State v. Sanderson

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State v. Sanderson

STATE OF CONNECTICUT v.
BRANDT SANDERSON
(AC 47622)
Elgo, Suarez and Seeley, Js.

Syllabus

Convicted, following a conditional plea of nolo contendere, of risk of injury
to a child, the defendant appealed. He claimed that the trial court improp-
erly denied his motion to dismiss, in which he alleged that his right to due
process under article first, §§ 8 and 9, of the state constitution was violated
because of an approximately twenty year delay between the commission of
the crime and the date of his arrest. Held:

The trial court properly denied the motion to dismiss, as the defendant did
not establish that the prearrest delay caused him actual and substantial
prejudice, which he was required to demonstrate under State v. McFarland
(353 Conn. 169) to establish a violation of his right to due process under the
state constitution.

This court declined the defendant’s invitation to create an exception to the
rule in McFarland that would permit him to establish prejudice based on
the mere passage of time between his conduct and the time of his arrest, as
the court in McFarland squarely held that a defendant must establish actual
and substantial prejudice when making a prearrest due process claim under
the state constitution.

Argued January 15—officially released June 2, 2026

Procedural History

Substitute information charging the defendant with
the crime of risk of injury to a child, brought to the Supe-
rior Court in the judicial district of Middlesex, where the
court, Hon. Julia DiCocco Dewey, judge trial referee,
denied the defendant’s motion to dismiss; thereafter, the
defendant was presented to the court on a conditional
plea of nolo contendere; judgment of guilty, from which
the defendant appealed to this court. Affirmed.
Chad L. Edgar, assigned counsel, for the appellant
(defendant).
Henry J. Seyue, certified legal intern, with whom were
Nathan J. Buchok, assistant state’s attorney, and, on
State v. Sanderson

the brief, Michael A. Gailor, state’s attorney, for the
appellee (state).

Opinion

SUAREZ, J. The defendant, Brandt Sanderson,
appeals from the judgment of conviction, rendered after
a conditional plea of nolo contendere,1 of the crime of
risk of injury to a child in violation of General Statutes
§ 53-21 (a) (2).2 On appeal, the defendant claims that
the trial court improperly denied his pretrial motion
to dismiss. Specifically, the defendant argues that the
state’s delay in executing the warrant for his arrest (pre-
arrest delay)3 violated his right to due process under the
1
General Statutes § 54-94a provides: “When a defendant, prior to the
commencement of trial, enters a plea of nolo contendere conditional on
the right to take an appeal from the court’s denial of the defendant’s
motion to suppress or motion to dismiss, the defendant after the impo-
sition of sentence may file an appeal within the time prescribed by law
provided a trial court has determined that a ruling on such motion to
suppress or motion to dismiss would be dispositive of the case. The
issue to be considered in such an appeal shall be limited to whether it
was proper for the court to have denied the motion to suppress or the
motion to dismiss. A plea of nolo contendere by a defendant under this
section shall not constitute a waiver by the defendant of nonjurisdic-
tional defects in the criminal prosecution.”
2
General Statutes § 53-21 (a) provides: “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) a class C felony for a violation of subdivision (1) or
(3) of this subsection, and (B) a class B felony for a violation of subdivi-
sion (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.”
We note that the incidents that led to the risk of injury charge in
this case occurred between June 2002 and January 2003. Although §
53-21 had been amended in 2002; see Public Acts 2002, No. 02-138, §
4; and several times thereafter; see Public Acts 2015, No. 15-205, §
11; Public Acts 2013, No. 13-297, § 1; Public Acts 2007, No. 07-143,
§ 4; those amendments have no bearing on the merits of this appeal. In
the interest of simplicity, we refer to the current revision of § 53-21.
3
“Courts generally use the terms prearrest delay, preindictment delay,
and preaccusation delay interchangeably in the due process context.”
(Internal quotation marks omitted.) State v. McFarland, 353 Conn.
169, 176 n.3, 341 A.3d 859 (2025).
State v. Sanderson

Connecticut constitution. We disagree and, accordingly,
affirm the judgment of the court.
The following facts, which are either undisputed or
reasonably could have been found by the trial court, are
relevant to this appeal. During the period of time from
approximately June 2002 to January 2003, the victim4
was fourteen years old and the defendant was a twenty
year old volunteer youth pastor at a church located in
East Haddam. During that time, the defendant was a
mentor for a church youth group in which the victim was
involved. The defendant spent time with the victim in
connection with the church youth group, and, eventually,
the defendant kissed and fondled the victim’s genitalia,
which subsequently progressed to other forms of sexual
contact, including penile-vaginal penetration and other
types of intercourse.
The police were first made aware of the defendant’s
conduct on March 4, 2019, when a friend of the victim
reported to the Colchester Police Department that the
victim had disclosed to her that the defendant had “sexu-
ally molested” her when she was fourteen years old. On
March 8, 2019, Officer Rhoades, a police officer in Con-
necticut, spoke to Detective Michelle Gallegos from the
Seattle Police Department in Seattle, Washington, where
the victim lived at that time. Gallegos subsequently
reported that she had obtained a statement from the
victim on March 20, 2019, which was video-recorded.
In that statement, the victim indicated that the sexual
assault had occurred over an approximately six month
period from the spring of 2002 until January 2003.
Thereafter, in Connecticut, the state’s attorney’s
office, together with the Connecticut State Police,
4
In accordance with our policy of protecting the privacy interests
of the victims of the crime of risk of injury to a child, we decline to
identify the victim or others through whom the victim's identity may
be ascertained. See General Statutes § 54-86e.
Moreover, in accordance with federal law; see 18 U.S.C. § 2265 (d)
(3) (2024); we decline to identify any person protected or sought to be
protected under a protection order, protective order, or a restraining
order that was issued or applied for, or others through whom that per-
son's identity may be ascertained.
State v. Sanderson

commenced an investigation that lasted for approxi-
mately three and one-half years. During that time, the
police interviewed the victim and multiple witnesses,
several of whom were located outside of Connecticut. The
victim met with Detective Erin J. Lowney of the Con-
necticut State Police at Troop K in Colchester on June 7,
2019. During that meeting, the victim told Lowney that
she had disclosed the sexual abuse by the defendant to two
friends during their senior year of high school.5 During
that meeting, the victim also provided to the police a writ-
ten authorization to obtain certain of her medical records,
as well as various personal items, including a calendar,
journal, and photographs of her with the defendant. In
November 2019, the police contacted the church where
the defendant and the victim had participated in the
youth group, and an attorney representing the church
reported that the church had no records from the time
frame when the events allegedly occurred.
On July 21, 2022, Lowney filed an application for an
arrest warrant, which was signed a few days later by
the court, Oliver, J. In August 2022,6 the defendant
was arrested and charged with risk of injury to a child
in violation of § 53-21 (a) (2).
On April 21, 2023, the defendant filed a motion to
dismiss the charge against him, arguing, inter alia, that
the prearrest delay violated his due process rights under
the Connecticut constitution. See Conn. Const., art. I,
§§ 8 and 9.7 Specifically, the defendant asserted that,
5
The arrest warrant application reveals that the police interviewed
these two witnesses, each of whom confirmed that the victim had dis-
closed the sexual abuse to them sometime between 2004 and 2006.
6
Although the trial court’s memorandum of decision concerning the
defendant’s motion to dismiss states that the defendant was arrested
in August 2020, this appears to be a scrivener’s error.
7
Article first, § 8, of the Connecticut constitution provides in relevant
part that “[n]o person shall . . . be deprived of life, liberty or property
without due process of law . . . .”
Article first, § 9, of the Connecticut constitution provides: “No person
shall be arrested, detained or punished, except in cases clearly war-
ranted by law.”
In his motion to dismiss, the defendant also alleged a due process
claim under the federal constitution. On appeal, however, he asserts a
due process claim under the state constitution only.
State v. Sanderson

“[i]n the totality of the circumstances, where the initial
report was made approximately seventeen years after
the alleged conduct, and where the arrest warrant was
issued just short of two years past the last portion of the
investigation that is documented in the arrest warrant
affidavit,” the delays in this case were so unreasonable
as to constitute a violation of his due process rights. The
defendant further argued that the last witness interview
referenced in the arrest warrant application occurred in
August 2020 and that the warrant “provide[d] no expla-
nation for the delay from the time that the complaint
was lodged to the time that the warrant was submitted.”
The court, Hon. Julia DiCocco Dewey, judge trial
referee, held an evidentiary hearing on the motion to
dismiss on June 20, 2023. During the hearing, Lowney
and Michael A. Gailor, the state’s attorney for the judi-
cial district of Middlesex, testified, and the arrest war-
rant application and a supplemental police report were
admitted into evidence. Lowney testified that she first
submitted an initial arrest warrant application and
“casebook” to the state’s attorney’s office in November
2020. In response, the state’s attorney’s office asked
Lowney to obtain additional information, including
the victim’s complete therapy records. Lowney testified
that she submitted a second draft of the arrest warrant
application on March 8, 2022. Lowney submitted the
final arrest warrant application, which was ultimately
signed by Gailor, on or about July 16, 2022. In addition
to interviewing several out-of-state witnesses, Lowney
testified that, during the investigation, she was handling
multiple cases, and the investigation occurred during
the COVID-19 pandemic, which further contributed to
the delay.
At the hearing, defense counsel questioned Gailor
as to why the arrest warrant was not signed until July
2022, when Lowney initially had submitted materials to
the state’s attorney’s office in November 2020. Gailor
responded that he wanted Lowney to “follow up on a
number of issues,” as he did not believe that the state
State v. Sanderson

had the victim’s complete medical records. He testified
that he wanted to obtain the victim’s complete psychi-
atric records to see if they contained any exculpatory
information. Gailor also testified concerning discussions
he had with the victim regarding her reservations about
proceeding with the case and about providing an autho-
rization to obtain her treatment records.
Subsequently, in a memorandum of decision dated July
26, 2023, the trial court denied the defendant’s motion
to dismiss. Therein, the court stated: “In order to estab-
lish a federal due process violation based upon prearrest
delay, the defendant must show actual and substantial
prejudice and, further, must establish that the reasons
for the delay were unjustifiable. . . . The defendant has
not met either prong of this burden. He turns, instead,
to a claim that the state constitution affords broader
protections.
“In [State v. McFarland, Docket No. CR-19-342524,
2023 WL 2204209 (Conn. Super. January 19, 2023)],
the trial court applied the more expansive state court
constitutional analysis. However, even this standard
would not afford the defendant the result he desires. The
evidence before the court establishes neither prejudice
to the defendant nor unjustifiable delay. His argument,
[which is based on] speculation, is not the type of evidence
that this court can rely upon.”8 (Citation omitted.)
Thereafter, the defendant entered a conditional plea
of nolo contendere, reserving his right to file an appeal
8
We note that the trial court issued its memorandum of decision and
the parties filed their initial appellate briefs prior to the release of our
Supreme Court’s decision in State v. McFarland, 353 Conn. 169, 341
A.3d 859 (2025). In McFarland, the court held that a claim of prearrest
delay under the due process clauses of the Connecticut constitution; see
footnote 7 of this opinion; is governed by a balancing test, pursuant to
which the defendant first bears the burden of proving actual and sub-
stantial prejudice, and, once the defendant has “made this threshold
showing, the burden shifts to the state to establish the reasons for the
delay.” State v. McFarland, supra, 178.
For the reasons we will discuss, although the trial court did not have
the benefit of McFarland when issuing its decision, we conclude that the
court correctly determined that the defendant did not establish actual
and substantial prejudice, which is required under both McFarland and
State v. Sanderson

from the trial court’s denial of his motion to dismiss.
After a canvass of the defendant, the court accepted
the conditional plea, entered a finding of guilty, and
sentenced the defendant to five years of incarceration,
execution suspended, and ten years of probation. This
appeal followed.
On appeal, the defendant claims that the trial court
improperly denied his motion to dismiss because the
prearrest delay violated his right to due process under the
Connecticut constitution. Specifically, in arguing that
his state constitutional due process rights were violated,
he points to the nearly twenty year delay between the date
of the alleged commission of the crime and his arrest,
as well as the more than three year delay between the
time that the victim contacted the police and his arrest.9
The defendant argues that, under the standard recently
adopted by our Supreme Court in State v. McFarland,
353 Conn. 169, 178, 341 A.3d 859 (2025), he established
actual and substantial prejudice, and, after balancing
the prejudice to him against the state’s reasons for the
delay, he must prevail on his claim.10 We conclude that
the federal due process framework outlined in United States v. Marion,
404 U.S. 307, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971), and United States
v. Lovasco, 431 U.S. 783, 97 S. Ct. 2044, 52 L. Ed. 2d 752 (1977), as
discussed in McFarland.
9
It is undisputed that the state commenced its prosecution of the
defendant within the applicable statute of limitations, which, at the
time of the defendant’s alleged conduct, was thirty years from the date
that the victim attained the age of majority. See General Statutes (Rev.
to 2001) § 54-193a, as amended by Public Acts 2002, No. 02-138, § 1
(“[n]otwithstanding the provisions of section 54-193, no person may be
prosecuted for any offense, except a class A felony, involving sexual
abuse, sexual exploitation or sexual assault of a minor except within
thirty years from the date the victim attains the age of majority or
within five years from the date the victim notifies any police officer
or state’s attorney acting in such police officer’s or state’s attorney’s
official capacity of the commission of the offense, whichever is earlier”).
In 2019, the legislature repealed § 54-193a; see Public Acts 2019,
No. 19-16, § 23; and eliminated the statute of limitations for offenses
involving sexual abuse of a minor. See Public Acts 2019, No. 19-16, §
17; General Statutes § 54-193 (a).
10
Neither party disputed the applicability of McFarland at oral argu-
ment before this court. We note the concern raised by Justice D’Auria in
his concurring opinion in McFarland that, “[u]nresolved, but likely to
arise almost immediately, is whether the new balancing test announced
today will apply retroactively to defendants who already have been
State v. Sanderson

the court correctly determined that the defendant did not
establish actual and substantial prejudice as a result of
the prearrest delay, and, therefore, we reject his claim.11
We first set forth the applicable standard of review and
legal principles that are relevant to our resolution of the
defendant’s claim. “We initially address the standard of
review for a trial court’s denial of a motion to dismiss.
Because a motion to dismiss effectively challenges the
jurisdiction of the court, asserting that the state, as a
matter of law and fact, cannot state a proper cause of
action against the defendant, our review of the court’s
legal conclusions and resulting denial of the defen-
dant’s motion to dismiss is de novo. . . . Factual findings
convicted who might, by way of habeas corpus or otherwise, seek judi-
cial review of the reasons why the state delayed their arrest.” State v.
McFarland, supra, 353 Conn. 216 n.11. In the present case, however,
there are no retroactivity concerns because the threshold requirement
of actual and substantial prejudice set forth in McFarland is part of the
preexisting federal due process framework in United States v. Marion,
404 U.S. 307, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971), and United States
v. Lovasco, 431 U.S. 783, 97 S. Ct. 2044, 52 L. Ed. 2d 752 (1977). See
footnote 8 of this opinion.
11
Because the defendant did not meet his threshold burden of establish-
ing actual and substantial prejudice, we need not proceed to the next
step of the analysis outlined in McFarland, in which the burden shifts
to the state to offer reasons for the delay and the court then “balances”
the prejudice to the defendant against the state’s proffered explana-
tions and justifications for the delay. State v. McFarland, supra, 353
Conn. 178; see, e.g., State v. Pugh, 190 Conn. App. 794, 810 n.5, 212
A.3d 787 (declining to consider whether delay in arresting defendant
was wholly unjustifiable in light of conclusion that defendant did not
demonstrate actual, substantial prejudice), cert. denied, 333 Conn.
914, 217 A.3d 635 (2019); State v. Crosby, 182 Conn. App. 373, 395
n.11, 190 A.3d 1 (same), cert. denied, 330 Conn. 911, 193 A.3d 559
(2018); see also State v. Echols, 170 Conn. 11, 17–18, 364 A.2d 225
(1975) (“Whe[n] a delay does not prejudice the accused, no balance need
be struck between the cause and effect of delay. The statute of limita-
tions, not the due process clause, defines the limits of protection in such
cases.” (Footnote omitted.)).
We note, however, that the defendant does not claim that the state
acted in bad faith in the present case, and the defendant’s counsel con-
ceded at oral argument before this court that the defendant was not
claiming that the approximate three year delay during the investigatory
period was improper, stating that there were “decent reasons” for that
delay. As the defendant acknowledged in his principal appellate brief to
this court, “[c]learly, [the investigation] was slowed by the complexi-
ties of interviewing out-of-state witnesses, obtaining their statements
with the help of local police and the overall slower pace of bureaucracy
during the [COVID-19 pandemic].”
State v. Sanderson

underlying the court’s decision, however, will not be
disturbed unless they are clearly erroneous.” (Internal
quotation marks omitted.) State v. Sharpley, 232 Conn.
App. 342, 346–47, 335 A.3d 504, cert. granted, 353
Conn. 918, 345 A.3d 807 (2025).
We begin our analysis with a discussion of McFar-
land. In McFarland, our Supreme Court, in a per curiam
opinion, recently adopted a balancing test for prearrest
delay claims under the Connecticut constitution, pursu-
ant to which “a criminal defendant bears the burden of
proving that a delay in prosecution has caused actual
and substantial prejudice; once the defendant has made
this threshold showing, the burden shifts to the state
to establish the reasons for the delay.” State v. McFar-
land, supra, 353 Conn. 178. In McFarland, the court
considered whether a thirty-two year prearrest delay
between the murders at issue and the defendant’s arrest
violated his right to due process under the federal and
state constitutions. See id., 171. Our Supreme Court
noted that its balancing test “reflect[ed] the approach
employed by the United States Courts of Appeals for the
Fourth, Seventh and Ninth Circuits, and a minority of
other states.” Id., 177. The court stated that the “specific
reasoning” of the majority of the court was explained
in two separate concurring opinions, one of which was
a plurality opinion authored by Justice Alexander and
joined by Chief Justice Mullins and Justice Dannehy, the
other of which was authored by Justice Ecker and joined
in part by Justice McDonald. Id., 177–78.
Justice Alexander, in her concurring opinion, rejected
the interpretation of United States v. Marion, 404 U.S.
307, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971), and United
States v. Lovasco, 431 U.S. 783, 97 S. Ct. 2044, 52
L. Ed. 2d 752 (1977), as followed by a majority of the
federal courts of appeals and the courts of other states,
which requires the defendant to show both actual and
substantial prejudice from a prearrest delay and that
the reasons for the delay were wholly unjustifiable. See
State v. McFarland, supra, 353 Conn. 250 (Alexander,
State v. Sanderson

J., concurring). After applying an analysis of the factors
delineated in State v. Geisler, 222 Conn. 672, 684–86,
610 A.2d 1225 (1992),12 Justice Alexander reasoned that
the balancing test adopted by a plurality of the court was
“more equitable than that under the two-pronged test
because it better reflects the evidence available to the
defendant and the state.” State v. McFarland, supra, 353
Conn. 250–51 (Alexander, J., concurring). Relevant to
the issue of prejudice, Justice Alexander stated that the
defendant’s burden to establish actual and substantial
prejudice “is an exacting one; the showing must rest [on]
more than mere speculative harm . . . and [the defen-
dant] must present facts that are specific, concrete, and
supported by evidence. . . . Indeed, the Seventh Circuit
has described the defendant’s burden as a monumental
hurdle . . . .” (Emphasis added; internal quotation marks
omitted.) Id., 257.
“Actual prejudice is that which is nonspeculative in
nature, and substantial prejudice is that which meaning-
fully [impairs the defendant’s] ability to defend against
the state’s charges to such an extent that the disposi-
tion of the criminal proceeding was likely affected. . . .
Demonstrating actual and substantial prejudice requires
the defendant to establish that the delay has largely
deprived him of his ability to mount a defense through
a specific showing of lost witnesses, or other evidence,
whose information was not available from other sources.
. . . [S]ee, e.g., United States v. Hagler, [700 F.3d 1091,
1099 (7th Cir. 2012)] (the mere fact that memories have
faded is not enough to establish excessive delay, particu-
larly when defendant is able to highlight discrepancies
during cross-examination); United States v. Crouch, [84
F.3d 1497, 1515 (5th Cir. 1996)] (mere loss of potential
12
“When determining the contours of the protections provided by our
state constitution, this court examines (1) the text of the relevant con-
stitutional provisions; (2) related Connecticut precedents; (3) persuasive
federal precedents; (4) persuasive precedents of other state courts; (5)
historical insights into the intent of [the] constitutional [framers]; and
(6) contemporary understandings of applicable economic and sociologi-
cal norms [otherwise described as public policies].” (Internal quotation
marks omitted.) State v. McFarland, supra, 353 Conn. 196 n.2 (D’Auria,
J., concurring in the judgment).
State v. Sanderson

witnesses is insufficient [without] a showing that their
testimony would have actually aided the defense . . .),
[cert. denied, 519 U.S. 1076, 117 S. Ct. 736, 136 L.
Ed. 2d 676 (1997), and cert. denied sub nom. Frye v.
United States, 519 U.S. 1076, 117 S. Ct. 736, 136 L.
Ed. 2d 676 (1997)]. The court considers how the lost
evidence would have affected the defense. . . . Finally,
in determining whether there is actual and substantial
prejudice, the court considers the overall strength of
the state’s case.” (Citations omitted; internal quotation
marks omitted.) State v. McFarland, supra, 353 Conn.
257–58 (Alexander, J., concurring); see also State v.
Pugh, 190 Conn. App. 794, 808, 212 A.3d 787 (“[a] claim
of general weakening of witnesses’ memories, relying
on the simple passage of time, cannot, without a more
specific showing, be said to prejudice the defendant”
(internal quotation marks omitted)), cert. denied, 333
Conn. 914, 217 A.3d 635 (2019).
Justice Ecker agreed with Justice Alexander that a
balancing test should be applied in considering whether a
prearrest delay offends due process. See State v. McFar-
land, supra, 353 Conn. 221 (Ecker, J., concurring). In so
concluding, Justice Ecker and Justice Alexander both
found instructive our Supreme Court’s previous decision
in State v. Hodge, 153 Conn. 564, 568–69, 219 A.2d
367 (1966), in which the court applied a totality of the
circumstances test to determine whether the defendant
had established an unreasonable seizure under the state
constitution as a result of a three week delay between the
commission of the offense and the defendant’s arrest.
Justice Ecker noted that, in Hodge, the court “adopted
the following test for claims of prearrest delay under the
state constitution: The defendant’s rights under this
claim must necessarily depend on all the circumstances,
including the length of the delay, the reason for the delay,
prejudice to the defendant, and a timely presentation of
the claim to the trial court. Some prejudice to the defen-
dant’s case must be shown. Such prejudice might consist
of the unavailability of alibi witnesses or the impaired
memory of the defendant and others who vouch for his
State v. Sanderson

innocence.” (Emphasis added; internal quotation marks
omitted.) State v. McFarland, supra, 225 (Ecker, J.,
concurring). Justice Ecker noted that Hodge “also rec-
ognized that the applicable statute of limitations is the
ultimate safeguard against a [long delayed] arrest and
prosecution.” (Internal quotation marks omitted.) Id.,
226–27. To establish actual and substantial prejudice,
Justice Ecker delineated relevant factors for courts to
consider, including “the length of the delay, the nature
and seriousness of the prejudice, including whether the
defendant was substantially prevented from raising or
proving a meaningful defense, the strength of the state’s
case, and whether any prejudice could be and was miti-
gated.” Id., 241. Like Justice Alexander, Justice Ecker
characterized the threshold prejudice requirement as
“demanding” and noted that prosecutions are “rarely”
dismissed on this basis. Id., 237.
Finally, Justice D’Auria, in a separate concurring
opinion, agreed with the result reached by the majority
of the court but concluded that the Connecticut consti-
tution does not provide any greater protection against
prearrest delay than does the federal constitution. See
id., 190 (D’Auria, J., concurring in the judgment). He,
therefore, would follow the approach of a majority of the
federal courts of appeals and the courts of other states,
which adopt the two-pronged test set forth in Marion
and Lovasco requiring the defendant to prove both actual
and substantial prejudice, and that the state delayed
the arrest of the defendant in order to obtain an unfair
tactical advantage or for other improper purposes. See
id., 190, 192. Because Justice D’Auria concluded that
there was no proof of delay for tactical purposes or bad
faith, he indicated that he would reject the defendant’s
state constitutional claims. See id., 220.
In the present case, the trial court determined that
the defendant did not establish actual and substantial
prejudice. The court found that the defendant’s argu-
ments were speculative and “not the type of evidence
that this court can rely upon.” We conclude that the
State v. Sanderson

record supports the court’s finding. The defendant first
argues that the prearrest delay prejudiced him because
it “precluded [him] from mounting any sort of a defense
in terms of challenging the victim’s credibility in terms
of the details of the narrative of victimization.” To the
extent, however, that the defendant suggests that either
his memory of the events, or that of any other unidenti-
fied witness who could have testified on his behalf, was
affected by the passage of time, “the mere fact that
memories have faded is not enough to establish excessive
delay . . . .” (Internal quotation marks omitted.) State v.
McFarland, supra, 353 Conn. 258 (Alexander, J., con-
curring); see also, e.g., State v. L’Heureux, 166 Conn.
312, 321–22, 348 A.2d 578 (1974) (to establish that
delay resulted in denial of due process, defendant must
provide “specific” showing of prejudice, and “[m]ere alle-
gations of potential prejudice, of dimmed memory or of
unavailable but unspecified witnesses, are insufficient”).
Undoubtedly, the memories of all of the witnesses in a
delayed prosecution are affected by the passage of time,
including witnesses for the prosecution, which carries
the burden of proof. See State v. Morrill, 197 Conn. 507,
528, 498 A.2d 76 (1985) (“As the time between the com-
mission of the crime and trial lengthens, witnesses may
become unavailable or their memories may fade. If the
witnesses support the prosecution, its case will be weak-
ened, sometimes seriously so. And it is the prosecution
which carries the burden of proof.” (Internal quotation
marks omitted.)).
To the extent the defendant asserts that the passage
of time posed “nearly insurmountable challenges” to his
ability to find and locate favorable witnesses, any such
claim is merely speculative. See, e.g., State v. Carrione,
188 Conn. 681, 694, 453 A.2d 1137 (1982) (holding that
defendant failed to show actual prejudice on ground that
two possible witnesses died, as court could only conjec-
ture as to how testimony would have aided defense),
cert. denied, 460 U.S. 1084, 103 S. Ct. 1775, 76 L. Ed.
2d 347 (1983); State v. Coleman, 199 Conn. App. 172,
182, 235 A.3d 655 (concluding that defendant failed to
State v. Sanderson

prove there was any witness who could have provided
exculpatory testimony on his behalf and, thus, claim was
merely speculative), cert. denied, 335 Conn. 966, 240
A.3d 281 (2020). The defendant’s bare suggestion that he
would have been able to challenge the victim’s narrative
of the events had the prosecution been initiated earlier
simply falls far short of the “ ‘monumental hurdle’ ” the
defendant was required to overcome to prove actual and
substantial prejudice. State v. McFarland, supra, 353
Conn. 257 (Alexander, J., concurring).
The defendant also argues, in conclusory fashion, that
he was actually and substantially prejudiced because of
the lack of (1) church records contemporaneous with the
time frame of the alleged assault; (2) records of commu-
nications between the defendant and the victim, such as
phone records, texts, and emails; and (3) evidence from
which DNA testing could be performed. These arguments
are all unavailing because they are wholly speculative.13
See, e.g., State v. Sharpley, supra, 232 Conn. App. 350
(concluding that mere “potential” consequence of preac-
cusation delay did not violate defendant’s due process
rights). With respect to the lack of church records, the
arrest warrant application reflects that a pastor at the
church where the defendant and the victim had partici-
pated in the youth group told the police that there was no
written documentation from the time frame of 2002 to
13
We are not persuaded by the defendant’s attempt to distinguish
State v. Sharpley, supra, 232 Conn. App. 350, from the present case.
The defendant asserts that, “in Sharpley, the prejudice that was rejected
was, in fact, ‘potential consequences,’ whereas, here, the prejudice was
[due] to the loss of specific pieces of evidence such as church records and
digital records of email, text and voice communications.” We disagree
with the defendant because he has merely pointed us to potential cat-
egories of evidence—such as cell phone records—without identifying
the dates of specific calls, texts, or other communications, what those
communications would have shown, or how they would have been helpful
to his defense. Thus, as the court stated in Sharpley, the defendant has
provided no “factual basis to support this argument, or any evidence
showing prejudice to the defendant in any other manner . . . .” State
v. Sharpley, supra, 350; see also, e.g., State v. Rivas, 233 Conn. App.
506, 515, 340 A.3d 1118 (“[c]onclusory statements concerning the
cause or effect of the preaccusation delay are insufficient to substanti-
ate either of these requirements” (internal quotation marks omitted)),
cert. granted, 353 Conn. 915, 344 A.3d 153 (2025).
State v. Sanderson

2003. The fact that the church does not have any records
from that period, however, does not necessarily mean
that there ever were any such records and, if so, what
the records would have shown or whether they would
have contained exculpatory information. See State v.
McFarland, supra, 353 Conn. 258 (Alexander, J., con-
curring) (noting that courts must consider “how the lost
evidence would have affected the defense”).
Similarly, the defendant does not point to any specific
phone records or other written communications between
himself and the victim that were lost by the passage of
time. Nor has he established that, if such communications
did exist, they would have aided in his defense. Cf., e.g.,
State v. Lee, 375 S.C. 394, 399, 653 S.E.2d 259 (2007)
(defendant suffered actual and substantial prejudice
because he lost access to contemporaneous documentary
evidence that was likely exculpatory in that it would have
explained why state returned stepchildren to his home
and did not prosecute him at time of initial allegations
of sexual abuse of stepchildren). The lack of the ability to
conduct DNA testing fails for the same reason, namely,
that the defendant has not offered anything more than
speculation that DNA testing, had it been available con-
temporaneously with the events in question, would have
been helpful in his defense. See, e.g., State v. Coleman,
supra, 199 Conn. App. 182 (rejecting defendant’s claim
that he was prejudiced by prearrest delay because he was
unable to secure surveillance video, stating that “[t]he
defendant’s argument is unsupported by any evidence
that such surveillance video ever existed or that it would
have been exculpatory”). Without more, we cannot con-
clude that the trial court incorrectly determined that the
defendant had failed to establish actual and substantial
prejudice.14
Finally, we reject the defendant’s argument, made in
his reply brief and at oral argument before this court,
14
At oral argument before this court, the defendant’s counsel acknowl-
edged that the evidence presented was “thin” and “easily characterized
as perhaps speculative.” He argued that it “might make sense to reserve
judgment” on the issue of prearrest delays until after trial, citing to
State v. Sanderson

that there should be a “carve out” for cases pursuant to
which prejudice may be established by the mere passage
of time if there is a “yawning gap in time” between the
alleged criminal conduct and the investigation. The
defendant does not cite to any authority for this argu-
ment, which is contrary to our Supreme Court’s clear
directive in McFarland that the defendant must establish
actual and substantial prejudice as a threshold burden.
See State v. McFarland, supra, 353 Conn. 178. The
defendant argues that McFarland does not “close off” his
claim because, in McFarland, the state had been investi-
gating the murders in that case for a long period of time;
see State v. McFarland, supra, 172–75; whereas, in the
present case, the investigation did not commence until
2019 because the victim did not report the crime until
seventeen years after it had occurred. We see no reason,
however, why that factual distinction should change
our analysis. Our Supreme Court in McFarland did not
limit its holding to the facts of McFarland or state that
its decision should be limited to situations in which the
state had knowledge during the entire prearrest period
that a crime had been committed. Rather, the court
squarely held that, in any case in which a prearrest due
process claim is made under the Connecticut constitu-
tion, a criminal defendant must demonstrate actual and
substantial prejudice. See id., 178.
Justice Alexander’s concurring opinion in State v. McFarland, supra,
353 Conn. 260 n.4, in which Justice Alexander stated that, although
a due process violation caused by prearrest delay may be decided as a
pretrial matter, “it will often be appropriate for the trial court to defer
action on the motion, or for the defendant to renew that motion as a
posttrial matter, because the actual trial record is likely to be deter-
minative with respect to whether the defendant has established the
requisite actual and substantial prejudice without resort to impermis-
sible speculation.” The defendant’s counsel, nevertheless, did not claim
at oral argument that the trial court had erred in proceeding with the
hearing on the motion to dismiss and did not brief this argument in his
reply brief to this court as a separate claim, at which time McFarland
had been released.
Moreover, the trial court in this case held a full evidentiary hearing,
affording the defendant a full opportunity to present his due process
claim, and the defendant has not offered any reason why he was not
able to offer evidence of actual and substantial prejudice at that time.
State v. Sanderson

Moreover, adopting the defendant’s position would
contradict the legislature’s decision to eliminate the
thirty year statute of limitations for the crime of risk of
injury to a child.15 See Public Acts 2019, No. 19-16, § 17,
codified in General Statutes § 54-193 (a) (“[t]here shall
be no limitation of time within which a person may be
prosecuted for . . . a capital felony under the provisions
of section 53a-54b in effect prior to April 25, 2012, a
class A felony or a violation of section 53a-54d or 53a-
169, or . . . any other offense involving sexual abuse,
sexual exploitation or sexual assault if the victim of the
offense was a minor at the time of the offense, includ-
ing, but not limited to, a violation of subdivision (2) of
subsection (a) of section 53-21”). Our Supreme Court has
noted the legislature’s policy to allow for child sexual
abuse victims, “who may be unable to come forward at
the time the offense has occurred, a reasonable opportu-
nity to report the abuse.” State v. George J., 280 Conn.
551, 574, 910 A.2d 931 (2006), cert. denied, 549 U.S.
15
In his principal appellate brief to this court, the defendant argued
that the state constitution’s due process clauses afford broader protec-
tion than does the federal constitution. The defendant also asserted that,
when a crime has a lengthy statute of limitations, or none at all, due
process scrutiny of a delayed prosecution should be “especially search-
ing and rigorous for the very reason that the traditional function of
the statute of limitations—to wit, to protect defendants from circum-
stances where witnesses and evidence to prove their innocence may no
longer exist—is no longer in play.” In support of this proposition, the
defendant cites to one out-of-state case in which the Supreme Court of
Tennessee stated that the “limited due process” standard established in
Marion and Lovasco was, “in application, extremely one-sided.” State
v. Gray, 917 S.W.2d 668, 673 (Tenn. 1996).
We recognize that the defendant’s principal appellate brief to this
court was submitted before our Supreme Court released its decision in
McFarland. We note that the defendant’s argument with respect to
crimes that have either a lengthy statute of limitations, or none at all,
is answered by Justice Alexander in her concurring opinion in McFar-
land. Justice Alexander stated that the balancing test adopted by our
Supreme Court “does not override a legislative decision not to have a
statute of limitations for certain crimes but, rather, simply ensures a
defendant’s right to a fair trial.” State v. McFarland, supra, 353 Conn.
256 (Alexander, J., concurring). The requirement, however, to establish
actual and substantial prejudice as a result of a prearrest delay remains
the defendant’s threshold burden under McFarland. See id., 178.
State v. Sanderson

1326, 127 S. Ct. 1919, 167 L. Ed. 2d 573 (2007); see id.,
567, 568 n.11 (legislature’s determination that victims
should have opportunity to report abuse reflects “well
documented problems of shame and repressed memories
that often preclude child victims of sexual abuse from
timely reporting the crime”). Thus, even considering the
length of time that elapsed between the crime and the vic-
tim’s disclosure to the police in 2019,16 we conclude that
16
The state argues that the seventeen year period before the police
were notified of the defendant’s conduct should not be considered
because there was no state action during that time period. The defen-
dant, relying on State v. Hodge, supra, 153 Conn. 564, responds that
the relevant time period is the interval between the date of the offense
and the date of his arrest. As stated previously, however, even if we
assume arguendo that this time period is properly considered in our
analysis, the defendant has not established actual and substantial
prejudice as a result of that delay. We note that courts in at least two
other jurisdictions have rejected similar arguments on the ground that
the state did not cause the delay at issue. See, e.g., State v. Nadler, 151
N.H. 244, 245, 247–48, 855 A.2d 490 (2004) (thirty-six year preindict-
ment delay in case charging defendant with “unnatural and lascivious
acts” with thirteen year old victim was not unreasonable, as no part of
delay could be attributed to prosecution but, rather, was attributed to
victim’s failure to report crime (internal quotation marks omitted));
Story v. State, 721 P.2d 1020, 1028 (Wyo.) (rejecting claim of preac-
cusation delay when victims did not report crimes for long period of
time and noting that, “once the [s]tate became aware of the potential
crimes with which [the defendant] was charged, it proceeded diligently
to investigate and file the charges”), cert. denied, 479 U.S. 962, 107 S.
Ct. 459, 93 L. Ed. 2d 405 (1986).
We further note that the seventeen year delay in this case was well
within the applicable statute of limitations and was not uncommonly
long for a case involving alleged child sexual abuse. Accordingly, we
also reject the defendant’s argument that the “legislative purpose
behind the extended statute of limitations for sex offenses—namely,
the reality that many victims of sexual abuse delay disclosure of their
victimization—is not applicable here” because the victim had disclosed
the details of the offense to various friends within a few years of the
events at issue. See M. Hamilton, CHILD USA, “Child Sex Abuse Stat-
utes of Limitation Reform from 2002 to 2019” (May 5, 2020), pp. 6 and
n.8, available at https://childusa.org/wp-content/uploads/2020/05/
CHILD-USA-2019-Annual-SOL-Report-May-2020.pdf (last visited May
27, 2026) (noting that “[o]nly 25 [to] 33 [percent] of victims disclose in
childhood, and 33 [to] 70 [percent] disclose in adulthood, with studies
finding age [forty-eight] as the median and age [fifty-two] as the aver-
age age of disclosure,” and further stating that, of adults who disclose
childhood abuse, “only [6 to 15 percent] of disclosures are made to
authorities, whereas most individuals disclose to friends”).
State v. Sanderson

the defendant has not established actual and substantial
prejudice17 solely based on the mere passage of time.18
For the foregoing reasons, we cannot conclude that the
“action complained of . . . violates those fundamental
conceptions of justice [that] lie at the base of our civil
and political institutions . . . and which define the com-
munity’s sense of fair play and decency . . . .” (Internal
quotation marks omitted.) State v. Sharpley, supra, 232
17
Justice Ecker’s concurring opinion in McFarland delineated sev-
eral factors for courts to consider in determining whether a defendant
has established actual and substantial prejudice. Specifically, Justice
Ecker identified as relevant “the length of the delay, the nature and
seriousness of the prejudice, including whether the defendant was
substantially prevented from raising or proving a meaningful defense,
the strength of the state’s case, and whether any prejudice could be and
was mitigated.” State v. McFarland, supra, 353 Conn. 241. We note
that Justice Alexander’s plurality opinion did not adopt these factors.
Even if we consider the relatively lengthy prearrest delay in the
present case, the defendant has offered nothing more than speculation
regarding the “nature and seriousness of the prejudice” or that he was
“substantially prevented from raising or proving a meaningful defense
. . . .” Id. (Ecker, J., concurring). We agree with the defendant that
the record does not conclusively favor either party with respect to the
strength of the state’s case. Finally, we need not consider whether any
prejudice was mitigated, as the defendant has not established prejudice
in the first instance.
18
Although not binding on this court, People v. Nelson, 43 Cal. 4th
1242, 185 P.3d 49, 78 Cal. Rptr. 3d 69, cert. denied, 555 U.S. 926, 129
S. Ct. 357, 172 L. Ed. 2d 219 (2008), cited by Justice Alexander in her
concurring opinion in McFarland, is one example of a case in which the
court has adopted the balancing test and rejected a similar argument. See
State v. McFarland, supra, 353 Conn. 253–54 (Alexander, J., concur-
ring). The defendant in Nelson argued that prejudice should “simply be
presumed” because there was a twenty-six year prearrest delay in that
case and, thus, “no need to show specific prejudice.” People v. Nelson,
supra, 1250. The Supreme Court of California disagreed, stating that
“[t]he statute of limitations is usually considered the primary guarantee
against bringing overly stale criminal charges, and there is no statute of
limitations on murder. . . . Presuming prejudice would be inconsistent
with the [l]egislature’s declining to impose a statute of limitations for
murder, among the most serious of crimes. To avoid murder charges due
to delay, the defendant must affirmatively show prejudice.” (Citation
omitted; internal quotation marks omitted.) Id.
As stated previously, there is no longer a statute of limitations for
violations of § 53-21 (a) (2). See General Statutes § 54-193 (a); see
also footnote 9 of this opinion. We therefore similarly conclude that
presuming prejudice solely on the basis of a lengthy prearrest delay,
without a specific showing of actual and substantial prejudice, would
be inconsistent with the legislature’s decision to eliminate the statute
of limitations for offenses involving sexual abuse of minors.
State v. Sanderson

Conn. App. 347. Accordingly, because the defendant did
not establish actual and substantial prejudice as a result
of the prearrest delay, we conclude that the trial court
properly denied his motion to dismiss.
The judgment is affirmed.
In this opinion the other judges concurred.