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STATE OF CONNECTICUT v. STACY SMITH

(AC 37632)

DiPentima, C. J., and Mullins and Flynn, Js.

Argued January 30—officially released June 27, 2017

(Appeal from Superior Court, judicial district of

Hartford, Dewey, J.)

Kevin M. Smith, with whom, on the brief, were Norman A. Pattis and Daniel M. Erwin, for the appellant (defendant).

Nancy L. Walker, deputy assistant state’s attorney,

with whom, on the brief, were Gail P. Hardy, state’s

attorney, and Christopher Pelosi, senior assistant

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

DiPENTIMA, C. J. The defendant, Stacy Smith,

appeals from the judgment of conviction,rendered after

a jury trial, of sexual assault in the second degree in

violation of General Statutes § 53a-71 (a) (1) (count

one), risk of injury to a child in violation of General

Statutes § 53-21 (a) (2) (count two), sexual assault in

the second degree in violation of § 53a-71 (a) (1) (count

three), risk of injury to a child in violation of § 53-21

(a) (2) (count four), sexual assault in the fourth degree

in violation of General Statutes § 53-73a (a) (1) (count

five), risk of injury to a child in violation of § 53-21 (a)

(2)(count six), and risk of injury to a child in violation of

§ 53-21 (a) (1) (count seven). On appeal, the defendant

claims that (1) his conviction violated his right to due

process under the constitution of Connecticut because

the police lost potentially exculpatory evidence, in the

form of a text message, in violation of State v. Morales,

232 Conn. 707, 720, 657 A.2d 585 (1995), and (2) his

conviction for both sexual assault in the second degree

(counts one and three) and risk of injury to a child

(counts two and four) constituted a violation of his

constitutional right against double jeopardy. We disagree and, accordingly, affirm the judgment of the

trial court.

The jury reasonably could have found the following

facts. The charged events occurred between October,

2007, and October, 2009, when the victim1 was thirteen,

fourteen and fifteen years old. At that time, she lived

with her mother, M, two older brothers, and a younger

sister. Until the end of 2009, the victim’s family socialized ‘‘almost every weekend’’ with D, who was the victim’s godmother and M’s best friend, and D’s sons. In

2006, the victim met the defendant for the first time at

a Dunkin’ Donuts store and learned that he was the

father of D’s oldest son. The defendant was thirty-seven

or thirty-eight years old at the time, recently had finished serving a prison sentence for federal narcotics

violations, and was living in a halfway house and working at Dunkin’ Donuts. Shortly thereafter, the defendant

and D resumed their previous relationship, and, in the

winter of 2007, the defendant moved into D’s East Hartford home.

In the summers of 2007, 2008 and 2009, the victim

and her family regularly attended get-togethers at D’s

home with D, her sons, and the defendant. During that

time, the victim also frequently babysat for D’s younger

son at D’s house. On those occasions, the defendant

would often be present. The defendant’s inappropriate

behavior toward the victim started in 2007, when the

victim was socializing with D’s family and babysitting

at D’s house. Specifically, between 2007 and 2008, the

defendant began talking to the victim about sex, he

would caress her calf while they were watching a movie,

and he would show her ‘‘in his phone . . . other girls
he was messing with other than [D], telling [her] things

that he would do with them and . . . what [she] should

do with other guys if [she] was dating someone.’’

In 2008, the defendant began kissing and touching

the victim while she was babysitting or attending social

gatherings at D’s house. The defendant put his fingers in

her vagina and touched her breasts or buttocks multiple

times between October, 2008 and October, 2009. On

one occasion in the summer of 2008, the defendant

performed oral sex on the victim while she was babysitting for D. Although the victim asked him to stop and

tried to push him off of her, he continued for about

thirty seconds and stopped when he heard D’s car pull

into the driveway. On several occasions when the defendant was kissing or touching the victim, he would unzip

his pants and pull out his penis. Although the defendant

asked the victim to perform oral sex on him two or

three times, she refused, and he ‘‘laughed it off.’’

In 2010, the victim’s family stopped socializing with

D’s family because the defendant ‘‘was getting abusive’’

with D, and M did not want her daughters ‘‘to be around

all that arguing.’’ The last time the victim saw the defendant was at a Fourth of July party at D’s house in 2010,

at which the defendant tried to pull the victim into a

room and to kiss her, but she was able to escape.

In January, 2011, the victim told M about the defendant’s actions. The next day, M took the victim to the

East Hartford Police Department, where they met with

Officer Daniel Zaleski. Zaleski spoke with the victim

separately for about twenty minutes, during which time

the victim disclosed the pertinent details about the

defendant’s repeated sexual conduct toward her.

Zaleski then referred the case to a juvenile investigator,

Detective Samuel Kelsey, who investigated sexual

assaults involving minors, and reported the matter to

the Department of Children and Families (department).

On February 1, 2011, after receiving a phone call

from Kelsey requesting to speak with him about the

allegations against him, the defendant voluntarily went

to the East Hartford Police Department and gave a

statement. According to Kelsey, the defendant admitted

to having had ‘‘close contact’’ with the victim ‘‘in an

inappropriate nature, [such] as touching her breast and

vagina.’’ Specifically, during this interview with Kelsey,

the defendant ‘‘said at no time did he have sex with

her; he said he was under the influence of alcohol and

he can’t remember all the events but he does admit

having made contact with her; he said he was very sorry

and that he would like to make amends in any way

deemed necessary, this is not him . . . but that’s no

excuse.’’ After Kelsey reduced the defendant’s statement to writing, the defendant initialed and signed it.

The entire interview lasted approximately forty

minutes.
After the interview, in the lobby of the police station,

the defendant was met by Betzalda Torres, an investigator employed by the department who was investigating

the alleged physical neglect and sexual abuse of the

victim by the defendant. After Torres reviewed the allegations against him involving the physical neglect and

sexual abuse of the victim, for the purposes of the

investigation by the department, the defendant ‘‘basically, confirmed that what [the victim] said was correct,

did not deny it, and . . . [he] was feeling apologetic

to the family for what he ha[d] done.’’ The defendant

told Torres that he had been sexually inappropriate

with the victim and that he had had ‘‘many’’ discussions

with her regarding sex and her virginity. During this

interview, the defendant was not specific as to the

details of the actual acts he preformed, but he explained

that his alcohol and drug use played a role and he ‘‘took

full responsibility’’ for being ‘‘sexually inappropriate

toward [the victim].’’

The defendant subsequently was arrested and, following a jury trial, was convicted of two counts of

sexual assault in the second degree, four counts of risk

of injury to a child, and one count of sexual assault in

the fourth degree. The court, Dewey, J., subsequently

sentenced the defendant to a total effective sentence

of thirty years incarceration, followed by five years of

special parole. This appeal followed. Additional facts

will be set forth as necessary.

I

The defendant first claims that his conviction violated

his right to due process under the constitution of Connecticut because the police lost potentially exculpatory

evidence, in the form of a text message, sent from the

defendant to M, in violation of State v. Morales, supra,

232 Conn. 707. Specifically, the defendant argues that

because M showed the text message to Kelsey and

Torres, the East Hartford police and the department

were on notice of the existence of this ‘‘apologetic’’

text message, creating a duty to preserve the evidence,

and that their failure to do so violated his right to due

process under the state constitution.2 The state counters that there is an inadequate record to review the

defendant’s due process claim because he never raised

this issue before the trial court, and, therefore, the court

did not make the findings necessary for us to review

this claim. We agree with the state.

The following facts are relevant to our conclusion.

At the defendant’s trial multiple witnesses testified

regarding the existence of a text message that the defendant sent to MT in February, 2011.3 Specifically, while

being cross-examined by defense counsel, M testified

that the defendant sent her a text message that was a

purported apology for his actions involving the victim.4

During redirect examination by the prosecutor, M fur-
ther testified that she showed this text message to

Kelsey and Torres, but that she did not have a copy of

the text message because her phone had been damaged,

and she no longer had that phone.

Kelsey also testified regarding the text message sent

from the defendant to M while being cross-examined

by defense counsel. Specifically, Kelsey testified that

he had seen the text message that was a purported

apology, but that he did not memorialize it or record

it because he believed that there was probable cause

to arrest the defendant based on the statements he

made regarding the victim.5

During direct examination by the prosecutor, Torres

also testified regarding the existence and contents of

the text message. Torres explained that M showed her

a text message she had received from the defendant

that was apologetic in nature. Torres further testified

that she did not save that text message or make a copy

of it.6

In addition, Detective Frank Napolitano testified that

he submitted an ex parte warrant to obtain M’s cell

phone records and that another detective obtained a

search warrant to obtain the defendant’s cell phone

records. Napolitano further testified that the cell phone

records indicated only that a text message had been

sent from the defendant’s cell phone to M’s cell phone

on the date in question, because too much time had

lapsed for the cell phone company to be able to retrieve

the contents of the text message.7

On appeal, the defendant claims that his conviction

violated his right to due process, under article first, § 8,

of the Connecticut constitution, because the police lost

potentially exculpatory evidence in the form of a text

message that he had sent to M. It is not disputed that

the defendant did not raise his due process claim before

the trial court, and, therefore, he seeks review pursuant

to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d

823 (1989). In Golding, our Supreme Court held: ‘‘[A]

defendant can prevail on a claim of constitutional error

not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the

alleged claim of error; (2) the claim is of constitutional

magnitude alleging the violation of a fundamental right;

(3) the alleged constitutional violation . . . exists and

. . . deprived the defendant of a fair trial; and (4) if

subject to harmless error analysis, the state has failed to

demonstrate harmlessness of the alleged constitutional

violation beyond a reasonable doubt. In the absence of

any one of these conditions, the defendant’s claim will

fail. . . . Id.; see also In re Yasiel R., 317 Conn. 773,

781, 120 A.3d 1188 (2015) (modifying third prong of

Golding by eliminating word clearly before words exists

and deprived).’’ (Emphasis omitted; internal quotation

marks omitted.) State v. Mark, 170 Conn. App. 254,

264–65, A.3d (2017).
We conclude that we do not have a sufficient record

on appeal to consider this claim. See State v. Walker,

147 Conn. App. 1, 28, 82 A.3d 630 (2013) (‘‘although

Golding review requested, because defendant did not

clearly raise state constitutional claim before trial court,

state not put on notice that it was required to defend

against such claim, and, therefore, neither state nortrial

court—nor court on appeal—had benefit of complete

factual inquiry’’), aff’d, 319 Conn. 668, 126 A.3d 1087

(2015).

The defendant’s claim is based on the proposition

that his conviction violated his right to due process

under the constitution of Connecticut because the

police lost potentially exculpatory evidence in the form

of a text message that he sent to M, which M showed

to Kelsey and Torres. ‘‘Therefore, we begin by noting

that it is well established that there are two areas of

constitutionally guaranteed access to evidence such

that denying or foreclosing the defendant’s access to

that evidence may constitute a due process violation.

The first situation concerns the withholding of exculpatory evidence by the police from the accused. . . . The

second situation . . . concerns the failure of the police

to preserve evidence that might be useful to the

accused.’’ (Citation omitted; emphasis omitted; internal

quotation marks omitted.) State v. Johnson, 288 Conn.

236, 275–76, 951 A.2d 1257 (2008). It is this second

situation that the defendant claims is applicable in the

present case.

‘‘Despite these constitutional concerns, it is not sufficient under the federal or state constitution for a defendant simply to demonstrate that the police or the state

has failed to preserve evidence. With respect to a due

process violation for failure to preserve under the federal constitution, the United States Supreme Court has

held that the due process clause of the fourteenth

amendment requires that a criminal defendant . . .

show bad faith on the part of the police [for] failure to

preserve potentially useful evidence [to] constitute a

denial of due process of law. . . . Notably, in [Arizona

v. Youngblood, 488 U.S. 51, 57, 109 S. Ct. 333, 102 L. Ed.

2d 281 (1988)], the court observed that it had adopted a

higher burden for defendants seeking to demonstrate

a due process violation for failure to preserve evidence

than that applicable to claims that the state has suppressed or withheld exculpatory evidence in violation

of Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194,

10 L. Ed. 2d 215 (1963) (not requiring defendant to show

bad faith to demonstrate due process violation). The

court in Youngblood explained that it was unwilling to

read the fundamental fairness requirement of the [d]ue

[p]rocess [c]lause . . . as imposing on the police an

undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution.
‘‘In [State v. Morales, supra, 232 Conn. 720], we

rejected the federal bad faith requirement for claims

alleging a failure to preserve in violation of our state

constitution. Rather, we maintained that, in determining

whether a defendant has been afforded due process of

law under the state constitution, the trial court must

employ the . . . balancing test [laid out in State v. Asherman, 193 Conn. 695, 724, 478 A.2d 227 (1984)],

weighing the reasons for the unavailability of the evidence against the degree of prejudice to the accused.

More specifically, the trial court must balance the totality of the circumstances surrounding the missing evidence, including the following factors: the materiality

of the missing evidence, the likelihood of mistaken

interpretation of it by witnesses or the jury, the reason

for its nonavailability to the defense and the prejudice

to the defendant caused by the unavailability of the

evidence.’’ (Citations omitted; internal quotation marks

omitted.) State v. Johnson, supra, 288 Conn. 276–77.

The defendant argues that the record is adequate for

review of his due process claim because it reveals: ‘‘(1)

cause to believe that the lost evidence existed and some

reason to believe it would have helped the defendant;

(2) that the evidence was in the state’s custody at a

relevant point in time; [and] (3) the circumstances of

the loss or destruction of evidence.’’8 The state first

counters by arguing that the factors ‘‘the defendant has

identified are merely some, but not all, of the considerations a trial court would balance in evaluating the four

Asherman factors: materiality; likelihood of mistaken

interpretation; reason for nonavailability to defense;

and prejudice. . . . In particular, the defendant’s factors do not include whetherthe missing evidence would

likely be subject to misinterpretation, and whether its

loss prejudiced the defendant.’’ (Citation omitted.) The

state continues by arguing that the first and the third

factors the defendant identified are disputed and, therefore, ‘‘[t]o conclude that a verbatim copy of the text

message would have helped the defendant, this court

would have to resolve the conflicting testimony, which

it cannot do on appeal.’’9

After our review of the record, we agree with the

state. We iterate that because the defendant did not

raise this claim before the trial court, the court did not

make factual findings related to any of the Asherman

factors. See State v. Darden, 239 Conn. 467, 469–71,

687 A.2d 132 (1996) (Supreme Court declined to apply

Asherman factors for first time on appeal because

determination of Asherman factors requires factual

findings).10 Without the necessary findings, we are

unable to consider the defendant’s claim on appeal.

Accordingly, the defendant’s claim is not entitled to

Golding review because the record is inadequate for

review. See State v. Walker, supra, 147 Conn. App.

28–29.
II

The defendant next claims that his conviction for

sexual assault in the second degree pursuant to § 53a71 (a) (1)11 (counts one and three) and risk of injury to

a child pursuant to § 53-21 (a) (2)12 (counts two and

four) constituted a violation of his constitutional right

against double jeopardy. Specifically, the defendant

argues that rather than the state reciting the language

of the statutes it charged the defendant with violating

in the operative information, the state instead selected

specific acts of sexual assault—digital penetration and

cunnilingus—and charged those as both sexual assault

in the second degree and risk of injury to a child.

According to the defendant, the identification of these

specific acts as the basis for the risk of injury to a child

charges bars the state from arguing that the sexual

assault in the second degree charges were based upon

another contact with the victim. Given his assertions,

the defendantthus maintains thatthe trial court violated

his right against double jeopardy when it failed to

reverse his conviction for risk of injury to a child in

violation of § 53-21 (a) (2) (counts two and four). In

response, the state argues that the defendant’s double

jeopardy claim fails because sexual assault in the second degree and risk of injury to a child are different

offenses. We agree with the state.

The defendant did not raise this claim before the trial

court. He seeks review, therefore, pursuant to Golding.

13 Although the record is adequate for our review

and the claim is of constitutional magnitude, the defendant cannot demonstrate that a constitutional violation

existed that deprived him of a fair trial, and so his claim

must fail. See State v. Mark, supra, 170 Conn. App. 265.

As a preliminary matter, we set forth the applicable

standard of review and relevant legal principles that

govern claims involving the constitutional right against

double jeopardy. ‘‘A defendant’s claim that a conviction

violated his constitutional right against double jeopardy

raises an issue of law; our review of such a claim is

plenary. . . . The United States constitution contains

the guarantee that [n]o person shall be . . . subject for

the same offense to be twice put in jeopardy of life or

limb . . . . The fifth amendment’s prohibition of double jeopardy applies to state prosecutions through the

due process clause of the fourteenth amendment. . . .

The double jeopardy clause protects against a second

prosecution for the same offense following acquittal, a

second prosecution for the same offense after conviction and multiple punishments for the same offense.’’

(Citations omitted; internal quotation marks omitted.)

State v. Antwon W., 118 Conn. App. 180, 186–87, 982

A.2d 1112 (2009), cert. denied, 295 Conn. 922, 991 A.2d

568 (2010). It is the final protection that is implicated

in the present case.
‘‘In determining whether two offenses are the same

offense for double jeopardy purposes, we apply a two

part test. First, we must determine whetherthe offenses

arose out of the same act or transaction. . . . Second,

we must determine whether the charged crimes constitute the same offense. . . . . Multiple punishments are

a constitutional violation only where both conditions

are met.’’ (Citations omitted; internal quotation marks

omitted.) Id., 187. Accordingly, ‘‘[t]he defendant on

appeal bears the burden of proving that the prosecutions are for the same offense in law and fact.’’ (Internal

quotation marks omitted.) State v. Alvaro F., 291 Conn.

1, 6, 966 A.2d 712, cert. denied, 558 U.S. 882, 130 S. Ct.

200, 175 L. Ed. 2d 140 (2009).

The parties in the present case do not dispute that

the conduct alleged in counts one and two of the information arose out of the same act or transaction. Likewise, they agree that the conduct alleged in counts three

and four of the information arose out of the same act

or transaction. Accordingly, our analysis focuses on the

second prong of the test, namely, whether the defendant’s conviction of sexual assault in the second degree

under § 53a-71 (a) (1) (counts one and three) and risk

of injury to a child under § 53-21 (a) (2) (counts two

and four) violated the constitutional prohibition against

double jeopardy because those crimes constitute the

same offenses. See id.

‘‘Traditionally we have applied the [test set out in

Blockburger v. United States, 284 U.S. 299, 304, 52 S.

Ct. 180, 76 L. Ed. 306 (1932)] to determine whether two

statutes criminalize the same offense . . . . Under that

test, where the same act or transaction constitutes a

violation of two distinct statutory provisions, the test

to be applied to determine whether there are two

offenses or only one, is whether each provision requires

proof of a fact which the other does not. . . . This

test is a technical one and examines only the statutes,

charging instruments, and bill of particulars as opposed

to the evidence presented at trial. . . . Thus, [t]he

issue, though essentially constitutional, becomes one

of statutory construction. . . .

‘‘Our courts have addressed the relationship between

risk of injury to a child and the various degrees of

sexual assault in the context of double jeopardy claims

on several occasions, each time concluding that the

two crimes do not constitute the same offense. In State

v. Bletsch, [281 Conn. 5, 28–29, 912 A.2d 992 (2007)], for

example, we . . . concluded that, under the charging

instruments in that case, the crimes of sexual assault

in the second degree under . . . § 53a-71 (a), and risk

of injury to a child under § 53-21 (a) (2), do not constitute the same offense for double jeopardy purposes

because the language of the statutes makes it possible

to have sexual intercourse under § 53a-71 (a) without

touching the victim’s intimate parts under § 53-21 (a)
(2), and vice versa.’’ (Citations omitted; internal quotation marks omitted.) State v. Alvaro F., supra, 291

Conn. 7.

The defendant contends, however, that State v.

Bletsch, supra, 281 Conn. 28, is distinguishable from

the present case because in that case the state copied,

nearly verbatim, the language of the statute in which it

charged the defendant with violating in the information.

Contrary to Bletsch, the defendant here contends that

the state alleged exactly the same facts in support of

each of the charged offenses at issue, and, thus, the

specifics contained in the information made count one

the same offense as count two, and count three the

same offense as count four because ‘‘the state necessarily proved the risk of injury to a [child] counts when it

prove[d] the sexual assault in the second degree

counts.’’ We disagree.

The defendant’s argument is based on the precise

language used in the information that set forth the

charges against him. The information filed by the state

alleged in relevant part: ‘‘Count one: The undersigned

Senior Assistant State’s Attorney charges the defendant

. . . with the crime of sexual assault in the second

degree in violation of . . . [§] 53a-71 (a) (1) and alleges

that on or about October 2007–October 4, 2009 in East

Hartford, Connecticut, the defendant engaged in sexual

intercourse to wit: digital intercourse with another person who was thirteen years of age or older but under

sixteen years of age and the defendant was more than

three years older than such person.

‘‘Count two: The undersigned Senior Assistant State’s

Attorney further charges the defendant . . . with the

crime of risk of injury to a [child] in violation of . . .

[§] 53-21 (a) (2) and alleges that on or about October

2007–October 4, 2009 in East Hartford, Connecticut, the

defendant had contact with the intimate parts of a child

under the age of sixteen years and subjected 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 to

wit: digital intercourse.

‘‘Count three: The undersigned Senior Assistant

State’s Attorney further charges the defendant . . .

with the crime of sexual assault in the second degree

in violation of . . . [§] 53a-71 (a) (1) and alleges that

on or about 2008 in East Hartford, Connecticut, the

defendant engaged in sexual intercourse to wit: cunnilingus with another person who was thirteen years of

age or older but under sixteen years of age and the

defendant was more than three years older than such

person.

‘‘Count four: The undersigned SeniorAssistant State’s

Attorney further charges the defendant . . . with the

crime of risk of injury to a [child] in violation of [§] 53-
21 (a) (2) and alleges that on or about 2008 in East

Hartford, Connecticut, the defendant had contact with

the intimate parts of a child under the age of sixteen

years and subjected 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 to wit: cunnilingus.’’

Although the defendant contends that the state provided the same facts for counts one and two and counts

three and four in the information, our Supreme Court

has previously concluded that ‘‘[i]t is irrelevant that the

state may have relied on the same evidence to prove

that the elements of both statutes were satisfied.’’ State

v. Kirsch, 263 Conn. 390, 421, 820 A.2d 236 (2003).

Rather, ‘‘the test to be applied to determine whether

there are two offenses or only one, is whether each

provision requires proof of a fact which the other does

not.’’ (Internal quotation marks omitted.) Id., 420.

After examining the elements of the charged offenses

in the information, it is clear that § 53a-71 (a) (1) and

§ 53-21 (a) (2) each requires proof of a fact that the

other does not. For counts one and three, to prove that

a defendant is guilty of sexual assault in the second

degree in violation of § 53a-71 (a) (1), the state was

required to establish the following elements: ‘‘(1) a person engages in sexual intercourse,14 (2) with another

person who is thirteen years of age or older but under

sixteen years of age, and (3) the actor is more than two

years older than such person.’’ (Emphasis omitted.)

State v. Rivera, 84 Conn. App. 245, 249, 853 A.2d 554,

cert. denied, 271 Conn. 934, 861 A.2d 511 (2004). In

contrast, for counts two and four, ‘‘[t]o convict the

defendant of risk of injury to a child under § 53-21 [a]

(2), the state must prove that (1) the defendant had

contact with the intimate parts of, or subjected to contact with his intimate parts, (2) a child under the age

of sixteen years, (3) in a sexually and indecent manner

likely to impair the health or morals of such child.’’

(Internal quotation marks omitted.) State v. Alvaro F.,

supra, 291 Conn. 10.

Although those two offenses both share similar characteristics, it is clear that each requires proof of facts

that the other does not. Specifically, ‘‘[r]isk of injury to

a child requires proof that the contact was made in a

sexual and indecent manner likely to impair the health

or morals of the child, while sexual assault in the second

degree does not. Sexual assault in the second degree

requires proof of sexual intercourse, while risk of injury

to a child does not.’’ State v. Rivera, supra, 84 Conn.

App. 249–50. ‘‘Thus, although a defendant may not be

convicted under § 53-21 (a) (2) unless the state proves

that the contact was made in a sexual and indecent

manner likely to impair the health or morals of such

child, there is no such requirement under [§ 53a-71 (a)

(1)].’’ (Internal quotation marks omitted.) State v. Alv-
aro F., supra, 291 Conn. 10. Moreover, this court and our

Supreme Court previously have concluded that sexual

assault in the second degree in violation of § 53a-71 (a)

(1) and risk of injury to a child in violation of § 53-21

(a) (2) are in fact separate offenses. See id. (risk of

injury to child and various degrees of sexual assault do

not constitute same offense for purposes of double

jeopardy); State v. Antwon W., supra, 118 Conn. App.

190–91 (unlike offense of risk of injury to a child in

violation of § 53-21 (a) (2), ‘‘sexual assault in the second

degree in violation of § 53a-71 (a) (1) does not require

proof that the contact was made in a sexual and indecent manner likely to impair the health or morals of

the child’’ [footnote omitted]); State v. Ellison, 79 Conn.

App. 591, 602, 830 A.2d 812 (same), cert. denied, 267

Conn. 901, 838 A.2d 211(2003); see also State v. Bletsch,

supra, 281 Conn. 28 (sexual assault in second degree

and risk of injury to child do not violate double jeopardy, as each offense requires state to prove element

that other does not); State v. Rivera, supra, 84 Conn.

App. 249 (same).

In light of the foregoing, we conclude that the crimes

of sexual assault in the second degree in violation of

§ 53a-71 (a) (1) and risk of injury to a child in violation

of § 53-21 (a) (2) do not constitute the same offense

under Blockburger, as each crime requires proof of a

fact not required by the other.15 Thus, the conduct

alleged in counts one and two do not constitute the

same offense nor does the conduct alleged in counts

three and four. We, therefore, conclude that the defendant’s claim fails under the third prong of Golding

because the constitutional violation he alleges does not

exist. See State v. Golding, supra, 213 Conn. 240.

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, we decline to identify the victim or others through

whom the victim’s identity may be ascertained. See General Statutes § 54-

86e.

2 Within this due process claim, the defendant also contends that the text

message had important impeachment value, and its loss deprived him of

‘‘a singular opportunity to counter the state’s narrative of confession and

consciousness of guilt.’’ The defendantfurther contends thatthe court should

have issued an adverse inference instruction about the lost text message.

As we further discuss in this opinion, there is an inadequate record to review

the defendant’s due process claim.

3 The specific content of the text message was not entered into evidence

because it could not be retrieved.

4 The following colloquy occurred between the defense counsel and M:

‘‘[Defense Counsel]: ‘‘And after that, either to [Torres] or to the East

Hartford Police Department, you told someone that you had received a text

from [the defendant]. Is that correct?

‘‘[M]: That’s correct. . . .

‘‘[Defense Counsel]: Which—did you tell [Torres] orthe police department

first? Do you remember?

‘‘[M]: I can’t remember which one I told . . . first.

‘‘[Defense Counsel]: You—but you wound up telling both, correct?

‘‘[M]: Yes, I did.

‘‘[Defense Counsel]: And both told you to hang on to that text because

it might be important, right?
‘‘[M]: That’s correct. . . .

‘‘[Defense Counsel]: Where is that text now? Did anybody retain a copy

of it?

‘‘[M]: No. . . .

‘‘[Defense Counsel]: Did you delete it?

‘‘[M]: No, I didn’t delete it.

‘‘[Defense Counsel]: Well, where is it?

‘‘[M]: My phone [got] damaged, and I have another phone.’’

5 The following colloquy occurred between defense counsel and Kelsey:

‘‘[Defense Counsel]: Did you actually see the text message?

‘‘[The Witness]: I did read the text message. . . .

‘‘[Defense Counsel]: Okay. Did you make any effort to memorialize it or

record it?

‘‘[The Witness]: No. No, I didn’t.

‘‘[Defense Counsel]: Is there a reason why not?

‘‘[The Witness]: I believe they had probable cause—enough probable cause

with [the defendant’s] statement to submit a warrant. I didn’t really need

that, and it only said he was sorry.’’

6 The following colloquy occurred between the prosecutor and Torres:

‘‘[The Prosecutor]: All right. And at that time, did [MT] show you anything

relative to her phone?

‘‘[Torres]: Yes.

‘‘[The Prosecutor]: What was that?

‘‘[Torres]: It was a text from [the defendant].

‘‘[The Prosecutor]: Okay. And what did the text say?

‘‘[Torres]: I don’t know exactly what the text says, but I recall that it

was an apology in regards to the situation that occurred between him and

[the victim].

‘‘[The Prosecutor]: From your recollection, do you know if he admitted

any conduct in that text?

‘‘[Torres]: Yes.

‘‘[The Prosecutor]: Okay. As a [department] worker, although, you’re not

in charge of criminal investigation, did you save that text at all. . . .

‘‘[Torres]: No, I didn’t.’’

7 Napolitano testified that there were numerous text messages from the

defendant’s number to M’s number, but due to a lapse of time, he was unable

to retrieve them.

8 The defendant, however, has not cited any authority for his assertion

that these factors suffice to establish an adequate record for review of his

claim on appeal.

9 The conflicting testimony consists of testimony from M, Kelsey, Torres,

and the defendant. The testimony from M, Kelsey, and Torres explained

that they had seen the text message sent from the defendant to M and that

the content of the text message was the defendant apologizing for his

behavior toward the victim. By contrast, in testifying that the text message

was not inculpatory, the defendant stated that ‘‘I might have been drinking

and that’s how something could have happened, but as far as I know nothing

has happened, and I didn’t do anything.’’

10 In State v. Walker, supra, 147 Conn. App. 29 n.4, this court further stated:

‘‘Although our Supreme Court in Darden remanded the case to the trial

court to hold an evidentiary hearing and to apply the Asherman balancing

test, such a remand was appropriate in that case because the defendant

had raised a state due process claim before the trial court, and the court

had not conducted the necessary balancing test in light of then newly decided

State v. Morales, supra, 232 Conn. 707. . . . In the present case, the defendant never raised a state due process claim nor asked the court to apply

the now well established Asherman factors. Accordingly, we conclude that

it would be inappropriate to remand the case for an evidentiary hearing.’’

(Citation omitted.) This is analogous to the present case where the defendant

did not raise a state due process claim, ask the trial court to apply the

Asherman factors or request the court to issue an adverse inference instruction during the trial. Following Walker, we, therefore, conclude that it would

be inappropriate to grant the defendant’s request to reverse his conviction

and to remand the case for a new trial that includes an adverse inference

instruction because the defendant did not raise such issues/requests before

the trial court.

11 General Statutes § 53a-71 (a) (1) provides in relevant part: ‘‘A person

is guilty of sexual assault in the second degree when such person engages

in sexual intercourse with another person and: (1) Such other person is

thirteen years of age or older but under sixteen years of age and the actor
is more than three years older than other such person . . . .’’

12 General Statutes § 53-21 (a) provides in relevant part: ‘‘Any person who

. . . (2) has contact with the intimate parts, as defined in section 53a-65,

of a child under the age of sixteen years or subjects a child under sixteen

years of age to contact with the intimate parts of such person, in a sexual

and indecent manner likely to impair the health or morals of such child

. . . shall be guilty of . . . a class B felony for a violation of subdivision

(2) of this subsection, except that, if the violation is of subdivision (2) of

this subsection and the victim of the offense is under thirteen years of age,

such person shall be sentenced to a term of imprisonment of which five years

of the sentence imposed may not be suspended or reduced by the court.’’

13 As previously discussed in part I of this opinion, under Golding, ‘‘[a]

defendant can prevail on a claim of constitutional error not preserved at

trial only if all of the following conditions are met: (1) the record is adequate

to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . . . exists and . . . deprived the defendant of a fair trial;

and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s

claim will fail.’’ (Emphasis omitted; internal quotation marks omitted.) State

v. Mark, supra, 170 Conn. App. 264.

14 General Statutes § 53a-65 (2) defines sexual intercourse as ‘‘vaginal

intercourse, anal intercourse,fellatio or cunnilingus between persons regardless of sex. Its meaning is limited to persons not married to each other.

Penetration, however slight, is sufficient to complete vaginal intercourse,

anal intercourse or fellatio and does not require emission of semen. Penetration may be committed by an object manipulated by the actor into the

genital or anal opening of the victim’s body.’’

15 In addition, we note that ‘‘[o]ur analysis of double jeopardy claims does

not end, however, with a comparison of the offenses. The Blockburger test

is a rule of statutory construction, and because it serves as a means of

discerning [legislative] purpose, the rule should not be controlling where

. . . there is a clear indication of contrary legislative intent.’’ (Internal quotation marks omitted.) State v. Mark, supra, 170 Conn. App. 268. ‘‘However,

[w]hen the conclusion reached under Blockburger is that the two crimes

do not constitute the same offense, the burden remains on the defendant

to demonstrate a clear legislative intent to the contrary.’’ (Internal quotation

marks omitted.) State v. Antwon W., supra, 118 Conn. App. 191. In the

present case, the defendant has provided no analysis to demonstrate that

the legislature did not intend the crimes described by § 53a-71 (a) (1) and

§ 53-21 (a) (2) to be separate offenses.