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STATE OF CONNECTICUT v. DOUGLAS C., JR.* (AC 41245)
Alvord, Prescott and Sullivan, Js.
Syllabus Convicted, after a jury trial, of five counts of the crime of risk of injury to
a child, the defendant appealed to this court. The defendant’s conviction
stemmed from his alleged sexual abuse of five female victims, including
C, on various dates while they were under the age of sixteen. The minor
victims were often in the presence of the defendant in his home, where
the defendant had contact with their intimate parts on multiple occa-
sions. Specifically, the defendant grabbed C’s breasts over her shirt on
multiple occasions from September, 2005 to September, 2006. After the
close of the state’s case, the defendant moved for a judgment of acquittal,
which the trial court granted as to a count alleging sexual assault in
the second degree but denied as to the five remaining counts that charged
the defendant with the crime of risk of injury to a child. Subsequently,
the defendant requested that the court provide a specific unanimity
instruction to the jury on the remaining five counts, which the court
granted only as to one of those counts. On appeal, the defendant claimed,
inter alia, that the court improperly denied his motion for a judgment
of acquittal because there was insufficient evidence for the jury to
convict him on the count involving C, as the three factor test used by
our Supreme Court in
Stephen J. R.
(
for a judgment of acquittal was unavailing: a. The defendant could not prevail on his claim that the test used by our Supreme Court in Stephen J. R. was inapplicable to the present case because the leniency with respect to proof that has been formulated to apply in such cases involving very young children should not be applied with equal force in the present case: although C was older than the child victim in Stephen J. R. when she was sexually abused by the defendant and when she testified at trial, the test articulated by our Supreme Court in Stephen J. R. was not dependent on the child’s age and was applicable to the present case to assess whether C’s testimony was sufficient to sustain the defendant’s conviction because, according to C’s testimony at trial, the defendant had access to her on multiple occasions at his home between September, 2005, and her sixteenth birthday in September, 2006, and the test used in Stephen J. R. applies to cases, such as the present case, where an alleged abuser has ongoing access to the child victim and, as a result, the victim testifies to repeated acts of abuse occurring over a period of time but, lacking any meaningful point of reference, is unable to furnish many specific details, dates or distinguishing characteristics as to individual acts or assaults; moreover, the exact number of times that the defendant had contact with C’s breasts and the specific dates on which these acts occurred are not elements of committing the offense of risk of injury to a child, and the state was only required to prove that the defendant had contact with C’s intimate parts on one occasion before her sixteenth birthday. b. The defendant could not prevail on his claim that, even if the three factor test articulated in Stephen J. R. applied to the present case, there was insufficient evidence to convict him on the count involving C because C’s testimony failed to satisfy the second and third factors of the test and, thus, that it was unreasonable for the jury to conclude from the evidence presented and the inferences drawn therefrom that the defendant had contact with C’s intimate parts before she was sixteen years old: the defendant could not prevail on his claim with respect to the second factor of the test, that C’s testimony failed to establish sufficiently the number of times that the defendant had contact with *3 her intimate parts because her testimony was inconsistent, as that claim merely attacked the credibility of C’s testimony and did not undermine the sufficiency of the evidence on which the jury based its guilty verdict, and C satisfied the second factor by testifying with sufficient specificity that the defendant, who was charged with one count of risk of injury to a child for having contact with C’s intimate parts in a sexual and indecent manner, touched her breasts at least once; moreover, with respect to the third factor of the test, which requires a child victim to describe the general time period in which the illegal acts occurred to assure that those acts were committed within the applicable limitation period, the state did not need to prove the time period during which each incident occurred because the defendant failed to claim that any of the conduct for which he was charged occurred outside the limitation period and, although the third factor was, nevertheless, applicable to the present case because the state was obligated to prove that the defendant had contact with C’s intimate parts on one or more occasions before her sixteenth birthday, C’s testimony was sufficient in this regard because it tended to demonstrate that the defendant’s conduct occurred after he moved to Connecticut in September, 2005, but before she turned sixteen years old in September, 2006, and the jury could have reasonably found that C’s testimony regarding the general time period during which the defendant had contact with her intimate parts was corroborated by other testimony at trial, including the testimony of the defendant’s wife, who testified that C was in the defendant’s home on multiple occasions before her sixteenth birthday. 2. The defendant’s claim 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 four of the counts in violation of his rights under the federal and state constitutions, which prohibit the conviction of a criminal defendant by a jury unless it is unanimous as to the defendant’s guilt, was unavailing; although the defendant was charged in four counts with having violated one statutory subdivision (§ 53-21 (a) (2)) by touching the intimate parts of each child victim on one occasion, and, at trial, the state proffered evidence that the defendant had contact with each child’s intimate parts on multiple occasions, there was no requirement for the jury to be unanimous as to the specific occasion on which the prohibited contact occurred and the court was not required to provide a specific unanimity instruction, unlike the situation in which the jury must decide whether the defendant violated one of multiple statutory subsections, subdivisions or elements. Argued October 10, 2019—officially released February 11, 2020
Procedural History Substitute information charging the defendant with five counts of the crime of risk of injury to a child, and with the crime of sexual assault in the second degree, brought to the Superior Court in the judicial district of New London and tried to the jury before Jongbloed , J. ; thereafter, the court granted the defendant’s motion for a judgment of acquittal as to the charge of sexual assault in the second degree; subsequently, the court denied the defendant’s motion for a judgment of acquittal; ver- dict of guilty of the remaining charges; thereafter, the court denied the defendant’s motions for judgment not- withstanding the verdict and for a new trial, and ren- dered judgment in accordance with the verdict, from which the defendant 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 , state’s attorney, and Theresa Ferryman , senior assistant state’s attorney, for the appellee (state).
Opinion PRESCOTT, J. The defendant, Douglas C., Jr., appeals from the judgment of conviction, rendered after a jury trial, of five counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). [1] The defendant claims on appeal that the trial court improperly (1) denied his motion for a judgment of acquittal because there was insufficient evidence for the jury to find the defendant guilty on count three, and (2) denied his request for a specific unanimity instruction with respect to counts one, three, five, and six. We disagree and, accordingly, affirm the judgment of the trial 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 years old. These five children would often be in the presence of the defendant at the numer- ous gatherings he had at his home in Lisbon, after mov- ing there in September, 2005. At these gatherings, the defendant would serve alcohol, including to those who were under the legal age to consume alcoholic bever- ages. The children would also be in the defendant’s presence when babysitting his children at his home or on other occasions.
When the defendant was in the company of the chil- dren, he had contact with their intimate parts on multi- ple occasions. Specifically, the defendant touched the breasts of N on multiple occasions and performed oral sex on her on various occasions between 2005 and January 8, 2007; the defendant grabbed C’s breasts over her shirt on multiple occasions from 2005 to September 22, 2006; the defendant placed O’s hands in his pants, resulting in her making contact with his penis, placed his hands in her pants and made contact with her vagina, and touched her breasts on multiple occasions between 2005 and August 7, 2010; the defendant touched S’s vagina on more than one occasion and made contact with her breasts on one occasion between 2005 through September 15, 2008; and the defendant touched T’s breasts on multiple occasions between 2005 through October 23, 2007. [2]
On May 15, 2017, before the trial commenced, the defendant moved for a bill of particulars that ‘‘speci- f[ied] as far as reasonable the date, time, and place of the commission of the crimes alleged . . . .’’ The state responded by filing its substitute information on July 5, 2017, in which it provided some of these details in greater specificity for each count.
At the close of the state’s case, the defendant moved for a judgment of acquittal. The state conceded that it had failed to meet its burden of proof with respect to count two and that the motion for a judgment of acquit- tal should be granted as to that count. The state other- *5 wise opposed the motion. The court granted the motion as to count two and denied it as to all other counts.
After the charging conference, the defendant requested that the court provide a specific unanimity instruction to the jury on the remaining counts. The state agreed that a specific unanimity instruction should be given as to count four [4] but objected to the court giving a specific unanimity instruction on the other remaining counts. The court agreed with the state and stated that it would provide a specific unanimity instruc- tion as to count four but not as to the other remaining counts.
The defendant then made a second motion for a judg- ment of acquittal. He reiterated his concerns about the ‘‘pervasive pattern of unreliability as to the testimony of each [child]’’ that he raised in the first motion. The defendant also argued, in part, that there was insuffi- cient evidence for the jury to return a guilty verdict as to count three. The court denied this motion and instructed the jury. The jury returned a guilty verdict on counts one, three, four, five, and six.
After the jury returned its verdict but before sentenc- ing, the defendant moved for judgment notwithstanding the verdict and for a new trial, citing the reasons stated in his prior motions for judgment of acquittal as support for granting these motions. The court denied the defen- dant’s motions.
The court subsequently imposed on the defendant a total effective sentence of eighteen years incarceration, with execution suspended after serving ten years, fol- lowed by ten years of probation. This appeal followed.
I
We first address the defendant’s claim that the court
improperly denied his motion for a judgment of acquit-
tal because there was insufficient evidence for the jury
to convict him on count three. In support of this claim,
the defendant makes two arguments: (1) the test used
by our Supreme Court in
Stephen J. R.
, 309
Conn. 586, 597–98,
We begin with the well settled standard governing our review of the defendant’s claim that his conviction was predicated on insufficient evidence. ‘‘In reviewing a sufficiency of the evidence claim, we apply a two part *6 test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we deter- mine whether upon the facts so construed and the infer- ences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt . . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict. . . .
‘‘While the jury must find every element proven beyond a reasonable doubt in order to find the defen- dant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in com- bination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . .
‘‘On appeal, we do not ask whether there is a reason- able view of the evidence that would support a reason- able hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.’’ (Internal quotation marks omitted.) Id., 593–94.
Furthermore, we are mindful that ‘‘[w]e do not sit as a
thirteenth juror who may cast a vote against the verdict
based upon our feeling that some doubt of guilt is shown
by the cold printed record. We have not had the jury’s
opportunity to observe the conduct, demeanor, and atti-
tude of the witnesses and to gauge their credibility.’’
Stepney
,
In addition to these general principles, our Supreme Court has established a three factor test in cases in which the defendant is charged with sexually abusing a child to determine whether ‘‘generic’’ testimony by a complaining witness ‘‘about largely undifferentiated, but distinct, occurrences’’ is nonetheless sufficient to convict the defendant. Stephen J. R. , supra, 309 Conn. 595. ‘‘[I]n order to accommodate both the realities of child victims of repeated abuse and the due process interests of the defendant . . . [t]he victim, of course, must describe the kind of act or acts committed with sufficient specificity , both to assure that unlawful con- duct indeed has occurred and to differentiate between the various types of proscribed conduct (e.g., lewd con- duct, intercourse, oral copulation or sodomy). More- over, the victim must describe the number of acts com- mitted with sufficient certainty to support each of the counts alleged in the information or indictment (e.g., twice a month or every time we went camping). Finally, *7 the victim must be able to describe the general time period in which these acts occurred (e.g., the summer before my fourth grade, or during each Sunday morning after he came to live with us), to assure the acts were committed within the applicable limitation period. Additional details regarding the time, place or circum- stance of the various assaults may assist in assessing the credibility or substantiality of the victim’s testi- mony, but are not essential to sustain a conviction.’’ (Emphasis altered; internal quotation marks omitted.) Id., 597–98. In establishing this test, the court weighed two competing considerations, namely, ‘‘[o]n the one hand, prosecutions based on generic testimony could deprive a defendant of his due process right to fair notice in order to effectively defend himself . . . [and] [o]n the other hand, testimony from a child victim describing a series of indistinguishable acts by an abuser who has ongoing access to the child is often the only evidence that the child is able to provide.’’ Id., 595–96.
A
The defendant first argues that the test articulated
in
Stephen J. R.
applies only to cases involving very
young children. The child victim testifying in
Stephen
J. R.
was approximately seven years old at the time the
abuse occurred and was at least thirteen years old when
she testified. See id., 592, 601; see also
Stephen J. R.
Commissioner of Correction
,
This court has, in fact, recently applied the three
factor test used in
Stephen J. R.
in a case in which a
defendant had sexual contact with a child for the first
time when the child was approximately eleven years
old and on multiple occasions thereafter until the child
was fifteen years old. See
Anthony L.
, 179 Conn.
App. 512, 514–15,
Moreover, our Supreme Court’s decision to apply the
three factor test in
Stephen J. R.
was not dependent
on the child’s age at the time the abuse occurred or
when she testified; rather, the court used the test in
that case to consider the sufficiency of generic or non-
specific testimony that ‘‘typically arises in cases in
which an alleged abuser either lives with the child vic-
tim or has ongoing access to the child and, as a result,
the victim testifies to repeated acts of abuse occurring
over a period of time but, lacking any meaningful point
of reference, is unable to furnish many specific details,
dates or distinguishing characteristics as to individual
acts or assaults.’’ (Internal quotation marks omitted.)
State
v.
Stephen J. R.
, supra,
Indeed, our Supreme Court in
Stephen J. R.
adopted
the three factor test used by the California Supreme
Court in
People
v.
Jones
,
Although C was older than the child victim in
Stephen
J. R.
when she was sexually abused by the defendant
and when she testified at trial, the test articulated by our
Supreme Court in that case is nevertheless applicable
to the present case for two reasons. First, according to
C’s testimony at trial, the defendant had access to her
on multiple occasions at his home between September,
2005, and September 22, 2006, her sixteenth birthday.
See
Stephen J. R.
, supra,
Second, like the sexual assault charge in Jones , the exact number of times that the defendant in the present case had contact with C’s breasts and the specific dates on which these acts occurred are not elements of com- mitting the offense of risk of injury to a child. Indeed, the state was only required to prove that the defendant had contact with C’s intimate parts on one occasion before her sixteenth birthday . For the reasons stated, although C was older than the child victim in Stephen J. R. at the time the sexual abuse occurred and when she testified, it is appropriate for this court to use the three factor test articulated by our Supreme Court in Stephen J. R. to assess whether C’s testimony was suffi- cient to sustain the defendant’s conviction under count three.
B Turning to the defendant’s second argument, he asserts that, even if the test articulated in Stephen J. R. applies to the present case, there was nevertheless insufficient evidence to convict him on count three. The defendant concedes that C sufficiently specified the manner in which the defendant had contact with her intimate parts to satisfy the first factor of the test. He asserts, however, that her testimony failed to satisfy the second and third factors of the test because ‘‘[s]he ultimately was unable to provide any information suffi- cient to establish how many times the alleged conduct occurred, or even the necessary time period.’’ Thus, the defendant contends that it was unreasonable for the jury to conclude from the evidence presented and the inferences drawn therefrom that the defendant had con- tact with C’s intimate parts before she was sixteen years old. We disagree with the defendant’s arguments regard- ing the second and third factors.
With respect to the second factor, the defendant
argues that C’s testimony was inconsistent and, because
of its inconsistency, failed to establish sufficiently the
number of times that the defendant had contact with
her intimate parts. This argument, however, merely
attacks the
credibility
of C’s testimony; it does not
undermine the
sufficiency
of the evidence on which
the jury based its guilty verdict. Our Supreme Court
has determined that a child’s inconsistent testimony as
to the number of times a defendant abused him or her
does not mean that the child’s testimony necessarily
fails the second factor of the test. See
Stephen
J. R.
, supra,
Turning to the present case, the defendant was
charged with one count of risk of injury to a child in
violation of § 53-21 (a) (2) for having contact with C’s
intimate parts in a sexual and indecent manner. That
means the state was required to prove beyond a reason-
able doubt
only
that on
one
occasion the defendant had
‘‘contact with the intimate parts’’ of C when she was
‘‘under the age of sixteen years . . . in a sexual and
indecent manner likely to impair the health or morals
of such child . . . .’’ General Statutes § 53-21 (a) (2).
Thus, to satisfy the second factor of
Stephen J. R.
, C
was required to testify with sufficient certainty that the
defendant had contact with her breasts on at least one
occasion. See
Stephen J. R.
, supra, 309 Conn.
597 (holding that ‘‘the victim must describe the number
of acts committed with sufficient certainty
to support
each of the counts alleged in the information
’’ (empha-
sis altered; internal quotation marks omitted)); v.
Anthony L.
, supra,
In the present case, the allegation in count three that the defendant had contact with C’s intimate parts was based on C’s testimony at trial that the defendant touched her breasts on more than one occasion. At trial, C testified that ‘‘there would be times when [the defendant] would grab [her] and the other cousins inap- propriately.’’ She then described the defendant’s touch- ing her inappropriately, stating that ‘‘it was always a quick, like, boob grab, kind of like a tweak. It wasn’t like he was feeling around to check anything or he didn’t go under the shirt. It was always over the shirt, quick grab. . . . I saw him grab [N] and [O] quite fre- quently. He did so less to me and my sister, but . . . it did still happen.’’ On cross-examination, C reiterated *11 the frequency of the defendant’s touching her breasts, stating that ‘‘[i]t was a frequent occurrence . . . . It happened on multiple occasions.’’ She further testified that ‘‘[i]t happened consistently. It happened every year. It happened almost every time we were over [at the defendant’s home]. I just don’t remember dates.’’ Because C testified with sufficient specificity that the defendant touched her breasts at least once, we con- clude that her testimony satisfied the second factor.
With respect to the third factor, the defendant simi-
larly takes issue with C’s inability to recall specifics,
namely, her inability to state the exact dates on which
the defendant touched her breasts. The third factor
requires a child to describe ‘‘the general time period in
which these acts occurred . . .
to assure the acts were
committed within the applicable limitation period
.’’
(Emphasis altered; internal quotation marks omitted.)
Stephen J. R.
, supra,
Nevertheless, because the state was obligated to prove that the defendant had contact with C’s intimate parts on one or more occasions before her sixteenth birthday, we conclude that the third factor is applicable under the circumstances of this case. C’s testimony, however, was sufficient in this regard because it tended to demonstrate that the defendant touched her breasts after he moved to Connecticut in September, 2005, but before she turned sixteen years old on September 22, 2006. In her cross-examination, C testified that the defendant grabbed her breasts when he lived in Crans- ton, Rhode Island, and that this conduct continued when the defendant moved to Connecticut in Septem- ber, 2005. Furthermore, she testified that, prior to her sixteenth birthday, she visited the defendant’s home ‘‘almost monthly.’’ She also stated that the defendant ‘‘definitely’’ grabbed her breasts in 2006, and that it happened ‘‘frequently . . . [and] consistently over time.’’ In addition, she stated that ‘‘[i]t happened every year . . . [and that] [i]t happened almost every time [she] went over [to the defendant’s home].’’
Indeed, the jury could have reasonably found that C’s testimony regarding the general time period during *12 which the defendant had contact with her intimate parts was corroborated by other testimony at trial. For exam- ple, the defendant’s wife testified that C attended a birthday party at the defendant’s home in the fall of 2005, which was the first time C visited the defendant’s home in Lisbon; C would attend birthday parties at the defendant’s home and the Ultimate Fighting Champion- ship (UFC) watch parties that would take place there- after; and C attended a creamed corn eating contest at the defendant’s home in summer, 2006, and visited the home during summer and school vacations. Therefore, on the basis of her testimony at trial, we conclude that C testified with sufficient specificity as to the general time period during which the defendant touched her intimate parts and, thus, satisfied the third factor.
On the basis of C’s testimony, the jury could have reasonably concluded or inferred that the defendant touched her intimate parts at least one time between September, 2005, and her sixteenth birthday. Accord- ingly, the cumulative evidence, read in the light most favorable to sustaining the verdict, was sufficient for the jury to find beyond a reasonable doubt that the defendant committed the offense charged in count three.
II The defendant next claims that he was deprived of his constitutional right to a unanimous jury verdict because the court improperly denied his request for a specific unanimity instruction as to counts one, three, five, and six, in violation of his rights under the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. We disagree.
The principles concerning a criminal defendant’s con-
stitutional right to be convicted only if the jury unani-
mously agrees that the defendant is guilty of the crime
for which he or she is charged are well settled. The
sixth and fourteenth amendments to the United States
constitution and article first, § 8, of the Connecticut
constitution prohibit the conviction of a criminal defen-
dant by a jury unless it is unanimous as to the defen-
dant’s guilt. See
Burch Louisiana
,
This court has enforced the unanimity requirement
in cases like
State
v.
Benite
,
Our Supreme Court, however, has ‘‘not required a
specific unanimity charge to be given in every case [like
Benite
] in which criminal liability may be premised on
the violation of one of several alternative subsections
[or subdivisions] of a statute.’’
State
v.
Famiglietti
, 219
Conn. 605, 619,
The requirement that a court provide a specific una-
nimity instruction generally is limited to cases, like
Benite
, in which multiple factual allegations amount to
the defendant having violated multiple statutory subsec-
tions or subdivisions. See
Mancinone
, 15 Conn.
App. 251, 274,
Moreover, the test used by our Supreme Court in
Famiglietti
, supra,
This court engages in plenary review of a trial court’s
decision in a criminal trial to decline to give a specific
unanimity instruction that the defendant had requested.
See
State
v.
Jennings
,
In the present case, the defendant was charged [11] with five separate counts under § 53-21 (a) (2), each involv- ing a different child. Counts one, three, five, and six charged the defendant with having violated a single statutory subdivision—subdivision (2) of subsection (a) of § 53-21—the basis of which was evidence presented at trial that, on multiple occasions , the defendant had contact with the intimate parts of the child identified in each of those counts. [13]
In similar cases, in which a defendant was charged
with having had contact with the intimate parts of a
child in violation of § 53-21 based on the defendant
having committed proscribed acts on
multiple
occa-
sions, our courts have held that a specific unanimity
instruction was not required to preserve a defendant’s
right to a unanimous verdict. See
Spigarolo
,
The defendant in the present case nevertheless argues that, although he was charged in counts one, *15 three, five, and six with having violated one statutory subdivision by touching the intimate parts of each child on one occasion, the court improperly denied his request for a specific unanimity instruction because, at trial, the state proffered evidence that the defendant had contact with each child’s intimate parts on multiple occasions . Because of the way in which the state prose- cuted its case, and in the absence of a specific unanimity instruction, the defendant argues that the jury may not have been unanimous as to the occasion on which the defendant had contact with the intimate parts of each child. In other words, the defendant contends that, with respect to counts one, three, five, and six, the federal and state constitutions required the jury to unanimously agree as to the occasion on which the illegal conduct occurred. We are not persuaded.
We first set forth the standard for determining whether a trial court was required to provide a specific unanimity instruction when an information charges a defendant with having violated one statutory subsection on one occasion and the state presents evidence at trial that the defendant violated that single statutory subsection on multiple occasions. ‘‘[I]f the actions nec- essary to constitute a violation of one statute or subsec- tion of a statute are distinct from those necessary to constitute a violation of another, then jurors who dis- agree on which one the state proves cannot be deemed to agree on the actus reus: the conduct the defendant committed. Where the evidence presented supports both alternatives, the possibility that the jurors may actually disagree on which alternative, if either, the defendant violated is the highest. Under such circum- stances, the jurors should be told that they must unani- mously agree on the same alternative. . . . [S]uch a charge is required only where a trial court charges a jury that the commission of any one of several alternative actions would subject a defendant to criminal liability, and those actions are conceptually distinct from each other, and the state has presented some evidence sup- porting each alternative. The determination of whether actions are conceptually distinct must be made with reference to the purpose behind the proposed charge: to [e]nsure that the jurors are in unanimous agreement as to what conduct the defendant committed. . . .
‘‘[This rule, however, is] limited to a case in which the actions necessary to constitute a violation of one statute or subsection of a statute are distinct from those necessary to constitute a violation of another . . . . Thus, [this] rule, which requires the trial court in appro- priate circumstances to give, even in the absence of a proper request or exception, a fact-specific and closely focused unanimity instruction, only applies where the particular count under consideration by the jury is based on multiple factual allegations which amount to multiple statutory subsections or multiple statutory elements of the offense involved. It does not apply, and *16 such an instruction is not required of the court, where the multiple factual allegations do not amount to mul- tiple statutory subsections or to multiple statutory ele- ments of the offense . . . .
‘‘[The] limitation on [this] rule, moreover, comports with common sense and sound principles by which to view jury verdicts. In most criminal trials, the evidence will allow to one degree or another differing but reason- able views regarding what specific conduct the defen- dant engaged in which formed the basis of the jury’s verdict of guilt. For example, different witnesses may present different versions of the defendant’s conduct; and the same witness may testify inconsistently in his description of that conduct, and thus present differing versions of that conduct. In such cases, it is a familiar principle that the jury is free to accept or reject all or any part of the evidence. . . . In such cases, however, there is nothing in the constitutional requirement of jury unanimity that requires a specific instruction that the jury must be unanimous with regard to any one of those varying factual versions. As long as the jurors are properly instructed on the legal elements of the crime which must be proved beyond a reasonable doubt, they need not be further instructed that they all must agree that the exact same conduct constituted the proscribed act. In such cases, we safely rely on the presumption that the jury understands and properly follows the court’s instruction that its verdict be unani- mous . . . and we do not attempt to divine whether that presumption is valid.
‘‘Where, however, the jury is presented with alterna-
tive, conceptually distinct statutory subsections, or with
alternative, conceptually distinct elements of the same
statute, as possible bases for guilt, the principles of
[this rule concerning specific unanimity instructions]
come into play, because it is in those situations that
the possibility that the jurors may actually disagree on
which alternative, if either, the defendant violated is
the highest.
.
.
. In those situations, therefore, we
require a specific unanimity instruction as an additional
corollary to the usual unanimity instruction.’’ (Citations
omitted; emphasis added; internal quotation marks
omitted.)
Mancinone
, supra, 15 Conn. App.
273–76. In
Scott
,
In other words, a trial court may be required to pro- vide a specific unanimity instruction when, to find a defendant guilty under a count of an information, the jury must decide whether the defendant violated one of multiple statutory subsections or elements. The court is not required, however, to provide a specific unanimity instruction when the state charges a defendant with having violated one statutory subsection one time and proffers evidence at trial that amounts to the defendant having violated that single statutory subsection on mul- tiple occasions. Thus, to convict a defendant under a count of an information alleging that the defendant violated § 53-21 (a) (2) once, the basis of which is evi- dence presented at trial amounting to the defendant having violated that statutory subdivision multiple times, the jury is required to unanimously agree only that on one occasion the defendant had contact with the intimate parts of the child identified in that count while that child was under sixteen years of age in a manner that was sexual and indecent and likely to impair that child’s health or morals. There is no requirement, however, for the jury to be unanimous as to the specific occasion on which that prohibited contact occurred. [17]
In making his assertion that the court was required
to give a specific unanimity instruction as to counts
one, three, five, and six, the defendant relies primarily
on our decision in
State
v.
Benite
, supra, 6 Conn. App.
669–77, and the decision of the United States Court of
Appeals for the Fifth Circuit in
United States
v.
Gipson
,
In Benite , the defendant was charged with burglary in the first degree. Benite , supra, 6 Conn. App. 670. As this court noted, ‘‘[t]o obtain a conviction for burglary in the first degree, the state must prove beyond a reasonable doubt that the individual charged commit- ted burglary, and it must also prove one of two aggravat- ing factors: (1) that the individual committed the bur- glary armed with explosives or a deadly weapon or dangerous instrument; General Statutes § 53a-101 (a) (1); or (2) that he committed burglary and in the course of committing the offense, he intentionally, knowingly or recklessly inflict[ed] . . . bodily injury on anyone. General Statutes § 53a-101 (a) (2).’’ (Footnote omitted; internal quotation marks omitted.) Benite , supra, 670. This court held that a specific unanimity instruction was required because ‘‘the two kinds of conduct which expose an individual to punishment for burglary in the first degree are conceptually different *18 from one another.’’ Id., 675.
Similarly, in
Gipson
, the defendant was charged with
selling
or
receiving a stolen vehicle in violation of 18
U.S.C. § 2313 (1976). See
United States
v.
Gipson
, supra,
To find that the defendant had violated 18 U.S.C.
§ 2313 (1976) beyond a reasonable doubt, the jury had
to conclude that the defendant had violated one of the
six proscribed acts enumerated in that statute. See id.,
455, 458. The trial court in
Gipson
, however, ‘‘charged
the [jurors] that in order to convict the defendant they
need not agree on which of the six statutorily prohibited
acts the defendant had committed, as long as they were
each convinced beyond a reasonable doubt that he had
committed one or another of the acts proscribed. . . .
The [C]ourt of [A]ppeals reversed the defendant’s con-
viction on the ground that the instruction had violated
his right to a unanimous jury verdict. . . . The court
reasoned that the statute prohibited six acts in two
distinct conceptual categories: (1) receiving, concealing
and storing; and (2) bartering, selling and disposing.
The challenged charge violated the defendant’s right to
a unanimous jury verdict because it authorized the jury
to return a guilty verdict despite the fact that some
jurors may have believed that [the defendant] engaged
in conduct only characterizable as receiving, conceal-
ing, or storing while other jurors were convinced that
he committed acts only constituting bartering, selling,
or disposing.’’ (Citations omitted; emphasis omitted;
internal quotation marks omitted.) v.
Jones
, 193
Conn. 70, 75–76,
Neither the circumstances of Benite nor Gipson , however, are analogous to the way in which the defen- dant was charged in the present case. Under counts one, three, five, and six, the defendant in the present case was charged with having violated a single statu- tory subdivision once, the basis for which was evi- dence presented at trial that the defendant had engaged in conduct prohibited by that singular statutory provi- sion on multiple occasions .
This court has distinguished between cases like
Benite
and
Gipson
, in which the defendant’s criminal
liability under a criminal count was predicated on his
or her having violated multiple statutory subsections
*19
or elements, and the situation in the present case, in
which the defendant is charged with having violated a
single statutory subdivision one time with each child,
and the evidence offered at trial amounts to the defen-
dant having engaged in proscribed conduct with each
child on multiple occasions. See
Mancinone
,
supra,
In the present case, the trial court was not required to provide a specific unanimity instruction because the evidence proffered by the state at trial—that the defen- dant had contact with each child’s intimate parts on multiple occasions— did not amount to the defendant’s having violated multiple statutory subsections or ele- ments. [21] Accordingly, having reviewed the trial court’s charge in its entirety, we conclude that the trial court did not improperly deny the defendant’s request for a specific unanimity instruction with respect to counts one, three, five, and six.
The judgment is affirmed.
In this opinion the other judges concurred. * In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline 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) (2012); we decline to identify any party protected or sought to be protected under a protective order or a restraining order that was issued or applied for, or others through whom that party’s identity may be ascertained. [1] General Statutes § 53-21 (a) provides in relevant part: ‘‘Any person who . . . (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child . . . shall be guilty of . . . a class B felony for a violation of subdivision (2) of this subsection . . . .’’ Although § 53-21 (a) has been amended by the legislature since the events underlying the present appeal, those amend- ments have no bearing on the merits of this appeal. In the interest of simplicity, we refer to the current revision of the statute. ‘‘ ‘Intimate parts’ ’’ are defined as ‘‘the genital area . . . groin, anus . . . inner thighs, buttocks or breasts.’’ General Statutes § 53a-65 (8). Section 53a-65 (8) was amended by No. 06-11, § 1, of the 2006 Public Acts, which made changes to the statute that are not relevant to this appeal. In the interest of simplicity, we refer to the current revision of the statute. The allegations in count one pertain to N; count three pertains to the allegations regarding C; count four pertains to the allegations regarding O; count five pertains to the allegations regarding S.; and count six pertains to the allegations regarding T.
[3] Count two charged the defendant with sexual assault in the second
degree in violation of General Statutes § 53a-71 (a) (3). Regarding the court’s
granting of the defendant’s motion for a judgment of acquittal as to this
count, the state, in its appellate brief, notes that ‘‘the state was required to
present evidence that at the time the defendant subjected . . . [N] . . . to
cunnilingus . . . she was physically helpless.’’ (Internal quotation marks
omitted.) N, however, did not testify that she was physically unable to resist
the defendant’s conduct. Thus, the state ‘‘conceded that the defendant’s
motion for a judgment of acquittal should be granted . . . as to count two.’’
[4]
In count four of the amended substitute information, the state alleged
that the defendant ‘‘had contact with the intimate parts of a child under the
age of sixteen years . . .
and
subjected said minor female to contact with
his intimate parts . . . .’’ (Emphasis added.) The defendant requested, and
the state did not object to, the court providing a specific unanimity instruc-
tion as to this count. The court provided the following instruction as to
count four to the jury: ‘‘As to count four, the state has also alleged that the
defendant subjected the child or specific minor female alleged . . . to con-
tact with the defendant’s intimate parts. Again, it is sufficient if the contact
is with any one of the intimate parts. Now, the state has alleged that the
defendant committed this element of the offense in
two different ways
on
count four. You may find this element established only if you all unanimously
agree that the state has proved beyond a reasonable doubt that the defendant
had contact with the intimate parts of [the minor female]
or
you all agree
that the state has proved beyond a reasonable doubt that the defendant
subjected [the minor female] to contact with his intimate parts
or
both.’’
(Emphasis added.)
[5]
Count three charged the defendant with risk of injury to a child in
violation of § 53-21 (a) (2) for having contact with the intimate parts of C
while she was under sixteen years of age. We consider the defendant’s
insufficiency of the evidence claim first because, if successful, the defendant
would be entitled to a judgment of acquittal as to count three. See
State
v.
Reed
,