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STATE OF CONNECTICUT v. VERE C.1

(AC 36407)

Alvord, Keller and Harper, Js.

Argued April 10—officially released August 26, 2014

(Appeal from Superior Court, judicial district of

Fairfield, Kavanewsky, J.)

Janice N. Wolf, assistant public defender, for the

appellant (defendant).

James M. Ralls, assistant state’s attorney, with

whom, on the brief, were John C. Smriga, state’s attorney, and Cornelius P. Kelly, senior assistant state’s

attorney, for the appellee (state).
Opinion

KELLER, J. The defendant, Vere C., appeals from the

judgment of conviction, rendered following a jury trial,

of four counts of sexual assault in the first degree in

violation of General Statutes § 53a-70 (a) (1), three

counts of sexual assault in the first degree in violation

of General Statutes § 53a-70 (a) (2), three counts of risk

of injury to a child in violation of General Statutes § 53-

21 (a) (2), and one count each of attempt to commit

sexual assault in the first degree in violation of General

Statutes § 53a-49 (a) (2) and § 53a-70 (a) (1), attempt

to commitrisk of injury to a child in violation of General

Statutes § 53a-49 (a) (2) and § 53-21 (a) (2), and sexual

assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (A) or (B).2 This case concerns

offenses committed by the defendant against three

minor children, namely, S.G., N.W., and K.C. The defendant claims that (1) the trial court improperly admitted

certain prior misconduct evidence, (2) the court

improperly admitted certain constancy of accusation

evidence, (3) the court improperly limited his crossexamination of a witness,(4) his conviction under three

counts of the state’s amended substitute information

violated his constitutional right to a unanimous jury

verdict, (5) the court improperly denied his motion to

sever certain counts of the information, and (6) the

evidence was insufficient for a conviction under two

counts of the information. We affirm the judgment of

the trial court.

The jury reasonably could have found the following

facts. When S.G. was approximately five years old in

the spring of 2003, she was living with her mother, U.G.,

in an apartment in Bridgeport. At about this time, the

defendant moved into an adjacent apartment with his

girlfriend, M.S., and three minor children: M.S.’ son,

N.W., who was approximately one year older than S.G.;

the defendant’s son, K.C., who was approximately one

year older than S.G.; and the defendant’s daughter, S.F.,

who was approximately four to five years older than

S.G. The defendant began a relationship with U.G. and,

in 2005, both U.G. and M.S. gave birth to children who

were fathered by the defendant.

The defendant began providing child care for S.G.,

S.F., N.W., and K.C. during the week and on weekends

while M.S. and U.G. worked outside of the home. After

this child care arrangement began, the defendant began

to sexually abuse S.G. during a series of incidents that

occurred over the next several years.

During one incident, S.G. was playing with S.F. when

the defendant entered the room, physically restrained

S.G. on a bed, removed his pants, and attempted to

undress S.G. S.G. pulled away from the defendant, who

proceeded to undress S.F. before physically and sexually abusing her while S.G. watched. The defendant
made S.G. promise not to tell anyone what had

occurred.

In a second incident, S.G. was alone with S.F. when

the defendant, who was not wearing pants, entered the

room. The defendant held S.G. and S.F. and forced them

to perform oral sex on him.

In a third set of incidents, the defendant compelled

N.W. to undress and insert his penis into S.G.’s vagina.

At one point during this incident, he pushed N.W. so

that he could perform this act. N.W. submitted to the

defendant because he had been physically assaulted by

the defendant, he had observed the defendant physically assault others, and he feared retribution from the

defendant. Also, the defendant compelled S.G. to

undress while K.C. touched S.G.’s private parts. The

defendant pushed and verbally insulted K.C. during this

incident, and K.C. complied with the defendant because

he feared physical retribution if he did not do so.

In a fourth set of incidents, which occurred after the

defendant began to live with U.G., the defendant forced

S.G. to perform oral sex on him, typically in a closed

room. The defendant threatened to harm S.G.’s family

if she told anyone about the abuse, and S.G. feared

physical abuse by the defendant.

A fifth incident occurred when S.G. was eight years

of age. S.G. and the defendant returned from a fishing

trip at which time the defendant physically restrained

her on a bed, removed her pants, and inserted his penis

into her vagina. Again, S.G., fearing the defendant, did

not report the abuse.

The sixth set of incidents, which occurred when S.G.

was approximately ten years old, took place at S.G.’s

residence when the defendant would visit her family.

These incidents consisted of forcible vaginal intercourse with S.G. The last of these incidents occurred

after Christmas, 2009. S.G. continued to remain silent

in the face of the defendant’s sexual assaults because

she feared that he would physically retaliate against

her or her family. Additional facts will be set forth

as necessary.

I

First, the defendant claims that the court improperly

admitted certain prior misconduct evidence related to

his sexual abuse of S.F. Specifically, the defendant

claims that the court improperly admitted testimony

from S.G. that, in connection with the first incident

described previously in this opinion, afterthe defendant

attempted to assault her in S.F.’s bedroom, she witnessed the defendant remove his pants, climb on top

of S.F., remove S.F.’s clothing, and that he ‘‘pretty much

raped [S.F.] . . . .’’ We do not agree that this evidence

was improperly admitted.

The record reflects that, prior to the presentation of
evidence at trial, the court heard the state’s proffer with

regard to the uncharged misconduct evidence at issue.

As relevant to this claim, the state argued that it

intended to present evidence that the defendant ‘‘tried

to do something with [S.G.], was unsuccessful and then

[S.G.] saw the defendant, as she puts it, hump [S.F.].’’

The defendant’s attorney objected to this evidence. The

defendant’s attorney argued that the incident described

therein was remote in time because, given the lack of

precision as to the dates on which the charged offenses

were committed, it may not have occurred close in

time to when the defendant committed the crimes with

which he was charged. Also, the defendant’s attorney

argued that S.F. was too dissimilar to S.G. to warrant

the admission of the evidence because S.F. was four

or five years older than S.G., and was the defendant’s

biological daughter.

The court admitted the uncharged misconduct testimony pursuant to State v. DeJesus, 288 Conn. 418, 953

A.2d 45 (2008) (en banc), as evidence of the defendant’s

criminal propensity to engage in sexual misconduct.

The court found that the incident at issue was not

remote in time in relation to the other acts of charged

misconduct in this case. The court found that the sexual

conduct at issue, against a minor, was similar to the

charged offenses; the court stated: ‘‘You know, in a

nutshell, the claim is that the defendant sexually abused

not simply the complaining witness or witnesses here,

but another witness at or about the same time in circumstances similar to that of the complaining witness

. . . .’’ The court indicated that it would deliver a limiting instruction.3

We begin our analysis of the court’s ruling by setting

forth the applicable legal principles. ‘‘Evidence of other

crimes, wrongs or . . . acts of a person is inadmissible

to prove the bad character or criminal tendencies of

that person. Conn. Code Evid. § 4-5 (a). Evidence of

other crimes, wrongs or acts of a person is admissible

for purposes . . . such as to prove intent, identity, malice, motive, common plan or scheme, absence of mistake or accident, knowledge, a system of criminal

activity, or an element of the crime, or to corroborate

crucial prosecution testimony. Conn. Code Evid. § 4-5

(b). In State v. DeJesus, [supra, 288 Conn. 470] . . .

our Supreme Court effectively carved out an additional

exception to [those listed in] § 4-5 (b) of theConnecticut

Code of Evidence when it recognized a limited exception to the prohibition on the admission of uncharged

misconduct evidence in sex crime cases to prove that

the defendant had a propensity to engage in aberrant

and compulsive criminal sexual behavior.’’ (Emphasis

in original; internal quotation marks omitted.) State v.

Allen, 140 Conn. App. 423, 432, 59 A.3d 351, cert. denied,

308 Conn. 934, 66 A.3d 497 (2013).

In DeJesus, the court recognized that evidence in sex
crime cases routinely admitted under the common plan

or scheme exception typically is unrelated to the existence of an overall scheme or plan in the defendant’s

mind that encompasses the commission of the charged

and uncharged crimes, and that evidence admitted

under this standard ordinarily does not fall within the

true common scheme or plan exception. See State v.

DeJesus, supra, 288 Conn. 466–68. ‘‘Citing a variety of

public policy reasons, the court concluded that evidence of uncharged misconduct in sex crime cases may

be admitted to demonstrate a defendant’s propensity

to engage in sexual misconduct. . . .

‘‘The court in DeJesus determined that evidence of

this nature is admissible if three conditions are satisfied.

First, the evidence must be relevant to prove that the

defendant had a propensity or a tendency to engage in

the type of aberrant and compulsive criminal sexual

behavior with which he or she is charged. Relevancy

is established by satisfying the liberal standard pursuant

to which evidence previously was admitted under the

common scheme or plan exception. Accordingly, evidence of uncharged misconduct is relevant to prove

that the defendant had a propensity or a tendency to

engage in the crime charged only if it is: (1) . . . not

too remote in time; (2) . . . similar to the offense

charged; and (3) . . . committed upon persons similar

to the prosecuting witness. . . . Second, the evidence

must be more probative than prejudicial. . . . In balancing the probative value of such evidence against its

prejudicial effect . . . trial courts must be mindful of

the purpose for which the evidence is to be admitted,

namely, to permit the jury to consider a defendant’s

prior bad acts in the area of sexual abuse or child

molestation for the purpose of showing propensity.

. . . Third, to minimize the risk of undue prejudice to

the defendant, the admission of evidence of uncharged

sexual misconduct under the limited propensity exception . . . must be accompanied by an appropriate cautionary instruction to the jury. . . .

‘‘The trial court’s ruling on evidentiary matters will

be overturned only upon a showing of a clear abuse of

the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s

ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review of such rulings is limited

to the questions of whether the trial court correctly

applied the law and reasonably could have reached the

conclusion that it did.’’ (Citation omitted; emphasis in

original; internal quotation marks omitted.) State v.

Allen, supra, 140 Conn. App. 432–33.

On appeal, the defendant argues that the evidence

was inadmissible because (1) S.G. and S.F. are not similar to each other due to differences in their age and in

their relationship to the defendant, (2) the nature of

the misconduct involving S.F. was not similar to the
charged misconduct in this case, and (3) the prejudicial

effect of the evidence outweighed any probative value

of the evidence.

Here, the courtreasonably concluded that the victims

were similar enough to warrant the admission of the

evidence. The charged misconduct involved S.G.,

another female child who was only four to five years

younger than S.F. The male victims, N.W. and K.C.,

were approximately one year older than S.G. All of the

victims in this case, like S.F., were left in the defendant’s

care, and the allegations reflected that the defendant

abused the victims while they were in his care. The

evidence reflects that, at one point, the defendant was

in a sexual relationship with the mothers of the victims

as well as the mother of S.F. Accordingly, the defendant

is unable to demonstrate that it was unreasonable for

the court to have determined that S.F. was similar to

the victims in this case.

We likewise reject the defendant’s argument that the

uncharged misconduct was too different from the

charged misconduct to warrant its admission under

DeJesus. ‘‘[T]here is no bright line test for determining

whether alleged acts of uncharged sexual misconduct

and those involving the complaining witness in a sexual

assault case are sufficiently similar. What is clear, however, is thatthe law requires similar acts of misconduct,

not identical acts of misconduct.’’ (Emphasis in original.) State v. L.W., 122 Conn. App. 324, 333, 999 A.2d

5, cert. denied, 298 Conn. 919, 4 A.3d 1230 (2010). When

the court heard argument concerning this evidence, the

state indicated that S.G. would testify that, during the

incident at issue, the defendant was unsuccessful in his

attempt to undress her and that she then observed him

‘‘humping [S.F.].’’ During her testimony, S.G. testified

that the defendant threw her on a bed, got on top of

her, tried to remove her clothing, and that she ‘‘managed

to get out of the room before he raped me.’’ S.G. testified

that the defendant remained in the room with S.F., and

that subsequently she observed the defendant ‘‘get on

top of her and take her clothes off.’’ She stated that the

defendant ‘‘pretty much raped [S.F.] . . . .’’ In light of

all of the evidence of the mannerin which the defendant

committed sexual assaults of S.G., the court reasonably

could have determined that the uncharged misconduct

witnessed by S.G. was similar in nature to one or more

of the acts of charged misconduct in this case.4

Finally, the defendant argues that the evidence was

unduly prejudicial because S.F. is his biological daughter, the state’s case was not strong due to S.G.’s inability

to recall specific ages and dates when abuse occurred,

and the court’s limiting instructions were inadequate.

Of these contentions, the only one that is relevant to

a reasoned evaluation of the character of the evidence

is that S.F. is the defendant’s biological daughter. The

evidence, of course, was probative simply because it
was evidence of the defendant’s proclivity to sexually

abuse children, particularly those in his care. It was

particularly probative because it was sexual misconduct that occurred just moments after S.G. fled from

the defendant, and it occurred in her presence. The

evidence tended to explain S.G.’s feelings of feartoward

the defendant because she observed him striking and

sexually abusing another female child. Although the

evidence was prejudicial in that it involved the defendant’s sexual abuse of his daughter, in light of the other

evidence of the defendant’s sexual misconduct toward

S.G., K.C., and N.W., we are not convinced that it was

unduly prejudicial. The evidence of the defendant’s conduct toward S.F. was no more egregious than the evidence of the defendant’s sexual conduct toward S.G.,

a younger child, which included instances of oral and

vaginal intercourse. See, e.g., State v. Allen, supra, 140

Conn. App. 440–41 (uncharged misconduct evidence

not unduly prejudicial when not more egregious than

evidence related to charged misconduct). The defendant’s contention concerning weaknesses in S.G.’s ability to recall ages and dates when abuse occurred is not

compelling in light of her tender age when the abuse

at issue occurred.

Furthermore, we are not persuaded by the defendant’s argument, raised for the first time on appeal, that

the evidence was unduly prejudicial because the court’s

limiting instruction was ineffective. We note that in this

appealthe defendant has not properly raised a challenge

to the propriety of the court’s limiting instruction, but

discusses this issue in terms of undue prejudice in the

admission of the uncharged misconduct evidence. The

record reflects that the court delivered a limiting

instruction concerning the prior uncharged misconduct

during S.G.’s testimony, during S.F.’s testimony, and

during its final charge to the jury. These instructions,

viewed in their entirety, adequately conveyed to the jury

that the evidence, if believed by the jury, was relevant to

demonstrating the defendant’s predisposition to commit the charged sexual offenses, and that it was not

evidence that the defendant committed the charged

offenses. Accordingly, the instructions, viewed as a

whole, tended to reduce the prejudice of which the

defendant complains. In light of the foregoing, we conclude that the court’s admission of the uncharged misconduct evidence did not reflect an abuse of its

discretion.

II

Next, the defendant claims that the court improperly

admitted certain constancy of accusation evidence,

namely, testimony from S.F.’s mother, E.F., relating to

complaints made by S.F. We disagree.

The following facts underlie this claim. As set forth

in part I of this opinion, the court permitted the state

to present evidence of uncharged misconduct by the
defendant involving S.F. S.F. testified concerning the

incident observed by S.G. in which the defendant

assaulted her on the bed. S.F. testified that, while she

was living at the residence at which this assault

occurred, the defendant frequently beat her and

engaged in sexual activities with her. Also, S.F.

described an incident during which the defendant made

her and S.G. perform oral sex on him at the same time.

S.F. testified that when she was living in New York

State, she provided information to E.F. about the abuse,

and that a complaint was filed with the police.

At trial, E.F. testified about the period of time in

which S.F. resided with the defendant. E.F. testified

that, later, in 2005, after S.F. began to live with her in

New York, she questioned S.F. with regard to certain

behavioral issues, and that S.F. conveyed to her that

something of a sexual nature happened when she lived

with the defendant. The defendant’s attorney objected

to this testimony on the ground that E.F. appeared to

be providing what was akin to constancy of accusation

testimony concerning S.F., who was not a complainant

in the present prosecution. The defendant’s attorney

stated that he did not believe that evidence of this nature

was appropriate, but he could not provide the court

with any authority for his objection. The court overruled

the objection on the ground that it was unaware of any

authority that barred the testimony. Thereafter, E.F.

testified that S.F. told her that the defendant was

responsible for things of a sexual nature, and that the

very next day she made a complaint with the Bridgeport

Police Department. E.F. testified that the report did not

result in an arrest.

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

abused its discretion in admitting this evidence. He

argues that E.F. was not a constancy of accusation

witness for any of the complainants in this case, but

that her testimony related to S.F., who merely was a

noncomplaining prior misconduct witness.

‘‘Generally, [t]rial courts have wide discretion with

regard to evidentiary issues and their rulings will be

reversed only if there has been an abuse of discretion

or a manifest injustice appears to have occurred. . . .

Every reasonable presumption will be made in favor of

upholding the trial court’s ruling, and it will be overturned only for a manifest abuse of discretion.’’ (Internal quotation marks omitted.) State v. O’Neil, 67 Conn.

App. 827, 831, 789 A.2d 531 (2002). Under Connecticut

Code of Evidence § 6-11 (c), ‘‘[a] person to whom a

sexual assault victim has reported the alleged assault

may testify that the allegation was made and when it

was made, provided the victim has testified to the facts

of the alleged assault and to the identity of the person

or persons to whom the assault was reported. Any testimony by the witness about details of the assault shall

be limited to those details necessary to associate the
victim’s allegations with the pending charge. The testimony of the witness is admissible only to corroborate

the victim’s testimony and not for substantive purposes.’’ Under the controlling case law, ‘‘any testimony

by the witness regarding the details surrounding the

assault must be strictly limited to those necessary to

associate the victim’s complaint with the pending

charge . . . .’’ State v. Troupe, 237 Conn. 284, 304, 677

A.2d 917 (1996).

The parties have not directed us to, nor have we

found, any authority directly on point in which the court

admitted constancy of accusation testimony in the context of uncharged misconduct. Although the defendant

urges us to interpret the word ‘‘victim’’ in our prior case

law and the Connecticut Code of Evidence to refer

solely to the complaining victim in a sexual assault

case, we, like the trial court, are not persuaded that

such a narrow interpretation is required.

Nonetheless, we need not resolve this novel evidentiary issue because, in the present case, the defendant is

unable to successfully undermine the judgment because

he is unable to demonstrate that any error in the admission of the evidence was harmful. ‘‘When an improper

evidentiary ruling is not constitutional in nature, the

defendant bears the burden of demonstrating that the

[impropriety] was harmful. . . . [T]he proper standard

for determining whether an erroneous evidentiary ruling is harmless [is] . . . whether the jury’s verdict was

substantially swayed by the error. . . . [A] nonconstitutional error is harmless when an appellate court has

a fair assurance that the error did not substantially

affect the verdict. . . . [W]hether [the improper admission of a witness’ testimony] is harmless in a particular

case depends upon a number of factors, such as the

importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the

presence or absence of evidence corroborating or contradicting the testimony of the witness on material

points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case. . . . Most importantly, we must examine

the impact of the [improperly admitted] evidence on

the trier of fact and the result of the trial.’’ (Citations

omitted; internal quotation marks omitted.) State v.

Graham S., 149 Conn. App. 334, 341–42, 87 A.3d 1182,

cert. denied, 312 Conn. 912, A.3d (2014).

E.F.’s testimony, insofar as it disclosed the fact that

S.F. made similar accusations concerning the defendant, merely was cumulative. Testimony from S.G. and

K.C. supported a finding that S.F. made similar accusations concerning the defendant. Furthermore, at trial,

the parties agreed to a stipulation of fact, which the

court read to the jury as follows: ‘‘During the course

of testimony in the state’s case-in-chief, there has been

reference to [E.F.] making a complaint to the Bridgeport
police in 2005 concerning a disclosure made to her by

her daughter, [S.F.]. The parties, both the defense and

the state, stipulate to the following concerning that

issue: That a complaint was made to the Bridgeport

Police Department on September 5, 2005, by [E.F.]; that

the defendant was arrested for matters in this prosecution on or about December 22, 2010; that due to Connecticut statute of limitations, [S.F.] is not a

complainant that you need to consider in your deliberations. You are not to speculate the reasons for this,

but ask you to keep in mind the limited purpose and

admonitions the court gave to you when her testimony

was offered.’’ E.F. did not provide any testimony that

bore on the material issues of fact before the jury concerning the alleged sexual abuse of the complainants

in the present case. Her testimony was merely cumulative of the undisputed fact that S.F. made allegations

of abuse against the defendant in 2005, and that such

allegations did not result in the defendant’s arrest. And,

as the defendant emphasizes, the testimony of E.F., at

best, strengthened the jury’s assessment of a witness,

S.F., who, herself, provided prior misconduct evidence.

The defendant does not assert that he was unable to

cross-examine E.F., and the state presented ample evidence, apart from E.F.’s testimony, that supported a

finding of guilt. On this record, we conclude that any

error in the admission of the testimony was harmless

because it cannot be said that E.F.’s testimony likely

swayed the jury as it reached its verdict.

III

Next, the defendant claims that the court improperly

limited his cross-examination of S.G. with regard to a

false statement she made about her mother, U.G. The

defendant argues that the court’s ruling deprived him

of his right to confront his accuser, as guaranteed by

the state and federal constitutions. We disagree.

The defendant’s lengthy cross-examination of S.G.

covered many topics, including the fact that following

the incidents of alleged abuse, S.G. made several statements in which she spoke favorably about the defendant. During the cross-examination, S.G. testified that

her mother went to the police to report the abuse in

2010. The defendant’s attorney asked S.G. about a prior

incident involving the Department of Children and Families (department) in March, 2010. The state objected

to the inquiry and, outside of the presence of the jury,

the defendant’s attorney made the following proffer:

‘‘[S.G.] made an allegation at school that her mother

had been beating her and her brothers with a belt and

had tried to kill her the night before, and she told the

people at school that she was afraid to go home. [The

department] got involved, and they did an investigation

that day. It turned out that [S.G.] lied, and that did not

happen; so, it goes to credibility. They also asked her

some questions about the defendant at the time,
whether she had any problems with him, if she’s afraid

of him, and the reports that we have indicate that she

indicated that he’s a good father, he’s always nice to

her and her family, and she has no concerns about

her brother being with [the defendant]. And she also

indicated that she can’t remember the last time that

she saw him.’’ The defendant’s attorney indicated that,

with regard to S.G.’s complaint about her mother, ‘‘she

admitted that she lied, that she made the whole thing

up.’’

The court sustained the state’s objection on the

ground of relevance. The court stated that the allegations about U.G. were distinct from those concerning

the defendant. The court stated that it would disallow

any questions concerning the allegedly false statement

concerning S.G.’s mother, but that it would allow

inquiry into any statements that S.G. made concerning

the defendant. Thereafter, before the jury, the defendant’s attorney pursued an inquiry related to the fact

that S.G. had made favorable comments to the department about the defendant in March, 2010. Specifically,

S.G. acknowledged that she stated that the defendant

was ‘‘a good dad,’’ ‘‘[t]hat he was nice,’’ and that, at that

time, she did not recall the last time she had seen him.

Although the defendant couches his claim in constitutional terms, he did not do so at trial. Before the court,

he merely stated that the evidence at issue ‘‘goes to

credibility.’’ The defendant affirmatively seeks review

pursuant to the doctrine set forth in State v. Golding,

213 Conn. 233, 239–40, 567 A.2d 823 (1989). The record

is adequate for our review, and the defendant’s claim,

implicating the rights to confrontation and to present

a defense, is of constitutional magnitude. See State v.

Marcelino S., 118 Conn. App. 589, 599, 984 A.2d 1148

(2009), cert. denied, 295 Conn. 904, 988 A.2d 879 (2010).

The defendant, however, is unable to satisfy Golding’s

third prong by demonstrating that a constitutional violation clearly exists and clearly deprived him of a fairtrial.

As we turn to the merits of the claim, we set forth

some applicable principles. ‘‘The right to cross-examine

a witness concerning specific acts of misconduct is

limited in three distinct ways. First, cross-examination

may only extend to specific acts of misconduct other

than a felony conviction if those acts bear a special

significance upon the [issue] of veracity . . . . Second,

[w]hether to permit cross-examination as to particular

acts of misconduct . . . lies largely within the discretion of the trial court. . . . Third, extrinsic evidence

of such acts is inadmissible.’’ (Internal quotation marks

omitted.) State v. Morgan, 70 Conn. App. 255, 272–73,

797 A.2d 616, cert. denied, 261 Conn. 919, 806 A.2d 1056

(2002); see also Conn. Code Evid. § 6-6 (b) (1) (‘‘[a]

witness may be asked, in good faith, about specific

instances of conduct of the witness, if it is probative

of the witness’ character for untruthfulness’’).
‘‘The sixth amendmentto the [United States] constitution guarantees the right of an accused in a criminal

prosecution to confront the witnesses against him

. . . . Nonetheless . . . [t]he defendant’s right to confront witnesses against him is not absolute, but must

bow to other legitimate interests in the criminal trial

process. . . .

‘‘In order to comport with the constitutional standards embodied in the confrontation clause, the trial

court must allow a defendant to expose to the jury facts

from which [the] jurors, as the sole triers of fact and

credibility, could appropriately draw inferences relating

to the reliability of the witness. . . . We have emphasized in numerous decisions, however, that the confrontation clause does not give the defendant the right to

engage in unrestricted cross-examination. . . . A

defendant may elicit only relevant evidence through

cross-examination. . . . The court determines

whether the evidence sought on cross-examination is

relevant by determining whether that evidence renders

the existence of [other facts] either certain or more

probable.’’ (Citations omitted; internal quotation marks

omitted.) State v. Crespo, 303 Conn. 589, 610–11, 35

A.3d 243 (2012).

‘‘Even when the proffered testimony is relevant . . .

the confrontation clause is offended only when a trial

court precludes defense counsel from exposing to the

jury facts from which jurors, as the sole triers of fact and

credibility, could appropriately draw inferences relating

to the reliability of the witness. . . . In such cases,

constitutional prejudice is established where a reasonable jury might have received a significantly different

impression of [a witness’] credibility had [defense]

counsel been permitted to pursue his proposed line of

cross-examination. . . .

‘‘This analysis necessarily involves a case-and-factspecific balancing test, weighing the relevance of the

proposed cross-examination to the defendant’s case

against the potential to cause unfair prejudice to the

victim and the extent to which the inquiry would be

repetitive or duplicative of other evidence. . . . In

determining whether a defendant’s right of cross-examination has been unduly restricted, we consider the

nature of the excluded inquiry, whether the field of

inquiry was adequately covered by other questions that

were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated

at trial. . . . Finally, trial judges retain wide latitude

insofar as the [c]onfrontation [c]lause is concerned to

impose reasonable limits on such cross-examination

based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’

safety, or interrogation that is repetitive or only marginally relevant.’’ (Citations omitted; internal quotation

marks omitted.) State v. Mark R., 300 Conn. 590, 609–10,
17 A.3d 1 (2011).

Here, the excluded evidence, which was that S.G.

made a dishonest statement about her mother to some

unknown persons at her school,5

tended to demonstrate

that S.G. had an untruthful character. Yet, this evidence

was relevant to an assessment of S.G.’s credibility generally, for the defendant’s proffer did not suggest that

the evidence was in any way related to S.G.’s complaints

about the defendant or the sexual abuse she allegedly

suffered. The court permitted the defendant to inquire

into the substance of the statements that S.G. made

about him at the time of this incident at school.

In considering whether the exclusion of the evidence

was an improper infringement of the defendant’s right

to confront S.G., we pay particular attention to the

nature of the cross-examination that was undertaken

by the defense. At trial, the defendant’s attorney conducted a lengthy cross-examination of S.G. Topics covered included dates and ages when abuse allegedly

occurred, the physical locations where abuse allegedly

occurred, as well as the nature of the living arrangements when abuse occurred. The defendant’s attorney

inquired with regard to the specific allegations of abuse

and the manner in which S.G. reacted to them. The

defendant’s attorney brought out inconsistencies in

S.G.’s testimony and pursued inquiry into statements

made by S.G. prior to trial that were favorable to the

defendant. Additionally, the defendant’s attorney

emphasized the fact that, during pretrial investigations

into the abuse, S.G. did not disclose all of the facts that

she testified to during her trial testimony. Specifically,

the defendant’s attorney inquired about the potentially

consequential fact that, during a 2010 forensic interview, at which time S.G. was made aware of the fact

that she should fully disclose details of the abuse, S.G.

did not disclose that the defendant had abused S.F.,

N.W., or K.C. The defendant’s attorney also inquired

into the fact that, in 2005, S.G. stated to U.G. and the

department that the defendant was nice to her and that

nothing had happened involving the defendant. These

themes were echoed during the closing argument of

the defendant’s attorney.

The defendant aptly notes that in a case such as the

present, in which S.G.’s allegations of abuse were not

corroborated by physical evidence and her credibility

was of paramount importance, it was necessary that

he be afforded an ample opportunity to confront S.G.

The record, however, reflects that the court permitted

vigorous cross-examination and that the defendant

inquired into several topics that shed light on the veracity of S.G.’s allegations and testimony. The defendant’s

proffer concerning the excluded evidence was that S.G.

was untruthful to someone at her school about her

mother, this triggered a response by the school, and

S.G. admitted that she had told a lie. This evidence does
not strongly call into doubt her veracity, and in light

of the fact that the excluded evidence did not pertain

to the allegations made by S.G. against the defendant,

but to her credibility generally, we do not conclude

that the evidence likely would have affected the jury’s

assessment of S.G. or its verdict. Accordingly, we conclude that a constitutional violation does not exist. The

claim fails under Golding’s third prong.

IV

Next, the defendant claims that his conviction under

three counts of the state’s amended substitute information violated his right to a unanimous jury verdict.

We disagree.

In the operative amended substitute information, the

state charged in count seven that in Bridgeport ‘‘on

diverse dates between 2005 and 2010, [the defendant]

compelled another person, [S.G.], to engage in sexual

intercourse by the use of force or by the threat of the

use of force against such other person, [S.G.], which

reasonably caused such person, [S.G.], to fear physical

injury to such person, [S.G.], in violation of [General

Statutes §] 53a-70 (a) (1) . . . .’’ In count eight, the

state charged that in Bridgeport ‘‘on diverse dates

between 2005 and the spring of 2010, the [defendant]

engage[d] in sexual intercourse with another person,

[S.G.], and such other person, [S.G.], was under thirteen

years of age and the actor was more than two years

older than such other person, [S.G.], in violation of

[General Statutes §] 53a-70 (a) (2) . . . .’’ In count nine,

the state charged that in Bridgeport ‘‘on diverse dates

between 2005 and the spring of 2010, the [defendant]

had contact with the intimate parts . . . of a child,

[S.G.], under sixteen (16) years of age, or subjected a

child, [S.G.], under sixteen (16) 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, [S.G.], in violation of [General Statutes

§] 53-21 (a) (2) . . . .’’

Prior to the start of trial, the defendant filed a motion

for a bill of particulars. In support of the motion, the

defendant’s attorney stated that counts seven, eight,

and nine of the complaint ‘‘are all catch-all phrases . . .

encompassing the same time period for counts one

through six. There is no specificity in regard to the

allegations in those three counts . . . . We are going

to ask for those three counts to be stricken from the

information.’’ The prosecutor replied that the counts at

issue reflected the extent of the information known to

the state. Specifically, the prosecutor replied that these

counts reflected S.G.’s general allegations that abuse

had occurred approximately ten times during the time

period of 2005 to 2010, and that she was not specific

as to the physical location where the abuse occurred

in Bridgeport because she alleged that abuse occurred

in several residences. After hearing argument, the court
stated that these counts reflected the fact that the state,

dealing with young complainants, lacked more specific

information, but that in contrast to the other counts of

the information, for which the state had more precise

information, these counts ‘‘are intended to embrace

other information given by the complainants, which is

less specific.’’ Accordingly, the court denied the defendant’s request to strike the counts or to compel the

state to replead these counts.

On appeal, the defendant raises a claim of a constitutional character, asserting that the court deprived him

of his right to a unanimous verdict because, in connection with counts seven, eight, and nine, the state’s information was ‘‘too broadly worded’’ and ‘‘these counts

. . . could encompass a variety of instances [of conduct by the defendant].’’ The evidence relevant to these

counts, the defendant argues correctly, involved acts

of oral sex performed by S.G. on the defendant. The

evidence supported a finding that the defendant

received oral sex while he was in different physical

positions, that the incidents occurred in different locations, and that, in one instance, the defendant received

oral sex from S.G. and S.F. simultaneously. The defendant asserts that because S.G. testified about factually

distinct instances of abuse that possibly could have

been encompassed by the broadly worded counts

seven, eight, and nine of the information, there existed

a risk that the jury could have found him guilty without

agreeing unanimously as to the criminal conduct underlying each of these counts. The defendant asserts that

‘‘[he] was likely convicted on the basis of juror votes

relating to entirely separate incidents.’’

Although the defendant’s attorney argued before the

trial court that the counts at issue should be ordered

repleaded or stricken from the information, the record

does not reflect that the defendant raised the constitutional claim at trial that he advances in this claim before

this court. The claim advanced before the trial court

reasonably could be interpreted as being limited to an

issue of notice to the defense of the nature of the

charges. In contrast, the claim raised here is based on

the defendant’s right to be convicted by a unanimous

jury. While not conceding that the issue is unpreserved,

the defendant affirmatively requests review pursuant

to Golding, and such review is warranted because the

record is adequate for review and the claim is of constitutional magnitude. See State v. Griffin, 97 Conn. App.

169, 182, 903 A.2d 253 (‘‘[a] claim bearing on the defendant’s right to a unanimous verdict implicates a fundamental constitutional right to a fair trial’’ [internal

quotation marks omitted]), cert. denied, 280 Conn. 925,

908 A.2d 1088 (2006).

Before considering the merits of the claim, we set

forth the basic principles that apply. ‘‘Duplicity occurs

when two or more offenses are charged in a single
count of the accusatory instrument.’’ (Internal quotation marks omitted.) State v. Saraceno, 15 Conn. App.

222, 228, 545 A.2d 1116, cert. denied, 209 Conn. 823,

824, 552 A.2d 431, 432 (1988). ‘‘It is now generally recognized that [a] single count is not duplicitous merely

because it contains several allegations that could have

been stated as separate offenses. . . . Rather, such a

count is only duplicitous where the policy considerations underlying the doctrine are implicated. . . .

These [considerations] include avoiding the uncertainty

of whether a general verdict of guilty conceals a finding

of guilty as to one crime and a finding of not guilty as

to another, avoiding the risk that the jurors may not

have been unanimous as to any one of the crimes

charged, assuring the defendant adequate notice, providing the basis for appropriate sentencing, and protecting against double jeopardy in a subsequent

prosecution.’’ (Citations omitted; internal quotation

marks omitted.) Id., 228–29. Here, the defendant argues

that the policy consideration implicated is that of

avoiding the risk of a nonunanimous verdict because

the jury may have agreed that he was guilty under each

of the counts at issue but that it may not have reached

unanimous agreement about which specific acts supported that verdict.

In evaluating the risk of a nonunanimous verdict, it

is appropriate that ‘‘[w]e first review the instruction

that was given to determine whether the trial court

has sanctioned a nonunanimous verdict. If such an

instruction has not been given, that ends the matter.

Even if the instructions at trial can be read to have

sanctioned such a nonunanimous verdict, however, we

will remand for a new trial only if (1) there is a conceptual distinction between the alternative acts with which

the defendant has been charged, and (2) the state has

presented evidence to support each alternative act with

which the defendant has been charged.’’ (Emphasis

added; internal quotation marks omitted.) State v.

Dyson, 238 Conn. 784, 792, 680 A.2d 1306 (1996).

Our careful review of the court’s instructions in the

present case reveals that the court did not sanction a

nonunanimous verdict. When the court delivered its

instructions, it repeatedly stated that the jury must consider each count ‘‘separately and independently’’ from

the other counts. The court’s instructions, viewed as a

whole, impressed upon the jury that it must consider

the defendant’s conduct as it related to each count of

the information. As it pertained to the counts at issue,

the court reminded the jury that, although the offenses

charged in counts seven, eight, and nine, were alleged

to have been committed during the same time period

in which other offenses were alleged to have been committed, the state bore the burden of proving that the

criminal acts at issue in these charges were ‘‘separate

and distinct’’ from the acts at issue in the other charges.
The court repeatedly instructed the jury when

instructing it as to each count in the state’s information,

including counts seven, eight, and nine, that it must

reach a unanimous verdict. After instructing the jury

with regard to the specific counts, the court stated: ‘‘I

want to impress upon you that you are [duty] bound

as jurors to apply the law as I outlined it to determine

the facts on the basis of the evidence as has been presented, and then to render a verdict fairly, uprightly,

and without any prejudice. When you reach a verdict

as to any count it must be unanimous. All of you must

agree to it whether that verdict is guilty or not guilty.’’

(Emphasis added.)

The court’s charge not only reminded the jury as to

the importance of keeping each of the charges distinct

in terms of its findings, but the court repeatedly and

unambiguously conveyed that the jury must return a

unanimous verdict on each count of the information.

Moreover, there is nothing in the record to suggest that

the jury disregarded the court’s instructions; after the

verdict was delivered, the jury panel affirmed that its

verdict as to each count was unanimous. ‘‘[G]iven the

court’s admonitions concerning unanimity, we must

presume that the jury, in the absence of a fair indication

to the contrary . . . followed the court’s instruction

as to the law.’’ (Internal quotation marks omitted.) State

v. Jessie L. C., 148 Conn. App. 216, 233, 84 A.3d 936,

cert. denied, 311 Conn. 937, 88 A.3d 551 (2014). Accordingly, we conclude that the claim fails under Golding’s

third prong.6

V

Next, the defendant claims that the court improperly

denied his motion to sever counts alleging criminal

conduct against S.G. from counts alleging criminal conduct against N.W. and K.C. We disagree.

Counts one through eleven of the information alleged

crimes committed against S.G., namely, six counts alleging sexual assault in the first degree, three counts alleging risk of injury to a child, one count alleging attempted

sexual assault in the first degree and one count of

attempted risk of injury to a child. Count twelve alleged

that the defendant committed the crime of sexual

assault in the first degree in that he compelled N.W. to

engage in intercourse by the use of force or by the

threat of the use of force against S.G. Count thirteen

alleged that the defendant committed the crime of

attempted sexual assault in the first degree in that he

attempted to compel K.C. to engage in sexual intercourse by the use of force or by the threat of the use

of force against S.G. Count fourteen alleged that the

defendant committed the crime of sexual assault in the

third degree in that he compelled K.C. to engage in

sexual contact by the use of force or by the threat of

the use of force against S.G. The jury found the defen-
dant guilty under counts twelve and fourteen, but found

him not guilty under count thirteen.

Prior to trial, the defendant filed a motion pursuant

to Practice Book § 41-18 to sever counts twelve, thirteen, and fourteen from the remainder of the information, and to orderthat the severed counts be adjudicated

in a separate trial. The defendant asserted therein that

counts one through eleven alleged that the defendant

engaged in sexual crimes that occurred between 2004

and 2010 against S.G., when she was between approximately seven through twelve years of age. Count twelve

alleged that the defendant forced N.W., who was

approximately seven years of age, to engage in sexual

intercourse with S.G. in 2004 or 2005. Counts thirteen

and fourteen alleged that the defendant forced K.C.,

who was approximately seven years of age, to engage

or attempt to engage in sexual intercourse with S.G. in

or about 2004 through 2007. The defendant argued that

he was prejudiced by the joinder of these ‘‘qualitatively

different offenses’’ and argued that the charges should

be severed. In argument on the motion, the defendant’s

attorney stated that counts twelve through fourteen

were qualitatively different, that the evidence for these

charges would not be cross admissible at a separate

trial on the remaining eleven counts, and that counts

one through eleven were of a ‘‘more severe’’ nature in

that they alleged that the defendant had sex with a

young child over a long period of time. The defendant

argued that counts twelve through fourteen were of a

less serious nature, they related to acts which occurred

less frequently, and that they were ‘‘qualitatively different’’ inasmuch as they involved the defendant forcing

a child to have sexual intercourse with another child.

The defendant’s attorney noted his concern that if the

charges were not severed, it would be difficult for the

jurors to separate them in their minds and to find the

defendant not guilty generally. The state objected to

the motion to sever and, during the hearing, argued

against it.

After hearing argument, the court denied the motion,

stating: ‘‘I understand the defense argument that

[counts] twelve, thirteen and fourteen . . . pled . . .

that the defendant compelled one minor to engage in

sex with another minor, whereas the prior counts essentially allege that the defendant had sex with or sexual

contact with a minor directly.

‘‘The record should be clear that . . . this is not a

motion for joinder. The matter has apparently always

been pled in a like fashion. Rather, this is the defense’s

motion to sever these last three counts out.

‘‘I . . . don’t see that the last three counts of the

information are . . . legally qualitatively different than

the prior counts. Most importantly, I think that the jury

can give a fair and independent consideration to all of

the counts individually, and obviously the court is going
to instruct the jury to do just that, that their consideration of each count is separate and independent of the

others, and that a verdict on one count doesn’t suggest

what a verdict on another count should be. I’ll remind

the jury of that more than once.

‘‘I don’t believe that—certainly these are all in the

context of sexual misconduct allegations—I don’t know

that the jury hearing allegations that the defendant compelled one minor to engage in sex with another,

although certainly serious, I don’t know that it is more

serious than the defendant’s claimed direct sexual misconduct toward another minor directly. In fact . . .

they’re pled within the context, some of them, of the

same statute, and the legislature has . . . deemed them

to be equally severe.

‘‘I don’t think this is a case where the jury is going

to confuse the evidence. It’s not going to be a trial of

great, great length. I think they’ll be able to keep the

evidence separate and distinct in their minds, and for

that reason I believe that I think the touchstone is,

again, not the fact that there may be prejudice resulting

to the defendant as a result of the manner in which the

information is pled or the counts that are pled . . . but

whether or not there’s undue prejudice to the defendant

so that his right to a fair consideration of the case by

the jury would be affected. And I don’t believe that

there’s undue prejudice to the defendant in this particular situation.’’

Echoing the arguments for severance that he

advanced before the trial court, the defendant argues

that the court’s analysis was deficient. He asserts that

severance was required for a variety of reasons. He

argues thatthe charges atissue involved discrete factual

scenarios. He argues that the victims were not similarly

situated in terms of age, relationship to the defendant

and the types of sexual abuse alleged. In this regard, he

reiterates his argument that the types of abuse alleged in

counts one through eleven were more shocking than

the types of abuse alleged in counts twelve through

fourteen. Also, he argues that evidence related to the

counts involving S.G. would not have been cross admissible in a trial concerning the counts involving N.W. or

K.C., and vice versa. Finally, the defendant argues that

the trial, which took place over the course of six days,

involved several incidents and was complex in nature.

‘‘The principles that govern our review of a trial

court’s ruling on a motion for joinder or a motion for

severance are well established. Practice Book § 41-19

provides that, [t]he judicial authority may, upon its own

motion or the motion of any party, order that two or

more informations, whether against the same defendant

or different defendants, be tried together. See also General Statutes § 54-57 ([w]henever two or more cases

are pending at the same time against the same party in

the same court for offenses of the same character,
counts for such offenses may be joined in one information unless the court orders otherwise). In deciding

whether to sever informations joined for trial, the trial

court enjoys broad discretion, which, in the absence of

manifest abuse, an appellate court may not disturb.

. . . The defendant bears a heavy burden of showing

that the denial of severance resulted in substantial injustice, and that any resulting prejudice was beyond the

curative power of the court’s instructions. . . .

‘‘Substantial prejudice does not necessarily result

from a denial of severance even [if the] evidence of one

offense would not have been admissible at a separate

trial involving the second offense. . . . Consolidation

under such circumstances, however, may expose the

defendant to potential prejudice forthree reasons: First,

when several charges have been made against the defendant, the jury may consider that a person charged with

doing so many things is a bad [person] who must have

done something, and may cumulate evidence against

him . . . . Second, the jury may have used the evidence of one case to convict the defendant in another

case even though that evidence would have been inadmissible at a separate trial. . . . [Third] joinder of

cases that are factually similar but legally unconnected

. . . present[s] the . . . danger that a defendant will

be subjected to the omnipresent risk . . . that

although so much [of the evidence] as would be admissible upon any one of the charges might not [persuade

the jury] of the accused’s guilt, the sum of it will convince them as to all. . . .

‘‘The court’s discretion regarding joinder, however,

is not unlimited; rather, that discretion must be exercised in a manner consistent with the defendant’s right

to a fair trial. Consequently, [in State v. Boscarino,

204 Conn. 714, 722–24, 529 A.2d 1260 (1987)], we have

identified several factors that a trial court should considerin deciding whether a severance may be necessary

to avoid undue prejudice resulting from consolidation

of multiple charges for trial. These factors include: (1)

whetherthe charges involve discrete, easily distinguishable factual scenarios; (2) whether the crimes were of

a violent nature or concerned brutal or shocking conduct on the defendant’s part; and (3) the duration and

complexity of the trial. . . . If any or all of these factors

are present, a reviewing court must decide whether the

trial court’s jury instructions cured any prejudice that

might have occurred.’’(Citation omitted; internal quotation marks omitted.) State v. Davis, 286 Conn. 17, 27–29,

942 A.2d 373 (2008).

In State v. Payne, 303 Conn. 538, 549, 34 A.3d 370

(2012), our Supreme Court rejected the presumption in

favor of joinder that had previously been expressed in

the law. The court stated: ‘‘[W]e now reject the blanket

presumption in favor of joinder and establish the burden

of proof concerning joinder at trial as follows: In the
trial court, when multiple charges have already been

joined in a single information by the state pursuant

to § 54-57, and the defendant has filed a motion to

sever the charges for trial pursuant to Practice Book

§ 41-18, the defendant bears the burden of proving that

the offenses are not of the ‘same character’; General

Statutes § 54-57; and therefore that the charges should

be tried separately. On the other hand, when charges

are set forth in separate informations, presumably

because they are not of the same character, and the

state has moved in the trial court to join the multiple

informations for trial, the state bears the burden of

proving that the defendant will not be substantially

prejudiced by joinder pursuant to Practice Book § 41-

19. The state may satisfy this burden by proving, by a

preponderance of the evidence, either that the evidence

in the cases is cross admissible or that the defendant

will not be unfairly prejudiced pursuant to the Boscarino factors.’’ (Emphasis added; footnotes omitted.)

State v. Payne, supra, 549–50. With regard to situations,

like the situation that existed in the present case, in

which the prosecutor has joined multiple charges in a

single information prior to trial, the court stated:

‘‘Because § 54-57 restricts prosecutors to joining multiple charges in a single information only when, in good

faith, they find that the offenses were ‘of the same

character,’ we are not concerned that prosecutors will

do so in all cases in order to pass the burden on to the

defendant.’’ Id., 549 n.9.

In accordance with the foregoing authority, we begin

our analysis by examining whether the offenses at issue

were of the same character. Despite the defendant’s

arguments to the contrary, we conclude that he failed

to demonstrate before the trial court that the offenses

charged in counts one through eleven were of a different

character than those charged in counts twelve through

fourteen. The defendant states that S.G. was ‘‘subjected

to a type of abuse that was qualitatively different from

that of the other victims,’’ namely, N.W. and K.C. (Internal quotation marks omitted.) The defendant states:

‘‘[S.G.] was alleged to have been sexually assaulted by

a grown man, [the] defendant, in counts [one] through

[eleven] over the course of several years in several

different ways. [N.W.] and K.C. on the other hand, were

alleged to have been told to sexually assault [S.G.]. . . .

Neither of the two boys alleged that they were directly

abused by [the] defendant.’’ (Internal quotation marks

omitted.) This argument simply misses the fact that all

fourteen counts of the information were of the same

character—they related to offenses that reflected his

propensity to commit sexual misconduct against the

children in his care. Alternatively, the evidence was

indicative of a scheme, perpetrated by the defendant,

to subject S.G. to sexual abuse. S.G. was at the center

of all of the instances of sexual abuse that occurred in

this case.
Additionally, the defendant is unable to demonstrate

injustice or substantial prejudice. This is because, in

accordance with the liberal standard of relevance governing evidence of uncharged sexual misconduct discussed in part I of this opinion, which applies with equal

force to evidence of sexual misconduct with which a

defendant is charged,7

the evidence related to counts

one through eleven would have been cross admissible in

a second trial involving counts twelve through fourteen.

The evidence was relevant to demonstrating that the

defendant had a propensity to engage in aberrant and

compulsive sexual behavior with children. There can

be no dispute that the sexual events in counts twelve

through fourteen occurred during the same period of

time in which the state alleged that the defendant was

committing sexual assaults upon S.G. personally. The

offenses were similar in that they involved the sexual

abuse of S.G., and the crimes were committed by means

of the defendant exercising his control over children

in his care. Furthermore, S.G., N.W., and K.C. were

similar in age. Although N.W. and K.C. were not victims

in the offenses charged in counts one through eleven,

S.G. was integral to the commission of the crimes in

counts twelve through fourteen. Here, there is no difficulty concluding that all of the crimes were committed

against similar persons.

‘‘Our Supreme Court has determined that [w]here

evidence of one incident can be admitted at the trial

of the other, separate trials would provide the defendant

no significant benefit.It is clearthat, under such circumstances, the defendant would not ordinarily be substantially prejudiced by joinder of the offenses for a single

trial.’’ (Emphasis in original; internal quotation marks

omitted.) State v. Webb, 128 Conn. App. 846, 858, 19

A.3d 678, cert. denied, 303 Conn. 907, 32 A.3d 961 (2011).

That is the case here and, accordingly, we need not

engage in an evaluation of the Boscarino factors. In

light of the foregoing, we conclude that the defendant

has not demonstrated that the denial of the motion for

severance reflected an abuse of discretion.8

VI

Finally, the defendant claims that the evidence was

insufficient for a conviction under counts twelve and

fourteen of the information. We disagree.

Count twelve of the state’s amended substitute information, which involved the victim N.W. and alleged the

crime of sexual assault in the first degree, provides in

relevant part that the defendant ‘‘compelled another

person, [N.W.], to engage in sexual intercourse by the

use of force or by the threat of the use of force against

another person, [S.G.], which reasonably caused such

person, [N.W.], to fear physical injury to such person,

[S.G.], in violation of [General Statutes §] 53a-70 (a) (1)

. . . .’’ Count fourteen of the state’s amended substitute
information, which involved the victim, K.C., and

alleged the crime of sexual assault in the third degree,

provides in relevant part that the defendant ‘‘compelled

another person, [K.C.], to engage in sexual contact by

the use of force or by the threat of the use of force

against such other person, [S.G.], which reasonably

caused such person, [K.C.], to fear physical injury to

such person, [S.G.], in violation of [General Statutes §]

53a-72a (a) (1) (A) (B) . . . .’’

Relevant to count twelve, S.G. testified that, while

she was in the bedroom of N.W.’s mother in Bridgeport,

‘‘[N.W.] was forced to put his penis in my vagina.’’ She

testified that at the time of the offense, she and N.W.

were crying and that the defendant ‘‘pushed’’ N.W. on

top of her, at which time his penis ‘‘was forced’’ into

her vagina. S.G. testified that she did not remember the

defendant saying anything during this event, but that

the conduct at issue occurred ‘‘[m]ore than one time.’’

N.W. testified with regard to this incident as follows:

‘‘Q. All right. Now, do you ever recall a time that you

were alone with [S.G.]?

‘‘A. Yes.

‘‘Q. Okay; and could you tell us what happened on

that occasion?

‘‘A. One day after school, [the defendant] had picked

me up . . . and then he brought us back to the house

and stuff, and he brought me in a room and [S.G.] was

there. She was naked on the bed.

‘‘Q. Okay; and then what happened?

‘‘A. And then . . . he told me take my clothes off

and stuff, and then he was telling me to put my [penis]

in [S.G.’s vagina]. . . .

‘‘Q. All right; and tell me what happened then.

‘‘A. And then . . . I didn’t want to do it, but he was

calling me names and stuff.

‘‘Q. What kind of names was he calling you?

‘‘A. Punk and pussy and faggot and stuff. So, I did it

for a little bit, then I was getting scared and, like—and

then he told her to get on top of me and she did, and

I pushed her off, I ain’t want to do it no more.

‘‘Q. Okay.

‘‘A. After that, I just went outside.

‘‘Q. And what was [S.G.] doing? What was her emotional state when this was going on?

‘‘A. Well, I could tell she was scared, too.’’

N.W. testified that he did not engage in the foregoing

conduct willingly, but that he was afraid that if he did

not comply with the defendant that the defendant would

‘‘beat [him] or something.’’ He stated that he feared the
defendant and that he, S.G. and K.C. had been physically

disciplined by the defendant.

With regard to count fourteen, S.G. testified that,

while she was in the bedroom of N.W.’s mother in

Bridgeport, ‘‘[K.C.] was forced to touch my private

parts’’ in the defendant’s presence. S.G. testified that

K.C. ‘‘was pushed toward me . . . and he was hit.’’ S.G.

testified that she did notrememberthe defendant saying

anything during this event.

With regard to this incident, K.C. testified that his

father, the defendant, was in a bedroom with S.G., at

which time the defendant told S.G. to remove her clothing. He testified that the defendant asked him ‘‘[t]o feel

up on her,’’ in response to which K.C. touched S.G.’s

‘‘private areas’’ with his hands. K.C. testified that this

conduct occurred more than once. K.C. stated that he

was forced to do these things with S.G., that he was

‘‘scared,’’ and that, if he did not comply, the defendant

would call him names such as ‘‘[p]unk’’ or ‘‘[p]ussy.’’

K.C. testified that he did not report this type of activity

because the defendant beat him and the other children

‘‘a lot.’’

At the close of the state’s case-in-chief, the defendant

moved for a judgment of acquittal. With regard to counts

twelve and fourteen, the defendant’s attorney argued

that the evidence failed to demonstrate that either N.W.

or K.C. acted toward S.G. in the sexual manner that

they did because they feared physical injury to S.G.

Reasoning that the defendant’s argument was premised

on an unreasonably narrow interpretation of the evidence, the court denied the motion.

As he did at trial, the defendant argues on appeal

that, contrary to the manner in which the state drafted

its allegations in counts twelve and fourteen,9

the evidence did not demonstrate that either N.W. or K.C.

acted in the manner that they did because they feared

physical injury to S.G. Accordingly, the defendant

claims that the state failed to satisfy its burden of proof

with regard to both counts and, thus, his conviction

under these counts cannot stand.

‘‘The standard of review employed in a sufficiency

of the evidence claim is well settled. [W]e apply a two

part test. First, we construe the evidence in the light

most favorable to sustaining the verdict. Second, we

determine whether upon the facts so construed and the

inferences reasonably drawn therefrom the [trier of

fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a

reasonable doubt. . . . The trier may draw whatever

inferences from the evidence or facts established by

the evidence it deems to be reasonable and logical. . . .

Ourreview is a fact based inquiry limited to determining

whether the inferences drawn by the [trier of fact] are

so unreasonable as to be unjustifiable. . . . This court
cannot substitute its own judgment for that of the [trier

of fact] if there is sufficient evidence to support [its]

verdict.’’ (Citations omitted; internal quotation marks

omitted.) State v. Sadowski, 146 Conn. App. 693, 695–96,

79 A.3d 136 (2013), cert. denied, 311 Conn. 903, 83 A.3d

604 (2014).

An understanding of the essential elements of the

crime or crimes at issue is the necessary starting point

of any sufficiency of the evidence analysis. At this juncture, the parties disagree. The defendant asserts that

the state had a duty to prove counts twelve and fourteen

in accordance with the factual manner in which they

were alleged in the information. The state asserts that

its burden was to prove only the essential elements of

the crimes as set forth in the specific portions of the

statute alleged in the information, and that although

the state alleged that N.W. and K.C. acted out of fear

for S.G., such factual details were not essential elements

of the crimes. We agree with the state.

Section 53a-70 (a) provides in relevant part: ‘‘A person

is guilty of sexual assault in the first degree when such

person (1) compels another person to engage in sexual

intercourse by the use of force against such other person or a third person, or by the threat of use of force

against such other person or against a third person

which reasonably causes such person to fear physical

injury to such person or a third person . . . .’’ Thus,

§ 53a-70 (a) (1) requires proof that a defendant (1) compelled another person to engage in sexual intercourse

and (2) that he did so either by using force against such

person or a third person or by using the threat of use

of force, which reasonably caused such person to fear

physical injury to themselves or to a third person.

Section 53a-72a (a) provides in relevant part: ‘‘A person is guilty of sexual assault in the third degree when

such person (1) compels another person to submit to

sexual contact (A) by the use of force against such

other person or a third person, or (B) by the threat of

use of force against such other person or against a third

person, which reasonably causes such other person to

fear physical injury to himself or herself or a third

person . . . .’’ Thus, § 53a-72a (a) (1) (A) and (B)

require proof that a defendant (1) compelled another

person to submit to sexual contact and (2) that he did

so either by using force against such other person or

a third person or by using the threat of the use of

force against such other person or a third person, which

reasonably caused such other person to fear physical

injury to themselves or to a third person.

The evidence, viewed in the light most favorable to

sustaining the verdict, readily supported a finding that

N.W. and K.C. acted in the mannerthat they did because

they feared physical retribution at the hands of the

defendant. The cumulative force ofthe evidence, including the ages of the victims involved, their knowledge
of the defendant’s propensity to inflict physical abuse

and their testimony that they did not act willingly, but

out of fear, reflects that the defendant compelled their

behavior by means of threatened use of force. Accordingly, the evidence readily supported the conviction

under both counts at issue.

The defendant’s argument that, consistent with the

information, the state was bound to prove that N.W.

and K.C. were compelled to act out of a fear of the use

of force against S.G. is unavailing. ‘‘[G]enerally speaking, the state is limited to proving that the defendant

has committed the offense in substantially the manner

described in the information. . . . Despite this general

principle, however, both this court and our Supreme

Court have made clear that [t]he inclusion in the state’s

pleading of additional details concerning the offense

does not make such allegations essential elements of

the crime, upon which the jury must be instructed. . . .

Our case law makes clear that the requirement that the

state be limited to proving an offense in substantially

the manner described in the information is meant to

assure that the defendant is provided with sufficient

notice of the crimes against which he must defend. As

long as this notice requirement is satisfied, however,

the inclusion of additional details in the charge does

not place on the state the obligation to prove more than

the essential elements of the crime.’’ (Citations omitted;

emphasis added; footnote omitted; internal quotation

marks omitted.) State v. Sam, 98 Conn. App. 13, 38, 907

A.2d 99, cert. denied, 280 Conn. 944, 912 A.2d 478 (2006);

see also State v. King, 289 Conn. 496, 522 n.16, 958 A.2d

731 (2008); State v. Beavers, 99 Conn. App. 183, 192–93,

912 A.2d 1105, cert. denied, 281 Conn. 925, 918 A.2d

276 (2007). Accordingly, we reject the claim of insufficient evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

1

In accordance with our policy of protecting the privacy interests of the

victims of sexual abuse and the crime of risk of injury to a child, we decline

to identify the three victims in this case or others through whom the victims’

identities may be ascertained. See General Statutes § 54-86e.

2 The jury returned a verdict of not guilty with regard to one count of

attempted sexual assault in the first degree. The trial court imposed a

sentence of thirty years incarceration, seventeen years of which were mandatory, followed by fifteen years of special parole.

3 At trial, immediately after S.G. described the events at issue, the court

stated: ‘‘Okay. Ladies and gentlemen, the witness has testified about events

concerning [S.F.], who is not a complainant in this particular case. And

you’re not to speculate or infer or conclude anything by virtue of that alone,

that she is not a complainant in this case.

‘‘But I wanted to say this to you. In a criminal case in which a defendant

is charged with a crime exhibiting anything abhorrent or compulsive criminal

sexual behavior, evidence of the admission of another offense, uncharged

offense, and here that would be acts directed toward S.F., is admissible and

may be considered for its bearing on any matter which is relevant. However,

evidence of this uncharged offense on its own is not sufficient to prove the

defendant guilty of the crimes charged in the information. Bear in mind

that, as you consider this evidence, that at all times the state has the burden

of proving the defendant committed each of the elements of the crimes

charged in this information.
‘‘And I remind you that the defendant is not on trial for any act or claimed

offenses not charged in the information. And, of course, the credibility and

the weight you give to this evidence is for you and you alone to decide.

‘‘So, this uncharged misconduct, meaning it’s not part—that is, any acts,

any evidence of acts directed toward [S.F.]—is not charged in this information but may be considered by you for matters which are relevant. Okay.

We’ll go on.’’ The court delivered a materially similar instruction during its

final charge to the jury.

4 We note that the defendant primarily attempts to differentiate the

uncharged misconduct on the basis of S.F.’s subsequent trial testimony,

which obviously was unknown to the court at the time that it made its

ruling. S.F. testified that, during the incident at issue, the defendant became

upset because he wanted to molest S.G., but S.G. ran away from him. S.F.

testified that ‘‘[t]he defendant beat on me because he was upset . . . and

then he molested me.’’ The defendant suggests that the charged allegations

of sexual misconduct did not involve this degree of violence.

5

In his brief, the defendant states that the evidence at issue was that

‘‘[S.G.] had lied to her school officials and [the department],’’ and asserts

that ‘‘[l]ying under oath is a clear example of lack of veracity.’’ (Internal

quotation marks omitted.) The defendant’s proffer before the trial court,

however, merely included the fact that S.G. had lied to persons at her school

and later recanted. There was no suggestion in the proffer that S.G. had

made an untruthful statement while under oath.

6

In our resolution of the defendant’s claim, we are guided by this court’s

analyses in State v. Jessie L. C., supra, 148 Conn. App. 226–33, and State

v. Marcelino S., supra, 118 Conn. App. 592–97, cases that involved charges

analogous to those at issue in the present case. In rejecting the defendant’s

claim of prejudice as a result of a duplicitous information in Marcelino S.,

this court, quoting appellate precedent, observed: ‘‘[I]n a case involving the

sexual abuse of a very young child, that child’s capacity to recall specifics,

and the state’s concomitant ability to provide exactitude in an information,

are very limited. The state can only provide what it has. This court will not

impose a degree of certitude as to date, time and place that will render

prosecutions of those who sexually abuse children impossible. To do so

would have us establish, by judicial fiat, a class of crimes committable

with impunity.’’ (Internal quotation marks omitted.) State v. Marcelino S.,

supra, 597.

7 See, e.g., State v. Johnson, 289 Conn. 437, 452, 958 A.2d 713 (2008).

8 Although our conclusion that the evidence was cross admissible obviates

the need to discuss potential prejudice in any greater detail, we observe

that the jury’s finding of not guilty with regard to count thirteen dramatically

weakens the force of the defendant’s argument that the trial on all fourteen

counts likely confused the jury and led it to return a verdict that was based

on its prejudice against the defendant rather than a rational consideration

of the evidence.

9 The defendant argues that the state chose to draft its information in this

manner after significant pretrial discussion. Our review of the record reveals

that these discussions took place in the context of clarifying the nature of

the state’s allegations. At the present juncture, the defendant does not claim

prejudice resulting from the details included in the information, nor does

he claim that he lacked sufficient notice of the manner in which the state

proved the counts at issue. Instead, he raises a claim that is based on the

sufficiency of the evidence. Thus, our analysis is unaffected by this aspect

of his argument.