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*********************************************** 
STATE v. DOUGLAS C.—CONCURRENCE

MULLINS, J., with whom KELLER, J., joins, concurring in the judgment. I agree with the majority that we

should formally recognize a distinction between two

types of duplicitous charging: (1) the charging of distinct crimes that violate multiple statutory provisions

or subsections within a single count (which implicates

what the majority terms ‘‘unanimity as to elements’’),

and (2) the charging of multiple instances of the same

crime within a single count (which implicates what the

majority terms ‘‘unanimity as to instances’’). See part

I B of the majority opinion. I also agree with the majority’s ultimate conclusion that the charges in this case

were not impermissibly duplicitous and, therefore, that

the conviction of the defendant, Douglas C., Jr., on

multiple counts of risk of injury to a child in violation

of General Statutes § 53-21 (a) (2)1

should be affirmed.

I part ways with the majority with respect to its statement of the law that governs duplicity/unanimity as to

multiple instances of the same offense; see id.; and its

application of that law to the present case. See part II

of the majority opinion. Specifically, I believe that this

court should adopt the more flexible, case-by-case

framework used by the United States Court of Appeals

for the Second Circuit, among other courts. We typically

defer to that court’s interpretations of federal law, and

there are compelling reasons—both principled and

practical—to do so with respect to the law of duplicity

and unanimity. I believe that the majority’s approach

will lead to the needless repetitive charging of criminal

defendants and make it virtually impossible to prosecute some of the most heinous crimes, especially those

involving the sexual abuse of young children.

I

As I understand it, the majority adopts a two part

test, with one significant exception, to assess challenges

to a criminal prosecution in which a single count

charges the defendant with violating a single statute

in multiple, separate instances. First, we look to see

whether there are multiple instances of conduct

charged in one count, where each instance could establish a separate violation of the same statute based on

the evidence submitted at trial. If so, the count is presumptively duplicitous. There is an exception, however,

‘‘when the multiple instances of conduct constitute ‘a

continuing course of conduct, during a discrete period

of time . . . .’ ’’ Part I B of the majority opinion. Course

of conduct charging is not duplicitous, but only so long

as the legislature specifically contemplated that the statute at issue could be charged as a course of conduct

crime. Second, in the absence of a bill of particulars or

a specific unanimity instruction, all duplicitous charges

violate a defendant’s constitutional right to jury unanim-
ity, but the court then must consider whether that constitutional violation is harmless.

I readily acknowledge that this is one permissible

approach to the issue of duplicitous charging. As I will

discuss, a few of the federal courts of appeals, as well

as a handful of our sister state courts, have adopted

similar frameworks. And it is not without its merits,

primary among them that it purports to be relatively

simple and straightforward to apply. But see part II of

this opinion.

I disagree, however, with the majority’s contention

that the ‘‘federal courts agree’’ with its per se ban on

duplicitous charging. Part I B of the majority opinion.

The very cases on which the majority relies expressly

acknowledge that other courts of appeals apply a different framework,2 and the majority concedes that the

Second Circuit approach, among others, differs. See

footnotes 15 and 18 of the majority opinion.

Much of the difference between my view and the

majority’s view centers on how to treat course of conduct charging. The framework I would have us adopt

when assessing whether charging multiple instances in

a single count is permissible or impermissible is the

following four step approach: first, pursuant to General

Statutes § 1-2z, if the statute at issue either expressly

permits or expressly bars course of conduct charging,

or if there are other clear indicia of legislative intent,

then courts must defer to the legislative will. Second,

if the statute at issue is silent as to course of conduct

charging, and there are no other clear indicia of legislative intent, as will most often be the case, then the

prosecutor has the discretion to charge repeated violations of the statute as individual incidents or as a single

course of conduct. Third, notwithstanding the prosecutor’s charging decision, the trial court should determine

whether such charging (1) would be unreasonable or

unfair under the circumstances or (2) would otherwise

violate the defendant’s fifth and sixth amendment (and

corresponding state constitutional) rights to notice, to

present a defense, to a unanimous jury verdict, and to

not twice be placed in jeopardy for the same offense,

among others. Such determinations must be made on

a case-by-case basis. If, at trial, the judge concludes

that there is potential for unfairness or a constitutional

violation, then the judge should not permit course of

conduct charging and should either order that the

charges be separated or give an instruction to the jury

that it must be unanimous as to at least one specific

incident.3 Fourth, if an appellate court, on review, concludes that the trial court should not have permitted

course of conduct charging, either because the defendant’s conduct cannot fairly be characterized as a single

scheme or pattern under the statute at issue, or because

the constitutional rights that underlie the rule against

duplicity were not adequately secured, then the trial
court’s determination is subject to harmless error analysis.

In other words, then, the two primary differences

between my approach and the majority’s approach are

these. First, the majority agrees with those courts that

have concluded that only the legislature can sanction

course of conduct charging, and it must indicate its

intent to do so. Otherwise, course of conduct charging

is constitutionally impermissible. By contrast, I agree

with those courts that have held that, unless otherwise

specified, the legislature presumptively leaves to the

prosecutor the decision of whether course of conduct

charging is appropriate in a given case. This prosecutorial discretion is not unbridled. It is subject to the

discretionary judgment of the trial court as to whether

course of conduct charging is fair and reasonable on

the facts of a particular case.4 The discretion of the

prosecutor is cabined not only by the defendant’s right

to a unanimous jury, but also by the other constitutional

considerations, such as due process concerns, that

underlie the prohibition against duplicity.

At the same time, it is important to point out that

prosecutorial discretion in charging is deeply

entrenched in our state’s jurisprudence. Connecticut

has a long history of permitting prosecutors, who are

constitutional officers with broad discretionary authority over charging,5

to make these sorts of decisions.6 The

discretion not to charge multiple, substantially similar

offenses as separate crimes, thereby exposing the

defendant to multifold punishment, often redounds to

the benefit of criminal defendants: their potential sentencing exposure is not as great, and the jury sees only

one charged crime, rather than multiple, separate

charges repeatedly alleging the same violation and thus

suggesting that the defendant must be guilty if there

are so many charges. Under the majority’s new rule, in

the vast majority of cases, when the legislature has

neither sanctioned nor prohibited course of conduct

charging, prosecutors would be stripped of this traditional authority.

This leads to the second primary difference between

the majority’s approach and the Second Circuit

approach that I would adopt. Under the majority’s

approach, once it is determined that the state has

charged the defendant with violating a single statute

on multiple occasions and that each violation could

have been charged separately, then the charge is duplicitous and, necessarily, a violation of the defendant’s

constitutional rights. That is, unless the legislature has

signaled its assent to charging violations of a criminal

statute as a course of conduct, such charging, in the

absence of a bill of particulars or a specific unanimity

instruction, necessarily offends the sixth amendment

to the federal constitution and/or the corresponding

provision of the state constitution. The majority then
would conduct a harmless error analysis to determine

whether the constitutional violation was harmless

beyond a reasonable doubt. By contrast, if the legislature has sanctioned course of conduct charging, then

the prosecutor can permissibly so charge, and the

majority’s approach appears to stop there—because

there is no constitutional violation to such a charge—

and there is no further evaluation of whether the defendant’s right to a unanimous jury might nevertheless be

infringed by charging multiple violations of a single

statute in one count. Put differently, application of the

majority’s adopted test not only would prohibit course

of conduct charging in cases in which it may be warranted, but also may permit it in cases in which it could

be unconstitutional.

The approach I favor does not reach a constitutional

violation—or discount the possibility of one—as

quickly. The approach I favor recognizes, as I discuss

in part I A of this opinion, that there is an important

distinction between a duplicitous charge, which potentially violates the rules of criminal procedure, and a

conviction that violates the defendant’s rights to due

process or to a unanimous jury verdict. As many of the

federal courts and our sister state courts have recognized, not all duplicitous charges run afoul of the constitution. The duplicity determination is the beginning of

the determination of whether a criminal defendant’s

constitutional rights have been violated, not the end.

In the present case, I would affirm the defendant’s

conviction because charging each alleged crime as an

ongoing course of conduct involved a reasonable exercise of prosecutorial discretion that did not infringe on

the defendant’s constitutional rights, and not because

the legislature specifically identified § 53-21 (a) (2) as

a course of conduct crime. It did not. See part II of this

opinion.

A

There is one point that I should make clear at the

outset because it is key to understanding all of the

varied case law about these issues. That is, there is an

important conceptual distinction between (1) duplicitous charging in an indictment or information and (2)

the constitutional right to a unanimous jury verdict. The

prohibition against duplicitous charging, which arose

in the civil context at common law; see part I B of

this opinion; rests in the rules of criminal procedure:

Practice Book § 36-21 in Connecticut,7

rule 8 (a) of

the Federal Rules of Criminal Procedure in the federal

courts,8 and other rules in other states.9 These rules of

practice differ from one jurisdiction to the next, which

means that cases construing and applying one jurisdiction’s rules are not necessarily directly applicable to

another jurisdiction.

The prohibition embodied in these rules, however,
is grounded in several constitutional protections, one

of which is the defendant’s right to a unanimous jury

verdict. This right is principally secured by the sixth

amendment to the federal constitution, as well as by

article first, §§ 8 and 19, of the Connecticut constitution.10 As I will discuss, different federal courts treat

differently the relationship between the rule against

duplicitous charging and the sixth (and other) amendment rights that underlie that rule. Some deem any

violation of the procedural rules against duplicitous

charging also to be a per se constitutional violation but

then hold that violation harmless if, in fact, the violation

was cured by the trial court’s giving a specific unanimity

instruction or if such an instruction is deemed unnecessary.

Other courts, though, follow the conceptually distinct

approach that I favor. They treat violations of the rules

of practice and of the constitution as different—albeit

related—matters.11 The cure for a violation of the rules

against duplicitous pleading is, typically, reformulation

of the indictment, a bill of particulars, and/or appropriate jury instructions, not reversal of the conviction.12

A sixth amendment violation, by contrast, will warrant

reversal if it is not deemed harmless.

B

Before I discuss the Second Circuit approach, which

I would adopt, a brief history of these issues may be

instructive. The rules against duplicity (pleading multiple grounds or offenses in the same count) and multiplicity (pleading the same ground or offense in multiple

counts) originated at English common law, in the civil

pleading context. See E. Coke, First Part of the Institutes of the Lawes of England (1628) p. 304. An exception to Coke’s rule against duplicity came to be recognized for continuing torts, such as ongoing trespass;

for those claims, the plaintiff could ‘‘[lay] the action

with a continuando’’ (another way of saying continuous

course), alleging in a single count that, for example, the

defendant had trespassed continually—on a particular

date and on ‘‘divers days’’ thereafter. 3 W. Blackstone,

Commentaries on the Laws of England (1768) p. 212.

In the nineteenth century, the new American states

were divided over how to apply these common-law

civil rules to criminal prosecutions. Some, including

Connecticut, allowed the state to lay a broad range of

vice-type and scheme-type crimes with a continuando,

charging repeated violations as one continuing offense

or continuing course of conduct, whereas other states

rejected the practice.13

Early on, Connecticut courts recognized that not all

crimes are either exclusively individual act or course of

conduct crimes. Some crimes that were not inherently

continuing offenses could be charged either as individual acts or with a continuando. See, e.g., State v. Cook,

75 Conn. 267, 268, 53 A. 589 (1902) (prosecutor charged
cruelty to animals both as individual infraction and

with continuando covering three month period). Child

sexual assault is one common example of a crime the

charging of which traditionally has been subject to prosecutorial discretion, both before and after the enactment of § 1-2z. In fact, Connecticut prosecutors have

consistently charged child sexual assault, along with

risk of injury to a child, as a continuing offense. This

has been equally true when the victims provided only

generic testimony as to an ongoing, undifferentiated

pattern of abuse, when they testified in detail as to a

number of specific assaults that were jointly charged

in a single count, and when the testimony included a

blend of the specific and the generic.14

C

With this history in mind, I turn to the law of the

Second Circuit on duplicity and course of conduct

charging. Although the groundwork was laid in earlier

cases, the Second Circuit’s approach to duplicitous

charging generally is traced to Judge Jon O. Newman’s

majority opinion in United States v. Margiotta, 646 F.2d

729 (2d Cir. 1981). In Margiotta, the government

charged the defendant with sending ‘‘ ‘countless’ ’’ mailings, each in violation of the federal mail fraud statute,

18 U.S.C. § 1341 (1976), over a ten year period. Id.,

730–31. The trial court declined to allow the government

to charge multiple violations in a single count, and the

Second Circuit permitted an interlocutory appeal. See

id., 731. The Second Circuit agreed with the defendant

that each mailing would have provided a ‘‘discrete basis

for the imposition of criminal liability’’; (internal quotation marks omitted) id., 732; but saw nothing improper

with the government instead charging the mailings as

one course of conduct when ‘‘the essence of the alleged

wrong [was] the single scheme to defraud . . . .’’ Id.,

733. In reaching this conclusion, the court never quoted

the language of the statute; nor did it suggest that Congress intended the statute to be charged as a course of

conduct crime. Rather, it relied on the general principle

that, ‘‘[i]f the doctrine of duplicity is to be more than

an exercise in mere formalism, it must be invoked only

when an indictment affects the policy considerations

that underlie that doctrine.’’ (Internal quotation marks

omitted.) Id., 732–33.15

The Second Circuit acknowledged that some courts,

such as the United States Court of Appeals for the Fifth

Circuit, follow the approach that any acts that qualify as

separate offenses must be charged in separate counts,

unless the legislature has authorized otherwise. See id.,

733. This is the approach that the majority has adopted

in the present case. The Second Circuit rejected that

approach, however, concluding that ‘‘a single count of

an indictment should not be found impermissibly

duplicitous whenever it contains several allegations

that could have been stated as separate offenses . . .
but only when the failure to do so risks unfairness to

the defendant.’’ (Citation omitted.) Id.

The Second Circuit court in Margiotta further concluded that there was no risk of unfairness to the defendant in that case; quite the contrary. Charging all of the

illegal mailings in one count, rather than in dozens of

separate counts, benefitted the defendant by ‘‘limiting

the maximum penalties [the] defendant [could] face if

convicted of mail fraud and also [by] avoid[ing] the

unfairness of portraying the defendant to the jury as the

perpetrator of [fifty] crimes.’’ Id.; see also, e.g., United

States v. Walker, 254 Fed. Appx. 60, 62 (2d Cir. 2007)

(‘‘[t]he law does not . . . absolutely proscribe duplicitous pleading because it recognizes that such an inflexible rule could inure to defendants’ detriment by requir

[-ing] exposure to cumulative punishments’’ (internal

quotation marks omitted)); State v. Stanley, 161 Conn.

App. 10, 12–14, 125 A.3d 1078 (2015) (defendant was

convicted of 100 counts of criminal violation of protective order and, accordingly, sentenced to eighteen years

of imprisonment for making repeated phone calls to

former romantic partner), cert. denied, 320 Conn. 918,

131 A.3d 1154 (2016). Finally, the court suggested that

it would not be error to give the jury an instruction

charging only that the jury must unanimously find that

the defendant mailed at least one item in furtherance

of his scheme to defraud, although the Second Circuit

observed that it would not be improper for the trial

court to submit a special interrogatory to identify one or

more specific mailings. See United States v. Margiotta,

supra, 646 F.2d 733.

1

In decisions both prior and subsequent to Margiotta,

the Second Circuit has clarified several aspects of its

duplicitous charging jurisprudence. First, in Margiotta,

the essence of the alleged crime was the defendant’s

insurance fraud scheme, and the multiple mailings were

relevant mostly because they provided the basis for

federal jurisdiction. See id. Subsequent decisions have

made clear that Margiotta applies even when the distinct violations ‘‘are an inherent part of the alleged

wrong’’ and not merely jurisdictional prerequisites.

(Internal quotation marks omitted.) United States v.

Upton, 856 F. Supp. 727, 741–42 (E.D.N.Y. 1994).

Second, it is now clear that, unless the legislature

clearly directs otherwise, whether violations of a given

criminal statute may be charged as a course of conduct

in a given case is a matter of prosecutorial discretion.16

The Second Circuit and the district courts in that circuit

have permitted duplicitous charging under a broad

array of federal criminal statutes that do not facially

contemplate course of conduct charging, and, in some

instances, they have done so without any discussion17

of whether Congress intended to permit such charging

under the statute.18 These courts have emphasized that,
‘‘under the law of [the Second] Circuit, acts that could

be charged as separate counts of an indictment may

instead be charged in a single count if those acts could

be characterized as part of a single continuing scheme’’;

(internal quotation marks omitted) United States v.

Aracri, 968 F.2d 1512, 1518 (2d Cir. 1992); and that the

decision whether to so charge is a matter of prosecutorial discretion.19 In United States v. Moloney, 287 F.3d

236 (2d Cir.), cert. denied, 537 U.S. 951, 123 S. Ct. 416,

154 L. Ed. 2d 297 (2002), the Second Circuit specifically

rejected the view that an indictment that charges a

continuing offense not expressly prohibited by Congress fails to charge a cognizable offense. See id., 240–

41. The court concluded, rather, that violations of any

criminal statute can be charged as a course of conduct,

in the prosecutor’s discretion, so long as the conduct

reasonably can be characterized as part of a common

scheme. See id., 240 (‘‘[i]n response to certain claims

of duplicity, [the Second] [C]ircuit has adopted a general rule that criminal charges may aggregate multiple

individual actions that otherwise could be charged as

discrete offenses as long as all of the actions are part

of a single scheme’’ (emphasis added; internal quotation

marks omitted)); see also, e.g., S. Levy, Federal Money

Laundering Regulation: Banking, Corporate & Securities Compliance (Supp. 2022) § 20.05, p. 20-16 (Second

Circuit follows ‘‘[u]nified [s]cheme [r]ule’’). For this

reason, ‘‘courts in [the Second] Circuit have repeatedly

denied motions to dismiss a count as duplicitous.’’

United States v. Ohle, 678 F. Supp. 2d 215, 222

(S.D.N.Y. 2010).

Of particular relevance to the present appeal, district

courts in the Second Circuit have applied these principles to indictments alleging the sexual abuse of minors,

allowing prosecutors to charge a course of conduct

even when there was no indication that Congress specifically intended the statutes at issue to be charged in

that manner. For example, in United States v. Vickers,

Docket No. 13-CR-128-A, 2014 WL 1838255 (W.D.N.Y.

May 8, 2014), the court upheld the validity of a single

count indictment charging the defendant, a truck driver,

with having transported a minor across state lines to

engage in illegal sexual activity on multiple dates

between 2000 and 2004, in violation of 18 U.S.C. § 2423

(a). See id., *1–2, *7. The victim told investigators that

the defendant had taken him on approximately fifty

such trips, for only a few of which could he provide

details of the dates, locations, and abuse involved. See

id., *2, *4. Applying Margiotta and its progeny, the court

in Vickers concluded that the indictment was not impermissibly duplicitous because the government alleged a

continuing scheme to transport the victim for illicit

sexual purposes. Id., *7.

Third, the Second Circuit has elucidated the process

by which courts should determine, on a case-by-case

basis, whether duplicitous course of conduct charging
represents an abuse of prosecutorial discretion. If a

trial court determines that the series of offenses in

question can fairly and reasonably be characterized as

a cohesive scheme or single course of conduct; see

footnote 4 and part I C 2 of this opinion; the court must

then consider whether charging the offenses in a single

count comports with due process. In United States v.

Olmeda, 461 F.3d 271 (2d Cir. 2006), the Second Circuit

explained that ‘‘[d]uplicitous pleading . . . is not presumptively invalid’’ but, rather, is objectionable ‘‘only

when [the] challenged indictment affects [the] doctrine’s underlying policy concerns . . . .’’ Id., 281. The

constitutional/policy considerations that speak to

whether course of conduct charging is appropriate

include ‘‘(1) avoiding [the] uncertainty of [a] general

guilty verdict by concealing [a] finding of guilty as to

one crime and not guilty as to [an]other, (2) avoiding

[the] risk that jurors may not have been unanimous as

to any one of the crimes charged, (3) assuring [the]

defendant adequate notice of charged crimes, (4) providing [a] basis for appropriate sentencing, and (5) providing adequate protection against double jeopardy in

subsequent prosecution[s] . . . .’’ Id.

2

There is one ambiguity in the Second Circuit

approach that warrants special attention. That court

has, in different instances, given the seemingly paradoxical guidance that (1) course of conduct charging should

be permitted by the trial court only when it would not

offend the sixth amendment right to a unanimous jury

verdict; see, e.g., id.; but (2) when the prosecutor

charges a course of conduct, jury unanimity is not a

concern because the jury need only agree that the defendant has committed the charged crime, which is the

course of conduct. See, e.g., United States v. Walker,

supra, 254 Fed. Appx. 62–63. This raises the question

of when and how a trial court is to determine whether

course of conduct charging is proper in a particular

case.

The solution to this enigma, the Second Circuit has

suggested, is that multiple violations of a statute can

reasonably and constitutionally be charged in a single

count when the course of conduct forms the ‘‘essence’’

of the alleged criminality. See, e.g., id.; United States

v. Tutino, 883 F.2d 1125, 1141 (2d Cir. 1989), cert.

denied, 493 U.S. 1081, 110 S. Ct. 1139, 107 L. Ed. 2d

1044 (1990), and cert. denied sub nom. Guarino v.

United States, 493 U.S. 1082, 110 S. Ct. 1139, 107 L. Ed.

2d 1044 (1990); see also, e.g., United States v. Tawik,

391 Fed. Appx. 94, 97 (2d Cir. 2010) (‘‘[a]s long as the

essence of the alleged crime is carrying out a single

scheme . . . then aggregation is permissible’’ (internal

quotation marks omitted)). When the statutory language is silent on the issue, courts that follow Margiotta

consider the following nonexhaustive list of factors
when evaluating the essence of the allegations against

the defendant: whether the alleged instances of misconduct involved the same defendants, the same victims,

the same (or similar) conduct, at the same location,

inspired by the same motive or purpose; whether the

misconduct took place over a relatively short period of

time or occurred frequently and more or less regularly

over a longer period of time; whether the individual

instances of misconduct can properly and reasonably

be characterized as part of a common scheme or plan;

whether there is considerable generic trial testimony

and other evidence that is focused on the overall course

of misconduct rather than on specific instances;

whether the individual instances of misconduct were

interrelated or interdependent; whether the individual

instances were not subject to unique defenses or types

of proof; whether charging each alleged violation as a

separate count would unnecessarily cumulate charges

and potential criminal liability or render prosecution

impracticable; whether a juror reasonably could consider the individual instances alleged to be incidental

as merely means of accomplishing the overarching

criminal design; and whether the crime is one that frequently is committed as part of a repetitive pattern or

scheme and that historically has been understood and

charged as a course of conduct.

When most of these factors indicate that the essence

of the charged crime is the pattern of misconduct, rather

than a few individual instances thereof, then it will be

reasonable to think of the course of conduct as the

crime at issue, and the sixth amendment does not

require juror unanimity as to any particular instance.

See, e.g., United States v. Davis, 471 F.3d 783, 790–91

(7th Cir. 2006); United States v. Moloney, supra, 287

F.3d 241; Commonwealth v. Casbohm, 94 Mass. App.

613, 619–21, 116 N.E.3d 633 (2018), review denied, 484

Mass. 1101, 141 N.E.3d 910 (2020); State v. Rucker, 752

N.W.2d 538, 548 (Minn. App. 2008), review denied, 2008

Minn. LEXIS 508 (Minn. September 23, 2008).

D

The Second Circuit thus takes a flexible approach

to duplicitous charging, affording the prosecutor the

discretion to charge a course of conduct when that

reasonably comports with the facts of the case and

does not conflict with the stated intent of the legislature,

and then addressing any potential constitutional concerns pragmatically, on a case-by-case basis. I agree

with that approach. As I noted, to the extent that the

law of duplicity encompasses federal constitutional

considerations, this court gives decisions of the Second

Circuit ‘‘particularly persuasive weight in the resolution

of issues of federal law . . . .’’20 (Internal quotation

marks omitted.) St. Juste v. Commissioner of Correction, 328 Conn. 198, 210, 177 A.3d 1144 (2018). As I

subsequently discuss, I disagree with the majority’s con-
tention that ‘‘the great weight of federal jurisprudence

conflicts with [the views of the Second Circuit in this

respect].’’ (Internal quotation marks omitted.) Part I C

of the majority opinion.

I also believe that the Second Circuit approach is

fully consistent with Connecticut law; the federal and

state constitutions and rules of pleading have comparable provisions, and, although Connecticut has codified

the plain meaning rule; see General Statutes § 1-2z; the

federal courts of appeals—including the Second Circuit—follow essentially that same rule when they construe statutes. See, e.g., Springfield Hospital, Inc. v.

Guzman, 28 F.4th 403, 422 (2d Cir. 2022). Indeed, they

are bound to do so. See, e.g., Barnhart v. Sigmon Coal

Co., 534 U.S. 438, 450, 122 S. Ct. 941, 151 L. Ed. 2d

908 (2002).

Of course, I agree that the legislature always, ultimately, has the authority to dictate how a criminal statute may be applied. Under § 1-2z, if the legislature

expressly defines a course of conduct crime, or makes

clear its intent in the legislative history, then there is

no question that it may—or, more likely, must—be so

charged.21 If the legislature expressly prohibits such

charging, then it is not permissible.22 The legislature’s

authority to make that determination is not in dispute

under the Second Circuit approach. See, e.g., United

States v. Moloney, supra, 287 F.3d 240.

The issue before us is how to proceed in the vast

majority of cases, when the legislature has left the question open, neither expressly permitting or requiring nor

expressly prohibiting course of conduct charging on

the face of the statute. I agree with the majority that

the legislative history, if it manifests a clear intent one

way or the other, also can be dispositive in this regard.

In most instances, however, there is no reason to think

that legislators even considered the question of course

of conduct charging when enacting any particular statute, let alone decided to prohibit such charging. As we

have recently observed, ‘‘[o]ften the inquiry [into the

allowable unit of prosecution] produces few if any

enlightening results. Normally these are not problems

that receive explicit legislative consideration.’’23 (Internal quotation marks omitted.) State v. Ruiz-Pacheco,

336 Conn. 219, 236 n.12, 244 A.3d 908 (2020).

The majority relies on cases such as State v. Cody

M., 337 Conn. 92, 102–103, 106, 259 A.3d 576 (2020),

for the proposition that Connecticut does not apply a

general presumption that a prosecutor has the discretion to charge a crime as a continuing course of conduct.

Of course, until now, we have not had cause to discuss

any such general presumption because, as the majority

emphasizes, until today, this court did not recognize

duplicity challenges based on unanimity of instances.

There was no need or reason to clarify the scope of an

exception to a rule that did not exist.
More important, though, cases such as Ruiz-Pacheco

and Cody M. involved the issue of multiplicity, an

entirely different legal question.24 As noted, pleadings

can be challenged both for duplicity (charging multiple

offenses in one count) and for multiplicity (charging

one offense in multiple counts). As I discuss in my

concurring and dissenting opinion in State v. Joseph

V., 345 Conn. , , A.3d (2022) (Mullins,

J., concurring in part and dissenting in part), when, as

in State v. Cody M., supra, 337 Conn. 96–97, a defendant

commits a series of acts against a victim on one occasion, and the state charges the series of acts as multiple,

distinct crimes, the court must determine the permissible minimum unit of prosecution. That is, we must

determine whether the legislature intended to permit

the state to charge each individual act as a distinct

crime when the defendant contends that each act was

merely part of one criminal episode. The answer to that

question says nothing about the question before us in

the present case and in Joseph V., namely, whether the

legislature intended to require that an ongoing series of

violations, committed over many days, each be charged

individually. That is a question that we have never

addressed, and nothing in Connecticut law bars us from

following the Second Circuit approach.

Contrary to the majority’s approach, we must assume

that legislators, when enacting a new criminal statute,

are aware of our state’s long history of affording prosecutors broad discretion in the charging of crimes such

as child sexual assault as continuing courses of conduct; see footnote 14 of this opinion and accompanying

text; and that they do not intend to intrude on or restrict

that discretion, unless they clearly state so. Indeed, as

I discuss in my concurring and dissenting opinion in

State v. Joseph V., supra, 345 Conn. (Mullins, J.,

concurring in part and dissenting in part), the fact that

the legislature has, in certain instances, expressly provided either that a particular statute must be charged

as a continuing offense; see, e.g., General Statutes § 53a181d (b) (1) and (2); or that it must not be charged as

a continuing offense; see, e.g., General Statutes § 15-

173; strongly supports applying the Second Circuit presumption that other statutes, which are silent on the

question, can be charged either way under appropriate

circumstances. In short, when the legislature wishes to

speak on the issue, one way or the other, it knows how

to do so.

For all of these reasons, I would adopt the Second

Circuit’s approach to duplicity. It keeps the charging

decision in the hands of the officers who are responsible

for that decision, the prosecutors, and preserves their

authority to bring charges in the manner most consistent with the interests of justice and the facts and circumstances of the particular case. The rule that the

majority adopts today, by contrast, would undermine
prosecutors’ well established role in the charging process in a manner that the federal constitution does not

require and that our state legislature never mandated

or anticipated.

E

It is not only the Second Circuit that has declined to

follow the majority’s approach. Although the majority

repeatedly contends that most federal courts of appeals

and ‘‘ ‘the great weight’ ’’ of federal authority support

its proposed framework, the truth is that at least five

other federal courts of appeals have relied on Margiotta

and embraced the Second Circuit framework, at least

in some instances. That is, they have permitted course

of conduct charging in the absence of any clear manifestation of legislative intent, and they have recognized

that the charging decision falls within the discretion of

the prosecutor, so long as the charge is not unreasonable and the defendant’s fundamental rights are

respected.25 As has the Second Circuit, those courts of

appeals have applied this approach across a broad range

of statutory crimes, including those involving the sexual

abuse of young children.26

Accordingly, I cannot agree with the majority’s statement that, ‘‘[w]hen a single count does charge the defendant with having violated a single statute in multiple,

separate instances, each of which could establish a

separate violation of the statute, federal courts agree

that such a count is duplicitous.’’ Part I B of the majority

opinion. I cited numerous federal appellate cases,

across the circuits, that expressly say the exact opposite.27

Outside of the United States Courts of Appeals for

the First, Third, Fifth, and Eleventh Circuits, the majority has not identified one case that broadly and unequivocally adopts its rule that, unless the legislature clearly

permits it, a crime that could be charged as individual

infractions cannot also be charged, in the alternative,

as a continuing course of conduct. Indeed, even among

those circuits, whose approach to duplicity most closely

approximates that of the majority, some cases take a

more flexible approach.28

F

The same is true of sister state courts. Although some

states have adopted an approach similar to the majority’s approach, allowing course of conduct charging for

a particular statute only when it is clear that the legislature so intended,29 others favor the more flexible

approach that I have outlined. See, e.g., Cooksey v. State,

359 Md. 1, 18–19, 752 A.2d 606 (2000) (acknowledging

‘‘split of authority’’ in child sexual abuse context and

citing cases).

There is a particular category of criminal cases in

which I believe the approach I favor clearly demonstrates its superiority. Those cases involve sexual
assault crimes and, more specifically, the repeated sexual abuse of children. Indeed, our sister state courts

have been especially receptive to applying the Second

Circuit approach when it comes to what the California

Supreme Court has dubbed ‘‘resident child molester’’

cases.30 (Internal quotation marks omitted.) People v.

Jones, 51 Cal. 3d 294, 299, 792 P.2d 643, 270 Cal. Rptr.

611 (1990);31 see footnote 32 of this opinion and accompanying text. Prosecutors face a unique challenge when

charging a defendant in a case in which the statute at

issue uses language that, on its face, envisions individual, discrete sexual violations, but, due to the victim’s

young age and the often recurring nature of such abuse,

the victim can testify only (or primarily) that the defendant abused him or her in a particular way and in a

particular location, during a particular span of time,

but cannot provide sufficient detail to identify each

separate instance of abuse. Although federal cases

occasionally address the issue; see footnote 26 of this

opinion; most cases alleging sexual abuse of children

are prosecuted at the state level. It is to these decisions

that we must look for guidance.

Sister state courts have afforded prosecutors broad

latitude as to whether to charge the sexual abuse of

children as discrete violations or as a course of conduct

crime, recognizing the significant challenges involved

in bringing resident child molesters to justice.32 As these

courts have recognized, the state, the victim, and society at large all share a compelling interest in prosecuting

an insidious crime—the repeated sexual abuse of young

children. It can be nearly impossible, however, to

charge and prosecute each individual instance of abuse

when a molester has repeatedly assaulted a child,

whose account of the abuse may be the only evidence

of the crimes. Sister state courts have cautioned, as

have we, that a serial abuser should not benefit and

escape justice by virtue of having repeatedly and

secretly assaulted a young victim who, as the only witness to the abuse, is incapable of testifying as to dates,

times, and other distinguishing details of each incident.33 See, e.g., State v. Stephen J. R., 309 Conn. 586,

601, 72 A.3d 379 (2013) (‘‘[t]o require [the complainant],

who was approximately seven years old at the time of

the abuse, to recall specific dates or additional distinguishing features of each incident would unfairly favor

the defendant for the commission of repetitive crimes

against a child victim’’). These courts thus afford prosecutors broad discretion to decide whether course of

conduct charging is appropriate.34 I fear that the

approach the majority takes today does exactly that

which this court, and other state courts, has cautioned

against, by requiring a child who has been repeatedly

sexually assaulted to clearly delineate multiple

instances of abuse and to recall each with specificity.

None of the state cases cited in footnote 32 of this

opinion was decided on the basis of a close parsing of
the statutory language, and none purported to permit

course of conduct charging as a matter of express legislative intent. Rather, the courts simply considered, on

a case-by-case basis, whether such charging comports

with the constitutional and policy considerations that

underlie the doctrine of duplicity.

In short, in my view, the rule that the majority adopts

hamstrings prosecutors, potentially leaving victims,

and, most especially, victims of resident child molesters, without recourse. It places additional, unnecessary

burdens on the legislature, to amend each statute to

expressly authorize course of conduct charging, and on

our trial courts, to manage unnecessarily complex trials

involving, potentially, dozens of similar charges against

the same defendant. And it does as much to penalize as

to protect criminal defendants, by requiring multicount

charging in legitimate course of conduct cases.

II

An additional flaw in the majority’s approach, I

believe, is that it is deceptively difficult to apply. One

might think the opposite would be true. A framework

providing that course of conduct charging is always

permissible when expressly approved by the legislature

and always impermissible when not expressly approved

by the legislature would seem to boast an enviable

simplicity, if nothing else. In reality, however, except

for the small number of statutes for which the legislature has clearly evidenced its intention one way or the

other, parsing whether each of the countless facially

silent statutes contemplates course of conduct charging

proves to be an exercise in subjectivity, if not futility.

The present appeal is a case in point.35

Section 53-21 (a) provides in relevant part: ‘‘Any 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 . . . .’’ The majority readily

acknowledges that there is nothing in the plain language

of § 53-21 (a) (2) that addresses the issue of duplicity

or course of conduct charging. Moreover, it is well

established that each instance of improper intimate contact can be charged as a discrete crime under § 53-21.36

The majority concedes as much.

Because the statute does not facially authorize course

of conduct charging, I turn to the statutory history for

insight into legislative intent on whether such charging

is permissible. I do not read the majority’s opinion to

have identified any statements in the legislative history

that specifically indicate that the legislature intended

§ 53-21 (a) (2) to be chargeable as a continuing course

of conduct crime. My own review of the history also
has not revealed any statements directed to the course

of conduct issue. Rather, I understand the majority simply to be stating that this court already had interpreted

an earlier version of the risk of injury statute to permit

charging a continuing course of conduct, and that there

is no indication that the legislature, when it amended

the statute in 1995 to add the language that now appears

in subsection (a) (2); see Public Acts 1995, No. 95-142,

§ 1 (P.A. 95-142); intended to change that interpretation.

The majority states that, although ‘‘[i]t is not clear from

the plain language of § 53-21 (a) (2) [whether] multiple,

separate instances of conduct’’ can be charged as a

continuing offense, ‘‘[i]n case law prior to the 1995

amendment . . . this court held that risk of injury to

a child may be charged under a continuing course of

conduct theory.’’ (Citation omitted.) Part II of the majority opinion. The majority then states that the 1995

amendment ‘‘maintained’’ and ‘‘manifestly [did not]

alter’’ our prior interpretations of the statute—when

subsection (a) (2) did not exist—and that ‘‘[t]here is

no indication that the legislature sought to alter the

substance of the crime.’’ Id. So, the issue, ultimately,

is one of legislative acquiescence.

In this case, however, there are two reasons why

the legislative acquiescence argument is particularly

unpersuasive. First, if there was legislative acquiescence in this case, it ratified my approach to the law

of duplicity, rather than that of the majority. When we

initially held that risk of injury can be charged as a

course of conduct, we did not reach that conclusion as

a matter of statutory interpretation; nor did we purport

to divine the intent of the legislature. This is a key point.

The case in which this court first recognized that a

version of the risk of injury statute prior to the 1995

amendment could be charged as a continuing course

of conduct crime was State v. Hauck, 172 Conn. 140,

374 A.2d 150 (1976). The defendant in that case, a middle

school teacher, challenged the trial court’s denial of his

motion for a supplemental bill of particulars when the

state charged him with violating General Statutes (Rev.

to 1972) § 53-21 by forcing a student to pose nude for

him on a regular, sometimes weekly, basis ‘‘on or about

divers dates’’ between November 11, 1971, and June,

1972. (Internal quotation marks omitted.) Id., 150; see

also id., 141–42. This court concluded, in affirming the

conviction, that ‘‘[t]he offenses charged . . . were

obviously of a continuing nature’’; id., 150; and its analysis made no reference whatsoever to the statutory language, the legislative history of the statute, or any other

indicia of legislative intent. Rather, in deferring to the

trial court’s discretion in allowing course of conduct

charging, this court relied on purely practical considerations: that the charges were ‘‘clearly reasonable’’ in light

of the trial testimony and that ‘‘it would have been

virtually impossible to provide the many specific dates

[on] which the acts constituting the offenses
occurred.’’37 Id., 150–51; see also State v. Spigarolo,

210 Conn. 359, 391, 556 A.2d 112 (reiterating pragmatic

holding of Hauck), cert. denied, 493 U.S. 933, 110 S. Ct.

322, 107 L. Ed. 2d 312 (1989). If the legislature has, in

the intervening years, placed its imprimatur on Hauck,

as the majority suggests, then it has endorsed not a

statutory analysis of the meaning of § 53-21—Hauck

and the other appellate cases that were decided prior

to the 1995 amendment offered no such analysis38—

but, rather, the very framework that I am supporting,

under which the state has the discretion to charge a

course of conduct when appropriate.

Second, because legislators emphasized, in 1995, that

the new language of P.A. 95-142, § 1, which now appears

in subsection (a) (2) of § 53-21, defined a ‘‘new’’ crime;

38 S. Proc., Pt. 5, 1995 Sess., pp. 1766, 1777, remarks

of Senator Thomas F. Upson; the legislative history

itself contradicts the majority’s position. Prior to the

1995 amendment, General Statutes (Rev. to 1995) § 53-

21 provided: ‘‘Any person who wilfully or unlawfully

causes or permits any child under the age of sixteen

years to be placed in such a situation that its life or

limb is endangered, or its health is likely to be injured,

or its morals likely to be impaired, or does any act

likely to impair the health or morals of any such child,

shall be fined not more than five hundred dollars or

imprisoned not more than ten years or both.’’ (Emphasis

added.) In the legislative history of the 1995 amendment, one of the bill’s authors stated that the new language prohibiting intimate contact with a child under

the age of sixteen years defined a ‘‘new’’ risk of injury

crime. 38 S. Proc., supra, pp. 1766, 1777, remarks of

Senator Upson. So, there is no reason to think that the

legislature intended prior judicial interpretations of the

old § 53-21, the first part of which (the situation portion)

may have authorized course of conduct charging, to

apply to the newly added provision.39 For these reasons,

I do not find the majority’s duplicity analysis to be

persuasive.

III

In the present case, the application of the approach

that I favor reaches the same result as does the application of the majority’s approach but, I think, in a way that

more directly considers and accounts for the various

practical and constitutional interests at stake. To

review, in multiple instances cases, I would adopt a

framework for evaluating duplicity related challenges

by which (1) unless the legislature specifies otherwise,

the prosecutor has the discretion to charge a pattern

of many similar infractions as a single scheme or as a

course of criminal conduct, (2) the trial court should

not permit course of conduct charging if such charging

would be unreasonable or unfair under the circumstances or would violate the defendant’s fifth or sixth

amendment (or other constitutional) rights, and (3) if
an appellate court, on review, concludes that the trial

court should not have permitted course of conduct

charging, either because the defendant’s conduct cannot fairly be characterized as a single scheme or pattern,

or because the constitutional considerations that underlie the rule against duplicity are implicated, then the

trial court’s determination is subject to harmless error

analysis.40

Application of this framework to the present case is

a relatively straightforward matter. First, with respect

to the plain language of the statute, I agree with the

majority that the plain language of § 53-21 (a) (2) ‘‘does

not appear to clarify whether the statute criminalizes

a continuing course of conduct or limits its scope to a

single occurrence.’’41 Part II of the majority opinion. In

addition, as I discussed in part II of this opinion, nothing

in the legislative history suggests that the legislature

resolved—or considered—the course of conduct question one way or the other when drafting the statute.

Course of conduct charging is, therefore, left to the

discretion of the prosecutor.

Second, I have little trouble concluding that the victims’ allegations in the present case reasonably can

be characterized as an ongoing pattern or scheme of

misconduct, such that course of conduct charging was

a reasonable and proper exercise of prosecutorial discretion. Both N and T, for example, alleged that the

defendant touched their breasts on a regular basis,

between 2005 and 2007, at his residence in Lisbon. They

did not report the abuse until years later, though, and,

with a few notable exceptions, they could not recall

the specific dates or other details of the abuse.

Third, and most important for present purposes, is the

question of whether charging the defendant’s various

abuses of each victim as a course of conduct violated

his sixth amendment right to a unanimous jury verdict.

The defendant contends that, insofar as the victims

identified in counts one (N) and six (T) offered both

generic testimony as to repeated improper contact,

such as breast touching, as well as more detailed

accounts of some specific incidents of abuse, it is

impossible to know whether the jury unanimously

agreed that he committed any one particular act of risk

of injury against each victim.42

As I previously discussed, the Second Circuit has

long held that the sixth amendment right to a unanimous

jury verdict is not implicated when a crime is properly

charged as a course of conduct. The principal rationale

for this rule is that the crime with which the defendant

is being charged in these cases is, in essence, the course

of conduct itself. See, e.g., State v. Hauck, supra, 172

Conn. 151 (series of acts committed during seven month

period, considered ‘‘in toto,’’ constituted risk of injury).

As I noted, however, this principle applies only when
the essence of the charged wrongdoing can fairly be

said to be a scheme or course of criminal conduct. In

the present case, I have no difficulty concluding that

the misconduct alleged in counts one and six was well

suited to course of conduct charging. Each count

charged that a single individual, the defendant, abused

a single victim. Both victims primarily testified to a

pattern of undifferentiated conduct—unwanted touching of their breasts—which they said occurred numerous times and on a regular basis, over the course of

years, when they were visiting the defendant’s home in

Lisbon. There is no suggestion in the record that any

of the individual assaults were inspired by anything

other than the lecherous motives that one might expect,

and the victims’ testimony that the defendant and his

wife expressed regular appreciation for their breasts

suggests that the misconduct reasonably can be characterized as part of an ongoing pattern or scheme. The

primary evidence for both the specific incidents and

the general course of conduct alleged was simply the

victims’ own testimony, and the defenses offered were

equally generic. Although defense counsel cross-examined the victims regarding some of the specific details

of the incidents that they described, the defense as to

each of those incidents—as well as to all of the generic

abuse testimony—was the same: a blanket denial of

the accusations, an attack on the victims’ credibility,

and a theory that the victims had fabricated their stories

to retaliate, after a family squabble.

In addition, the sexual abuse of children is a crime

that is commonly understood to occur on an ongoing,

repetitive basis, and there is compelling reason to afford

prosecutors discretion to charge such offenses as

courses of conduct. Cases that involve the sexual abuse

of children, regardless of whether the complainants in

those cases give only generic testimony or also describe

a few particular incidents in addition to a generic pattern of abuse, typically turn on the general credibility

of the complainants, any other witnesses, and, if they

choose to testify, the defendants. To apply strict specific

unanimity requirements in such cases would place an

unwarranted burden on young victims of sexual assault,

essentially penalizing them for providing whatever limited, specific details they might be able to recall to

corroborate their stories. For this reason, as the United

States Supreme Court explained in Richardson v.

United States, 526 U.S. 813, 119 S. Ct. 1707, 143 L. Ed.

2d 985 (1999), ‘‘[s]tate courts interpreting [sexual abuse

of a minor] statutes have sometimes permitted jury

disagreement about a specific underlying criminal incident insisting only [on] proof of a continuous course

of conduct in violation of the law. . . . The state practice may well respond to special difficulties of proving

individual underlying criminal acts . . . .’’43 (Citations

omitted; internal quotation marks omitted.) Id., 821.

That is to say, courts have been loath to force young
victims of sexual abuse to choose between either (1)

testifying as to each individual incident of abuse with

sufficient precision to allow the state to prove it beyond

a reasonable doubt or (2) confining their testimony

entirely to generic assertions and suppressing any supporting details that they are able to recall. For these

reasons, I do not believe that the trial court abused its

discretion in permitting the state to charge all of the

alleged incidents of inappropriate conduct against N

and T in counts one and six, respectively.

Fourth, there is no plausible claim—and the defendant does not contend—that the defendant’s due process rights were violated when the state charged his

alleged assaults on each victim as one course of conduct. The defendant received adequate notice of the

crimes charged, as the state’s long form substitute information identified each victim by her initials and her

date of birth and accused the defendant of violating

§ 53-21 (a) (2), at his home in Lisbon, beginning ‘‘in

or about 2005’’ and continuing through various dates

between 2006 and 2010, depending on when each victim

reached the age of sixteen. Nothing more was required.

Nor did the charges compromise the defendant’s ability

to present a defense, as in cases in which a defendant

claims to have a partial alibi or when the charged conduct would not have constituted a crime during some

portion of the alleged course of conduct. In the present

case, the defendant readily conceded that he was regularly present with the victims at his Lisbon home during

the years in question; his defense was that the victims’

accusations were simply false. Finally, there is no double jeopardy problem with course of conduct charging

because the defendant cannot subsequently be retried

for any similar conduct that occurred during the time

period at issue. Accordingly, I agree with the majority’s

ultimate conclusion that the defendant’s conviction

should be upheld.

IV

For all of the foregoing reasons, I believe that the

present case is a quintessential example of why prosecutors must be given the discretion to charge the ongoing sexual abuse of young children as a single course

of conduct. Permitting such charging, when fair and

appropriate, respects the broad authority traditionally

conferred on prosecutors to levy the appropriate

charges, according to the circumstances of each case.

It ensures that young, repeat victims of these heinous

crimes can have their day in court and not be shut out

because they cannot recall, with specificity, particular

incidents from among an ongoing pattern of repeated

abuse. But, importantly, my view considers the interests

of defendants as well, avoiding needless repetitive

charging, limiting the maximum jail time and criminal

jeopardy to which defendants are exposed, and recognizing that defendants’ sixth amendment rights must
be considered even when course of conduct charging

is appropriate. For these reasons, I respectfully concur

in the judgment.

1 Although § 53-21 has been amended several times since the events underlying the present appeal; see Public Acts 2015, No. 15-205, § 11; Public Acts

2013, No. 13-297, § 1; Public Acts 2007, No. 07-143, § 4; those amendments

have no bearing on the merits of this appeal. In the interest of simplicity,

unless otherwise noted, I refer to the current revision of the statute.

2 See, e.g., United States v. Schlei, 122 F.3d 944, 979 (11th Cir. 1997)

(‘‘[s]everal [federal courts of appeals] have rejected the [Fifth Circuit’s]

analysis’’), cert. denied, 523 U.S. 1077, 118 S. Ct. 1523, 140 L. Ed. 2d 674

(1998). As I discuss hereinafter, the duplicity framework that the majority

has adopted largely tracks the approach followed by the Fifth Circuit.

3 Under the Second Circuit approach, specific unanimity instructions generally are not required; see, e.g., United States v. Natelli, 527 F.2d 311, 325

(2d Cir. 1975), cert. denied, 425 U.S. 934, 96 S. Ct. 1663, 48 L. Ed. 2d 175

(1976); especially when multiple instances are properly charged as a course

of conduct. See, e.g., United States v. Walker, 254 Fed. Appx. 60, 62–63 (2d

Cir. 2007). This court has followed a similar approach. See, e.g., State v.

Sorabella, 277 Conn. 155, 206–207, 891 A.2d 897 (instruction not required

when state charged promotion of obscene materials as course of conduct),

cert. denied, 549 U.S. 821, 127 S. Ct. 131, 166 L. Ed. 2d 36 (2006); State v.

Spigarolo, 210 Conn. 359, 383, 391, 556 A.2d 112 (risk of injury), cert. denied,

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

Nevertheless, in the vast majority of cases, specific unanimity instructions

will be advisable when the prosecutor charges multiple instances. Stated

more directly, when the prosecutor opts to charge multiple instances, it

would be ‘‘sound practice’’ for the trial court to give a specific unanimity

instruction so as to protect the defendant’s right to jury unanimity. United

States v. Natelli, supra, 527 F.2d 325 (although specific unanimity instruction

is not always required, charging multiple instances in one count without

instruction runs risk of violating jury unanimity requirement). When the

prosecutor has charged a course of conduct crime, the trial court may

tailor the instruction so as to ensure jury unanimity under the facts and

circumstances of the case. See, e.g., United States v. Prieto, 812 F.3d 6,

11–12 (1st Cir.), cert. denied, U.S. , 137 S. Ct. 127, 196 L. Ed. 2d 100

(2016); United States v. Margiotta, 646 F.2d 729, 733 (2d Cir. 1981). Ultimately, though, I agree with the majority that the trial court’s failure to

give such an instruction in the present case did not run afoul of the sixth

amendment.

4 Compare, e.g., United States v. Girard, 601 F.2d 69, 72 (2d Cir.) (acts

could reasonably be understood as part of single scheme), cert. denied, 444

U.S. 871, 100 S. Ct. 148, 62 L. Ed. 2d 96 (1979), with United States v. Tanner,

471 F.2d 128, 139 (7th Cir.) (acts could not be so charged), cert. denied,

409 U.S. 949, 93 S. Ct. 269, 34 L. Ed. 2d 220 (1972). Tanner, on which the

majority relies, is an excellent example of a decision in which the prosecutors

were deemed to have abused their discretion in charging a single course

of conduct. Although the United States Court of Appeals for the Seventh

Circuit emphasized the scope and importance of prosecutorial discretion

in this area; see United States v. Tanner, supra, 138–39; the court held that

it was an abuse of that discretion to charge, in a single count, multiple

illegal acts of transporting explosives, when those acts were committed by

different defendants over the course of four months. See id., 139. Although

the majority is correct that the court in Tanner considered the breadth of

the statutory language, it ultimately resolved the case by indicating that, as

the Ninth Circuit held in Cohen v. United States, 378 F.2d 751, 754 (9th

Cir.), cert. denied, 389 U.S. 897, 88 S. Ct. 217, 19 L. Ed. 2d 215 (1967), which

was not a statutory interpretation case, the government has discretion—

albeit cabined discretion—in determining whether to charge a series of

violations as a single scheme. See United States v. Tanner, supra, 138–39.

5 See, e.g., Conn. Const., amend. XXIII; General Statutes § 51-277 (a);

Massameno v. Statewide Grievance Committee, 234 Conn. 539, 563, 574–76,

663 A.2d 317 (1995).

6 As I explain in part I B, Connecticut prosecutors have been charging

crimes as continuing offenses since the nineteenth century, long before the

adoption of the state constitution in 1965, and they have been exercising

their discretion to charge crimes such as sexual assault, which are not

inherently or even primarily ongoing crimes, as course of conduct crimes

for more than seventy years. I agree with the majority that prosecutors’

authority to charge in this manner is not expressly conferred by any constitu-
tional or statutory provision, and I do not mean to imply that it is the result

of a constitutional grant of authority. It is, in my view, an ancient commonlaw pleading tradition, one that the legislature is well aware of and continues

to implicitly approve. Nevertheless, I noted the authority conferred on Connecticut prosecutors by statute and the constitution because I believe that

their discretion over course of conduct charging decisions is fully consistent

with that broad authority.

7 Practice Book § 36-21 provides: ‘‘Two or more offenses may be charged in

the same information in a separate count for each offense for any defendant.’’

(Emphasis added.)

8 Rule 8 (a) of the Federal Rules of Criminal Procedure provides: ‘‘The

indictment or information may charge a defendant in separate counts with

2 or more offenses if the offenses charged—whether felonies or misdemeanors or both—are of the same or similar character, or are based on the same

act or transaction, or are connected with or constitute parts of a common

scheme or plan.’’ (Emphasis added.) It has been broadly accepted, however,

that charging a course of conduct crime in a single count does not violate

the rule. See, e.g., United States v. Conlon, 661 F.2d 235, 239 (D.C. Cir. 1981)

(‘‘[p]erusal of many cases in which error was predicated on the duplicity of

an indictment reveals that an exception [to rule 8 (a)] exists for a continuing

scheme or a course of conduct [that] violates but one criminal statutory

provision’’), cert. denied, 454 U.S. 1149, 102 S. Ct. 1015, 71 L. Ed. 2d 304 (1982).

9 See, e.g., N.Y. Crim. Proc. Law § 200.30 (1) (McKinney 2007).

10 As the majority points out, the defendant has not separately briefed a

state constitutional claim before this court. See footnote 5 of the majority opinion.

11 See, e.g., United States v. Jaynes, 75 F.3d 1493, 1502 n.7 (10th Cir. 1996);

see also, e.g., United States v. Correa-Ventura, 6 F.3d 1070, 1081 (5th Cir.

1993) (‘‘[T]he issues of duplicity and unanimity are evaluated at different

procedural stages of the criminal proceedings—duplicity is generally

reviewed during the pretrial phase, whereas unanimity must be determined

after all the evidence has been introduced at trial. For this reason, the

inquiry as to whether offenses are distinct for purposes of duplicity is

not identical to the analysis employed in determining whether the actions

charged are so dissimilar that unanimity is required.’’); Lane v. Graham,

Docket No. 9:14-cv-01261-JKS, 2016 WL 154111, *10 (N.D.N.Y. January 12,

2016) (‘‘[T]he [United States] Supreme Court has never held that an indictment containing duplicitous counts violates the [d]ue [p]rocess [c]lause.

. . . The Second Circuit has further indicated that duplicitous pleadings

are not even presumptively invalid in and of themselves.’’ (Citation omitted.)); Jones v. Lee, Docket No. 10 Civ. 7915 (SAS), 2013 WL 3514436, *7

(S.D.N.Y. July 12, 2013) (‘‘Procedural rules create the prohibition of duplicitous counts—there is no constitutional right against duplicity per se. . . .

However, a duplicitous count may violate a defendant’s constitutional rights

. . . if it violates the [s]ixth [amendment] . . . .’’ (Footnotes omitted; internal quotation marks omitted.)), appeal dismissed, United States Court of

Appeals for the Second Circuit, Docket No. 13-2970 (October 26, 2013).

12 See, e.g., United States v. Ramirez-Martinez, 273 F.3d 903, 915 (9th

Cir. 2001) (‘‘[t]he rules about . . . duplicity are pleading rules, the violation

of which is not fatal to an indictment’’ (internal quotation marks omitted))

(overruled on other grounds by United States v. Lopez, 484 F.3d 1186 (9th

Cir. 2007)), cert. denied, 537 U.S. 930, 123 S. Ct. 330, 154 L. Ed. 2d 226 (2002);

United States v. Droms, 566 F.2d 361, 363 n.1 (2d Cir. 1977) (‘‘[d]uplicity,

of course, is only a pleading rule and would in no event be fatal to the

count’’); Reno v. United States, 317 F.2d 499, 502 (5th Cir.) (‘‘[d]uplicity is

not a fatal defect’’ (internal quotation marks omitted)), cert. denied, 375

U.S. 828, 84 S. Ct. 72, 11 L. Ed. 2d 60 (1963).

13 Compare State v. Bosworth, 54 Conn. 1, 2, 4 A. 248 (1886) (‘‘all offenses

involving continuous action, and which may be continued from day to day,

may be so alleged’’), and Commonwealth v. Pray, 30 Mass. 359, 362 (1833)

(‘‘[whenever] the crime consists of a series of acts, they need not be specially

described, for it is not each or all the acts of themselves, but the practice or

habit which produces the principal evil and constitutes the crime’’ (emphasis

omitted)), with State v. Munger, 15 Vt. 290, 296–97 (1843) (continuando

must be disregarded as ‘‘surplusage’’).

I do not suggest that Bosworth stood for the proposition that any crime

can be charged by continuando, only that Connecticut has long taken a

more expansive approach than have some other states to course of conduct charging.

14 See, e.g., State v. Silver, 139 Conn. 234, 247, 93 A.2d 154 (1952) (O’Sulli-
van, J., concurring) (state charged that, ‘‘ ‘at the [c]ity of Hartford on divers

dates, the [defendant] did commit an indecent assault [on] a minor’ ’’); State

v. Saraceno, 15 Conn. App. 222, 225 n.1, 229, 545 A.2d 1116 (finding no

constitutional violation when state charged defendant with committing second degree sexual assault against minor by intercourse ‘‘ ‘on divers uncertain

dates, primarily on weekends, between August 1980 and August 1983,’ ’’

because ‘‘[e]ach count, although alleging repeated commissions of a crime,

charged only a single set of essential elements comprising the offense’’),

cert. denied, 209 Conn. 823, 552 A.2d 431 (1988), and cert. denied, 209 Conn.

824, 552 A.2d 432 (1988); State v. Mancinone, 15 Conn. App. 251, 256 n.5,

545 A.2d 1131 (state charged second degree sexual assault, by intercourse

with minors, ‘‘ ‘on divers dates between August 1983 and November 1984’ ’’),

cert. denied, 209 Conn. 818, 551 A.2d 757 (1988), cert. denied, 489 U.S. 1017,

109 S. Ct. 1132, 103 L. Ed. 2d 194 (1989); State v. Snook, 210 Conn. 244, 265,

555 A.2d 390 (state charged second and third degree sexual assault when

defendant engaged in sexual intercourse with victim ‘‘on ‘divers days

between June, 1979, and January, 1984’ ’’), cert. denied, 492 U.S. 924, 109

S. Ct. 3258, 106 L. Ed. 2d 603 (1989); State v. Osborn, 41 Conn. App. 287,

295, 676 A.2d 399 (1996) (charging attempted first degree sexual assault of

child ‘‘on diverse dates between June 20, 1986, and June 20, 1991’’); State

v. Vumback, 263 Conn. 215, 217, 219, 819 A.2d 250 (2003) (charging first

and third degree sexual assault of child, as well as risk of injury to child,

‘‘on divers dates between approximately June, 1990 through July, 1996’’

(internal quotation marks omitted)); State v. William B., 76 Conn. App. 730,

735, 822 A.2d 265 (in addition to risk of injury, state charged defendant

with first degree sexual assault, specifically alleging that, ‘‘on divers dates

between 1990 and 1994, as a continuing course of conduct, the defendant

engaged in sexual intercourse with the victim, who was younger than thirteen’’ (emphasis added)), cert. denied, 264 Conn. 918, 828 A.2d 618 (2003);

State v. Romero, 269 Conn. 481, 483–84, 504, 849 A.2d 760 (2004) (state

charged that first degree sexual assaults of ten year old boy took place

‘‘ ‘on diverse dates between October, 1999 [and] March, 2000’ ’’); State v.

Marcelino S., 118 Conn. App. 589, 593, 984 A.2d 1148 (2009) (state charged

fourth degree sexual assault of child and risk of injury to child ‘‘on divers

dates, between August 2003 and April 2005’’ (emphasis omitted; internal

quotation marks omitted)), cert. denied, 295 Conn. 904, 988 A.2d 879 (2010);

State v. Jessie L. C., 148 Conn. App. 216, 218–19, 227, 231, 84 A.3d 936 (state

charged defendant with second and fourth degree sexual assault ‘‘ ‘on diverse

dates between’ ’’ 2002 and July of 2009, after complainant ‘‘gave a detailed

account of several specific incidents of sexual assault’’ and, in addition,

alleged that defendant assaulted her two to three times per week at ages

eleven and twelve, and at least daily between ages of thirteen and sixteen,

under at least eleven different factual scenarios, encompassing approximately 7575 distinct incidents of abuse), cert. denied, 311 Conn. 937, 88

A.3d 551 (2014); State v. Vere C., 152 Conn. App. 486, 508–10, 98 A.3d 884

(charging first degree sexual assault, as well as risk of injury to child, ‘‘ ‘on

diverse dates between’ ’’ 2005 and 2010 based on allegations that defendant

assaulted victim approximately ten times, in different residences and different physical positions), cert. denied, 314 Conn. 944, 102 A.3d 1116 (2014);

State v. Michael D., 153 Conn. App. 296, 303, 322, 101 A.3d 298 (state charged

first degree sexual assault and risk of injury to child, basing each charge

on three different assaults of child, over three year period, each of which

was factually distinct), cert. denied, 314 Conn. 951, 103 A.3d 978 (2014);

State v. Joseph V., 196 Conn. App. 712, 733, 230 A.3d 644 (2020) (see companion case, State v. Joseph V., 345 Conn. , , A.3d (2022)).

The majority’s view, apparently, is that this practice, which is founded in

ancient common law and has been memorialized in our state’s published

appellate decisions for more than seventy years, has always been impermissible under (unstated) Connecticut law, but that the legislature has simply

never addressed the rogue charging practice. The majority places it in the

same category as unpublished trial court decisions and municipal zoning

regulations, which fly below the legislature’s radar. The more reasonable

explanation, I would submit, is that the legislature, which is presumed to

be aware of the published decisions of this court and the Appellate Court,

is well aware of the practice and has opted not to abrogate the common

law and to undermine the state’s ability to prosecute resident child molesters.

Cf. Pacific Ins. Co., Ltd. v. Champion Steel, LLC, 323 Conn. 254, 264, 146

A.3d 975 (2016) (‘‘if the legislature wishes to abrogate the common law, it

must do so expressly’’).

15 Contrary to the majority’s suggestion, I am fully aware that 18 U.S.C.
§ 1341 (1976) prohibits the use of the mailings in connection with a ‘‘scheme

or artifice to defraud,’’ and, therefore, it might be argued that the language

of the statute itself contemplates course of conduct charging. As I discuss

hereinafter, the Second Circuit and other courts following Margiotta have

subsequently applied the same framework in the absence of any clear manifestation of legislative approval or intent, even in cases in which the statutory

language does not prohibit or envision a course of conduct. See footnotes

18 and 25 of this opinion.

16 Of course, if a statute expressly barred course of conduct charging,

then that legislative determination would be binding. Rarely, however, is

that the case.

17 I underscored some federal cases that permit course of conduct charging

without first analyzing the statutory language. The point of these cases is

not that the statutory language is irrelevant, or that statutory analysis is not

appropriate. The point is simply that a statute that is facially silent as to

course of conduct charging presumptively permits it. In Connecticut, we

still may need to go through the legislative history in order to ascertain

legislative intent.

18 See, e.g., United States v. Anson, 304 Fed. Appx. 1, 4 (2d Cir. 2008)

(transportation and receipt of child pornography, in violation of 18 U.S.C.

§ 2252A), cert. denied, 556 U.S. 1160, 129 S. Ct. 1687, 173 L. Ed. 2d 1050

(2009); United States v. Tutino, 883 F.2d 1125, 1128, 1141 (2d Cir. 1989)

(distribution of heroin, in violation of 21 U.S.C. § 841), cert. denied, 493 U.S.

1081, 110 S. Ct. 1139, 107 L. Ed. 2d 1044 (1990), and cert. denied sub nom.

Guarino v. United States, 493 U.S. 1082, 110 S. Ct. 1139, 107 L. Ed. 2d 1044

(1990); United States v. Girard, 601 F.2d 69, 70, 72 (2d Cir.) (unauthorized

sale of government property, in violation of 18 U.S.C. § 641), cert. denied,

444 U.S. 871, 100 S. Ct. 148, 62 L. Ed. 2d 96 (1979); United States v. Natelli,

527 F.2d 311, 314, 325 (2d Cir. 1975) (making material false and misleading

statements in Securities and Exchange Commission proxy statement, in

violation of 15 U.S.C. § 78ff (a)), cert. denied, 425 U.S. 934, 96 S. Ct. 1663,

48 L. Ed. 2d 175 (1976); Lindsey v. Heath, Docket No. 12-CV-2150 (ERK),

2015 WL 3849939, *1, *3 (E.D.N.Y. June 22, 2015) (burglary, in violation of

New York law); United States v. Jordan, Docket No. 08-CR-124 (DLC),

2009 WL 2999753, *6 (S.D.N.Y. August 21, 2009) (communicating kidnapping

threats, in violation of 18 U.S.C. § 875 (c)); United States v. Sattar, 272 F.

Supp. 2d 348, 353, 382 (S.D.N.Y. 2003) (providing support to foreign terrorist

organization, in violation of 18 U.S.C. § 2339B); United States v. Martino,

Docket No. S1-00-CR-389 (RCC), 2000 WL 1843233, *2, *4 (S.D.N.Y. December

14, 2000) (tax evasion and subscribing to false returns, in violation of 26

U.S.C. §§ 7201 and 7206); United States v. Gordon, 990 F. Supp. 171, 177–78

(E.D.N.Y. 1998) (money laundering, in violation of 18 U.S.C. § 1956); United

States v. Mango, Docket No. 96-CR-327, 1997 WL 222367, *1, *6 (N.D.N.Y.

May 1, 1997) (violation of permit requirements imposed by Clean Water Act,

33 U.S.C. § 1319); United States v. Weissman, Docket No. S2-94-CR-760

(CSH), 1996 WL 742844, *1, *25–26 (S.D.N.Y. December 20, 1996) (obstruction of justice, in violation of 18 U.S.C. § 1505).

19 See, e.g., United States v. Mango, Docket No. 96-CR-327, 1997 WL 222367,

*6 (N.D.N.Y. May 1, 1997) (‘‘Certainly, each violation . . . could have been

charged in a separate count. However, under the law of [the Second] Circuit,

the United States need not do so if it chooses a reasonable method of

aggregating the offenses charged.’’).

20 Notably, the Appellate Court has, on at least one occasion, adopted the

Second Circuit approach and permitted course of conduct charging in the

context of a sexual assault charge. See State v. Saraceno, 15 Conn. App.

222, 228–32, 545 A.2d 1116, cert. denied, 209 Conn. 823, 552 A.2d 431 (1988),

and cert. denied, 209 Conn. 824, 552 A.2d 432 (1988). I disagree with the

majority’s contention that Saraceno is not relevant authority merely because

this court had not yet formally articulated a jurisprudence of unanimity as

to instances. It seems clear to me that, in Saraceno, the Appellate Court

adopted the Second Circuit’s approach to duplicity because it relied on the

same federal cases that I would follow, such as United States v. Margiotta,

supra, 646 F.2d 733, and United States v. Shorter, 608 F. Supp. 871, 879–80

(D.D.C. 1985), aff’d, 809 F.2d 54 (D.C. Cir.), cert. denied, 484 U.S. 817, 108

S. Ct. 71, 98 L. Ed. 2d 35 (1987), as well as the decision of this court in

State v. Bosworth, 54 Conn. 1, 2, 4 A. 248 (1886). See State v. Saraceno,

supra, 228–31. Indeed, the majority quotes Saraceno at some length as an

accurate statement of the governing law.

21 See, e.g., General Statutes § 53a-181d (b) (1) and (2) (stalking in second

degree); see also, e.g., General Statutes § 53-142k (b) (1) (organized retail
theft).

22 When courts and commentators provide examples of that type of law,

they often point to statutes that impose a distinct penalty for each day that

the statute is violated. A Connecticut statute of this kind would be General

Statutes § 15-173, which, for docking violations, imposes a daily fine of up

to $10,000 (or $25,000 for first violations committed wilfully or with criminal

negligence, and $50,000 for subsequent criminal violations); see General

Statutes § 15-173 (b) and (c); and provides expressly that ‘‘[e]ach violation

shall be a separate and distinct offense, and, in the case of a continuing

violation, each day’s continuance thereof shall be deemed to be a separate

and distinct offense.’’ General Statutes § 15-173 (b). Another statute that

uses essentially the same language is General Statutes § 22a-226 (a) (governing civil violations of solid waste management law).

23 Contrary to the majority’s suggestion, I would not require any ‘‘talismanic’’ use of language such as ‘‘continuous course of conduct’’ or ‘‘each

single act’’ by the legislature before concluding that it had spoken definitively

to these issues. (Internal quotation marks omitted.) Part II of the majority

opinion. The majority, however, goes to the opposite extreme, perceiving

meanings and restrictions in the legislative language for which there is

simply no textual support.

24 Although the majority is correct that this court did not find that any

presumption was applicable in Cody M., in light of the clear statutory language, this court has applied a presumption in favor of continuous course

of conduct charging in closely related cases, such as Ruiz-Pacheco. See

State v. Ruiz-Pacheco, supra, 336 Conn. 237 (‘‘[a]pplying the rule of lenity

here means interpreting assault to be a [course of conduct] offense’’ (internal

quotation marks omitted)).

25 See, e.g., United States v. Davis, supra, 471 F.3d 790–91 (‘‘[When] the

indictment fairly interpreted alleges a continuing course of conduct, during

a discrete period of time, the indictment is not prejudicially duplicitous.

. . . The [charging] decision is left, at least initially, to the discretion of the

prosecution.’’ (Citation omitted; emphasis added; internal quotation marks

omitted.)); United States v. Denton, 146 Fed. Appx. 888, 890 (9th Cir. 2005)

(extortion indictment was not duplicitous, notwithstanding that defendant

made threats over course of fifty-five days, because threats were made

against single victim, pursuant to one plan, and dangers of duplicity were

not present); see also, e.g., United States v. Kamalu, 298 Fed. Appx. 251,

252 (4th Cir. 2008) (government permissibly charged corruptly obstructing

administration of Internal Revenue Code, on behalf of numerous clients

over multiple years, as one single, continuing scheme); United States v.

Klat, 156 F.3d 1258, 1266–67 (D.C. Cir. 1998) (single count charging threats

against public official over six month period was not duplicitous and failure

to give specific unanimity instruction was not plain error); United States

v. Saunders, 641 F.2d 659, 661–62, 665 (9th Cir. 1980) (single count charging

violation of Mann Act, 18 U.S.C. § 2421 et seq., prohibiting transportation

of women in interstate commerce for purposes of prostitution, was not

duplicitous as continuing course of conduct, without statutory analysis and

despite fact that multiple interstate crossings over course of three months

could have been charged as separate offenses), cert. denied, 452 U.S. 918,

101 S. Ct. 3055, 69 L. Ed. 2d 422 (1981); United States v. Alsobrook, 620 F.2d

139, 142 (6th Cir.) (‘‘The determination of whether a group of acts represents

a single, continuing scheme or a set of separate and distinct offenses is a

difficult one that must be left at least initially to the discretion of the

prosecution. This discretion, however, is not without limits. . . . Ultimately, the indictment must be measured in terms of whether it exposes

the defendant to any of the inherent dangers of a duplicitous indictment.’’

(Citation omitted; emphasis added.)), cert. denied, 449 U.S. 843, 101 S. Ct.

124, 66 L. Ed. 2d 51 (1980); Cohen v. United States, 378 F.2d 751, 754 (9th

Cir.) (concluding, without analysis of statutory language, that, although

each violation of 18 U.S.C. § 1084 (a) could have been charged as separate

violation, prosecutor was free to charge series of violations as single infraction), cert. denied, 389 U.S. 897, 88 S. Ct. 217, 19 L. Ed. 2d 215 (1967); United

States v. Shorter, 608 F. Supp. 871, 876 (D.D.C. 1985) (‘‘[t]he grand jury,

presumably under the guidance of the prosecutor, may charge few or many

counts depending [on] a variety of factors, and, [in the absence of] oppression

or impermissible duplicity, the decision with respect thereto is within the

realm of grand jury and prosecutorial discretion’’ (emphasis added)), aff’d,

809 F.2d 54 (D.C. Cir.), cert. denied, 484 U.S. 817, 108 S. Ct. 71, 98 L. Ed.

2d 35 (1987).

The majority’s efforts to distinguish these cases are unpersuasive. I do
not dispute that the statutory language can be relevant. My point is simply

that the prosecutor has charging discretion when the statute does not

expressly prohibit it. Although the majority is correct that these decisions,

unlike Moloney, do not expressly adopt a general rule regarding course of

conduct charging, the fairest reading of these decisions is that they are, in

fact, applying the Second Circuit approach. As to the majority’s contention

that none of these cases so much as mentions a presumption of prosecutorial

discretion in these matters, the highlighted language plainly belies that claim.

In support of its contention that the Ninth Circuit follows a different

approach than it did in Cohen, Saunders, and Denton, the majority relies

on United States v. Newson, 534 Fed. Appx. 604 (9th Cir. 2013). But Newson

is a one page, summary affirmance, in which the court merely stated, in

dictum, that, ‘‘[o]f course, jurors cannot be instructed that a defendant can

be convicted of an offense if he committed, for example, crime A or crime

B, unless they are also instructed that there must be unanimous agreement

on which crime it was.’’ Id., 605. Newson says nothing about course of

conduct charging, which was not at issue, and certainly does not purport to

overturn more than forty years of the Ninth Circuit’s duplicity jurisprudence.

Likewise, the Seventh Circuit case on which the majority relies, United

States v. Fawley, 137 F.3d 458, 471 (7th Cir. 1998), is readily distinguishable,

insofar as the analysis in that case is specific to the law of perjury and relies

on United States v. Gipson, 553 F.2d 453, 458–59 (5th Cir. 1977), which, the

majority agrees, does not govern these types of cases.

26 See, e.g., Dyer v. Farris, 787 Fed. Appx. 485, 494–95 (10th Cir. 2019)

(applying Oklahoma law and holding that charging alleged acts of child

sexual abuse committed during six month period as single transaction did

not violate clearly established federal law), cert. denied, U.S. , 140

S. Ct. 1157, 206 L. Ed. 2d 207 (2020); Ives v. Boone, 101 Fed. Appx. 274, 294

(10th Cir.) (similar), cert. denied, 543 U.S. 1001, 125 S. Ct. 609, 160 L. Ed.

2d 460 (2004), and cert. denied, 543 U.S. 1026, 125 S. Ct. 669, 160 L. Ed. 2d

505 (2004); United States v. Klade, Docket No. 95-10213, 1996 WL 115291,

*1 (9th Cir. March 14, 1996) (decision without published opinion, 79 F.3d

1155) (rejecting duplicity claim as to alleged violations of 18 U.S.C. § 2241

(c), which prohibits aggravated sexual abuse of children, and explaining

that, ‘‘[i]n reviewing an indictment for duplicity, our task is not to review the

evidence presented at trial to determine whether it would support charging

several crimes rather than one, but rather solely to assess whether the

indictment itself can be read to charge only one violation to each count’’

(internal quotation marks omitted)), cert. denied, 519 U.S. 850, 117 S. Ct.

141, 136 L. Ed. 2d 88 (1996).

27 See, e.g., United States v. Bowser, Docket No. 96-50889, 1997 WL 802374,

*1 (5th Cir. November 19, 1997) (decision without published opinion, 132

F.3d 1454) (‘‘the indictment [was] not duplicitous even though each bad act

alone could constitute an offense’’); United States v. Berardi, 675 F.2d 894,

898 (7th Cir. 1982) (‘‘two or more acts, each one of which would constitute

an offense standing alone, may be joined in a single count without offending

the rule against duplicity’’); United States v. Alsobrook, 620 F.2d 139, 142–43

(6th Cir.) (concluding that indictment was not duplicitous, even though

offenses could have been charged separately), cert. denied, 449 U.S. 843,

101 S. Ct. 124, 66 L. Ed. 2d 51 (1980); Cohen v. United States, 378 F.2d 751,

754 (9th Cir.) (count was not duplicitous, ‘‘even though each [infraction]

might have been alleged as a separate violation’’), cert. denied, 389 U.S. 897,

88 S. Ct. 217, 19 L. Ed. 2d 215 (1967).

I do not disagree that, as a general matter, duplicity is defined as charging

multiple offenses in a single count. What I take issue with is the majority’s

repeated assertion that a majority of the federal courts of appeals have

adopted a strict approach to course of conduct charging, making such

charging a constitutional violation unless expressly authorized by statute

or unless a bill of particulars was filed or the court gave a specific unanimity

instruction.

28 See, e.g., United States v. Prieto, 812 F.3d 6, 9, 11 (1st Cir.) (rejecting

duplicity challenge, without considering statutory language, because government permissibly assumed burden of charging multiple violations of federal

mail fraud statute as one unified scheme), cert. denied, U.S. , 137

S. Ct. 127, 196 L. Ed. 2d 100 (2016); United States v. Moyer, 674 F.3d

192, 204–205 (3d Cir.) (when statutory language was silent, count charging

falsification of multiple police reports was not duplicitous because ‘‘the

government has discretion to draw [t]he line between multiple offenses and

multiple means to the commission of a single continuing offense’’ (emphasis

added; internal quotation marks omitted)), cert. denied, 568 U.S. 846, 133
S. Ct. 165, 184 L. Ed. 2d 82 (2012), and cert. denied sub nom. Nestor v.

United States, 568 U.S. 1143, 133 S. Ct. 979, 184 L. Ed. 2d 760 (2013); United

States v. Root, 585 F.3d 145, 150–53 (3d Cir. 2009) (when statutory language

was silent on issue, government has discretion to charge tax evasion covering

several years as single course of conduct when underlying basis of indictment is consistent, long-term pattern of criminal conduct); United States

v. Baytank (Houston), Inc., 934 F.2d 599, 609 (5th Cir. 1991) (‘‘[n]otwithstanding that a defendant’s actions, charged in a single count, could have

been charged as separate violations, nevertheless a single count may be

used [when] those actions represent a single, continuing scheme, provided

the indictment (1) notifies the defendant adequately of the charges against

him; (2) does not subject the defendant to double jeopardy; (3) does not

permit prejudicial evidentiary rulings at trial; and (4) does not allow the

defendant to be convicted by a nonunanimous jury verdict’’ (internal quotation marks omitted)).

The United States Court of Appeals for the Eleventh Circuit, although

indicating that it might have followed a different approach as a matter of

first impression, thought that it was compelled to adhere to Fifth Circuit

precedent because of the common lineage of those courts. See United States

v. Schlei, 122 F.3d 944, 979 (11th Cir. 1997) (‘‘Several [federal courts of

appeals] have rejected the [Fifth Circuit’s] analysis . . . . Although the

rationale of [an alternative approach] may be tempting, we are bound by

the decision of the former Fifth Circuit . . . .’’ (Citations omitted; internal

quotation marks omitted.)), cert. denied, 523 U.S. 1077, 118 S. Ct. 1523, 140

L. Ed. 2d 674 (1998).

29 See, e.g., State v. Paulsen, 143 N.H. 447, 449–51, 726 A.2d 902 (1999);

People v. Algarin, 166 App. Div. 2d 287, 287–88, 560 N.Y.S.2d 771 (1990);

State v. Saluter, 715 A.2d 1250, 1253–55 (R.I. 1998).

30 The phrase ‘‘resident child molester’’ describes cases in which the perpetrator lives with or has regular access to the child and, thus, is able to

repeatedly sexually abuse the victim in such a way that there are unlikely

to be third-party witnesses and the child is unlikely to be able to recall the

specific dates or details of individual assaults.

31 In State v. Stephen J. R., 309 Conn. 586, 595–601, 72 A.3d 379 (2013), this

court cited Jones with approval, albeit in the converse context of determining

when, and to what extent, generic child abuse testimony can support multiple, independent counts. Although recognizing the need to secure a defendant’s due process rights; see id., 595–97; we have repeatedly emphasized

the need for flexibility in light of the unique challenges involved in prosecuting cases of child sexual abuse.

32 See, e.g., Dell’Orfano v. State, 616 So. 2d 33, 35 (Fla. 1993) (rejecting

bright-line rule in light of state’s strong interest in eliminating sexual abuse

of children and children’s frequent inability to recall details of abuse); Geiser

v. State, 83 So. 3d 834, 835 (Fla. App. 2011) (‘‘in a case of ongoing sexual

abuse of a child, [in which] the child is unable to remember the specific

dates on which he or she was abused, the allegation that the act occurred

on one or more occasions is not, per se, duplicitous’’ (internal quotation

marks omitted)); State v. Generazio, 691 So. 2d 609, 611 (Fla. App. 1997)

(‘‘[w]ith the notable exception of New York, the courts of [other] states

have recognized that child molestation is, by its very nature, a continuous

course of criminality’’); Commonwealth v. King, 387 Mass. 464, 467–68, 441

N.E.2d 248 (1982) (rejecting duplicity challenge in child sexual abuse case

because course of conduct charge was permissible); Commonwealth v.

Joyce, Docket No. 16-P-1531, 2018 WL 3468447, *3 (Mass. App. July 19, 2018)

(decision without published opinion, 93 Mass. App. 1120, 107 N.E.3d 1256)

(applying King), review denied, 482 Mass. 1107, 130 N.E.3d 166 (2019); State

v. Altgilbers, 109 N.M. 453, 465, 786 P.2d 680 (App. 1989) (‘‘courts have

deferred to the prosecutor’s charging pattern in such circumstances’’), cert.

denied, 109 N.M. 419, 785 P.2d 1038 (1990); State v. Cruz, Docket No. A-1-

CA-35877, 2019 WL 5095831, *3 (N.M. App. September 30, 2019) (applying

Altgilbers), cert. denied, New Mexico Supreme Court, Docket No. S-1-SC37991 (December 12, 2019); see also, e.g., State v. Hoban, 738 S.W.2d 536,

541 (Mo. App. 1987) (‘‘[l]eeway is necessary in charging sexual abuse and

sexual intercourse with minors because children who are the victims of

abuse may find it difficult to recall precisely the dates of offenses against

them months or even years after the offense has occurred’’); Huddleston

v. State, 695 P.2d 8, 10–11 (Okla. Crim. App. 1985) (‘‘when a child of tender

years is under the exclusive domination of one parent for a definite and

certain period of time and submits to sexual acts at that parent’s demand,

the separate acts of abuse become one transaction’’); State v. Petrich, 101
Wn. 2d 566, 572, 683 P.2d 173 (1984) (giving prosecutor discretion as to

whether to charge individual instances or course of conduct in incest cases

but requiring specific unanimity instruction), overruled in part on other

grounds by State v. Kitchen, 110 Wn. 2d 403, 756 P.2d 105 (1988); State v.

Lomagro, 113 Wis. 2d 582, 589, 335 N.W.2d 583 (1983) (‘‘[w]e . . . adopt

[the] flexible rule that it is initially up to the state to determine the appropriate

charging unit for a particular criminal episode’’).

33 See, e.g., People v. Jones, supra, 51 Cal. 3d 305 (‘‘any constitutional

principles or evidentiary standards we develop should attempt to [ensure]

that the resident child molester is not immunized from substantial criminal

liability merely because he has repeatedly molested his victim over an

extended period of time’’); State v. Cruz, Docket No. A-1-CA-35877, 2019

WL 5095831, *2 (N.M. App. September 30, 2019) (‘‘[Y]oung children cannot

be held to an adult’s ability to comprehend and recall dates and other

specifics. The predictable limitations of young witnesses should not be

turned into a reason to prevent prosecution of their abusers.’’ (Internal

quotation marks omitted.)), cert. denied, New Mexico Supreme Court,

Docket No. S-1-SC-37991 (December 12, 2019).

34 See, e.g., State v. Generazio, 691 So. 2d 609, 611 (Fla. App. 1997) (‘‘other

state courts . . . have allowed the matter of how to charge these sensitive

and [difficult to define] acts of sexual abuse to rest in the discretion of

prosecutors’’); State v. Altgilbers, 109 N.M. 453, 465, 786 P.2d 680 (App.

1989) (‘‘[c]ourts almost uniformly grant prosecutors discretion in how they

frame the charges [of sexual misconduct against children]’’), cert. denied,

109 N.M. 419, 785 P.2d 1038 (1990).

Although the majority is correct that whatever rules we adopt will potentially apply to most crimes, the practical reality is that the scope of the

continuing offense doctrine is most frequently implicated, and most hotly

debated, in cases that involve child sexual abuse. As a practical matter,

regardless of which approach we adopt, course of conduct charging will

not be appropriate for the vast majority of criminal prosecutions.

35 As I demonstrate in my concurring and dissenting opinion in the companion case, State v. Joseph V., supra, 345 Conn. (Mullins, J., concurring

in part and dissenting in part), the flaw latent in the majority’s approach

comes into sharper contrast when we compare the disparate treatment that

fundamentally comparable statutes—such as child sexual assault and risk

of injury—receive under that duplicity framework.

36 See, e.g., State v. Kulmac, 230 Conn. 43, 68–69, 644 A.2d 887 (1994)

(‘‘Each separate act of . . . risk of injury constituted a separate offense.

. . . Each act can constitutionally support a separate conviction for risk of

injury.’’ (Citations omitted; footnote omitted.)); State v. Snook, 210 Conn.

244, 261–62, 555 A.2d 390 (rejecting argument that § 53-21, as charged,

proscribed continuing course of conduct such that each separate act could

not be charged as separate violation), cert. denied, 492 U.S. 924, 109 S. Ct.

3258, 106 L. Ed. 2d 603 (1989).

37 The court also cited the general principle that, when ‘‘time is not of the

essence or gist of the offense, the precise time at which it is charged to

have been committed is not material.’’ State v. Hauck, supra, 172 Conn. 150.

38 The majority addresses Hauck in a footnote, contending that, ‘‘to the

extent Hauck was ambiguous regarding its reliance on the language of the

statute,’’ cases decided decades later clarified that, in Hauck, we were really

relying on the ‘‘situation’’ language in the statute. (Internal quotation marks

omitted.) Footnote 26 of the majority opinion. I disagree. First, we were

not ‘‘ambiguous’’ in Hauck; surely, the fact that we never mentioned the

language of the statute, and instead provided policy rationales in support

of our decision, is good evidence that Hauck was not a statutory interpretation case. Second, there is no suggestion in Hauck that the defendant was

prosecuted for placing the victim in a dangerous situation, rather than for

subjecting her to sexual acts likely to impair her morals. Indeed, the word

‘‘situation’’ appears nowhere in the decision. Third, the majority’s suggestion

that Hauck’s successor cases, such as Spigarolo, approved course of conduct

charging on the basis of the ‘‘situation’’ language in § 53-21 is misleading.

As in Hauck, this court relied not on that statutory language but on practical

considerations; see, e.g., State v. Spigarolo, supra, 210 Conn. 391 (‘‘[b]ecause

the state was unable to specify with greater precision the times of the alleged

incidents, it necessarily proceeded under a theory that the defendant’s conduct was in the nature of a continuing offense’’); as well on the conceptual

distinctness principles that the majority repudiates. See, e.g., id., 391–92.

39 The majority relies on language in the legislative history reflecting the

fact that, prior to the 1995 amendment of § 53-21, that statute, which prohib-
ited both acts likely to impair the health or morals of children and the placing

of children in dangerous or unwholesome situations, did not distinguish

between sexual and nonsexual risk of injury. Legislators divided the statute

into sexual and nonsexual parts at that time, so that individuals convicted of

inappropriate sexual contact with children could be subjected to mandatory

minimum sentences and sex offender registration requirements. All this is

true. But it provides little support for the majority’s position. The bill’s

sponsor indicated that the legislature was not merely separating out sexual

from nonsexual harms to children but was making a ‘‘change in the definition

of risk of injury . . . so that the offense can be more carefully delineated.’’

38 S. Proc., supra, pp. 1769–70, remarks of Senator Martin M. Looney. In

addition, unlike the original statute, which is now subsection (a) (1), the

sexual misconduct component of the statute, subsection (a) (2), makes no

mention of situations, only of specific acts. The fact that the legislature

expressly prohibited both dangerous situations and inappropriate acts in

subsection (a) (1), but only inappropriate sexual acts in subsection (a) (2),

cannot have been accidental. See, e.g., Rutter v. Janis, 334 Conn. 722, 739,

224 A.3d 525 (2020).

To be clear, I agree with the majority that course of conduct charging is

permissible under § 53-21 (a) (2). I just do not perceive anything in the plain

language of the statute or the legislative history that resolves, or even

contemplates, the issue, one way or the other. I conclude that, as with most

criminal statutes that are silent on this issue, the legislature has left the

charging of these crimes to the discretion of the prosecutor, subject always

to judicial supervision.

40 See, e.g., United States v. Webster, 231 Fed. Appx. 606, 607 (9th Cir. 2007)

(even if it was assumed, arguendo, that failure to give specific unanimity

instruction was error in view of specific facts of case, error was harmless

because evidence of guilt was overwhelming).

Note that, even when course of conduct charging is unsuitable, I would

conclude that duplicitous charging represents a violation of the rules of

criminal procedure and not a per se constitutional violation. In practice,

however, in most cases in which the multiple violations charged in one

count cannot reasonably be characterized as part of a single scheme or

plan, the defendant’s sixth amendment rights will be violated in the absence

of a specific unanimity instruction or election by the state to proceed only

on one allegation.

41 Compare statutes in which a legislature expressly authorizes course of

conduct charging, such as § 53a-181d (b), which provides in relevant part:

‘‘A person is guilty of stalking in the second degree when:

‘‘(1) Such person knowingly engages in a course of conduct directed at

or concerning a specific person . . . .’’

Section 53a-181d (a) (1) provides in relevant part that ‘‘ ‘[c]ourse of conduct’ means two or more acts . . . .’’

42 S, the victim of the charges in count five, claimed only that the defendant

touched her inappropriately in a series of interactions on one summer

evening after her eighth grade year. I agree with the majority that there is

no unanimity problem with respect to count five because, among other

things, the jury reasonably could have found that the testimony related to

one ongoing incident of abuse. See, e.g., Steele v. State, 523 S.W.2d 685, 687

(Tex. Crim. App. 1975); State v. Lomagro, 113 Wis. 2d 582, 594–95, 598, 335

N.W.2d 583 (1983).

43 Although the sixth amendment right to a unanimous jury was not yet

fully incorporated when Richardson was decided, the federal courts have

not questioned this analysis in the wake of Ramos v. Louisiana, U.S.

, 140 S. Ct. 1390, 1397, 206 L. Ed. 2d 583 (2020).