State v. Douglas C.

• Citation: 345 Conn. 421,285 A.3d 1067
• Decision Date: 13 December 2022
• Docket Number: SC 20456
• Parties: STATE of Connecticut v. DOUGLAS C., Jr.
• Court: Connecticut Supreme Court

345 Conn. 421

285 A.3d 1067

STATE of Connecticut

v.DOUGLAS C., Jr.^*

SC 20456

Supreme Court of Connecticut.

Argued November 15, 2021

Officially Released December 13, 2022^**

Dina S. Fisher, assigned counsel, for the appellant (defendant).

Michele C. Lukban, senior assistant state's attorney, with whom, on the brief, were Michael L. Regan, former state's attorney, and Theresa Ferryman, senior assistant state's attorney, for the appellee (state).

Robinson, C. J., and McDonald, D'Auria, Mullins, Ecker and Keller, Js.

D'AURIA, J.

It is well established that a criminal information is duplicitous¹ when it charges the defendant in a single count with two or more distinct and separate criminal offenses, thereby implicating the defendant's constitutional right to jury unanimity. What is not clear, and what we must decide in this certified appeal, is whether a defendant charged in a single count with a single statutory violation faces a duplicitous information when the evidence at trial supports multiple, separate incidents of conduct, each of which could independently establish a violation of the charged statute. We conclude as a matter of federal law that such a count is duplicitous and, if not cured by a bill of particulars or a specific unanimity instruction, violates the defendant's constitutional right to jury unanimity, thereby requiring reversal of the defendant's conviction if this duplicity creates the risk that the conviction will result from different jurors concluding that the defendant committed different criminal acts.

The defendant, Douglas C., Jr., appeals from the Appellate Court's judgment upholding his conviction, after a jury trial, of five counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2).² The defendant claims that counts one, five, and six were duplicitous because each count charged him with a single violation of § 53-21 (a) (2), despite evidence at trial of multiple, separate incidents of conduct. As a result, he argues that the trial court improperly declined to give the jury a specific unanimity instruction as to these counts. We disagree and, accordingly, affirm the judgment of the Appellate Court.

The jury reasonably could have found the following facts. The defendant had sexual and indecent contact with the intimate parts of five female children—N, C, O, S and T—on various dates while they were under the age of sixteen. State v. Douglas C ., 195 Conn. App. 728, 731, 227 A.3d 532 (2020). The five children would often be in the defendant's presence at the numerous gatherings he had at his home in Lisbon. Id. At these gatherings, the defendant would serve them alcohol, although they were under the legal age to consume alcoholic beverages. Id., at 731–32, 227 A.3d 532. The children also would be in the defendant's presence when babysitting his own children at his home or on other occasions. Id. When the defendant was in the company of the children, he had contact with their intimate parts on multiple occasions. Id.

Relevant to this appeal, on multiple occasions between 2005 and January 8, 2007, the defendant touched N's breasts. This occurred with frequency when N was at the defendant's residence, which occurred every weekend for years. Because of the frequency of this contact, N could not recall specific dates or incidents, with the exception of the first time the defendant ever touched her breasts—in a car after getting fast food—and the one and only time that the defendant touched her vagina—when he performed oral sex on her—although she could not recall the dates with any specificity. Additionally, during a single evening on a date between 2005 and September 15, 2008, the defendant touched S's vagina multiple times and made contact with her breasts. Specifically, after the defendant provided her with alcohol, S was running up and down a hill in the defendant's backyard. She fell twice, and, each time, as the defendant helped S to her feet, he touched her intimate parts—the first time he helped her up, he touched her vagina, and the second time he helped her up, he grabbed her breasts. After the defendant's wife called S and the defendant to come inside, the defendant provided S with more alcohol and sent her to bed. A few minutes later, the defendant entered the room where S was sleeping, lied down in bed with her, and touched her vagina twice. Finally, on multiple occasions between 2005 through October 23, 2007, the defendant touched T's breasts. This occurred with such regularity that T could not recall specific dates or incidents, with the exception of one specific incident. Specifically, she was present when the defendant performed oral sex on N, and, during this incident, the defendant touched her breasts, but she could not recall the date of that incident.

The five minor victims did not disclose the defendant's inappropriate contact with their intimate parts until years later. The defendant subsequently was arrested and charged with five separate counts of risk of injury to a child in violation of § 53-21 (a) (2), with each count involving a different child. In addition, he was charged with one count of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (3), in relation to N, but the trial court granted the defendant's motion for a judgment of acquittal as to this count.³

At trial, the state offered the testimony of N, S and T, as detailed previously, to establish that, on multiple occasions, the defendant had contact with their intimate parts. As a result, defense counsel requested that the court provide a specific unanimity instruction to the jury on counts one, three, four, five, and six. He argued that the evidence showed there were discrete incidents, not a continuing course of conduct, and thus "the danger that arises if the jury isn't instructed that [it has] to be unanimous on at least one of those events for each of the complainants with respect to each count is that we could imagine, easily imagine, a situation in which a certain number of jurors may believe beyond a reasonable doubt that, you know, one of those described events happened, and other jurors may not believe that that particular event happened, whereas another set of jurors may believe that a second event, as described by the complaining witnesses, happened beyond a reasonable doubt but doesn't agree with the first, you know, three jurors as to one of the other events." The prosecutor agreed that a specific unanimity instruction should be given as to count four, which charged the defendant with both having had contact with the intimate parts of O and subjecting O to contact with his intimate parts but objected to the court's giving a specific unanimity instruction on the other counts because there was testimony that "this happened all the time," every time the five children saw the defendant. The court agreed that it would provide a specific unanimity instruction as to count four but not as to the other counts because they did not involve multiple statutory subsections.

During closing argument, regarding multiple incidents of the defendant's having touched each child's intimate parts, the prosecutor argued that, "[b]ecause of the nature of the allegations here—the state is permitted to charge in this fashion—it is impossible for the state, the state contends, to prove individual episodes through the course of this period of time—so that, if you were to consider the evidence and decide that an incident of sexual contact occurred within this time period, and you're convinced beyond a reasonable doubt that at least one episode occurred, you would find the defendant guilty. ... This is not a case that involves an episode that happened one evening with crime tape around it. It's about a period of time in which the defendant had access to these young women and in which he had sexual contact with them. That's the state's contention." More specifically, the prosecutor argued that the children had testified that this touching occurred regularly any time they were with the defendant.

In response, defense counsel, in closing, argued that the children had fabricated their testimony and focused also on whether there was reasonable doubt that the children were under the age of sixteen at the time of the alleged incidents, as required by § 53-21 (a) (2). In rebuttal, the prosecutor again emphasized that this conduct did not occur on a single occasion but that the defendant continuously engaged in this inappropriate touching "weekend after weekend ...."

When instructing the jury, the trial court included only a general unanimity charge.⁴ The jury returned a guilty verdict on counts one, three, four, five, and six. The court imposed a total effective sentence of eighteen years of incarceration, execution suspended after ten years, followed by ten years of probation.

The defendant appealed to the Appellate Court, claiming that he was deprived of his constitutional right to a unanimous jury verdict because the trial court improperly denied his request for a specific unanimity instruction as to counts one, three, five, and six.⁵ State v. Douglas C ., supra, 195 Conn. App. at 745, 227 A.3d 532. Addressing this claim, the Appellate Court held that, under governing case law from this state, a specific unanimity instruction was not required because unanimity concerns arise only when the state charges the defendant in a single count with having violated multiple statutes, statutory subsections, or statutory clauses. Id., at 752, 227 A.3d 532. The Appellate Court stated that unanimity issues do not arise when a defendant is charged in a single count with violating a single statute, statutory subsection, or statutory clause on multiple occasions. Id., at 754, 227 A.3d 532. As a result, the Appellate Court held that, because the state charged the defendant under each count with having violated only a single statutory subsection, the defendant's right to jury unanimity was not...