a crime and unanimity as to instances

of conduct, the defendant’s claims in the present case related to unanim-

ity as to instances of conduct, and this court adopted the approach

utilized by a majority of the federal courts of appeals for determining

whether a criminal information gives rise to unanimity claims based on

instances of unlawful conduct:

The issue of unanimity as to the elements of a crime arises when a

defendant is charged in a single count with having violated multiple

statutory provisions, subsections, or clauses, and, when such an issue

is presented, a court must determine whether the statutory language

creates multiple elements, each of which the government must charge

as a separate offense, or alternative means of committing the element

at issue.

The issue of unanimity as to instances of conduct arises when a defendant

is charged in a single count with having violated a single statutory provi-

sion, subsection, or clause on multiple, separate occasions, and the

dispute centers on whether, in light of the statutory language, the defen-

dant could be convicted of a single count of violating a statute based

on evidence of multiple, separate occurrences of the prohibited act

or acts.

In the present case, the defendant claimed that the counts of the informa-

tion pertaining to N, S, and T violated his right to unanimity as to instances

of conduct, insofar as each count was premised on multiple, separate

instances of conduct and the trial court had declined to provide a specific

unanimity instruction as to those counts.

This court adopted the following multipart test, employed by federal

courts, for claims of unanimity as to instances of conduct, to determine

whether a defendant’s constitutional right to jury unanimity was violated

by the trial court’s failure to give a specific unanimity instruction.

First, 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?

Second, if so, 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 continuing course of

conduct, well established principles of statutory interpretation should

be employed. Only if each instance of conduct constitutes a separate

violation of the statute is a count duplicitous.

Third, if the count is 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.

In light of this court’s adoption of the foregoing test for claims of unanim-

ity as to instances of conduct, to the extent that this court and the

Appellate Court in previous cases have failed to heed the relevant federal

precedent and to distinguish between unanimity as to the elements of

a crime and unanimity as to instances of conduct, this court overruled

those prior cases.

2. Applying the newly adopted test for unanimity as to instances of conduct,

this court concluded that the counts of the information pertaining to

N, S, and T were not duplicitous and that the trial court’s failure to

grant defense counsel’s request for a specific unanimity instruction as

to those counts, therefore, did not violate the defendant’s constitutional

right to jury unanimity, and, accordingly, affirmed the Appellate

Court’s judgment:

a. The counts of risk of injury to a child pertaining to N and T, which

were based on similar testimony about the defendant’s touching of N’s

and T’s intimate parts, were not duplicitous:

Under the first prong of the multipart test, this court concluded that

the counts pertaining to N and T were premised on multiple, separate

incidents of conduct and not a single incident, insofar as there was

testimony that the defendant frequently touched N’s and T’s breasts in

a sexual and indecent manner during N’s weekly visits to the defendant’s

residence and whenever T was at the residence.

Under the second prong, regarding whether each incident could establish

an independent violation of § 53-21 (a) (2), this court concluded that the

state had the discretion to charge the defendant with having violated

§ 53-21 (a) (2) as to each incident of conduct or to present those incidents

to the jury as a continuing course of conduct, because, although the

plain language of the statute was ambiguous as to whether the multiple,

separate instances of conduct at issue were separate and distinct viola-

tions of § 53-21 (a) (2), nothing in that statute’s legislative history sug-

gested that the legislature intended to abrogate this court’s prior case

law interpreting § 53-21 to allow a defendant to be charged under a

continuing course of conduct theory.

Moreover, not only does § 53-21 (a) (2) contemplate criminalizing a

continuing course of conduct, but, in the present case, the state charged

the defendant under such a theory, alleging in the counts pertaining to

N and T that the defendant had contact with their intimate parts in a

sexual and indecent manner over a period of time, rather than charging

the defendant with a single instance of contact as to each child on a

single date, and the jury reasonably could have found that the multiple,

separate incidents of conduct constituted a continuing course of conduct

on the basis of the evidence presented at trial, especially the testimony

of N, T, and the other victims.

b. The count of risk of injury to a child pertaining to S, which was

premised on multiple acts of sexual and indecent contact with S’s vagina

and breasts during a single evening, was not duplicitous:

Although 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 the count is premised on multiple, separate and distinct acts,

each of which could constitute a separate statutory violation, in the

present case, the jury reasonably could have interpreted the evidence

as demonstrating that the defendant’s acts toward S constituted either

a single criminal episode of relatively brief, temporal duration or a contin-

uing course of conduct in that the acts occurred multiple times during a

single evening, involved a single victim and furthered a single, continuing

objective to touch S in a sexual and indecent manner.

(Two justices concurring separately)

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

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 defen-

dant’s motion for a judgment of acquittal as to the

charge of sexual assault in the second degree; verdict

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 defen-

dant, 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

independently establish a violation of the charged stat-

ute. 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 defendant’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 defen-

dant 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 frequency of

this contact, N could not recall specific dates or inci-

dents, with the exception of the first time the defendant

ever touched her breasts—in a car after getting fast

food—and the one and only time that the defendant

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 defen-

dant touched S’s vagina multiple times and made con-

tact with her breasts. Specifically, after the defendant

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 defen-

dant 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 defendant.

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 instruc-

tion was not required because unanimity concerns 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 defen-

dant under each count with having violated only a single

statutory subsection, the defendant’s right to jury una-

nimity was not violated. The defendant sought certifica-

tion 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

prosecution.’’ (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.

Browning, 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 gener-

ally 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 defen-

dant’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 sub-

ject 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 unanimity 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 unanimously 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 announc-

ing 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 Tuesday or Y

on Wednesday . . . .’’ Id., 651 (Scalia, J., concurring in

part and concurring in the judgment). Subsequently,

the majority in Richardson specifically cited Justice

Scalia’s warning in Schad in support of the proposition

that ‘‘the [c]onstitution itself limits a [s]tate’s power to

define crimes in ways that would permit juries to con-

vict 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 Richardson.

These courts have explained that this first kind of una-

nimity claim involves the question of ‘‘when is a dis-

puted 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 violated.

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 defen-

dant, 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 ‘‘traditional

authority’’ and placing ‘‘an unwarranted burden on

young victims,’’ a duplicitous count does not necessarily

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 vio-

lating 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 prem-

ised on multiple acts was duplicitous, and thus trial

court’s failure to give unanimity instruction violated

defendant’s right to jury unanimity); 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 violated 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, sepa-

rate 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 multi-

ple, separate instances of conduct, right to jury unanim-

ity 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, includ-

ing an examination of the relevant legislative history, 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-

currence’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, includ-

ing our review of the statute’s legislative history. 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 that the legislature is well aware of and 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 concur-

rence derives this ‘‘tradition’’ from the fact that ‘‘prose-

cutors have been charging crimes as continuing

offenses since the nineteenth century,’’ and thus our

state has a ‘‘long history of affording prosecutors broad

discretion 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 contention,

there is no case law adopting and applying this presump-

tion. For example, the concurrence cites to a nineteenth

century case as proof that this court historically 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 contin-

ued 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 animals of suste-

nance, with each count premised on multiple acts of

cruelty to animals. Id. The court explained that the

crime of cruelty to animals ‘‘may consist of overwork-

ing, [underfeeding], or depriving of proper protection,

or all these elements may combine and constitute the

offense.’’ Id. In other words, the court examined 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 decision

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] prosecuted enumerates

various acts of cruelty to animals for which a punish-

ment 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 protec-

tion from the weather.’’ State v. Cook, supra, 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, supra, 15 Conn. App.

225–27 and n.1 (decided prior to recognition of claims

of unanimity as to instances of conduct, not deciding

whether statute criminalized continuing course of con-

duct, 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 presump-

tion. Rather, these cases were decided under the test

set forth in Gipson and before this court recognized

claims of unanimity as to instances of conduct. As we

explained, the Gipson test did not require that a court

analyze whether the statute at issue criminalizes a con-

tinuous course of conduct and is not the proper test

for determining claims of unanimity regarding 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) (1)

and (2); 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

on 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 continuous 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 continu-

ous courses of conduct; see General Statutes § 53a-181d

(b) (1), as amended by Public 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 electronic 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 sub-

section (a) (1) of our risk of injury statute, the legisla-

ture specifically criminalized both a single act and a

continuous course of conduct through the use of the

terms ‘‘act’’ and ‘‘situation,’’ 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 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’’ (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 inter-

pret a statute as criminalizing both an act and a continu-

ous course of conduct. As previously discussed, we

by no means are adopting a presumption against such

charging when the plain language of a statute is not

explicit in this regard. Rather, courts must closely ana-

lyze the language of the statute, case law interpreting

the statute, 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. 516, 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., 555 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 testimony that

the defendant touched N’s breasts in a sexual and inde-

cent manner frequently during weekly visits to his resi-

dence, with this inappropriate touching ultimately

escalating to oral sex. Therefore, clearly as to count

one, evidence was presented to the jury of multiple,

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 concurrence

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] language . . .

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 quotation 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 the-

ory. 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 conduct).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 committed by a

single defendant, involved a single victim (T), and fur-

thered a single, continuing objective to touch T in a

sexual and indecent manner whenever other adults were

unaware. Accordingly, counts one and six were prem-

ised 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

opinion.

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 that 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’ ’’; (emphasis

omitted); that a single count may be premised on multiple acts if the acts

constitute ‘‘ ‘a single scheme,’ ’’ regardless of whether the statute actually

criminalizes a scheme or a continuing course of conduct, and thus no duplic-

ity or unanimity issue arises. See United States v. Moloney, 287 F.3d 236,

240 (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

conduct.

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. 516, 543–44 n.12, 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., 196 Conn. App.

712, 740, 230 A.3d 664 (2020) (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 statu-

tory subsections’’), rev’d in part, 345 Conn. 516, A.3d (2022); 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 statu-

tory 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 the charging of a 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 prosecutorial 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’’).