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*********************************************** 
STATE OF CONNECTICUT v. JOSEPH V.*

(SC 20504)

McDonald, D’Auria, Mullins, Kahn and Ecker, Js.

Argued November 15, 2021—officially released December 13, 2022**

Procedural History

Substitute information charging the defendant with

the crimes of sexual assault in the first degree, risk of

injury to a child and conspiracy to commit risk of injury

to a child, brought to the Superior Court in the judicial

district of Waterbury, where the court, K. Murphy, J.,

denied the defendant’s motions for a bill of particulars

and to preclude certain evidence; thereafter, the case

was tried to the jury; verdict and judgment of guilty,

from which the defendant appealed to the Appellate

Court, Keller, Bright and Flynn, Js., which affirmed

the trial court’s judgment, and the defendant, on the

granting of certification, appealed to this court.

Reversed in part; new trial.

Megan L. Wade, assigned counsel, with whom was

James P. Sexton, assigned counsel, for the appellant

(defendant).

Timothy F. Costello, senior assistant state’s attorney,

with whom, on the brief, were Maureen Platt, state’s

attorney, Amy L. Sedensky and Don E. Therkildsen,

Jr., senior assistant state’s attorneys, and Jennifer F.

Miller, former assistant state’s attorney, for the appellee (state).
Opinion

D’AURIA, J. Today, in State v. Douglas C., 345 Conn.

, A.3d (2022), we held that a single count

of an information that charges a defendant with a single

statutory violation is duplicitous when evidence at trial

supports multiple, separate incidents of conduct, each

of which could independently establish a violation of

the charged statute. In the absence of a specific unanimity instruction to the jury or a bill of particulars, such

a count violates a defendant’s constitutional right to

jury unanimity and requires the reversal of the judgment

of conviction if it creates the risk that the defendant’s

conviction occurred as the result of different jurors

concluding that the defendant committed different

criminal acts.

We now must apply our holding in Douglas C. to the

present case in which the defendant, Joseph V., appeals

from the judgment of the Appellate Court, which

affirmed the trial court’s judgment of conviction, rendered following a jury trial, of sexual assault in the first

degree in violation of General Statutes § 53a-70 (a) (2),1

risk of injury to a child in violation of General Statutes

§ 53-21 (a) (2),2 and conspiracy to commit risk of injury

to a child in violation of § 53-21 (a) (2) and General

Statutes § 53a-48 (a). The defendant claims that each

count was duplicitous because each count charged him

with a single violation of the underlying statute despite

evidence at trial of multiple, separate incidents of conduct, each of which could establish a violation of the

statute, thus creating the possibility that the jury found

him guilty without having unanimously agreed on which

incident occurred. As a result, he argues that the trial

court’s failure to either grant his request for a bill of

particulars or a specific unanimity instruction violated

his federal constitutional right to jury unanimity. We

agree with the defendant as to the sexual assault count

but disagree with him as to the risk of injury and conspiracy counts. Accordingly, we reverse in part the

Appellate Court’s judgment and remand the case to that

court with direction to remand the case to the trial

court for a new trial on the sexual assault count.

The Appellate Court’s opinion contains a detailed

discussion of the facts that the jury reasonably could

have found, along with the procedural history of this

case, which we summarize briefly. When the victim was

four or five years of age, his half brother, T, began

frequently abusing him in a sexual manner. State v.

Joseph V., 196 Conn. App. 712, 716, 230 A.3d 644 (2020).

In 2006, after the abuse by T had begun, T and the

victim’s father moved to a new residence, while the

victim and his mother continued to reside together,

although the victim would have overnight visits at his

father’s new residence. Id. T’s abuse of the victim continued at the father’s new residence. Id. Both prior to

and following the time that the victim’s father and T
moved to the new residence, the defendant, a first

cousin of both T and the victim, had a close relationship

with T, including an ongoing sexual relationship. Id.,

715, 717. After the victim’s father and T moved to the

new residence, the defendant, when he was fifteen years

old, began to sexually assault the victim. Id., 717. This

abuse often involved simultaneous sexual abuse of the

victim by T and occurred until the victim was ten years

old. Id.

When the victim was thirteen, he revealed the sexual

abuse in digital correspondence to The Trevor Project,

a California based organization. Id., 719. After he did

not receive an immediate response, the victim used

an instant messaging feature on The Trevor Project’s

website to speak with a counselor. Id. During this

instant messaging conversation, the victim again

revealed the sexual abuse by T and the defendant. Id.

The counselor at The Trevor Project, as required by

law, reported the victim’s allegations of sexual assault

to the Los Angeles County Department of Children and

Family Services, which, in turn, contacted the police

in the Connecticut municipality in which the victim

resided. Id., 720. In response, the police visited the

residence of the victim and his mother. Id. The victim

told the police about the alleged sexual assault by T and

the defendant, and the defendant was then arrested.3

Id.

The state initially charged the defendant with two

counts of sexual assault in the first degree, one count

of risk of injury to a child, and one count of conspiracy

to commit risk of injury to a child. Id., 721 and n.9. The

defendant’s criminal trial on these four counts ended

in a mistrial. See id., 721 n.8. After the mistrial, the

defendant filed a motion for a bill of particulars, seeking

to compel the state to allege within the charging instrument additional information with respect to each

charge. Id., 721–22. In response, the state filed a substitute information (the operative information at the time

of the defendant’s second trial), limited to one count

of sexual assault in the first degree, one count of risk

of injury to a child, and one count of conspiracy to

commit risk of injury to a child. Id., 722 and n.12.

The trial court then heard argument on the defendant’s motion for a bill of particulars. Id., 722. Defense

counsel argued that, based on the evidence offered at

the prior trial, the defense anticipated that there would

be testimony regarding multiple, separate incidents of

abuse, each of which could constitute a separate violation of the statutes at issue. Id., 722–23. As a result, she

asserted, there was the potential ‘‘risk that one or more

jurors could reach a guilty verdict with respect to a

count on the basis of their findings with respect to an

incident of abuse proven by the state, and one or more

jurors could reach a guilty verdict on the same count,

but on the basis of their findings with respect to a

different incident of abuse proven by the state.’’
(Emphasis omitted.) Id., 723. Defense counsel stated

that, if the trial court denied the motion for a bill of

particulars, she would request that the court give the

jury a specific unanimity instruction. Id., 724. The prosecutor responded that no concern about unanimity

existed because he expected the defense to argue generally that the victim was not credible and, therefore, that

the state had not met its burden of proof. Id. The trial

court agreed with the prosecutor and denied the defendant’s motion, ruling that, before returning a guilty verdict, the jury was required only to unanimously agree

on whether the defendant had engaged in the type of

conduct proscribed by the statutes during the time

frame alleged. Id., 724–25.

At trial, the victim testified about three distinct incidents of abuse by the defendant. See id., 717 n.3. T

testified about an additional distinct incident of abuse

of the victim by the defendant during which T was

present but did not participate. Id., 718 and n.5. ‘‘The

victim also testified that, beyond the incidents he

described, many other incidents of sexual abuse involving the defendant and T had ‘blurred together because

there [were] too many to count and distinguish

between.’ These incidents, which always occurred at

the home of the victim’s father, involved the touching

of intimate parts, oral sex, and anal sex. The victim

recalled that the defendant and T abused him simultaneously and would frequently take turns or ‘trade off’ in

terms of the sexual acts that they committed against

him.’’4

Id., 717 n.3.

As a result of this testimony, defense counsel

requested that the trial court give the jury a specific

unanimity instruction as to the charge of sexual assault

in the first degree, arguing that, without this instruction,

the count was duplicitous and, thus, infringed on the

defendant’s right to jury unanimity. Id., 724–25. Relying

on the rationale set forth in its prior ruling, the trial

court declined defense counsel’s request. Id., 726–27.

The following day, outside the presence of the jury,

defense counsel renewed her request for a specific unanimity instruction, clarifying that the request applied

to all three counts. Id., 727. The trial court declined to

give the requested charge. Id., 728.

The jury returned a guilty verdict on all three counts.

Id., 715. The trial court sentenced the defendant to a

total effective term of twenty years of incarceration,

execution suspended after ten years, followed by ten

years of probation with special conditions, including

lifetime inclusion on the state’s sex offender registry.

Id., 715 n.1.

The defendant appealed to the Appellate Court,

claiming that the trial court improperly had denied his

request for a bill of particulars and/or a specific unanimity jury instruction because the three counts were

duplicitous, thereby violating his federal constitutional
right to jury unanimity. Id., 730–31. The Appellate Court

affirmed the trial court’s judgment; id., 763; explaining

that ‘‘whether the state’s substitute information posed

a risk that the jurors may not have been unanimous

. . . comes down to whether the defendant’s criminal

liability for each offense was premised on his having

violated one of multiple statutory subsections or elements.’’ Id., 740. The court then examined the statutory

language underlying each count to determine whether

multiple statutory subsections or elements were at

issue. Id., 744–47. As to count one, which charged the

defendant with sexual assault in the first degree, the

Appellate Court held that there were no unanimity concerns because the defendant was charged with violating

only one statutory subsection, which prohibited only a

single type of conduct. See id., 744–45. As to counts

two and three, which charged the defendant with risk

of injury to a child and conspiracy to commit risk of

injury to a child, respectively, the court held that,

because § 53-21 (a) (2) contemplates a violation premised on two alternative types of conduct—namely, the

defendant’s making contact with the victim’s intimate

parts or, in the alternative, the defendant’s subjecting

the victim to contact with his intimate parts—these

counts rested on alternative bases of criminal liability,

and, thus, it was possible that the jury was not unanimous with respect to the specific type of statutorily

prohibited conduct that occurred. See id., 746. The court

held, however, that, because the trial court did not

expressly sanction a nonunanimous verdict, no specific

unanimity instruction was required. Id., 747–48. We

granted certification to appeal.5 Additional facts and

procedural history will be provided as necessary.

I

As he did in the trial court, the defendant claims that

all three counts that the state charged—sexual assault,

risk of injury, and conspiracy to commit risk of injury—

were improperly duplicitous, creating the possibility

that the jury was not unanimous as to the specific incident of criminal conduct he committed. Thus, he contends that the trial court’s denial of his requests for a

bill of particulars or a specific unanimity instruction

deprived him of his constitutionally guaranteed right

to a unanimous verdict. Specifically, he argues that the

information charged him with only one count each of

sexual assault, risk of injury to a child, and conspiracy

to commit risk of injury to a child but that testimony at

trial described multiple, separate incidents of conduct,

each of which could constitute a separate violation of

the statutes at issue. As a result, he maintains that either

a bill of particulars or a specific unanimity instruction

was required because of the potential that the jury could

find him guilty without agreeing on which criminal act

he committed.

Applying the test detailed in Douglas C., we agree
with the defendant that count one alleging first degree

sexual assault was duplicitous, and thus the trial court’s

denial of his request for a specific unanimity instruction

or a bill of particulars violated his constitutional right

to jury unanimity. Finding as we do that the defendant

suffered prejudice as a result of this violation, we must

reverse the judgment of conviction in part and remand

the case for a new trial on that count. We disagree,

however, with the defendant’s claim that counts two

and three were duplicitous, thereby violating his right

to unanimity as to instances of conduct and, thus, affirm

his conviction of risk of injury to a child and conspiracy

to commit risk of injury to a child.

‘‘Although we generally review the denial of a motion

for a bill of particulars for abuse of discretion . . .

because this claim is premised on an alleged infringement of the defendant’s constitutional rights, our review

is plenary.’’ (Citation omitted.) State v. Douglas C.,

supra, 345 Conn. . ‘‘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 considerations 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, providing the basis for appropriate

sentencing, and protecting against double jeopardy in

a subsequent prosecution. . . . A duplicitous information [implicating a defendant’s right to jury unanimity],

however, may be cured either by a bill of particulars

or a specific unanimity instruction.’’ (Citations omitted;

internal quotation marks omitted.) Id., .

The defendant argues only that the allegedly duplicitous counts implicated his right to a unanimous verdict,

and thus we limit our analysis to that issue. The defendant’s right to jury unanimity under the sixth amendment to the United States constitution ensures that a

jury ‘‘cannot convict unless it unanimously finds that the

[g]overnment has proved each element’’ of the charged

crime. Richardson v. United States, 526 U.S. 813, 817,

119 S. Ct. 1707, 143 L. Ed. 2d 985 (1999). Nevertheless,

‘‘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

which underlie the verdict.’’ (Internal quotation marks

omitted.) 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 come to agreement 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). ‘‘In the routine case, a general unanimity

instruction will ensure that the jury is unanimous on

the factual basis for a conviction, even where an [information] 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).

In Douglas C., this court for the first time recognized

that a duplicitous information may raise two distinct

and separate kinds of unanimity claims: (1) unanimity

as to a crime’s elements, which occurs when a defendant is charged in a single count with having violated

multiple statutory provisions, subsections, or clauses,

and thus the court must determine whether the statutory provisions, subsections, or clauses constitute separate elements of the statute, thereby requiring jury unanimity, or alternative means of committing a single

element, which do not require jury unanimity; and (2)

unanimity as to instances of conduct, also known as a

multiple acts or multiple offense claim, which occurs

when a defendant is charged in a single count with

having violated a single statutory provision, subsection,

or clause on multiple, separate occasions. See State

v. Douglas C., supra, 345 Conn. . Previously, our

appellate courts have not distinguished between these

two distinct unanimity claims. In Douglas C., however,

we explained that different tests apply to a claim of

unanimity as to elements and a claim of unanimity as

to instances of conduct. Id., .

In the present case, the defendant argues that all three

counts were duplicitous because each was premised on

multiple, separate instances of conduct, each of which

could establish a separate violation of the same statute.

In other words, he claims that his right to unanimity

as to instances of conduct was violated, not his right

to unanimity as to elements. As to a claim of unanimity

as to instances of conduct, in Douglas C., we adopted

and applied the three-pronged test applied by a majority

of federal courts of appeals:6

‘‘(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 continuing course of conduct, we employ our well

established 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 [namely, that the

duplicity created the genuine possibility that the conviction occurred as the result of different jurors concluding

that the defendant committed different acts].’’ Id., .

As to the second prong, to the extent we must interpret

applicable statutes, well established principles directed

by General Statutes § 1-2z guide our inquiry. See, e.g.,

State v. Bischoff, 337 Conn. 739, 746, 258 A.3d 14 (2021).

In interpreting the statutes at issue to determine if the

legislature criminalized a continuous course of conduct,

we have explained that, ‘‘[a]t 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. . . . In

these more difficult cases, courts have examined the

statute’s language, its legislative history, and [other]

case law regarding similar statutes . . . .’’ (Citation

omitted; internal quotation marks omitted.) State v.

Douglas C., supra, 345 Conn. .

‘‘In examining the statutory language at issue . . . if

the underlying criminal statute contemplates criminalizing a continuing course of conduct and the defendant 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 duplicitous when the multiple instances of conduct constitute

‘a continuing course of conduct, during a discrete

period of time7

. . . .’ 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 manner directed by . . . § 1-2z. . . . 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 relatively

short period of time, were committed by one defendant,

involved a single victim, and furthered a single, continuing objective.’’ (Citations omitted; footnote added; footnotes omitted.) Id., .

A

We begin by addressing count two of the information,

which charged the defendant with risk of injury to a

child in violation of § 53-21 (a) (2), because we already

have addressed a similar claim in relation to this statute

in Douglas C. We conclude that the defendant’s claim
fails under the second prong of the test applicable to

claims of unanimity as to instances of conduct and,

therefore, that count two did not violate his constitutional right to jury unanimity.

Count two of the information charged the defendant

with committing risk of injury to a child ‘‘in that on

or about diverse dates between August 23, 2006, and

December 25, 2010,’’ at the residence of the victim’s

father, the defendant had contact with the victim’s intimate parts and subjected the victim to ‘‘contact with

[the defendant’s] intimate parts . . . .’’ (Internal quotation marks omitted.) State v. Joseph V., supra, 196 Conn.

App. 722 n.12. At trial, as evidence of this unlawful

contact, the state relied on testimony from the victim

and T about the four specific, separate incidents of

conduct discussed in footnote 4 of this opinion. As we

previously noted, defense counsel cross-examined both

the victim and T about these four incidents.

In closing argument to the jury, as to the element of

contact with intimate parts, the prosecutor argued that

the state had ‘‘to prove the defendant had contact with

the intimate parts of the minor, [the victim], or the

defendant—or the defendant subjected [the victim] to

contact with the defendant’s intimate parts; either way.

. . . So, any of the sexual assaults that I just talked

about, that counts; any one of those incidents counts—

the oral sex, the anal sex—any of that counts for the

sexual contact.’’ In response, as previously discussed,

defense counsel challenged the credibility of the victim

and T both generally and specifically as to each of the

four separate incidents.

After closing arguments, with regard to the element

of intimate contact in the risk of injury charge in count

two, the trial court instructed the jury: ‘‘The state must

prove either that the defendant had contact with the

child’s intimate parts, [or] the defendant subjected the

child to contact with the defendant’s intimate parts.

There need not be a touching of all the intimate parts. It

is sufficient if any one of the intimate parts is touched.’’

Similar to the instruction on sexual assault, the court

concluded: ‘‘In order to convict the defendant on this

count, you must be unanimous that at least one violation

of this statute occurred between the defendant and [the

victim] during the time frame indicated.’’

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 § 53a65 (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.’’8
First, we must determine whether count two was

premised on multiple, separate incidents of conduct.

Count two of the information alleged that the defendant

committed sexual assault on ‘‘diverse dates’’ over the

course of more than four years, and this allegation was

supported by testimony concerning four separate

instances of sexual intercourse that occurred on distinct dates. This evidence shows that, as the case was

presented to the jury, there was evidence of multiple,

separate incidents of conduct, not a single incident.

Because count two was premised on multiple, separate incidents of conduct, we next must determine

under prong two of the applicable test whether each

incident could establish an independent violation of

§ 53-21 (a) (2). We hold that, although the state had

discretion to charge the defendant with violating § 53-

21 (a) (2) for each incident of conduct that occurred, the

state properly charged and presented these incidents

to the jury as a continuing course of conduct.

In Douglas C., we held that § 53-21 (a) (2) criminalizes

both a single incident of conduct and an ongoing course

of conduct. See State v. Douglas C., supra, 345 Conn.

. Specifically, we explained that, under our prior

case law interpreting this statute, risk of injury to a

child may be charged under a continuing course of

conduct theory. Id., . We explained that both the

structure of the statute as a whole and its legislative

history support this interpretation of § 53-21 (a) (2).

See id., . Thus, when a defendant commits multiple,

separate acts of having contact with the intimate parts

of the same alleged victim as part of a continuing course

of conduct, the state has discretion to charge the defendant either with multiple counts of having violated § 53-

21 (a) (2), with each count premised on a single incident,

or with a single count of having violated § 53-21 (a) (2)

premised on a continuing course of conduct.

In the present case, the language of count two shows

that the state charged the defendant with a continuing

course of conduct in that, ‘‘on or about diverse dates

between August 23, 2006, and December 25, 2010,’’ he

had contact with the victim’s intimate parts and that

the victim had contact with the defendant’s intimate

parts. State v. Joseph V., supra, 196 Conn. App. 722 n.12.

This language clearly contemplates more than a single

instance of contact; it contemplates an ongoing course

of conduct during this time period. Additionally,

although the trial court noted that only one violation

of the statute had to occur and the state argued that

proof of only one alleged act was necessary to find the

defendant guilty under count two, the state argued that

multiple instances of contact occurred continuously

between August 23, 2006, and December 25, 2010. Thus,

§ 53-21 (a) (2) criminalizes a continuing course of conduct, and the state charged the defendant with a continuing course of conduct.
Moreover, as to count two, the jury reasonably could

have found that the multiple, separate incidents of conduct constituted a continuing course of conduct. The

testimony regarding the four specific instances of conduct showed that, although the multiple incidents of

sexual and indecent touching of intimate parts occurred

over a prolonged period of time, these acts occurred

with sufficient frequency to be considered a continuous

course of conduct. See, e.g., United States v. Root, 585

F.3d 145, 154–55 (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 the same perpetrators—the defendant and T—involved a single victim, and furthered a

single, continuing objective to touch the victim in a

sexual and indecent manner.

As a result, although count two was premised on

multiple, separate instances of conduct, these instances

were properly alleged and presented to the jury as a

continuous course of conduct, and not as independent

violations of § 53-21 (a) (2). Accordingly, we conclude

that count two, charging the defendant with a single

violation of § 53-21 (a) (2), was not duplicitous, and

thus the trial court’s failure to grant the defendant’s

request for a specific unanimity instruction or a bill of

particulars as to that count did not violate his constitutional right to jury unanimity.

B

Count one of the information charged the defendant

with sexual assault in the first degree in violation of

§ 53a-70 (a) (2). Because there was trial testimony

regarding four separate, specific instances of conduct,

each of which could have constituted a violation of

the statute, the defendant argues that this count was

duplicitous. In turn, he argues that, because the trial

court did not provide the jury with a specific unanimity

instruction as defense counsel requested,9

the jury verdict violated his right to jury unanimity and created the

possibility that the jury found him guilty without having

agreed on which instance of conduct he committed.

We agree with the defendant.

The following additional procedural history is relevant to our consideration of the defendant’s claim with

respect to this count. Count one of the operative information charged the defendant with committing sexual

assault in the first degree ‘‘on or about diverse dates

between August 23, 2006, and December 25, 2010,’’ by

engaging in sexual intercourse (fellatio and anal intercourse) with the victim at the residence of the victim’s

father. State v. Joseph V., supra, 196 Conn. App. 722 n.12.

At trial, as evidence that the defendant had engaged in

sexual intercourse with the victim, the state offered

the testimony of both the victim and T regarding four

distinct incidents of abuse, as well as the victim’s gen-
eral testimony that he recalled that other incidents of

sexual abuse had occurred but that they had ‘‘ ‘blurred

together’ ’’ in his memory. Id., 717 n.3. Defense counsel

cross-examined both the victim and T about the specific

details regarding each of the four specific incidents of

sexual abuse.

In closing argument, the prosecutor argued that ‘‘a

plethora of evidence’’ supported the element of sexual

intercourse, summarizing the four specific instances of

sexual abuse and noting that ‘‘these same types of acts

happened between [the victim] and the defendant alone,

and [the victim] and the defendant and [T] . . . too

many times to count.’’ The prosecutor then argued that

the jury only had ‘‘to believe it happened once. Any

one time is enough to satisfy the element of sexual

intercourse.’’

In response, defense counsel argued generally that

the state’s witnesses, including the victim and T, lacked

credibility. Counsel walked the jury through the three

alleged incidents about which the victim had testified,

discussing inconsistencies in his testimony as to each

particular incident. Defense counsel specifically challenged T’s testimony regarding these incidents, arguing

that T had admitted to having tailored his testimony to

the victim’s allegations.

After closing arguments, the trial court’s jury charge

included a general instruction regarding unanimity:

‘‘Remember that your verdict as to each count must be

unanimous; all six jurors must agree as to the verdict

as to each separate count.’’ As to count one, charging

sexual assault, the trial court instructed in relevant part:

‘‘In order to convict the defendant on this count you

must be unanimous that at least one violation of this

statute by one of the methods alleged occurred between

the defendant and [the victim] during the time frame

indicated. . . . [T]he state must prove each element of

each offense, including identification of the defendant,

beyond a reasonable doubt. If you unanimously find

that the state has proved beyond a reasonable doubt

each of the elements of the crime of sexual assault in the

first degree, then you shall find the defendant guilty.’’

(Emphasis added.)

Addressing the defendant’s unanimity claim in the

present case, we must first determine if count one was

premised on multiple, separate acts and, if so, whether

each act established a separate violation of the sexual

assault statute.10 We recognize that this may be a difficult task, as ‘‘[t]he line between multiple offenses and

multiple means to the commission of a single continuing

offense is often a difficult one to draw.’’ (Internal quotation marks omitted.) United States v. Davis, 471 F.3d

783, 791 (7th Cir. 2006). One example of a multiple

means case (i.e., claim of unanimity as to elements) is

State v. Anderson, 211 Conn. 18, 557 A.2d 917 (1989),

in which the state charged the defendant with two
counts of sexual assault in the first degree premised

on multiple kinds of sexual intercourse—four instances

of vaginal intercourse and two instances of fellatio—

alleged to have been committed during a single criminal

episode of relatively brief temporal duration (approximately one hour). Id., 20–23. This court held that the

multiple acts of sexual intercourse constituted alternative means of committing the element of sexual intercourse, and, thus, the jury did not have to unanimously

agree as to which means occurred. Id., 34–35; see id.,

35 (‘‘[t]he several ways in which sexual intercourse

may be committed under . . . § 53a-65 (2) are only one

conceptual offense’’); see also United States v. Gordon,

713 Fed. Appx. 424, 430 (6th Cir. 2017) (types of prohibited sexual conduct constitute alternative means of

committing that conduct and do not constitute elements

about which jury must be unanimous). Thus, in Anderson, the jury could, consistent with constitutional principles, find the defendant guilty of sexual assault in the

first degree if the jurors were unanimous in finding,

beyond a reasonable doubt, that some form of sexual

intercourse occurred during the alleged incident.

Anderson did not address whether unanimity issues

arise when the state charges only one count of sexual

assault, but the record contains evidence of multiple,

separate incidents of sexual intercourse. The line

between a single incident comprised of various alternative means of committing sexual intercourse, on the

one hand, and multiple, separate incidents of sexual

intercourse, on the other, may be unclear at times and

must be decided on a case-by-case basis based on the

language of the count at issue, the evidence admitted

in support of that count, and the kind of conduct the

legislature intended to criminalize (single instance of

conduct or continuing course of conduct).

In the present case, under the first prong of the test

adopted in Douglas C., we must first look at the allegations in the charge and the evidence admitted in support

thereof to determine if count one was premised on

multiple, separate incidents of conduct. See State v.

Douglas C., supra, 345 Conn. . Unlike the situation

in Anderson, the information in the present case alleged

that the defendant committed sexual assault on ‘‘diverse

dates’’ over the course of more than four years. There

was testimony concerning four specific instances of

sexual intercourse, each of which occurred on different

dates, at different times, and in different locations

within the residence of the victim’s father. From this

testimony, it is clear that the present case does not

involve multiple acts of sexual intercourse committed

in the course of a single incident of brief temporal

duration. Rather, this evidence shows that, as the case

was presented to the jury, there were multiple, separate

incidents.

Additionally, unlike our risk of injury statute, under
the second prong of the test announced in Douglas

C., the language of § 53a-70 (a) (2) and our case law

interpreting that language show that the legislature

intended for each of these separate, specific incidents

to be charged as separate violations of § 53a-70 (a)

(2). Specifically, under § 53a-70 (a) (2), the state was

required to establish that the defendant ‘‘engage[d] in

sexual intercourse . . . .’’11 The statutory scheme does

not define the term ‘‘engages,’’ and thus we turn to the

common dictionary definition of this term. See Black’s

Law Dictionary (11th Ed. 2019) p. 669 (defining

‘‘engage’’ as ‘‘[t]o employ or involve oneself; to take part

in; to embark on’’); Webster’s Third New International

Dictionary (2002) p. 751 (defining ‘‘engage’’ as ‘‘to

employ or involve oneself . . . to take part . . . participate’’). These definitions of ‘‘engage’’ do not provide

any clarification as to whether the statute criminalizes

a continuing course of conduct.12 The concurring and

dissenting justice (hereinafter, the dissent) contends

that, under these definitions of ‘‘engage,’’ this term is

‘‘suggestive of ongoing conduct . . . .’’ This is true, but

this merely creates ambiguity because the definitions

also are suggestive of singular conduct. This ambiguity,

however, is clarified when the term ‘‘engaged’’ is interpreted in its context, specifically, in relation to the

phrase ‘‘sexual intercourse.’’ The statutory scheme

defines ‘‘sexual intercourse’’ as ‘‘vaginal intercourse,

anal intercourse, fellatio or cunnilingus between persons regardless of sex. Penetration, however slight, is

sufficient to complete vaginal intercourse, anal intercourse or fellatio and does not require emission of

semen.’’ General Statutes § 53a-65 (2). This definition

suggests that the statute intended to criminalize each

single act of sexual intercourse, which is defined in

singular terms. This kind of language consistently has

been interpreted as criminalizing only single acts. See

Cooksey v. State, 359 Md. 1, 19–21, 752 A.2d 606 (2000)

(reviewing case law from various states with similarly

worded sexual assault statutes, all of which have been

interpreted as not criminalizing continuous course of

conduct). Thus, this language does not contemplate

an ongoing, continuous course of conduct but, rather,

penalizes a single instance of sexual intercourse.

Interpreting § 53a-70 to criminalize each separate act

of sexual intercourse and not a continuous course of

conduct is also supported by our ‘‘well settled principle

of statutory construction that the legislature knows how

to convey its intent expressly . . . or to use broader

or limiting terms when it chooses to do so.’’ (Internal

quotation marks omitted.) State v. Ruiz-Pacheco, 336

Conn. 219, 235, 244 A.3d 908 (2020). Specifically, we

can infer from the legislature’s use in other statutes of

the phrase ‘‘course of conduct,’’13 as well as other

phrases that connote more than one act,14 that the legislature knows how to criminalize a course of conduct

when it wants to do so. From the fact that the legislature
did not do so in § 53a-70, we may infer that it did not

intend to criminalize a continuous course of conduct.

Our long-standing precedent interpreting § 53a-70

lends further support to this interpretation. It is well

established that, in determining the plain meaning of a

statute, we look to prior case law defining the statute.

See, e.g., Redding Life Care, LLC v. Redding, 331 Conn.

711, 719, 207 A.3d 493 (2019) (‘‘we must construe the

statute in conformity with prior case law interpreting

it’’); State v. Moreno-Hernandez, 317 Conn. 292, 299,

118 A.3d 26 (2015) (‘‘[i]n interpreting the [statutory]

language . . . [we] are bound by our previous judicial

interpretations of the language and the purpose of the

statute’’ (internal quotation marks omitted)). General

Statutes (Rev. to 1975) § 53a-72 (a), which was repealed

in 1975; see Public Acts 1975, No. 75-619, § 7; criminalized rape, and was a precursor to our current sexual

assault statute, used the same phrase at issue in the

present case: ‘‘A male is guilty of rape in the first degree

when he engages in sexual intercourse with a female

. . . .’’ (Emphasis added.) In State v. Frazier, 185 Conn.

211, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112,

102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982), this court, in

interpreting General Statutes (Rev. to 1972) § 53a-72,

followed the lead of the Oklahoma courts and explained

that ‘‘rape is not a continuous offense. . . . There is

ample authority holding that each separate act of forcible sexual intercourse constitutes a separate crime.

. . . A different view would allow a person who has

committed one sexual assault [on] a victim to commit

with impunity many other such acts during the same

encounter. The classic test of multiplicity is whether

the legislative intent is to punish individual acts separately or to punish only the course of action which they

constitute. . . . [W]e believe the legislative intention

was that each assault should be deemed an additional

offense.’’ (Citations omitted.) Id., 229–30. Since Frazier,

and after the repeal of General Statutes (Rev. to 1975)

§ 53a-72, this interpretation of the phrase ‘‘engages in

sexual intercourse’’ has been applied to § 53a-70. See

State v. Anderson, supra, 211 Conn. 26 (The court

quoted Frazier in explaining that, ‘‘[i]n addressing legislative intent with regard to multiple punishments for

sexual assaults, we have stated that each separate act

of forcible sexual intercourse constitutes a separate

crime. . . . Thus, each act of sexual assault is punishable separately.’’ (Citations omitted; internal quotation

marks omitted.)); see also State v. Snook, 210 Conn.

244, 262, 555 A.2d 390 (same), cert. denied, 492 U.S.

924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989);15 State v.

Ayala, 154 Conn. App. 631, 654, 106 A.3d 941 (2015)

(same), aff’d, 324 Conn. 571, 153 A.3d 588 (2017); State

v. Giannotti, 7 Conn. App. 701, 709, 510 A.2d 451 (citing

Frazier in holding that each individual act or attempted

act of forcible sexual intercourse constitutes separate

crime), cert. denied, 201 Conn. 804, 513 A.2d 700 (1986).
For approximately forty years, the Appellate Court

has rejected the dissent’s interpretation of § 53a-70.16

Specifically, in State v. Cassidy, 3 Conn. App. 374, 489

A.2d 386 (Borden, J.), cert. denied, 196 Conn. 803, 492

A.2d 1239 (1985), the defendant, who had been charged

with and convicted of multiple counts of sexual assault

under § 53a-70, argued ‘‘that he should . . . have been

tried on [only] one count of sexual assault, on the theory

that only one act of sexual assault was alleged, albeit

one involving several acts of sexual intercourse.’’ Id.,

388. In rejecting this argument, the Appellate Court

cited to Frazier and noted that ‘‘[t]his argument was

rejected under the predecessor to . . . § 53a-70. . . .

We reject it under . . . § 53a-70 as well.’’ (Citation

omitted.) Id. In so holding, the court was not persuaded

by the defendant’s contention that, ‘‘while the legislative

intent of the repealed statute [§ 53a-72] was to punish

each individual act of assault separately, the legislature,

by enacting the current statute, intended only to punish

the total course of conduct as one offense. As under

the prior statute, however, each assault [on] the victim

involved a separate act of will on the part of the defendant and a separate indignity [on] the victim. . . . [T]he

legislative intention was that each assault should be

deemed an additional offense. . . . To interpret the

statute otherwise would be to strip it of all its sense.

[T]he application of common sense to the language of

a penal law is not to be excluded in a way which would

involve absurdity or frustrate the evident design of the

lawgiver. . . . There is ample authority holding that

each separate act of forcible sexual intercourse constitutes a separate crime. . . . A different view would

allow a person who has committed one sexual assault

[on] a victim to commit with impunity many other such

acts during the same encounter.’’ (Citations omitted;

footnote omitted; internal quotation marks omitted.)

Id., 388–89.

The dissent argues that our reliance on Frazier and

Cassidy is misplaced because they involved multiplicity, not duplicity, which, in his view, ‘‘present[s] a fundamentally different question.’’ But it does not. Not for

these purposes. Both the test for multiplicity in the

double jeopardy context and the test for duplicity in

the unanimity context require that we construe the language of our sexual assault statute to arrive at the

legislature’s intent in enacting it. How we interpret statutory language does not change based on the claim at

issue. We reject the dissent’s conclusion that the most

reasonable reading of our sexual assault statute and

cases interpreting its language is that prosecutors, in

their discretion, can choose to charge crimes either

way—as a course of conduct or as a single act—based

on a tradition of prosecutorial discretion that is not

supported by our criminal statutes and in which the

legislature has not acquiesced. If acquiescence were

important to determining a statute’s meaning, the legis-
lature’s acquiescence in how our appellate courts have

interpreted the statute is a more compelling case.17

Accordingly, guided by § 1-2z and our prior case law

interpreting § 53a-70, we conclude that the plain and

unambiguous language of § 53a-70 shows that the legislature intended to criminalize only single acts of sexual

intercourse and not a continuing course of conduct.

This court, therefore, should not consider legislative

history.18 As a result, when we apply the well established

legal principles regarding statutory construction, we

find that our sexual assault statute does not criminalize

a continuing course of conduct.

Moreover, even if this court were allowed to create

and apply common-law exceptions in determining the

meaning of a statute; see footnote 7 of this opinion;

this court has not recognized a common-law exception

for a continuing course of sexual assault, even in cases

involving children. Cf. 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). Accordingly, we

conclude that the information charging the defendant

with a single count of sexual assault premised on multiple, separate instances of conduct, each of which could

have supported a separate offense, was duplicitous and

violated the defendant’s right to jury unanimity. This is

consistent with decisions of other state courts that have

applied the majority test to this issue. See, e.g., State

v. Arceo, 84 Haw. 1, 30, 928 P.2d 843 (1996); Cooksey

v. State, supra, 359 Md. 19–21.

As a result, in the absence of a unanimity instruction,

the state was required to either charge the defendant

with multiple counts of sexual assault in the first degree,

each premised on a separate instance of conduct, or

limit the single count it did charge to a single instance

of conduct. Alternatively, the state could have charged

as it did, as long as a specific unanimity instruction

was given. The state, however, using similar language

as contained in count two, attempted to charge count

one under a continuing course of conduct theory, and

the trial court did not give a specific unanimity instruction.19 The state was not permitted to do so under the

plain language of § 53a-70, and thus the state’s manner

of charging under count one does not cure the count’s

duplicity.

Nevertheless, the dissent relies on prior case law

from the Appellate Court to argue that our courts have

recognized a policy in favor of affording the prosecutor

discretion in charging in cases involving sexual assault

of a child. Although this court has not recognized a

common-law exception for a continuing course of sexual assault, we are aware that this state’s case law

regarding unanimity and ongoing sexual assault of children has created some confusion on this issue, likely

owing both to our belated recognition of persuasive

federal case law, as well as to an understandable moti-
vation to accommodate the difficulties inherent in prosecuting such cases involving children, particularly traumatized children. For example, the Appellate Court has

distinguished between sexual assault cases in which

there is specific testimony regarding multiple, separate

incidents of sexual assault, and cases in which there is

only general testimony that multiple incidents of sexual

assault occurred but precise details regarding time and

location are unknown. This occurs commonly in cases

involving the ongoing sexual assault of children. This

line of cases has caused confusion in the Appellate

Court, including in the present case, over whether an

information is duplicitous or whether any duplicity creates a risk of a nonunanimous verdict when a sexual

assault case involves only general testimony about multiple incidents of sexual assault. See State v. Joseph V.,

supra, 196 Conn. App. 737–38 (citing cases). To the

extent the defendant relies on this case law to argue

that the Appellate Court has held that a single count

of sexual assault premised on specific testimony of

multiple, separate incidents of conduct may be alleged

under a continuing course of conduct theory, we disagree. Rather, these cases show that, when there is only

general testimony regarding the ongoing sexual assault

of a child, a defendant more likely than not will not be

prejudiced by a single count of sexual assault premised

on multiple incidents of conduct.

This issue first arose in State v. Saraceno, 15 Conn.

App. 222, 229, 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), in which the defendant claimed

that the information was duplicitous because the two

counts of sexual assault of which he was convicted

each alleged the commission of a single crime based

on multiple, separate incidents of sexual intercourse.

Id., 227–28. In resolving this claim, the court addressed

the five policy considerations underlying the doctrine

of duplicity. See id., 229–32. As to the possible lack of

jury unanimity, the Appellate Court concluded ‘‘that

with regard to the evidence adduced . . . it was not

possible for the jury to return a verdict [that] was not

unanimous. Given the complainant’s age and her relative inability to recall with specificity the details of

separate assaults, the jury was not presented with the

type of detail laden evidence [that] would engender

differences of opinion on fragments of her testimony.

In other words, the bulk of the state’s case rested on

the credibility of the young complainant. When she testified . . . that on many occasions the defendant forced

her to engage in fellatio while in a motor vehicle parked

on the banks of the Connecticut River, the jury was

left, primarily, only with the decision of whether she

should be believed. With such general testimony, the

spectre of lack of unanimity cannot arise. . . . Under

the specific circumstances . . . [the court] conclude[d] that the defendant was not prejudiced by the
potential lack of jury unanimity.’’ Id., 230–31.

In so holding, the court clearly focused on whether

the defendant was prejudiced by the potential lack of

unanimity, specifically, whether the jury possibly was

confused. See id., 229–31. The court concluded that, in

light of the nature of the general testimony, there was

no possibility that the jury had a difference of opinion

as to which acts the defendant had committed because

the nature of the testimony did not allow the jury to

be divided as to which instance of conduct occurred

but, rather, required the jury to credit all or none of

the victim’s testimony. See id., 230. In other words, the

court determined that any potential duplicity, assuming

it existed, was not harmful. Saraceno did not hold that

a single count of sexual assault premised on specific

testimony of multiple separate instances of conduct

may be alleged under a continuing course of conduct

theory. Thus, under neither the statutory scheme at

issue nor our state’s common law may first degree sexual assault be charged as a continuing course of conduct

crime when premised on specific testimony of multiple,

separate incidents of conduct.20 As a result, in the

absence of a unanimity instruction, the state was

required either to charge the defendant with four counts

of sexual assault in the first degree, each premised on

a separate instance of conduct, or to limit the single

count it did charge to a single instance of conduct.

Alternatively, the state could have charged as it did

without offending the defendant’s right to jury unanimity if the trial court had given a specific unanimity

instruction. Accordingly, because count one is premised

on multiple, separate incidents of conduct, each of

which could independently establish a violation of

§ 53a-70 (a) (2), that count was rendered duplicitous.

Because we hold that a single count of sexual assault

premised on specific testimony of multiple separate

acts, committed other than in the course of a single

criminal episode of relatively brief temporal duration,

is duplicitous and violates a defendant’s right to jury

unanimity when no specific unanimity instruction is

given, we must determine whether this duplicity prejudiced the defendant. In light of the evidence of multiple,

separate instances of sexual intercourse, we conclude

that the jury reasonably could have interpreted the trial

court’s instruction that it ‘‘must be unanimous that at

least one violation of this statute by one of the methods

alleged occurred between the defendant and [the victim] during the time frame indicated’’ to require it to

be unanimous as to whether an instance of sexual intercourse occurred but not to require it to be unanimous

as to which instance of sexual intercourse occurred.

This is especially so in light of the specific nature of

the testimony and defense counsel’s extensive crossexamination and closing argument directed at unique

credibility concerns related to each incident, as well as

the prosecutor’s closing argument that any of the
alleged incidents would establish the element of sexual

intercourse.21 As a result, the state’s concession of harm

if we find any error is prudent. The duplicitous nature

of count one created the potential for the jury to be

confused or to disagree about which of the various acts

of sexual intercourse the defendant committed, thereby

prejudicing him. Accordingly, we reverse the defendant’s conviction of sexual assault in the first degree

and remand the case for a new trial as to that count.

C

We next apply the Douglas C. test to count three,

which charged the defendant with conspiracy to commit risk of injury to a child in violation of §§ 53-21 (a)

(2) and 53a-48 (a). The defendant argues that he was

charged only with a single violation of § 53a-48 (a) but

that there was testimony showing that he and T had

agreed to commit two separate conspiracies: (1) when

the defendant and T exchanged a ‘‘look’’ before the first

incident; and (2) when the defendant touched the victim

in the living room while T watched. See footnote 4 of

this opinion. We disagree.

Count three of the information alleged ‘‘[t]hat the

said [defendant] did commit the crime of conspiracy

to commit risk of injury to a child in violation of [§§]

53a-48 (a) and 53-21 (a) (2) in that on or about diverse

dates between August 23, 2006, and December 25, 2010,

at or near [the new residence of the victim’s father],

the said [defendant], with intent that conduct constituting the crime of risk of injury to a child be performed,

did agree with one or more persons, namely, [T], to

engage in and cause the performance of such conduct,

and any one of them committed an overt act in pursuance of such conspiracy.’’ (Internal quotation marks

omitted.) State v. Joseph V., supra, 196 Conn. App.

722 n.12.

At trial, to show that the defendant and T had agreed

to enter into a conspiracy, the state presented testimony

that, immediately prior to the first specific incident of

abuse, the defendant and T shared a ‘‘look.’’ Additionally, there was testimony that, during the third specific

incident of abuse, the defendant sexually abused the

victim while T was in the room and watched the abuse

occur. See footnote 4 of this opinion.

In closing argument as to this count, the prosecutor

discussed the first specific incident of abuse. As evidence of an agreement, he pointed to T’s testimony

that T and the defendant, who were best friends, first

cousins, and in a sexual relationship, shared a look

before the defendant began touching the victim. The

prosecutor also argued that ‘‘[t]here’s other incidents

where [T] and [the] defendant would do this to [the

victim]. [The victim] can’t remember all of them and

the details because it happened too many times.’’ He

then referred to the incident in which T watched the
defendant sexually assault the victim: ‘‘I submit to you

there’s an agreement if there’s—if one person’s sexually

assaulting a child and the other person, the defendant, is

awaiting his turn, or vice-versa, the defendant’s sexually

assaulting a child and the other person is awaiting their

turn, that’s evidence of an agreement. . . . [T]he ongoing course of conduct and sexual assaults done together

[show] they entered into a conspiracy to sexually

assault [the victim], not on an infrequent basis; they

kept sexually assaulting him; that’s all those times of

the conspiracy.’’

A person is guilty of conspiracy under § 53a-48 ‘‘when,

with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage

in or cause the performance of such conduct, and any

one of them commits an overt act in pursuance of such

conspiracy.’’ General Statutes § 53a-48 (a); see State v.

Pond, 315 Conn. 451, 467, 108 A.3d 1083 (2015). The

defendant argues that a single count of conspiracy may

be premised on only an agreement to commit a single

conspiracy but that there was evidence of two separate

agreements to commit two separate conspiracies to

commit risk of injury to a child. To determine whether

count three was premised on multiple, separate acts

requires that we review our case law interpreting § 53a48 (a). This court continuously has interpreted the plain

language of § 53a-48 (a) as criminalizing an agreement

to commit a single conspiracy: ‘‘Whether the object of

a single agreement is to commit one or many crimes,

it is in either case that agreement which constitutes

the conspiracy which the statute punishes. The one

agreement cannot be taken to be several agreements

and hence several conspiracies because it envisages

the violation of several statutes rather than one. . . .

The single agreement is the prohibited conspiracy, and

however diverse its objects it violates but a single statute . . . .’’ (Internal quotation marks omitted.) State v.

Ortiz, 252 Conn. 533, 559, 747 A.2d 487 (2000). As a

result, for double jeopardy purposes, ‘‘[a] single agreement to commit several crimes constitutes one conspiracy. . . . [M]ultiple agreements to commit separate

crimes constitute multiple conspiracies. . . . We consider several factors in determining whether multiple

prosecutions are permitted for [multiple] conspiracies,

including . . . the participants, the time period, similarity of the crimes, and the existence of common acts,

objectives and a common location.’’ (Citations omitted;

internal quotation marks omitted.) State v. Guerrera,

167 Conn. App. 74, 110, 142 A.3d 447 (2016), aff’d, 331

Conn. 628, 206 A.3d 160 (2019).

As a result, a single count of conspiracy may be premised on an agreement to commit only a single conspiracy. Only if the evidence offered at trial shows the

existence of two separate conspiracies is a single count

of conspiracy duplicitous. See United States v. Lapier,

796 F.3d 1090, 1096 (9th Cir. 2015) (‘‘[J]urors must still
unanimously agree that the defendant is guilty of participating in a particular conspiracy . . . . [T]he evidence

at trial tended to show at least two separate conspiracies—one between [the defendant] and his first [drug]

supplier . . . and a later one between [the defendant]

and his second [drug] supplier . . . but not a single

overarching conspiracy.’’ (Citations omitted.)).

In support of his argument of two separate conspiracies, the defendant contends that the testimony regarding the ‘‘look’’ that he and T shared was evidence of

an agreement to commit the first, and only the first,

incident of abuse. He further argues that the testimony

regarding T’s presence during the third specific incident

showed an agreement to commit that, and only that,

particular incident of abuse. It is well established, however, that a conspiracy may be alleged as a continuing

offense. See, e.g., State v. Hayes, 127 Conn. 543, 605–

606, 18 A.2d 895 (1941); see also id., 606 (‘‘ ‘[b]ut when

the plot contemplates bringing to pass a continuous

result which will not continue without continuous cooperation of the conspirators to keep it up, and there is

such continuous cooperation, it is a perversion of natural thought and of natural language to call such continuous cooperation a cinematographic series of distinct

conspiracies, rather than to call it a single one’ ’’). This

is consistent with precedent from other states holding

that a conspiracy may be alleged as a continuous course

of conduct crime, and thus a single count of conspiracy

premised on a continuous course of conduct is not

duplicitous. See, e.g.,Commonwealth v.Albert, 51 Mass.

App. 377, 385, 745 N.E.2d 990 (‘‘[n]o unanimity instruction was required because a conspiracy refers to a continuing course of conduct, rather than a succession of

clearly detached incidents’’), appeal denied, 434 Mass.

1104, 752 N.E.2d 240 (2001); see also People v. Davis,

488 P.3d 186, 192 (Colo. App. 2017) (‘‘A single crime of

conspiracy can be defined this broadly. . . . No unanimity instruction was required because a conspiracy

refers to a continuing course of conduct, rather than

a succession of clearly detached incidents.’’ (Citation

omitted; internal quotation marks omitted.)), cert.

denied, Colorado Supreme Court, Docket No. 17SC386

(April 9, 2018).

The defendant’s claim then comes down to whether

count three was premised on an agreement between the

defendant and T to commit two separate conspiracies

or a single, ongoing conspiracy. The information and

the prosecutor’s closing argument clearly show that

count three was premised on a single, ongoing conspiracy, not on two separate conspiracies. Evidence that

the defendant and T shared a ‘‘look’’ and later, during a

separate incident, that T was present for the defendant’s

abuse of the victim merely constituted separate proof

of their ongoing agreement to commit the crime of

risk of injury against the victim through contact with

intimate parts. As charged, argued and proven, this was
not evidence of two separate conspiracies.

Our conclusion that count three was premised on a

single, ongoing conspiracy is supported by the fact that

these two incidents involved the same participants and

similar conduct (contact with intimate parts), occurred

in various areas of a single location (the residence of

the victim’s father), and had the same objective (contact

with intimate parts between the defendant and the victim). Accordingly, we conclude that count three was

not premised on multiple, separate acts and, thus, was

not duplicitous.

II

Alternatively, the defendant claims that, if the second

and third counts alleging risk of injury and conspiracy

did not violate his right to jury unanimity as to instances

of conduct, these counts nonetheless violate his right to

jury unanimity as to elements because, as the Appellate

Court held, each count was premised on multiple violations of the alternative types of conduct prohibited by

§ 53-21 (a) (2). Specifically, the defendant argues that

the statutory requirement that the state prove that either

he had contact with the victim’s intimate parts or subjected the victim to contact with his intimate parts are

historically separate offenses constituting separate elements, and thus are facially duplicitous. Because the

trial court denied his request for a bill of particulars or

a specific unanimity instruction, the defendant argues,

this duplicity violated his right to a unanimous jury

verdict. He argues that the Appellate Court properly

held that counts two and three created a risk of a nonunanimous verdict but committed error by applying the

wrong test, and thus improperly held that his constitutional right to jury unanimity was not violated. We agree

with the defendant that this court and the Appellate

Court have been applying the wrong test to claims of

unanimity as to elements, but we disagree that, under

the proper test, the statutory language at issue created

two separate elements, thereby violating the defendant’s right to jury unanimity.

Initially, we must determine what test to apply to

claims of unanimity as to elements. As discussed in

part I of this opinion, these claims require a court to

determine whether the statutory language at issue creates alternative means of committing a single element

or, instead, creates separate elements, thereby constituting separate crimes that must be charged in separate

counts. Understandably, as to the defendant’s claim of

unanimity as to elements, the Appellate Court applied

the test this court announced in State v. Famiglietti,

219 Conn. 605, 619–20, 595 A.2d 306 (1991), and held

that, under this test, because counts two and three were

premised on the violation of multiple statutory clauses,

counts two and three were duplicitous but that, because

the trial court did not specifically sanction a nonunanimous verdict, this error was harmless. See State v.
Joseph V., supra, 196 Conn. App. 745–48.

In Famiglietti, this court applied a multifactor test

to determine whether alternative statutes, statutory

subsections, or statutory clauses constituted separate

elements or alternative means: ‘‘We first review the

instruction that was given to determine whether the

trial court has sanctioned a nonunanimous verdict. If

such an instruction has not been given, that ends the

matter. Even if the instructions at trial can be read to

have sanctioned such a nonunanimous verdict, however, we will remand for a new trial only if (1) there

is a 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), quoting State v.

Famiglietti, supra, 219 Conn. 619–20. This test, at times

referred to as the Famiglietti test, is consistent with

the test the United States Court of Appeals for the Fifth

Circuit applied in United States v. Gipson, 553 F.2d 453

(5th Cir. 1977), which this court consistently has applied

in unanimity cases both prior to and after deciding

Famiglietti. See, e.g., State v. Tucker, 226 Conn. 618,

644–48, 629 A.2d 1067 (1993); State v. Anderson, supra,

211 Conn. 34–35.

Approximately one month before this court issued

its decision in Famiglietti, however, the United States

Supreme Court rejected the Gipson test for determining

whether alternative statutes, statutory subsections, or

statutory clauses constitute alternative elements,

requiring jury unanimity, or alternative means of committing a single element, not requiring jury unanimity.

Specifically, in Schad, the defendant claimed that Arizona’s first degree murder statute violated his sixth

amendment right to unanimity because it did not require

the jury to be unanimous as to one of the statute’s two

alternative theories of committing first degree murder—premeditated murder or felony murder. Schad v.

Arizona, supra, 501 U.S. 630 (opinion announcing judgment). The court reframed the defendant’s claim as a

due process challenge ‘‘to Arizona’s characterization 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 argue[d] that premeditated

murder and felony murder are separate crimes as to

which the jury must return separate verdicts.’’ Id.,

630–31 (opinion announcing judgment); see State v.

Douglas C., supra, 345 Conn. n.10. In other words,

the court was tasked with deciding whether the two

mental states—‘‘the one being premeditation, the other

the intent required for murder combined with the commission of an independently culpable felony’’—constituted either alternative means of satisfying the mens

rea element, or separate elements, requiring separate

verdicts or a specific unanimity instruction. Schad v.
Arizona, supra, 632 (opinion announcing judgment);

see State v. Douglas C., supra, n.10.

The court in Schad acknowledged that it is difficult

to discern when alternative mentes reae or actus rei

constitute alternative means of committing the element

at issue, and when the ‘‘differences between means

become so important that they may not reasonably be

viewed as alternatives to a common end, but must be

treated as differentiating what the [c]onstitution

requires to be treated as separate offenses.’’ Schad v.

Arizona, supra, 501 U.S. 633 (opinion announcing judgment). The court noted that the Fifth Circuit in Gipson

had ‘‘attempted to define what constitutes an immaterial difference as to mere means and what constitutes

a material difference requiring separate theories of

crime to be treated as separate offenses subject to separate jury findings . . . .’’ Id., 633–34 (opinion announcing judgment).

In Gipson, the defendant was charged with and convicted of a single count of violating 18 U.S.C. § 2313

(1976), which prohibited knowingly ‘‘receiv[ing], conceal[ing], stor[ing], barter[ing], sell[ing] or dispos[ing]

of’’ any stolen motor vehicle or aircraft moving in interstate commerce. (Internal quotation marks omitted.)

United States v. Gipson, supra, 553 F.2d 455 n.1. The

District Court instructed the jury that it did not have

to agree on which of the enumerated acts the defendant

had committed. Id., 455–56. Applying the two-pronged

test discussed previously, the Fifth Circuit reversed the

District Court’s judgment, reasoning that the defendant’s right to jury unanimity was violated by the joinder, in a single count, of ‘‘two distinct conceptual groupings,’’ receiving, concealing, and storing forming the

first grouping (referred to by the court as ‘‘housing’’),

and bartering, selling, and disposing (‘‘marketing’’) constituting the second grouping. Id., 458–59. Specifically,

the court in Gipson held that the alternative acts of

selling and receiving a stolen vehicle were conceptually

distinct such that they constituted alternative elements,

not alternative means of committing a single element.

See id., 458.

In reviewing Gipson, the court in Schad stated that

it was ‘‘not persuaded that the Gipson approach really

answers the question, however. Although the classification of alternatives into ‘distinct conceptual groupings’

is a way to express a judgment about the limits of

permissible alternatives, the notion is too indeterminate

to provide concrete guidance to courts faced with verdict specificity questions. . . . This is so because conceptual groupings may be identified at various levels

of generality, and we have no a priori standard to determine what level of generality is appropriate.’’ (Citations

omitted.) Schad v. Arizona, supra, 501 U.S. 635 (opinion

announcing judgment).

Rather than follow Gipson, the court in Schad held
that, to determine whether the legislature intended

either to enumerate alternative means of satisfying a

single element or to define separate elements, ‘‘our

sense of appropriate specificity is a distillate of the

concept of due process with its demands for fundamental fairness . . . and for the rationality that is an essential component of that fairness. In translating these

demands for fairness and rationality into concrete judgments about the adequacy of legislative determinations,

we look both to history and wide practice as guides to

fundamental values, as well as to narrower analytical

methods of testing the moral and practical equivalence

of the different mental states that may satisfy the mens

rea element of a single offense. The [i]nquiry is undertaken with a threshold presumption of legislative competence to determine the appropriate relationship

between means and ends in defining the elements of a

crime.’’ (Citation omitted.) Id., 637–38 (opinion

announcing judgment).

Federal courts of appeals have explained that, ‘‘[e]ven

though this rule [under Schad] speaks in terms of a mens

rea analysis, it rejects the Gipson model for analyzing

unanimity problems. Thus the Schad rule should apply

equally to analysis of multiple [actus reus] elements as

well as analysis of multiple mens rea elements.’’ United

States v. Sanderson, 966 F.2d 184, 188 (6th Cir. 1992).

As a result, in analyzing both multiple actus reus elements and multiple mens rea elements, federal courts

of appeals have taken their cues from Schad and considered the statutory language, relevant legal traditions

and practices, the overall structure of the statute at

issue, its legislative history, moral and practical equivalence between the alternative actus rea or mens rea,

and any other implications for unfairness associated

with the absence of a specific unanimity instruction.

See, e.g., United States v. Lee, supra, 317 F.3d 37; United

States v. Sanderson, supra, 188.

This court never has addressed the effect of the

Supreme Court’s analytical framework in Schad on our

adoption of the Gipson test as applied in Famiglietti.

22

Federal appellate courts, however, including the Fifth

Circuit, specifically have held that Schad overruled and

replaced the Gipson test. See, e.g., Maxwell v. Thaler,

350 Fed. Appx. 854, 857 (5th Cir. 2009) (applying Schad,

not Gipson), cert. denied, 559 U.S. 978, 130 S. Ct. 1698,

176 L. Ed. 2d 191 (2010); Reed v. Quarterman, 504 F.3d

465, 481–82 (5th Cir. 2007) (referring to Gipson test as

‘‘former test’’ and applying Schad test); United States

v. Verbitskaya, 406 F.3d 1324, 1334 (11th Cir. 2005)

(Schad rejected Gipson analysis), cert. denied, 546 U.S.

1096, 126 S. Ct. 1095, 163 L. Ed. 2d 864 (2006); see also

United States v. Sanderson, supra, 966 F.2d 188 (‘‘we

interpret Schad to hold that there must be a commonsense determination of a subject statute’s application

and purpose in light of traditional notions of due process and fundamental fairness’’).
Since Schad, a majority of federal courts of appeals,

including the United States Court of Appeals for the

Second Circuit, have applied the Schad test to determine whether multiple statutes, statutory provisions,

or statutory clauses constitute separate elements or

alternative means of committing a single element. See,

e.g., United States v. Gonzalez, 905 F.3d 165, 185 (3d

Cir. 2018), cert. denied, U.S. , 139 S. Ct. 2727,

204 L. Ed. 2d 1120 (2019); United States v. Mickey,

897 F.3d 1173, 1181 (9th Cir. 2018); United States v.

McIntosh, 753 F.3d 388, 392–93 (2d Cir. 2014); United

States v. Allen, 603 F.3d 1202, 1213 (10th Cir.), cert.

denied, 562 U.S. 1076, 131 S. Ct. 680, 178 L. Ed. 2d 505

(2010); United States v. Hurt, 527 F.3d 1347, 1355 (D.C.

Cir. 2008); Reed v. Quarterman, supra, 504 F.3d 481;

United States v. Verbitskaya, supra, 406 F.3d 1334;

United States v. Lee, supra, 317 F.3d 37; United States

v. Sanderson, supra, 966 F.2d 188. In light of the court’s

holding in Schad and its progeny, we agree with the

defendant that the Gipson test, as adopted in Famiglietti, has been replaced by the Schad test,23 and thus

we apply the latter in the present case to analyze the

defendant’s claim.

We begin with the text of § 53-21 (a): ‘‘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, except that, if the violation is of

subdivision (2) of this subsection and the victim of the

offense is under thirteen years of age, such person shall

be sentenced to a term of imprisonment of which five

years of the sentence imposed may not be suspended

or reduced by the court.’’24 It is not clear from the plain

language of § 53-21 (a) (2) whether the phrase, ‘‘has

contact with the intimate parts . . . 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,’’ creates two separate elements or alternative

means of having contact with intimate parts. Our case

law regarding § 53-21 (a) (2),25 however, suggests that

this statutory language creates alternative means, not

elements. Specifically, under Gipson, we previously

have held that these two statutory requirements are

not conceptually distinct; rather, the only distinction

between the two forms of contact is whether the defendant subjects the victim ‘‘to either active or passive

participation in sexual activity . . . .’’ State v. Spigarolo, 210 Conn. 359, 391–92, 556 A.2d 112, cert. denied,

493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989).

Although we hold today that the Gipson test is no longer

applicable to claims of unanimity as to elements, our

analysis in Spigarolo is relevant to our analysis under
the Schad test to the extent it shows our legal traditions

and practices regarding our interpretation of this statutory language. See United States v. Lee, supra, 317 F.3d

37. Additionally, to the extent the statutory language is

ambiguous, the legislative history shows that subsection (a) (2) was created to distinguish sexual contact

from the nonsexual conduct prohibited under subsection (a) (1). Thus, the purpose of subsection (a) (2) is

to criminalize sexual contact with a child that would

likely impair the health or morals of that child. The

statutory language merely establishes two alternative

ways of having sexual contact with a child. This construction is supported by the fact that this court is

unaware of any moral or practical distinction between

subjecting a child to passive participation in sexual

activity (the defendant’s having contact with the child’s

intimate parts) and active participation in sexual activity (the defendant’s forcing the child to have contact

with the defendant’s intimate parts). Accordingly, we

conclude that the language of § 53-21 (a) (2) creates

two alternative ways of satisfying the element of contact

with intimate parts, and thus counts two and three were

not duplicitous.

The judgment of the Appellate Court is reversed insofar as that court affirmed the defendant’s conviction of

sexual assault in the first degree and the case is

remanded to that court with direction to reverse the

defendant’s conviction of that offense and to remand

the case to the trial court for a new trial with respect

to that offense only; the judgment of the Appellate Court

is affirmed insofar as that court affirmed the defendant’s

conviction of risk of injury to a child and conspiracy

to commit risk of injury to a child.

In this opinion 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 victim or others through whom the

victim’s identity 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 Although § 53a-70 has been amended since the events at issue in this

appeal; see Public Acts 2015, No. 15-211, § 16; that amendment has no bearing

on the merits of this appeal. In the interest of simplicity, we refer to the

current revision of § 53a-70.

2 Although § 53-21 has been amended several times since the events at

issue in this appeal; 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 T also was arrested, but, prior to his criminal trial, he entered into a

written plea deal with the state in which he agreed to cooperate fully and

truthfully with respect to the investigation and the charges brought against

the defendant. State v. Joseph V., supra, 196 Conn. App. 716 n.2. In exchange

for T’s testimony and cooperation, the state agreed to limit the charges
against him to risk of injury to a child in violation of § 53-21 (a) (1) and

sexual assault in the fourth degree in violation of General Statutes § 53a73a (a) (1) (A), and to recommend a total effective sentence of five years

of incarceration, execution suspended after eighteen months, followed by

five years of probation, including sex offender registration. Id.

4 Both the victim and T testified as to the first incident of abuse, although

their testimony conflicted regarding who initiated the abuse. State v. Joseph

V., supra, 196 Conn. App. 717 and n.4. From this testimony, the jury reasonably could have found that ‘‘[t]he first time that the defendant sexually

abused the victim occurred in T’s bedroom after the defendant, T, and the

victim had been playing video games. . . . The defendant and T exchanged

a knowing glance just before the defendant put his hand on the victim’s

hand and made the victim stroke his penis. Thereafter, T and the defendant

took turns rubbing their penises between the victim’s legs, near his buttocks.

At one point during this incident, T attempted to anally penetrate the victim

with his penis while the defendant made the victim perform oral sex on

him.’’ (Footnote omitted.) Id.

The victim also testified regarding ‘‘[a]nother incident involving the defendant [that] occurred when he and the victim were watching television in

the bedroom of the victim’s father. While the defendant and the victim were

lying in bed, the defendant took the victim’s hand and made the victim

stroke his penis. Then, the defendant made the victim, who was fully clothed,

perform oral sex on him.’’ Id., 718.

As to the third incident, T alone testified that ‘‘[t]he defendant sexually

abused the victim during another incident that occurred in T’s presence,

although T did not participate. This incident occurred at night . . . in the

living room, which was downstairs at the residence of the victim’s father.

The defendant partially undressed himself and partially undressed the victim

before making the victim perform oral sex on him. The defendant also

rubbed his penis between the victim’s legs.’’ (Footnote omitted.) Id.

As to the fourth incident, the victim testified that, ‘‘when [he] was ten years

of age, [he and] the defendant . . . were alone together at the residence

of the victim’s father after other family members had left to purchase food.

The defendant, who was on the couch in the living room with the victim,

partially removed his pants and the victim’s pants and anally penetrated

the victim with his penis. Thereafter, the defendant made the victim perform

oral sex on him.’’ Id.

5 We granted the defendant certification to appeal, limited to the following

issues: (1) ‘‘Did the Appellate Court properly uphold the trial court’s denial

of the defendant’s request for a specific unanimity charge and correctly

conclude that, under State v. Mancinone, 15 Conn. App. 251, 274, 545 A.2d

1131, 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), a specific unanimity charge

is required only when the defendant has been charged with violating multiple

subsections or multiple ‘statutory elements’ of a statute?’’ And (2) ‘‘[i]f a

specific unanimity charge is required when there is evidence presented at

trial of more than one separate and distinct criminal act that could serve

as the basis for a single count, did the Appellate Court correctly conclude

that the state’s information was not duplicitous where the state presented

evidence of more than one separate and distinct incident that could have

served as the basis of conviction on each of the three counts?’’ State v.

Joseph V., 335 Conn. 945, 945–46, 238 A.3d 17 (2020).

6 For the same reasons stated in the majority opinion in Douglas C., we

reject the argument of the concurring and dissenting justice (hereinafter,

the dissent) that this court should adopt the test used by the United States

Court of Appeals for the Second Circuit for determining if a single count

of an information violates a defendant’s right to jury unanimity as to

instances of conduct. Specifically, we reject the dissent’s argument that,

like the Second Circuit, we should adopt and apply a presumption that our

legislature intends that prosecutors have discretion to charge a defendant

with either a single crime or an ongoing course of conduct crime if the

legislature has not made its intent clear in this regard, as determined by

the statute’s plain language, related statutes, and relevant legislative history.

See State v. Douglas C., supra, 345 Conn. . As explained at length in

Douglas C., not only do we disagree with the dissent that our case law

supports this presumption, but we also need not reach this issue, as we

determine that the legislature’s intent regarding the various statutes at issue

is clear based on the statutory language, relevant case law, and/or legislative

history. See id., .

7

In Douglas C., we recognized that ‘‘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 [in Douglas C.] argue[d] that any common-law exception applie[d], we [did] not decide . . . whether creating or applying common-law exceptions in interpreting statutes is proper.’’ (Internal quotation

marks omitted.) State v. Douglas C., supra, 345 Conn. n.11.

8 Although § 53a-65 (8) has been amended since the defendant’s commission 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 § 53a65 (8).

9 Defense counsel requested that the trial court instruct the jury as follows:

‘‘The state has alleged that the defendant . . . has committed the offense

of sexual assault in the first degree. The state alleges in the first count the

act of sexual assault in the first degree by way of fellatio and anal intercourse.

‘‘You may find the defendant guilty of the offense of sexual assault in the

first degree only if you all unanimously agree on the manner in which the

state alleges the defendant committed the offense and that it occurred during

the time and place alleged by the state.

‘‘This means you may not find the defendant guilty on the first count of

sexual assault in the first degree unless you all agree that the state has

proved beyond a reasonable doubt that the [defendant] did engage in sexual

intercourse by fellatio and anal intercourse with [the victim] and [the victim]

was under [thirteen] years of age and [the defendant] was more than [two]

years older than [the victim]. The state alleges these crimes were committed

between August 23, 2006, and December 25, 2010, at or near [the new

residence of the victim’s father]. If the state has not met its burden of proving

sexual assault in the first degree by way of fellatio and anal intercourse at

said time and place, you must return a verdict of not guilty. As I have

instructed you, when you reach a verdict, it must be unanimous on all

elements of the offense.’’

We note that, in the proposed instruction, it is not clear whether defense

counsel was asking the court to instruct the jury that it must be unanimous

that a single, specific act occurred, or that that it must be unanimous that

all alleged acts occurred.

10 The defendant does not claim that count one violated his constitutional

right to jury unanimity as to elements but only as to instances of conduct.

This is because it is clear that count one alleges only a single violation of

a single statute, statutory provision, or statutory clause. Specifically, § 53a70 (a) (2) provides only a single actus reus: engaging in sexual intercourse.

See General Statutes § 53a-70 (a) (‘‘[a] person is guilty of sexual assault in

the first degree when such person . . . (2) engages in sexual intercourse

with another person and such other person is under thirteen years of age

and the actor is more than two years older than such person’’).

‘‘Sexual intercourse’’ is defined as ‘‘vaginal intercourse, anal intercourse,

fellatio or cunnilingus between persons regardless of sex. Penetration, however slight, is sufficient to complete vaginal intercourse, anal intercourse

or fellatio and does not require emission of semen. Penetration may be

committed by an object manipulated by the actor into the genital or anal

opening of the victim’s body.’’ General Statutes § 53a-65 (2).

Count one, therefore, does not allege the violation of multiple statutes,

statutory provisions, or statutory clauses.

11 The dissent argues that, because the plain language of the statute does

not specifically prohibit charging sexual assault as a continuing course of

conduct crime, the proposed presumption in favor of prosecutorial discretion applies. See footnote 6 of this opinion. The problem with this analysis,

however, is twofold. First, as we stated in Douglas C., there is no support
in our case law for this presumption. State v. Douglas C., supra, 345 Conn.

. Second, even if such a presumption existed, it would not apply in the

present case because, as we explain, the language of the statute is plain and

unambiguous. As we explained in Douglas C., ‘‘[c]ontrary to the [dissent’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 [dissent] 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 [dissent’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

conduct, or both, and a prosecutor can choose which charging method to

apply.’’ Id., . However, ‘‘[t]he 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.’’ Id., .

12 As the dissent observes, the language of § 53a-70 (a) (2) does not significantly differ from the language § 53-21 (a) (2), the risk of injury statute.

One might be tempted to contend, although the state does not, that the two

statutes should be interpreted similarly—either as both permitting the state

to charge a continuing course of conduct, in addition to a singular act, or

as neither permitting a continuing course of conduct. We note, however,

that it is not only the statutory language that distinguishes § 53-21 (a) (2)

from § 53a-70 (a) (2). As discussed at length in Douglas C., our interpretation

of the language in § 53-21 (a) (2) is premised in no small part on our prior

interpretation of this statute and its legislative history—specifically, that

prior to an amendment to § 53-21 in 1995, this court interpreted the language

of the statute, which criminalized both acts and ‘‘situations,’’ as criminalizing

both single acts and continuing courses of conduct. See State v. Douglas

C., supra, 345 Conn. . The legislative history demonstrates that, when it

amended § 53-21, the legislature did not intend to create a new crime or to

alter the substance of the preexisting crime but, rather, intended merely to

distinguish between crimes involving sexual contact and nonsexual contact.

In contrast to § 53-21, § 53a-70 (a) (2) has no such legislative history; rather,

this court consistently has interpreted the language at issue as criminalizing

only single acts and not a continuing course of conduct. In fact, a stronger

argument could be made under the plain language of both statutes that

neither the risk of injury statute nor the sexual assault statute contemplates

a continuing course of conduct. As in Douglas C., the defendant in the

present case does not make this argument either, although in Douglas C.,

we already have rejected it.

13 For example, as we explained in Douglas C., ‘‘under our second degree

stalking statute, [General Statutes] § 53a-181d, the legislature specifically

proscribed certain continuous 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’ . . .); 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 subsection (a) (1) of

our risk of injury statute, the legislature 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’ . . .). Thus . . . these statutes show

that, when the legislature intends to explicitly criminalize both an act and

a continuous course of conduct, it knows how to do so. That does not mean

that such explicit statutory language is required to interpret a statute as

criminalizing both an act and a continuous course of conduct. . . . [W]e
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 analyze 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.’’

(Emphasis in original.) State v. Douglas C., supra, 345 Conn. .

14 See, e.g., General Statutes § 53-21 (a) (‘‘[a]ny person who (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’’); General Statutes § 53-142k (b) (1) (larceny by

shoplifting of retail property, the value of which exceeds $2000, during 180

day period constitutes organized retail theft); General Statutes § 53a-119 (3)

(‘‘[a] person obtains property by false promise . . . pursuant to a scheme to

defraud’’); General Statutes § 53a-196e (a) (‘‘[a] person is guilty of possessing

child pornography in the second degree when such person knowingly possesses (1) twenty or more but fewer than fifty visual depictions of child

pornography, or (2) a series of images in electronic, digital or other format,

which is intended to be displayed continuously, consisting of twenty or

more frames, or a film or videotape, consisting of twenty or more frames,

that depicts a single act of sexually explicit conduct by one child’’); General

Statutes § 53a-215 (a) (‘‘[a] person is guilty of insurance fraud when the

person, with the intent to injure, defraud or deceive any insurance company

. . . (2) assists, abets, solicits, or conspires with another to prepare or

make any written or oral statement that is intended to be presented to any

insurance company’’).

15 The dissent’s contrary take on Snook is mistaken. Although the state

in Snook charged the defendant with sexual assault in the second degree

as a continuing course of conduct crime, the defendant never challenged

this method of charging as improper. Instead, he raised a double jeopardy

claim, challenging his conviction of both sexual assault in the second degree

and sexual assault in the third degree. See State v. Snook, supra, 210

Conn. 260.

16 Nevertheless, the dissent contends that this state has a history of prosecutors charging sexual assault as a continuing course of conduct offense

for almost one century and that this court has ‘‘approved prosecutors’ decisions to charge repeated sexual assaults as a single course of conduct.’’ As

we explained in Douglas C., however, ‘‘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 [dissent’s] proposed

presumption. . . . 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 prosecutors is not a relevant factor under § 1-

2z in ascertaining whether a statute criminalizes a continuing course of

conduct.’’ (Citations omitted.) State v. Douglas C., supra, 345 Conn. .

Moreover, although ‘‘[i]t 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,

especially in the context of ongoing sexual assault of children. . . . These

cases do not support adopting the [dissent’s] proposed presumption, as they

do not apply a presumption. Rather, these cases were decided under the

test set forth in [United States v. Gipson, 553 F.2d 453 (5th Cir. 1977)] 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 continuous course of conduct and is not

the proper test for determining claims of unanimity regarding instances of

conduct.’’ (Citations omitted.) Id., .

17 In response to the defendant’s assertion in the present case that a

different test should apply to claims of unanimity regarding multiple incidents of conduct, the state has not argued that there should be a continuing

course of conduct exception that includes and relies on the dissent’s proposed presumption. In fact, as recently as this court’s decision in State v.

Cody M., 337 Conn. 92, 259 A.3d 576 (2020), in arguing that each incident

of violation of a standing criminal protective order constituted a separate

offense and thus could not be charged in one count under a continuous

course of conduct theory, the state specifically asserted that ‘‘a violation

of a protective order is more analogous to sexual assault, which is a separate
act crime, than kidnapping, which is a continuous act crime.’’ Id., 101. We

make this observation not because we question whether the argument has

been preserved in these cases. Rather, we find it illuminating that the constitutional officer whose discretion the dissent suggests the law presumes and

the legislature necessarily acknowledges, has not made the argument the

dissent makes.

18 Even if we were to go on to examine the applicable legislative history,

we disagree with the dissent that it shows that the legislature intended to

criminalize a continuing course of conduct. Specifically, the dissent argues

that the legislative history shows that ‘‘the intent was to allow the prosecution not only of individual sexual assaults but also of ongoing sexual relationships between adults and children, which at least implies a continuing course

of conduct.’’ (Emphasis omitted.) Text accompanying footnote 13 of the

concurring and dissenting opinion. The use of the terms ‘‘relationship’’ and

‘‘relations’’ by one legislator in the legislative history does not show that

the legislature intended to criminalize a continuing course of conduct. First,

nowhere in the legislative history is the issue of criminalizing a single act

or an ongoing course of conduct explicitly mentioned. Second, in context,

it is just as reasonable to construe that legislator’s use of the terms ‘‘relationship’’ and ‘‘relations’’ as euphemisms for sexual intercourse, as it is to

construe them as referring to criminalizing a continuing course of conduct.

Thus, at most, this legislative history creates ambiguity and is of little use.

19 Specifically, count one alleged in relevant part: ‘‘[T]he . . . [defendant]

did commit the crime of sexual assault in the first degree in violation of [§]

53a-70 (a) (2) in that on or about diverse dates between August 23, 2006,

and December 25, 2010 . . . [he] did engage in sexual intercourse (fellatio

and anal intercourse) with . . . [the victim] . . . .’’ (Internal quotation

marks omitted.) State v. Joseph V., supra, 196 Conn. App. 722 n.12.

20 We are sympathetic ‘‘to the plight of both the young victims, often unable

to state except in the most general terms when the acts were committed,

and of prosecutors, either hampered by the lack of specific information or,

when it is reported that the conduct occurred dozens or hundreds of times

over a significant period, faced with the practical problem of how to deal

with such a multitude of offenses.’’ Cooksey v. State, supra, 359 Md. 18.

Sympathies aside, however, we have only the words of our sexual assault

statute to interpret and apply to the federal case law.

We note the observation of Saraceno and its progeny that a defendant is

not prejudiced when a single count of sexual assault is premised on only

general testimony that the defendant continuously sexually assaulted the

minor victim over a period of time if this general testimony did not allow

the jury to be divided as to which instance of conduct occurred but, rather,

required the jury to credit all or none of the victim’s testimony. This is

consistent with how other state courts have treated general testimony regarding multiple instances of sexual assault of a child when applying federal

law. See State v. Voyles, 284 Kan. 239, 253–55, 160 P.3d 794 (2007) (considering general nature of victims’ testimony and general nature of defendant’s

defense challenging victims’ credibility in determining harm of duplicitous

indictment in multiple acts case); State v. Ashkins, 357 Or. 642, 654, 357

P.3d 490 (2015) (in addressing harm, explaining that, ‘‘in the context of

nonspecific and undifferentiated evidence of multiple occurrences of a single

charged offense, a jury concurrence instruction may have been unnecessary

because there would have been no basis for the jurors to choose any particular occurrence as the one proven’’); State v. Fitzgerald, Docket No. 38347-

7-I, 1997 WL 327421, *2 (Wn. App. June 16, 1997) (decision without published

opinion, 86 Wn. App. 1059) (in multiple acts case in which defendant entered

only general denial and proof of crime was solely dependent on victim’s

credibility versus that of defendant, court’s failure to give jury unanimity

instruction may be harmless when rational trier of fact would have no

reasonable doubt about other indistinguishable incidents).

The state may argue that, if these kind of general testimony cases do not

prejudice a defendant, it might be that there exists a common-law exception

to the right to jury unanimity for a continuing course of conduct of sexual

assault of children when there is only general testimony. Because the state

has not raised this issue, however, and because the present case does not

involve only general testimony, we do not address it. We do note, however,

that federal courts have held that a defendant is not prejudiced, even if a

single count of an information is premised on multiple, separate incidents

of conduct if the jury is charged with having to agree that all alleged acts

occurred. See State v. Douglas C., supra, 345 Conn. n.14. Some state

courts have followed suit in sexual assault cases involving children. See
People v. Jones, 51 Cal. 3d 294, 322, 792 P.2d 643, 270 Cal. Rptr. 611 (1990)

(modified August 15, 1990); Baker v. State, 948 N.E.2d 1169, 1177 (Ind. 2011).

We also note that several state legislatures have amended their sexual

assault statutes to criminalize a continuing course of sexual assault against

children. See Cooksey v. State, supra, 359 Md. 27. Our legislature might wish

to consider similar legislation. Cf. Cal. Penal Code § 288.5 (Deering 2008)

(prohibiting continuous sexual abuse of children); N.Y. Penal Law § 130.75

(McKinney 2020) (‘‘[1] [a] person is guilty of a course of sexual conduct

against a child . . . when, over a period of time not less than three months

in duration: (a) he or she engages in two or more acts of sexual conduct,

which includes at least one act of sexual intercourse, oral sexual conduct,

anal sexual conduct or aggravated sexual contact, with a child less than

eleven years old’’). This is a more prudent course of action than adopting

the dissent’s proposed presumption, which would apply not only to sexual

assault cases involving children but to all criminal statutes.

Finally, we recognize that sexual assault prosecutions are most often

played out in state courts, not federal courts, and, thus, in defining the test

applicable to claims of unanimity as to instances of conduct, federal courts

perhaps did not consider the unique problems associated with charges of

ongoing sexual assault of children. We do not believe, however, that we are

at liberty to adopt a different constitutional test for different statutes or

different kinds of crimes. Rather, we apply a single test and leave it to the

legislature to craft or amend statutes as it sees fit in light of this test.

21 Even if we were to agree with the dissent that § 53a-70 (a) (2) is ambiguous and that this court should adopt and apply the dissent’s proposed

presumption; see footnote 6 of this opinion; the application of this presumption to the facts and circumstances of this case still would establish a

violation of the defendant’s right to jury unanimity as to instances of conduct.

The dissent argues that it is not impossible to know whether the jury unanimously agreed that the defendant committed any one particular assault

because, although there was a mixture of both general testimony and specific

testimony, ‘‘the defense as to each of those incidents—as well as to all of

the generic continuous/repeated sexual abuse testimony—was the same’’;

text accompanying footnote 4 of the concurring and dissenting opinion;

namely, that the witnesses, the victim and T, lacked credibility. Although

defense counsel did attack the credibility of these witnesses, the dissent

overlooks the fact that defense counsel also cross-examined the victim and

T extensively regarding the specifics of each of the three specific incidents

of conduct and then argued in closing why the jury should not credit each

particular incident. The primary focus of the trial was on these specific

incidents of conduct. The present case is distinguishable from prior Appellate

Court cases in which that court held that any duplicity or unanimity problem

was not prejudicial because there was only generic testimony regarding

ongoing abuse. See, e.g., State v. Saraceno, supra, 15 Conn. App. 230. Thus,

it was very possible that the jury did not agree unanimously on which

instance of conduct the defendant committed.

22 This court cited to Schad in Famiglietti but did not address the effect

of Schad on the applicable test. See State v. Famiglietti, supra, 219 Conn. 620.

23 The state argues that the Gipson and Schad tests merely use different

language to express the same legal test. This argument is undermined by

Schad’s explicit rejection of the test applied in Gipson. Even if the Gipson

rule were still considered good law, the defendant’s claim would fail both

because the trial court did not explicitly sanction a nonunanimous verdict

and because, even if we assume that the trial court did sanction a nonunanimous verdict, this court already has held that, under the Gipson test, active

or passive participation in sexual activity as proscribed under § 53-21 (a)

(2) constitutes alternative means, not elements, and does not require a

specific unanimity instruction. See State v. Spigarolo, 210 Conn. 359, 391–92,

556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989).

24 General Statutes § 53a-48 (a) provides: ‘‘A person is guilty of conspiracy

when, with intent that conduct constituting a crime be performed, he agrees

with one or more persons to engage in or cause the performance of such

conduct, and any one of them commits an overt act in pursuance of such

conspiracy.’’

The defendant argues that because, in the present case, the state could

have based the charge of risk of injury to a child on alternative types

of statutorily prohibited conduct, the conspiracy count likewise rested on

alternative bases of criminal liability. Thus, the defendant’s claim as it relates

to count three is premised on the success or demise of his claim regarding

count two. Because we hold that the statutory language at issue in § 53-21
(a) (2) created alternative means of committing a single element, and not

separate elements, thereby not violating the defendant’s right to jury unanimity, the defendant’s claims as it relates to count three likewise fails.

25 The defendant argues that case law regarding double jeopardy and risk

of injury to a child establishes that the two alternatives create separate

offenses that the state must charge as such. The defendant, however, misconstrues our double jeopardy case law. For example, in State v. Snook, supra,

210 Conn. 244, this court held that the state may charge a defendant with

two counts of risk of injury to a child: one count premised on the defendant’s

contact with the victim’s intimate parts; the other count premised on the

defendant’s having subjected the victim to contact with the defendant’s

intimate parts. See id., 262. We did not hold, however, that, when alleging

that a defendant has violated § 53-21 multiple times, the state must charge

the defendant under separate counts for each violation. Rather, for double

jeopardy purposes, the state may, but is not required to, charge each violation

in a separate count.