State v. Nathan S.

************************************************
The “officially released” date that appears near the
beginning of an opinion is the date the opinion will be
published in the Connecticut Law Journal or the date it
is released as a slip opinion. The operative date for the
beginning of all time periods for the filing of postopin-
ion motions and petitions for certification is the “offi-
cially released” date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Law Journal and subsequently in the Connecticut
Reports or Connecticut Appellate Reports. In the event
of discrepancies between the advance release version of
an opinion and the version appearing in the Connecti-
cut Law Journal and subsequently in the Connecticut
Reports or Connecticut Appellate Reports, the latest
version is to be considered authoritative.
The syllabus and procedural history accompanying
an opinion that appear in the Connecticut Law Jour-
nal and subsequently in the Connecticut Reports or
Connecticut Appellate Reports are copyrighted by the
Secretary of the State, State of Connecticut, and may
not be reproduced or distributed without the express
written permission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
************************************************
Page 0 CONNECTICUT LAW JOURNAL 0, 0

2 ,0 0 Conn. App. 1
State v. Nathan S.

STATE OF CONNECTICUT v. NATHAN S.*
(AC 46561)
Suarez, Seeley and Wilson, Js.

Syllabus

Convicted, after a jury trial, of sexual assault in the fourth degree and risk
of injury to a child in connection with the sexual abuse of an eleven year
old girl, A, the defendant appealed to this court. He claimed, inter alia, that
the trial court improperly admitted testimony from his teenage son, U,
regarding statements he made to U about middle school age girls, pursuant
to the Connecticut Code of Evidence (§ 4-5 (b)) as evidence of his propensity
to engage in aberrant and compulsive sexual misconduct and pursuant to
the Connecticut Code of Evidence (§ 4-5 (c)), as evidence of his specific
intent to obtain sexual gratification for purposes of the charge of sexual
assault in the fourth degree. Held:

This court had a fair assurance that the trial court’s admission of U’s testi-
mony regarding the defendant’s comments about middle school age girls
did not substantially affect the jury’s verdict, as this court concluded that,
even if it assumed there was error in the trial court’s ruling, in light of the
relative strength of the state’s case, the defendant failed to establish that
he was harmed by the admission of U’s testimony, which encompassed only
about ten pages of the 1400 pages of transcript and had at best a minimal
impact on the jury.

The prosecutor’s cross-examination of the defendant’s DNA expert, M, with
respect to her conclusion that the defendant was eliminated as a contributor
to DNA samples taken from an item of A’s clothing, namely, leggings, was
not improper, as the prosecutor’s questioning of M intended to make the
point that exclusion as a possible contributor did not necessarily mean that
the defendant had never touched the leggings, it was not improper for the
prosecutor to question M about how the data in an exhibit that previously
had been admitted into evidence but which the state then marked up with
highlighting, formed the basis for M’s conclusion, and the prosecutor’s use
of the term ‘‘profile’’ rather than ‘‘type’’ when questioning M about the DNA

* In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse and the crime of risk of injury to a child, we decline
to use the defendant’s full name or 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 person’s identity may
be ascertained.
0, 0 CONNECTICUT LAW JOURNAL Page 1

0 Conn. App. 1 ,0 3
State v. Nathan S.
samples did not amount to impropriety when viewed in the context of the
entire trial, in which M utilized the correct terminology in her answers to
the prosecutor’s questions.

The defendant could not prevail on his unpreserved claim that the trial
court violated his constitutional right to a unanimous verdict by failing to
give the jury a proper specific unanimity instruction with respect to the
charge of sexual assault in the fourth degree because, although the trial
court instructed the jury that it was required to be unanimous as to which
of the three ways the defendant was alleged to have committed sexual
assault in the fourth degree, it did not instruct the jury, in accordance with
the test set forth in State v. Douglas C. (345 Conn. 421), that it had to be
unanimous as to which instance or instances of conduct, if any, it found
the defendant to have committed, any risk of prejudice or likelihood that
the jury could have disagreed or been confused about the multiple, separate
instances of sexual contact was minimized by the defendant’s theory of
defense, under which the jurors were required either to find that A’s allega-
tions were fabricated and that no sexual contact had occurred at all, or to
believe A’s testimony that the sexual conduct did in fact occur.
(One judge concurring separately)

Argued March 20—officially released December 23, 2025

Procedural History

Substitute information charging the defendant with
two counts of the crime of risk of injury to a child and
with one count of the crime of sexual assault in the
fourth degree, brought to the Superior Court in the
judicial district of Danbury and tried to the jury before
Pavia, J.; thereafter, the court denied the defendant’s
motion for a mistrial; verdict and judgment of guilty,
from which the defendant appealed to this court.
Affirmed.
John R. Weikart, with whom was James P. Sexton,
for the appellant (defendant).
Timothy F. Costello, supervisory assistant state’s
attorney, with whom were Mary-Caitlin Harding,
assistant state’s attorney, and, on the brief, David
Applegate, state’s attorney, Brett R. Aiello, assistant
state’s attorney, and Stephen J. Sedensky III, special
assistant state’s attorney, for the appellee (state).
Page 2 CONNECTICUT LAW JOURNAL 0, 0

4 ,0 0 Conn. App. 1
State v. Nathan S.

Opinion

SEELEY, J. The defendant, Nathan S., appeals from
the judgment of conviction, rendered following a jury
trial, of the crimes of sexual assault in the fourth degree
in violation of General Statutes § 53a-73a (a) (1) (A),1
risk of injury to a child in violation of General Statutes
§ 53-21 (a) (2), and risk of injury to a child in violation
of § 53-21 (a) (1). On appeal, the defendant claims that
(1) the trial court improperly admitted certain testi-
mony from his son, U, regarding statements made to
U by the defendant concerning the physical appear-
ances of U’s middle school female classmates (a) pursu-
ant to § 4-5 (b) of the Connecticut Code of Evidence2
1
General Statutes § 53a-73a (a) provides in relevant part: ‘‘A person is
guilty of sexual assault in the fourth degree when: (1) Such person subjects
another person to sexual contact who is (A) under thirteen years of age
and the actor is more than two years older than such other person . . . .’’
Although § 53a-73a (a) has been amended by the legislature since the
events underlying this case; see Public Acts 2023, No. 23-149, § 3; Public
Acts 2023, No. 23-47, § 10; Public Acts 2019, No. 19-93, § 10; Public Acts
2019, No. 19-16, § 16; those amendments have no bearing on the merits of
this appeal. We, therefore, refer to the current revision of the statute in
this opinion.
General Statutes § 53a-65 (3) (A) defines ‘‘sexual contact’’ in relevant part
as ‘‘any contact with the intimate parts of a person for the purpose of sexual
gratification of the actor or for the purpose of degrading or humiliating such
person or any contact of the intimate parts of the actor with a person for the
purpose of sexual gratification of the actor or for the purpose of degrading
or humiliating such person . . . .’’
Although § 53a-65 (3) has been amended by the legislature since the events
underlying this case; see Public Acts 2023, No. 23-47, § 9; Public Acts 2019,
No. 19-189, § 21; those amendments have no bearing on the merits of this
appeal. We, therefore, refer to the current revision of the statute in this opin-
ion.
We also note that, although ‘‘ ‘[i]ntimate parts’ means the genital area or
any substance emitted therefrom, groin, anus or any substance emitted
therefrom, inner thighs, buttocks or breasts’’; General Statutes § 53a-65 (8);
in this case, count one of the operative substitute information, which charged
the defendant with sexual assault in the fourth degree, alleges only that the
defendant had sexual contact with A’s breasts and buttocks, and by having
A touch his penis, and the trial court instructed the jury accordingly.
2
Section 4-5 of the Connecticut Code of Evidence provides: ‘‘(a) General
rule. Evidence of other crimes, wrongs or acts of a person is inadmissible
0, 0 CONNECTICUT LAW JOURNAL Page 3

0 Conn. App. 1 ,0 5
State v. Nathan S.

as evidence of other sexual misconduct by the defen-
dant to establish that he had a propensity to engage in
aberrant and compulsive sexual misconduct, and (b)
pursuant to § 4-5 (c) of the Connecticut Code of Evi-
dence3 as evidence of the defendant’s specific intent to
obtain sexual gratification for purposes of the charge
of sexual assault in the fourth degree, and that he was
harmed by the erroneous admission of that testimony,
(2) the prosecutor engaged in impropriety during cross-
examination of an expert witness for the defense by
suggesting to the jury, without a scientific or evidentiary
basis, that it could conduct its own review of certain
DNA evidence to determine whether it matched the
defendant’s DNA profile, even though the uncontra-
dicted scientific expert testimony established that the
defendant was excluded as a possible contributor to
the DNA evidence, and (3) the trial court violated his
constitutional right to a unanimous verdict with respect
to prove the bad character, propensity, or criminal tendencies of that person
except as provided in subsection (b).
‘‘(b) When evidence of other sexual misconduct is admissible to prove
propensity. Evidence of other sexual misconduct is admissible in a criminal
case to establish that the defendant had a tendency or a propensity to engage
in aberrant and compulsive sexual misconduct if: (1) the case involves
aberrant and compulsive sexual misconduct; (2) the trial court finds that
the evidence is relevant to a charged offense in that the other sexual miscon-
duct is not too remote in time, was allegedly committed upon a person
similar to the alleged victim, and was otherwise similar in nature and circum-
stances to the aberrant and compulsive sexual misconduct at issue in the
case; and (3) the trial court finds that the probative value of the evidence
outweighs its prejudicial effect.
‘‘(c) When evidence of other crimes, wrongs or acts is admissible. Evidence
of other crimes, wrongs or acts of a person is admissible for purposes other
than those specified in subsection (a), such as to prove intent, identity,
malice, motive, common plan or scheme, absence of mistake or accident,
knowledge, a system of criminal activity, or an element of the crime, or to
corroborate crucial prosecution testimony.
‘‘(d) Specific instances of conduct when character in issue. In cases in
which character or a trait of character of a person in relation to a charge,
claim or defense is in issue, proof shall be made by evidence of specific
instances of the person’s conduct.’’
3
See footnote 2 of this opinion.
Page 4 CONNECTICUT LAW JOURNAL 0, 0

6 ,0 0 Conn. App. 1
State v. Nathan S.

to the charge of sexual assault in the fourth degree by
failing to give a proper specific unanimity instruction
to the jury. We disagree and affirm the judgment of
the court.
On the basis of the evidence presented at trial, the
jury reasonably could have found the following relevant
facts. Between August, 2018, and February, 2019, the
victim, A, was eleven years old and the defendant was
forty-two years old. A met the defendant through her
mother, who worked with the defendant’s former wife.
A’s mother had socialized with the defendant and his
former wife, and A’s mother continued to socialize with
the defendant after his wife left him in 2017. For exam-
ple, A and her mother would work out with the defen-
dant and eat dinner at his house, and they would play
video games with him on Saturdays. During the summer
of 2018, A’s mother worked four nights per week at a
restaurant. Initially, when A’s mother was at work, A
would be at home with her brother, but in June, 2018,
the defendant started watching A at his home one to
two times per week, sometimes up to three times. While
A was at the defendant’s house, they would make dinner
and watch movies together, and sometimes the defen-
dant would help A with her homework. Although U4
was present at times, most of the time the defendant
and A were in the home alone. The defendant called A
‘‘kiddo’’ and bought her gifts from time to time. A testi-
fied that she had a crush on the defendant at that time.
During the summer of 2018 until February, 2019, A
and the defendant communicated with each other pri-
marily via text message, and those communications
occurred on a daily basis. In many of his text messages
to A, the defendant would tell A that she was ‘‘one of
[his] best friends.’’ He also prefaced a number of texts
by saying, ‘‘not to be creepy,’’ or by asking A not to
4
Between August, 2018, and February, 2019, U was fourteen years old.
0, 0 CONNECTICUT LAW JOURNAL Page 5

0 Conn. App. 1 ,0 7
State v. Nathan S.

take something ‘‘in a creepy way.’’ For example, the
defendant texted A, asking her not to ‘‘take this in a
creepy way,’’ but he was bored and wanted ‘‘to hang
out with [her].’’ He also texted her, writing, ‘‘can I say
something weird . . . I’m kind of looking forward to
having you over for dinner tomorrow’’; ‘‘happy we get
to hang out tomorrow, though . . . not to be creepy’’;
‘‘want to hear something creepy,’’ after which he told
A that he was in her room the prior day; ‘‘not to be
super creepy but too bad you and I couldn’t have just
hung out’’; ‘‘can I say something kind of creepy . . .
kind of sort of miss you for dinner tonight’’; and, ‘‘I like
talking to you if that matters . . . and not too creepy.’’
In one text, the defendant wrote, ‘‘I could be totally
cool talking to you all night but it would be kind of
weird for you though I know, right?’’ In another text,
he asks A, ‘‘which picture of you and me do you have
hanging,’’ and, after A responded by sending a photo-
graph, he replied, ‘‘can I be creepy . . . one of my
favorite pictures.’’ The defendant also would ask A mul-
tiple times by text if she still wanted to ‘‘hang out’’ with
him or say that he wanted to hang out with her. They
texted each other good morning and good night, and
throughout the day. When A talked with U, the defen-
dant would become jealous and stop talking to A. Also,
when A did not text him one day, the defendant texted,
‘‘wow . . . no text from you today.’’ The defendant
also would make A feel bad for spending time with
her friends or doing things with other people and not
spending time with him. One time, after the defendant
expressed concern that A would be too tired ‘‘to hang
out’’ with him, A told him to ‘‘shut up,’’ and he replied,
‘‘spicy this morning . . . I like it.’’ Another time, the
defendant asked A to send him a photograph of a draw-
ing she had made, and when she did, he said that he
liked it. A stated, ‘‘[y]ou want it . . . [y]ou can have
it,’’ to which the defendant replied, ‘‘[y]ou or the pic-
ture? Lol.’’
Page 6 CONNECTICUT LAW JOURNAL 0, 0

8 ,0 0 Conn. App. 1
State v. Nathan S.

When the defendant started watching A at his house,
he often would make her dinner, and they would watch
a movie in his basement. The defendant, at times, would
give A alcohol to drink. Initially, when they watched a
movie, the defendant would wrap his arms around A
and cuddle with her for an entire movie. Sometimes A
would be on top of the defendant, and he would have
his arms around her back or on her ‘‘butt.’’
Beginning in August, 2018, and continuing to Febru-
ary, 2019, the defendant’s behavior escalated in that
he kissed A and started touching her breasts over her
clothes. A recalled that the first time she went into
the defendant’s bedroom was in early August, maybe
August 2 or 3, 2018. A went into the defendant’s bed-
room to retrieve his phone charger, and he followed
her into the bedroom and dimmed the lights. They were
at the foot of the bed, in the middle, with A sitting on
the bed, when the defendant got on top of A and started
moving his hips back and forth, pushing his penis
against A’s vagina. At the time, they were both wearing
clothes. The defendant also touched A’s breasts over
her clothes. A testified that this would happen almost
every time that she went to the defendant’s house and
that each time they were in the defendant’s bedroom
he would dim the lights. According to A, ‘‘[i]t was sort
of a routine because [the defendant] would always leave
his phone charger in the bedroom and [she would] have
to go get it.’’ A also testified that there was one occasion
when, while U was in the house, she was in the defen-
dant’s bedroom.
Starting in September, 2018, A and the defendant
would watch movies in his living room instead of in
the basement, during which time the defendant would
cuddle or ‘‘spoon’’ with A and touch her thighs, vagina
and breasts. When they would be cuddling, either A
would be on top of the defendant or vice versa, and he
would move his hips back and forth, with his penis
0, 0 CONNECTICUT LAW JOURNAL Page 7

0 Conn. App. 1 ,0 9
State v. Nathan S.

over A’s vagina. One of those times, he got up quickly
and ran to the bathroom, and A felt wetness on her
pants.
A testified about an instance when she touched the
defendant’s penis. It occurred around the time of Hal-
loween, as there were Halloween decorations in his
kitchen, including orange and purple lights, and A
remembered ‘‘being on top of [the defendant] . . . sit-
ting up and looking and his penis was out, and [she]
remember[ed] looking behind [her] and seeing the . . .
Halloween lights.’’ This occurred on the couch in his
living room. A explained that she first began to touch
the defendant’s penis ‘‘over [his] clothes and then, once
[she] started to become more comfortable, it began to
happen underneath the clothes.’’ A testified that the
defendant ‘‘would put [her] hand there and make [her]
move [her] hand up and down on it. And, once that
would get more comfortable, [she] would have . . .
half of [her] hand over . . . the clothes and the other
half would be inside the pocket.’’ The defendant ‘‘would
wear loose pajama pants,’’ including ‘‘Grinch’’ pajama
pants, and ‘‘he wouldn’t have underwear underneath
[to make] his penis more accessible.’’ A testified that
that the defendant would make her touch his penis
‘‘every time’’ she went to his house.
In the living room, the defendant would touch A’s
breasts and ‘‘butt’’ over her clothes, and there were
times when the defendant would touch A’s breasts
under her clothes but over her bra, and when he would
touch her vaginal area under her clothes but over her
underwear and move his hand back and forth. In partic-
ular, A testified that, ‘‘toward the end of November,
beginning of December, [she] went over to [the defen-
dant’s] house to watch ‘How the Grinch Stole Christ-
mas.’ And as [they] were watching it, [the defendant]
stuck his hand . . . in [her] pants over [her] underwear
and began to move his . . . hand back and forth, on
Page 8 CONNECTICUT LAW JOURNAL 0, 0

10 ,0 0 Conn. App. 1
State v. Nathan S.

[her] vagina. . . . When he was done, he looked at [A]
and said, ‘good girl,’ ’’ and A ‘‘burrowed [her] head into
his shoulder.’’ On November 29, 2018, the defendant
texted A and said, ‘‘thanks for having spaghetti and
meatballs and watching the Grinch with me.’’
One time in November, 2018, when the defendant
was doing laundry, he paused and started hugging A,
after which he walked her into another room, said some-
thing about ‘‘being in his creepy basement’’ alone, sat
down on a beanbag chair and A sat on top of him, and
then he gave A a long kiss on the lips. Another time
when they were in the defendant’s kitchen and dining
area, the defendant was standing with his back against
the counter with his legs spread a bit, with A standing
against him, and he began to rub against her, grabbing
her hips, and pushing her into him, saying that she
‘‘[drove him] nuts.’’5 According to A, the defendant
‘‘would hug [her] all the time from behind and from the
front,’’ and he was ‘‘touchy.’’ A also testified that, at
times, after an instance of sexual contact, she would
begin shaking and the defendant would feel bad and
tell her to go sit with his dog. This occurred one time
right after they had left the defendant’s bedroom. A
further testified that there was one time when they
were in the defendant’s attic because he had to retrieve
something there, and he sat on a top stair while A was
‘‘standing on one of the stairs facing toward him . . .
[a]nd . . . he proceeded to hit [A’s] ass and then tell
[her] . . . to get [her] cute ass downstairs.’’ A testified
at trial that, on one occasion, after the defendant’s dog
had humped her leg, she stated that the dog had ‘‘raped’’
her, and the defendant looked at A and said that the
dog was ‘‘lucky.’’
5
When asked at trial if the defendant ever expressed to A that he was
worried she might say something about their encounters, A testified that
the defendant ‘‘would say things . . . like you’re gonna see me through
plate glass one day, I’m never gonna see my son again. You’re gonna tell.’’
0, 0 CONNECTICUT LAW JOURNAL Page 9

0 Conn. App. 1 ,0 11
State v. Nathan S.

In late November, 2018, during the period of time in
which the sexual abuse was ongoing, A confided in
her best friend, L, about what was happening with the
defendant. At that time, A did not tell anyone else
because she did not want the defendant to get into
trouble or for U to be affected, and she was embarrassed
and did not want to accept what was happening to her.
Later, however, A did tell her stepsister, who, along
with L, encouraged A to tell her mother. Specifically,
in February, 2019, A told her mother that the defendant
was touching her and that she did not want to go to
his house anymore. That was all that A disclosed at
that time.6 In late March or early April, 2019, A told her
aunt, K,7 about the sexual abuse, after which K and A’s
grandmother called the police and reported the sexual
abuse. After A told her mother, A did not go back to
the defendant’s house again or communicate with him.
After the sexual abuse was reported to the police,
Detective Jonathan K. McClintock of the Bethel Police
Department was assigned to A’s case. He filed a report
of suspected abuse with the Department of Children
and Families and made arrangements for A to have a
forensic interview with Lynn Nichols, a forensic inter-
viewer and the Director of Victim Services for the Wom-
en’s Center of Greater Danbury. Nichols conducted the
forensic interview of A on April 10, 2019.8 During their
6
At trial, A’s mother testified that she did not call the police after speaking
with A because she ‘‘needed more information,’’ was trying to let A ‘‘under-
stand the severity of her accusations,’’ and did not want the defendant to
get into trouble for something that she was not sure had happened.
7
K testified that she was very close with A, who spent many weekends
at K’s house. K described A’s demeanor during her visits as ‘‘very happy go
lucky.’’ In early April, 2019, or just prior to that time, K had noticed some
changes in A’s behavior and was concerned because A ‘‘was just not herself
at all.’’ Specifically, A had been ‘‘mopey’’ and had become ‘‘very . . . intro-
verted’’ and seemed ‘‘sad and depressed . . . .’’
8
During the forensic interview, A indicated that the defendant had forced
her to drink alcohol. She also indicated that she had kicked the defendant
and told him ‘‘no’’ when he made the sexual advances. At trial, however, A
testified that the defendant never forced her to drink alcohol and that she
Page 10 CONNECTICUT LAW JOURNAL 0, 0

12 ,0 0 Conn. App. 1
State v. Nathan S.

investigation of A’s case, the police obtained statements
from A; A’s friend, L; A’s aunt, K; and U. A provided
her cell phone to the police. Subsequently, a cell phone
forensic examiner conducted a forensic examination
of the phone. That examination yielded 893 pages of
text messages between A and the defendant between
November, 2018, and February 19, 2019.9 In June, 2019,
A provided the police with the leggings she had been
wearing during the incident in which she felt wetness
on her pants after the defendant had been rubbing his
penis against her. A had found the leggings stuffed
under a bed at her father’s house. Between the winter
of 2018, when that incident occurred, and June, 2019, A
had worn the leggings frequently and may have washed
them. Nevertheless, McClintock submitted the leggings
to the state forensic laboratory for DNA testing.
In July, 2019, the defendant was arrested pursuant
to a warrant, after which the police obtained a buccal
swab10 from the defendant and executed a search of
his residence pursuant to a warrant. He subsequently
was charged in a substitute information with sexual
assault in the fourth degree in violation of § 53a-73a (a)
(1) (A) for subjecting A, who was under thirteen years
of age, to sexual contact with the defendant, who was
more than two years older than A, by touching A’s
breasts and buttocks and by having A touch his penis;
risk of injury to a child in violation of § 53-21 (a) (2)
never fought off his sexual advances or told him no, explaining that, at the
time, she was very young and thought that she would get into trouble for
willingly drinking the alcohol, and that she did not understand that what
had occurred could constitute sexual assault in the absence of evidence
that she had either said no or fought off the defendant’s advances.
9
A testified at trial that she started texting with the defendant in August,
2018. At the end of October, however, she lost her cell phone and got a
new one in the beginning of November.
10
‘‘A buccal swab involves rubbing a Q-tip like instrument along the inside
of the cheek to collect epithelial cells.’’ State v. Walker, 332 Conn. 678, 683
n.2, 212 A.3d 1244 (2019).
0, 0 CONNECTICUT LAW JOURNAL Page 11

0 Conn. App. 1 ,0 13
State v. Nathan S.

for having subjected ‘‘a child under sixteen years of
age to contact with his intimate parts in a sexual and
indecent manner likely to impair the health and morals
of such child’’; and risk of injury to a child in violation
of § 53-21 (a) (1) for having caused and permitted ‘‘a
child under the age of sixteen to be placed in a situation
that the morals of such child were likely to be impaired
. . . .’’ Over the course of seven days, the case was
tried to a jury.
In support of its case, the state presented testimony
from Nichols, along with a transcript and a video
recording of her forensic interview of A, which were
admitted into evidence.11 McClintock testified regarding
his investigation of the allegations against the defen-
dant. The state also presented testimony from A and
A’s mother, as well as from U (the defendant’s son), L
(A’s friend), and K (A’s aunt). In addition, the state
presented testimony from Lisa S. Murphy-Cipolla, a
licensed marriage and family therapist who also con-
ducts forensic interviews, has more than twenty years
of experience working with sexually abused children,
and oversees the day-to-day operations of the Greater
Hartford Family Advocacy Center, which provides
‘‘comprehensive services for the evaluation, treatment
and prevention of abuse, primarily child sexual abuse
. . . .’’ During her testimony, the video recording of
A’s forensic interview was played before the jury, and
Murphy-Cipolla, who had never met A, was asked vari-
ous questions regarding A’s forensic interview.
In particular, Murphy-Cipolla testified regarding the
forensic interview process and delayed disclosure of
child sexual abuse, including the factors that lead to
11
In the forensic interview, A described another incident that occurred
one of the last times she was at the defendant’s home, which would have
been in February, 2019. She described the defendant as being ‘‘extra, extra
creepy,’’ and stated that he made her touch his penis on the couch and
grabbed her ‘‘butt’’ and breasts.
Page 12 CONNECTICUT LAW JOURNAL 0, 0

14 ,0 0 Conn. App. 1
State v. Nathan S.

delayed disclosure such as the age of the child victim,
the relationship of the abuser to the child, family dynam-
ics, shame and embarrassment. She also explained the
five stages of grooming,12 namely, looking for a vulnera-
ble child, isolating and gaining access to the child, devel-
oping trust with the child, trying to initiate or to break
boundaries sexually or physically, and maintaining the
secret. She explained that ‘‘abusers . . . try to . . .
ingratiate themselves to the family that they’re someone
to be trusted and they can help out with something.’’
According to Murphy-Cipolla, ‘‘some children do pro-
tect their abusers.’’ She also testified, after viewing the
video recording in court, that she had ‘‘observed some
of the stages of grooming that [she] talked about ear-
lier,’’ including that, ‘‘when a person grooms a child
they also befriend the family,’’ and that, on the basis
of her experience, ‘‘there were elements of the interview
that supported [A’s] disclosure,’’ although she did not
elaborate further. Moreover, she addressed the dynam-
ics of a relationship between an abuser and a child,
explaining that ‘‘it’s a very complicated, complex rela-
tionship that’s kind of like bounded by secrecy and
silence. [The child] . . . might love the person but
want the abuse to stop. [The child] may be getting other
things, like, say a secondary gain, like attention or gifts
or trips or, you know, [the abuser] might be filling
like an emotional role in that child’s life or a void.’’ In
addition to the 893 pages of text messages between the
defendant and A, the state also submitted into evidence,
inter alia, diagram sketches of the defendant’s house
along with various photographs of A and the interior
of the defendant’s house.
After the prosecutor rested the state’s case-in-chief,
the defense presented testimony from a number of wit-
nesses, including McClintock and his supervisor, Lieu-
12
After Murphy-Cipolla testified regarding grooming, defense counsel
requested that the court provide the jury with a limiting instruction as to
grooming, and one was provided to the jury.
0, 0 CONNECTICUT LAW JOURNAL Page 13

0 Conn. App. 1 ,0 15
State v. Nathan S.

tenant George J. Bryce, Jr., concerning the investigation
conducted by the police. Kristen Madel, a forensic sci-
ence examiner employed at the state forensic labora-
tory, who performed DNA testing on samples taken
from A’s leggings, testified regarding the results of her
testing, and the two reports that she had prepared in
connection therewith were admitted into evidence,
along with an allele table13 of the samples taken from the
leggings and from the defendant and A.14 Specifically,
Madel explained that she developed two separate DNA
profiles from two samples submitted to her: one was
taken from the swabbing of the exterior hips and waist-
band of the leggings, and the other from the swabbing
of the interior waistband of the leggings. She also
explained that DNA profiles had been generated from
known samples of the defendant and A. Madel testified
that, after she compared the DNA types from known
samples of the defendant with the samples from the
leggings, the defendant was eliminated as a contributor
as to both samples from the leggings. Additionally, Jen-
nifer Green, another state forensic examiner, testified
regarding the samples taken from A’s leggings, stating
13
‘‘An allele is defined as one or two or more alternative forms of a gene.’’
(Internal quotation marks omitted.) State v. Walker, 332 Conn. 678, 685 n.4,
212 A.3d 1244 (2019). The allele table prepared by Madel contained four
DNA profiles—two unknown profiles generated from the samples taken
from the leggings, and two known profiles from the defendant and A—and
this table formed the basis for her conclusions after comparing the four
DNA profiles.
14
During cross-examination of Madel, the prosecutor offered into evidence
exhibit 57A, the allele table prepared by Madel but with various numbers
on that table highlighted in yellow. This is the same allele table that the
trial court admitted into evidence as defendant’s exhibit N during defense
counsel’s direct examination of Madel, except that the one submitted by
the prosecutor included a horizontal yellow line going through the sample
from the defendant and yellow highlights over various other numbers.
Although defense counsel objected to the state’s exhibit with the highlights,
the court allowed the marked copy of the allele table to be admitted. On
appeal, the defendant has not challenged the court’s admission of exhibit
57A.
Page 14 CONNECTICUT LAW JOURNAL 0, 0

16 ,0 0 Conn. App. 1
State v. Nathan S.

that, after testing the leggings in full, she did not recover
any semen from the leggings.15
The defendant testified in his own defense.16 Specifi-
cally, he denied all of the allegations against him. The
defendant also explained that the reason he texted A
so much was because A was suicidal, and he wanted
A to know that ‘‘there was an adult who cared for her
well-being . . . .’’ The defendant acknowledged that
the amount of his correspondence with A ‘‘looks bad’’
but stated that ‘‘he was looking out for someone [he]
thought was in need.’’
Following the conclusion of evidence, the case was
submitted to the jury, which returned a verdict of guilty
on all three counts. Thereafter, the court rendered judg-
ment in accordance with the verdict and sentenced the
defendant to a total effective term of fifteen years of
incarceration, execution suspended after seven years,
five of which are mandatory, followed by ten years of
probation. This appeal followed. Additional facts and
procedural history will be set forth as necessary.
I
The defendant’s first claim on appeal relates to the
court’s admission of testimony from his son, U, as to
statements made to U by the defendant concerning the
physical appearances of U’s middle school female class-
mates. Specifically, the defendant claims that the court
improperly admitted that testimony from U (1) pursuant
15
The defendant also presented as witnesses Tobias Wasser, a forensic
psychiatrist; Amy Klein, a staff attorney for the Department of Children and
Families; Keith Blackman, a close, personal friend of A’s mother; and Scott
Romano, who has known the defendant for forty years and testified that
the defendant is an ‘‘upstanding guy’’ who has a reputation ‘‘for honesty’’
and for behaving appropriately with children.
16
Prior to the defendant testifying, the court canvassed him and deter-
mined that the defendant had ‘‘made a voluntary and intelligent decision
regarding his desire to testify after consulting with his attorneys and after
having been canvassed by the court.’’
0, 0 CONNECTICUT LAW JOURNAL Page 15

0 Conn. App. 1 ,0 17
State v. Nathan S.

to § 4-5 (b) of the Connecticut Code of Evidence as
evidence of other sexual misconduct by the defendant
to establish that he had a propensity to engage in aber-
rant and compulsive sexual misconduct, and (2) pursu-
ant to § 4-5 (c) of the Connecticut Code of Evidence
as evidence of the defendant’s specific intent to obtain
sexual gratification for purposes of the charge of sexual
assault in the fourth degree. He also contends that he
was harmed by the erroneous admission of that testi-
mony.
The following additional facts and procedural history
are relevant to our resolution of this claim. U, who
was eighteen years old at the time of the defendant’s
criminal trial, testified that he was thirteen years old
when he first met A, who was ten years old at the time,
and that the two were friends. U also testified that
he still loves the defendant and that he was testifying
pursuant to a subpoena. U further testified that, when
he was in middle school, the defendant talked to him
‘‘a lot’’ about girls. For example, U testified that, when
the defendant drove U to middle school, the defendant
would make comments about the bodies of young girls.
At that point in U’s testimony, the court asked the jury
to exit the courtroom, and it addressed a request by
defense counsel for the court to determine whether
this type of uncharged misconduct evidence should be
allowed, as defense counsel argued that it was ‘‘clearly
prejudicial’’ and not probative of whether the defendant
sexually assaulted A. The prosecutor countered that U’s
testimony concerned ‘‘the defendant’s likeness toward
young girls,’’ and, in this case, that the state had to
prove that the defendant had touched an eleven year old
girl. The prosecutor, however, stated that the proffered
testimony did not concern ‘‘uncharged misconduct
because it’s not a crime, what [the defendant] did. But
it is relevant to the jury to understand that this defen-
dant has in the past looked at young girls and made
Page 16 CONNECTICUT LAW JOURNAL 0, 0

18 ,0 0 Conn. App. 1
State v. Nathan S.

inappropriate comments about them, likes the bodies
of young girls, and that the victim here was an eleven
year old girl. And this witness will also testify about
comments that [the defendant] made about the eleven
year old victim in this case. So, it’s incredibly relevant.’’
The court then asked the prosecutor to present an offer
of proof.
Outside the presence of the jury, the prosecutor
asked U about the comments made by the defendant
when he would drop U off at middle school. U testified
that the defendant would comment on the bodies of
the young girls by saying things like, ‘‘X has a nice butt,
Y is very pretty, that sort of thing.’’ The girls who were
the subjects of the comments ranged in age from twelve
to fourteen.
Thereafter, a colloquy occurred between the court,
defense counsel and the prosecutor,17 after which the
17
The following colloquy transpired:
‘‘The Court: . . . I think right now the issue deals with whether this is
uncharged misconduct or character evidence or propensity evidence or what
this evidence is going toward. So, what’s . . . the defense argument here?
‘‘[Defense Counsel]: I think it’s—I can’t defend it. I can’t defend it. It’s
not what he’s accused of. And, if he said it, I don’t think it shows his
propensity to commit a sex crime. It’s a comment. And, you know . . .
now I have to have a trial within the trial on why each one of these comments
was made, how many of them were made, to whom were they passed, what
. . . was the context in which they were made, and so on. And so, it becomes
this whole separate issue which I may prevail or I may not prevail. But, in
the end, [the defendant is] going to be prejudiced by [the jury] hearing this
testimony, which doesn’t show that he’s more or less likely to commit a
sex crime.
***
‘‘The Court: Okay. . . . So, obviously, questions relating to anything that
was said regarding [A] in this particular case . . . is a separate issue from
basically what you want to ask now, which is, he’s commented about a
variety of other eleven year old girls; is that . . . where we’re at? And, do
we know—is it going to be as generic as what you just said?
‘‘[The Prosecutor]: The three . . . questions that I just asked, Your Honor,
are the questions I intended to ask [U]. That’s his—that the defendant had
interest in young girls and would comment sexually on their bodies.
‘‘The Court: Okay.’’
0, 0 CONNECTICUT LAW JOURNAL Page 17

0 Conn. App. 1 ,0 19
State v. Nathan S.

court took a brief recess. Subsequently, on the record,
the court concluded that the proffered testimony about
the defendant’s statements to U was admissible on two
grounds and that the prejudicial effect of the testimony
did not outweigh its probative value. First, pursuant to
§ 4-5 (c) of the Connecticut Code of Evidence,18 the
court found that the testimony was admissible because,
with respect to the charge of sexual assault in the fourth
degree, it related to the issue of the defendant’s specific
intent19 to subject A to sexual contact for the purpose
of obtaining sexual gratification, which is an element
of the offense that the state was required to prove.20
18
See footnote 2 of this opinion.
19
In support of its ruling to admit the evidence, the court relied on State
v. Juan J., 344 Conn. 1, 22, 276 A.3d 935 (2022), in which our Supreme
Court stated that ‘‘sexual assault in the fourth degree is a specific intent
crime, requiring the state to prove that the defendant acted with the intent
to make ‘contact with the intimate parts of a person . . . for the purpose
of sexual gratification of the actor’ . . . .’’ See also State v. Jose A. B., 342
Conn. 489, 534–35, 270 A.3d 656 (2022).
20
Although, as a general rule, evidence of prior misconduct is inadmissible
‘‘to prove the bad character, propensities, and criminal tendencies of a
defendant, this evidence may be admissible for other purposes. For example,
prior misconduct evidence may be relevant because it is probative of and
material to prove knowledge, intent, motive, and common scheme or design,
if the trial court determines, in the exercise of judicial discretion, that the
probative value of the evidence outweighs its prejudicial tendency. . . .
The absence of mistake or accident exception . . . is a close corollary of
the intent exception: evidence of prior misconduct may be admissible for
the purpose of showing that an action was intentional and not mistaken or
accidental. . . .
‘‘Our case law distinguishes between using evidence to prove an act and
using evidence to prove intent. . . . Because intent is almost always proved,
if at all, by circumstantial evidence, prior misconduct evidence, [when]
available, is often relied [on]. . . .
‘‘[Our Supreme Court has] noted the fine line between using uncharged
misconduct to prove intent and using it to show the defendant’s bad charac-
ter or propensity to commit the crime charged. . . . In light of these con-
cerns, the state’s introduction of uncharged misconduct is properly limited
to cases in which the evidence is needed to prove a fact that the defendant
has placed, or conceivably will place, in issue, or a fact that the statutory
elements obligate the government to prove.’’ (Citations omitted; internal
quotation marks omitted.) State v. Juan J., 344 Conn. 1, 18–20, 276 A.3d
935 (2022). But see State v. Marcello E., 351 Conn. 345, 361, 330 A.3d 577
Page 18 CONNECTICUT LAW JOURNAL 0, 0

20 ,0 0 Conn. App. 1
State v. Nathan S.

Second, pursuant to § 4-5 (b) of the Connecticut Code
of Evidence, the court found the evidence to be admissi-
ble on the issue of propensity. In making this determina-
tion, the court stated: ‘‘In order for [it] to properly
evaluate [the proffered evidence], [it had to] look at
three considerations:21 one, that the evidence that’s
being proposed is not too remote in time; two, that it
is similar to the events as charged, that the conduct is
similar enough that it is relevant and relates to the type
of offenses charged; and that it was committed upon
persons of a similar nature to those that are being
charged in this particular case.’’ (Footnote added.) The
court concluded that ‘‘the evidence in this case does
support all three of those findings, in that the claimed
time frame . . . is in close proximity to the allegations
that are being made in this particular case. . . . The
allegations are, in fact, similar in that they address what
could be classified as an attraction to, or an observation
(2025) (because assailant’s specific intent was undisputed, ‘‘cumulative
nature of the prior misconduct evidence [which was probative on the issue
of specific intent] exacerbated its prejudicial impact because it increased
the risk that jurors would presuppose the defendant’s identity as the assail-
ant, [which was] a determinative and disputed fact at trial’’).
21
‘‘[A]s a general rule, evidence of prior misconduct is inadmissible to
prove that a defendant is guilty of the crime of which he is accused. . . .
Nor can such evidence be used to suggest that the defendant has a bad
character . . . .’’ (Internal quotation marks omitted.) State v. Juan J., 344
Conn. 1, 15, 276 A.3d 935 (2022). ‘‘[Our Supreme Court, however] has recog-
nized an exception to the general rule for sexual offenses: evidence of
uncharged sexual misconduct, assessed under a liberal standard, is admissi-
ble and relevant to prove that the defendant had a propensity or a tendency
to engage in the crime charged only if it is: (1) . . . not too remote in time;
(2) . . . similar to the offense charged; and (3) . . . committed upon per-
sons similar to the prosecuting witness. . . . The probative value of the
evidence must also outweigh its prejudicial effect. . . . This exception is
codified in § 4-5 (b) of the Connecticut Code of Evidence. The uncharged
misconduct at issue, if . . . offered for propensity . . . [requires] the trial
court to determine whether it was not too remote in time, whether it was
far more frequent and severe than the charged misconduct, and whether
the probative value of the evidence outweighed its prejudicial impact.’’
(Citations omitted; internal quotation marks omitted.) Id.; see also State v.
DeJesus, 288 Conn. 418, 476–77, 953 A.2d 45 (2008).
0, 0 CONNECTICUT LAW JOURNAL Page 19

0 Conn. App. 1 ,0 21
State v. Nathan S.

in a sexual manner, to a child that is in the same age
range as [A] . . . . And I think that that really covers
both two and three . . . because it certainly is commit-
ted—or the misconduct, so to speak—is committed
upon persons of a similar age group and time frame to
[A] in this particular case. I will also note that the
evidence is not so egregious or so distinct from the
evidence in this particular case. And what I mean by
that is that, for instance, here, we’re talking about a
touching. Perhaps if the propensity or misconduct evi-
dence then related to an actual sexual assault in the
first degree where there might be allegations of inter-
course or something such as that, then I think that
there’s a stronger argument to say that its prejudicial
effect [outweighs] the probative value. But, in this case,
the testimony is similar in nature to that which is being
alleged—is not so egregious or indistinguishable for the
jury and can be, in fact, appropriately addressed and
distinguished in the jury’s evaluation of this case. And,
so, I am going to make a finding that it is relevant. It
goes to issues in terms of the elements of the offense,
as you’ve heard my ruling with regard to the misconduct
and the propensity, and that its relevancy is not out-
weighed by its prejudicial effect. Having said that, I am
happy to include an immediate cautionary instruction
to the jury.’’ In accordance with a request from defense
counsel, before U resumed his testimony the court pro-
vided a cautionary instruction to the jury.22 Thereafter,
the prosecutor resumed questioning U.
22
Specifically, the court instructed the jury as follows: ‘‘Good afternoon,
everybody. I apologize for that delay. So, before we continue with this next
witness, I am going to give you the following instruction. And you’ve heard
me say that I will also be instructing you at the end, but I’m going to instruct
you now as well just so you understand how to address this particular
testimony. The state is offering evidence of the defendant’s comments to
his son regarding other school-aged girls. The comments are not crimes in
and of themselves. The defendant has not been charged with any offense
related to these alleged comments. In a criminal case such as this, in which
the defendant is charged with a crime involving sexual misconduct, evidence
of the defendant’s commission of other sexual misconduct is admissible
Page 20 CONNECTICUT LAW JOURNAL 0, 0

22 ,0 0 Conn. App. 1
State v. Nathan S.

In the presence of the jury, U testified that, when the
defendant would drop him off at middle school, the
defendant would make comments about some of the
middle school girls, such as ‘‘[t]his girl has a nice butt,
this girl . . . is pretty, something along those lines.’’ U
further testified that the defendant specifically com-
mented on the bodies of the middle school girls, includ-
ing their ‘‘butt[s]’’ and ‘‘overall figure’’; that is, he would
say that ‘‘she has an overall nice figure or just overall
nice body.’’23 Subsequently, U was asked whether the
defendant ever spoke to him about A or made comments
about A’s body, to which U replied, ‘‘[y]ep.’’ When asked
what the defendant would say, U replied that he would
say ‘‘[m]ostly the same thing he would say with the girls
when he dropped [U] off at middle school, nice butt,
nice figure.’’ U was then asked whether the defendant
ever made comments about sexual acts that he wanted
to do with A, to which U responded affirmatively, stating
that ‘‘[the defendant] said when A was eighteen he
and may be considered to prove that the defendant had the propensity or
tendency to engage in the type of criminal sexual behavior with which he
is charged. However, evidence of prior misconduct, on its own, is not suffi-
cient to prove that the defendant is guilty of the crimes charged in the
information. It is for you to determine whether the defendant committed
any uncharged sexual misconduct and, if so, the extent, if any at all, to
which that evidence establishes that the defendant had the propensity or
tendency to engage in criminal sexual behavior. Please bear in mind as you
consider this evidence, that at all times the state has the burden of proving
that the defendant committed each of the elements of the offenses with
which he is charged in the information. And I remind you that the defendant
is not on trial for any act or comment or conduct other than those that
have been charged in the information. With that in mind, the state may
continue.’’ The court provided a similar instruction in its final charge to
the jury.
23
On direct examination, the defendant was asked whether he ever made
comments to U about dating or going out with girls, to which he replied:
‘‘I would maybe comment to him, bring him to school, do you think this
person is somebody you want to talk to? Do you think that [person is]
attractive. Just to kind of try to get his viewpoint on people—other kids in
his class.’’ On cross-examination, the defendant acknowledged that he would
point out middle school girls to U and ask U if he thought those girls
were attractive.
0, 0 CONNECTICUT LAW JOURNAL Page 21

0 Conn. App. 1 ,0 23
State v. Nathan S.

would—like, if he could have sex with her when she
was eighteen, he would.’’
U also testified that, one time, he saw the defendant
and A in the defendant’s bedroom, at the foot of the
bed, with A on the bed and the lights dim or off. He
testified further regarding the interactions between the
defendant and A while in the dining room section of
the kitchen in the defendant’s home. For example, the
defendant would give A a hug and sometimes, when A
was sitting at the table, would come up behind her. U
described their interactions as follows: ‘‘I would say
amicable when he came up behind her. Like, it was
definitely very—it would be how he would, like, interact
. . . not exactly, but it would be sort of how he would
interact with his ex-wife when he came up to the table.
It’s a very amicable, friendly . . . . [H]e didn’t do that
to me, he didn’t do that to [U’s] mom [or to A’s] mom
either. . . . [I]t was just [A]; it was amicable interac-
tion [similar to how he acted with his former wife] [b]ut
on a more toned-down scale . . . .’’
With this background in mind, we now turn to the
defendant’s claim. The defendant challenges both
grounds under § 4-5 of the Connecticut Code of Evi-
dence on which the court admitted the challenged testi-
mony. With respect to the propensity ground, the defen-
dant contends that U’s testimony about the defendant’s
statements concerning middle school girls did not con-
cern ‘‘other sexual misconduct’’ within the meaning of
§ 4-5 (b); in other words, ‘‘the defendant’s speech to
his son is outside of the rule’s purview as a matter of
law,’’ as it cannot constitute ‘‘sexual misconduct’’ and
was neither improper nor unlawful, despite the fact that
it could be considered ‘‘off-putting or inappropriate.’’
The defendant further asserts, as to § 4-5 (c), that the
court improperly determined that the testimony ‘‘was
relevant under § 4-5 (c) for the nonpropensity purpose
of proving that the defendant had the specific intent to
Page 22 CONNECTICUT LAW JOURNAL 0, 0

24 ,0 0 Conn. App. 1
State v. Nathan S.

obtain sexual gratification as required under the charge
of sexual assault in the fourth degree.’’ According to
the defendant, ‘‘the state did not need evidence of
uncharged acts (comments) by the defendant to prove
that he intended to obtain sexual gratification,’’ there
was ‘‘no real probative value’’ to the testimony, and ‘‘it
was highly prejudicial to the defendant, particularly
because the trial court explicitly identified it to the jury
as ‘sexual misconduct.’ ’’
The state counters by asserting that the court prop-
erly admitted U’s testimony about the defendant’s com-
ments, under both subsections (b) and (c) of § 4-5 of
the Connecticut Code of Evidence, and that, even if,
arguendo, any error occurred, the defendant has failed
to meet his burden of demonstrating that the error was
harmful. We agree with the state’s argument regarding
harm. We conclude that, even if we were to assume,
without deciding, that there was error in the court’s
admission of U’s testimony regarding the defendant’s
statements about the middle school girls, either as evi-
dence of the defendant’s propensity to engage in aber-
rant and compulsive sexual misconduct or on the issue
of his specific intent to obtain sexual gratification to
prove an element of the crime of sexual assault in the
fourth degree, the defendant has failed to establish the
harmfulness of the alleged error.
When, as in the present case, an evidentiary error is
nonconstitutional in nature, the defendant bears the
burden of demonstrating that the error was harmful.
See, e.g., State v. Mark T., 339 Conn. 225, 251, 260 A.3d
402 (2021). ‘‘[W]hether [an improper ruling] is harmless
in a particular case depends upon a number of factors,
such as the importance of the witness’ testimony [in
the prosecution’s case] . . . whether the testimony
was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the wit-
ness on material points, the extent of cross-examination
0, 0 CONNECTICUT LAW JOURNAL Page 23

0 Conn. App. 1 ,0 25
State v. Nathan S.

otherwise permitted, and, of course, the overall strength
of the prosecution’s case. . . . Most importantly, we
must examine the impact of the . . . evidence on the
trier of fact and the result of the trial. . . . [T]he proper
standard for determining whether an erroneous eviden-
tiary ruling is harmless should be whether the jury’s
verdict was substantially swayed by the error. . . .
Accordingly, a nonconstitutional error is harmless
when an appellate court has a fair assurance that the
error did not substantially affect the verdict. . . .
[C]redibility contest[s] characterized by equivocal evi-
dence . . . [are] a category of cases that [are] far more
prone to harmful error. . . . When a case involves the
improper admission of uncharged misconduct evi-
dence, the most relevant factors to be considered are
the strength of the state’s case and the impact of the
improperly admitted evidence on the trier of fact.’’
(Citation omitted; internal quotation marks omitted.)
State v. Marcello E., 351 Conn. 345, 367–68, 330 A.3d
577 (2025).
In the present case, the jury had before it other testi-
mony from U specifically concerning A that the defen-
dant has not challenged on appeal; that is, U testified
that the defendant had made comments about A’s body
that were nearly identical to his comments about the
middle school age girls—that A had a ‘‘nice butt’’ and
a ‘‘nice figure.’’ Defense counsel fully cross-examined
U on this point, and the defendant does not claim other-
wise on appeal. The existence of this additional testi-
mony directly pertaining to A that has not been challenged
diminishes any impact of the allegedly improperly admit-
ted evidence on the trier of fact. See, e.g., State v. Ayala,
333 Conn. 225, 232, 215 A.3d 116 (2019) (evidentiary
ruling was harmless when challenged statement of wit-
ness, although generally important to state’s case, was
‘‘largely cumulative of other evidence and also corrobo-
rated by other evidence on material points’’); State v.
Page 24 CONNECTICUT LAW JOURNAL 0, 0

26 ,0 0 Conn. App. 1
State v. Nathan S.

Rogers, 183 Conn. App. 669, 688, 193 A.3d 612 (2018)
(court’s allegedly improper admission of certain evi-
dence and testimony was harmless when that evidence
and testimony ‘‘were cumulative and paled in compari-
son to other unchallenged evidence before the jury’’),
aff’d, 344 Conn. 343, 279 A.3d 184 (2022).
With respect to the strength of the state’s case, our
Supreme Court has ‘‘described a child sexual abuse
case lacking conclusive physical evidence, when the
prosecution’s case rests on the credibility of the victim
[as] not particularly strong, even when otherwise suffi-
cient to support a conviction.’’ (Internal quotation
marks omitted.) State v. Angel T., 292 Conn. 262, 293,
973 A.2d 1207 (2009). Nevertheless, ‘‘we must be mind-
ful that [t]he sexual abuse of children is a crime [that],
by its very nature, occurs under a cloak of secrecy and
darkness. It is not surprising, therefore, for there to be
a lack of corroborating physical evidence . . . . Given
the rarity of physical evidence in [sexual assault cases
involving children], a case is not automatically weak
just because a child’s will was overborne and he or she
submitted to the abuse . . . .’’ (Internal quotation
marks omitted.) State v. Henry B.-A., 234 Conn. App.
197, 226–27, 342 A.3d 1063 (2025).
The record in the present case demonstrates that,
even though physical evidence is lacking and the defen-
dant was eliminated as a contributor to the DNA profile
generated from the sample from A’s leggings, there was
other evidence before the jury that, although not over-
whelming, ‘‘was not so weak as to be overshadowed’’
by the allegedly improper admission of U’s testimony
regarding the defendant’s statements about the middle
school age girls. (Internal quotation marks omitted.)
Id., 227; see, e.g., State v. Adam P., 351 Conn. 213,
240–41, 330 A.3d 73 (2025) (‘‘state’s case, even without
physical or forensic evidence, was strong’’ when ‘‘vic-
tims testified extensively, and largely consistently about
0, 0 CONNECTICUT LAW JOURNAL Page 25

0 Conn. App. 1 ,0 27
State v. Nathan S.

the defendant’s actions’’ and testimony of other wit-
nesses corroborated victims’ timelines of events and
certain details, ‘‘such as the color or makeup of the
house in Stratford’’ where sexual abuse allegedly
occurred); State v. Gary S., 345 Conn. 387, 420, 285 A.3d
29 (2022) (‘‘although there was no forensic evidence
collected, the state presented numerous witnesses dur-
ing trial,’’ including child sexual assault victims, who
described in detail assaults to which defendant had
subjected them); see also, e.g., State v. Thompson, 266
Conn. 440, 482, 832 A.2d 626 (2003) (‘‘we see no reason
why the nature of the evidence as circumstantial rather
than direct should bear on the assessment of the
strength of the state’s case’’).
A testified at length regarding the sexual abuse she
endured at the hands of the defendant. In that testi-
mony, A recalled a number of factual details, apart
from the sexual abuse, concerning the circumstances
surrounding the abuse, many of which were corrobo-
rated by text messages or testimony from U. For exam-
ple, A described one occasion of sexual abuse that
occurred when she and the defendant watched ‘‘How
the Grinch Stole Christmas,’’ and, in one of the text
messages, the defendant thanked A for watching the
‘‘Grinch’’ with him. U testified that he recalled seeing
A and the defendant in the defendant’s bedroom, with
the defendant at the foot of the bed and A on the bed
and the lights dimmed, which was consistent with A’s
testimony about the first time she and the defendant
were in his bedroom, and that every time they were in
the bedroom, the defendant would dim the lights. The
defendant’s testimony corroborated many of the factual
details to which A testified, including that his dog had
humped A’s leg, that he had ‘‘Grinch’’ pajama pants and
would change into them when he came home from
work, that he would hug A from behind, that the two
of them would watch movies together, that he watched
Page 26 CONNECTICUT LAW JOURNAL 0, 0

28 ,0 0 Conn. App. 1
State v. Nathan S.

‘‘How the Grinch Stole Christmas’’ with A, and that, at
least one time, A sat on his lap during a movie. A also
testified about inculpatory statements of the defendant
in which he told A that someday she was going to see
him ‘‘through plate glass’’ and that he was never going to
see U again because A was ‘‘gonna tell.’’ A also testified
about an instance when she told the defendant that his
dog, which had humped her leg, had ‘‘raped’’ her, to
which he replied that the dog was ‘‘lucky.’’
In addition, U testified that the defendant said that
he would have sex with A when she reached eighteen
years of age, if he could. Moreover, other unchallenged
testimony from U corroborates A’s testimony regarding
her interactions with the defendant in the dining room
area of his kitchen, namely, that the defendant would
give A a hug and come up behind her when she was
sitting at a table. U also described the interactions of the
defendant and A as being similar to how the defendant
would act with his former wife.
Furthermore, the state submitted into evidence as an
exhibit the 893 pages of text messages between A and
the defendant. Notably, those voluminous texts covered
a short period of time from November, 2018, to Febru-
ary, 2019. With respect to the text messages, McClintock
acknowledged that there was no ‘‘direct evidence [in
the texts] of a sexual relationship’’ between A and the
defendant but testified that the volume of text messages
raised concerns because ‘‘it seemed odd that a babysit-
ter would be texting this volume of things to [the] indi-
vidual given to babysit.’’ The defendant even admitted
that the amount of his correspondence with A ‘‘look[ed]
bad.’’ Moreover, one text contained sexual innuendo—
when A sent the defendant a text stating, ‘‘[y]ou want
it . . . [y]ou can have it,’’ regarding a photograph she
had given him, he replied, ‘‘[y]ou or the picture? Lol.’’
Despite the lack of explicit references to a sexual rela-
tionship in the texts, the jury reasonably could have
0, 0 CONNECTICUT LAW JOURNAL Page 27

0 Conn. App. 1 ,0 29
State v. Nathan S.

inferred the existence of some type of an inappropriate
relationship between the forty-two year old defendant
and the eleven year old child victim, given the volume
and content of the texts, many of which contained senti-
ments that the defendant himself characterized as
‘‘creepy,’’ as previously detailed in this opinion.
Other witnesses for the state included L, A’s good
friend, who testified that, one time, she and A went to
the defendant’s house and he gave them money, that L
saw the defendant give A a long hug, and that, with L’s
encouragement, A disclosed the abuse to A’s mother.
Murphy-Cipolla testified for the state regarding the
forensic interview process and delayed disclosure of
child sexual abuse, explaining that a sexually abused
child may protect the abuser. She also testified, after
viewing the video recording of the forensic interview
in court, that she had ‘‘observed some of the stages of
grooming that [she] talked about earlier,’’ including that,
‘‘when a person grooms a child they also befriend the
family,’’ and that, on the basis of her experience, ‘‘there
were elements of the interview that supported [A’s]
disclosure.’’ Her testimony that ‘‘abusers . . . try to
. . . ingratiate themselves to the family that they’re
someone to be trusted and they can help out with some-
thing,’’ is particularly relevant to this case, which
involves such a situation. In addition, K, A’s aunt, testi-
fied about changes she had noticed in A’s personality
during the time leading up to A’s disclosure to her of
the sexual abuse.24
With respect to the other factors we must consider
in our harmless error analysis; see State v. Marcello E.,
supra, 351 Conn. 367–68; U’s testimony concerning the
defendant’s statements about the bodies of middle
school age girls was not particularly important to the
prosecution’s case. That is so for a few reasons. First,
24
See footnote 7 of this opinion.
Page 28 CONNECTICUT LAW JOURNAL 0, 0

30 ,0 0 Conn. App. 1
State v. Nathan S.

whether the defendant made inappropriate comments
about middle school age girls in general was not a focal
point of the trial in this case; rather, the primary issue
was whether the defendant engaged in sexual contact
or conduct with A as described in the operative informa-
tion. Second, U’s testimony concerning the defendant’s
comments about middle school girls was a minimal part
of the defendant’s trial, in which the state presented
testimony from eight witnesses over the course of five
days, and the defense presented testimony from nine
witnesses over the course of three days. In addition to
U’s brief testimony about those comments, the subject
arose during the defendant’s testimony on direct and
cross-examination, and the prosecutor made only one
general comment about U’s testimony about middle
school age girls during closing remarks. In total, of the
more than 1400 pages of trial transcripts, the subject
of the defendant’s comments about middle school girls
that was before the jury25 encompasses approximately
ten pages.
Accordingly, after applying the factors for determin-
ing when an improper evidentiary ruling is harmless in
a particular case, we cannot conclude that the jury’s
verdict was substantially swayed by the alleged error.
See, e.g., State v. Myers, 352 Conn. 770, 784–85, 338
A.3d 1088 (2025). In light of the other testimony before
the jury from U that was similar in nature to the chal-
lenged testimony, as well as U’s unchallenged testimony
about the defendant’s comments that directly pertained
to A, the 893 pages of text messages between the defen-
dant and A over a short period of time, and the relative
strength of the state’s case, despite the lack of physical
evidence, U’s challenged testimony ‘‘had at best a mini-
mal impact on the jury’’; State v. Martin V., 102 Conn.
25
We note that a lengthy discussion occurred between the court and
counsel concerning the admissibility of U’s testimony about the defendant’s
statements outside of the presence of the jury.
0, 0 CONNECTICUT LAW JOURNAL Page 29

0 Conn. App. 1 ,0 31
State v. Nathan S.

App. 381, 391, 926 A.2d 49, cert. denied, 284 Conn. 911,
931 A.2d 933 (2007); and ‘‘it was not likely that the
[challenged evidence] was very damaging to the
defense.’’ State v. Gallo, 135 Conn. App. 438, 462, 41
A.3d 1183 (2012), appeal dismissed, 310 Conn. 602, 78
A.3d 854 (2013). Therefore, we have a fair assurance
that the alleged error did not substantially affect the
verdict. See, e.g., State v. Myers, supra, 784–85.
II
The defendant next claims that the prosecutor
engaged in impropriety that deprived him of a fair trial.
This claim concerns the prosecutor’s cross-examination
of Madel with respect to her conclusion that the defen-
dant was eliminated as a contributor to the samples
taken from A’s leggings. Specifically, the defendant
claims that the prosecutor, during cross-examination,
improperly suggested ‘‘that the defendant’s DNA may
have been a match despite Madel’s analysis eliminating
him as even a possible contributor to the DNA on the
leggings,’’ asked ‘‘a [series] of questions that distorted
Madel’s testimony,’’ and ‘‘suggested to the jury during
cross-examination that it should review [the] DNA evi-
dence under a method unsupported by the evidence.’’
The defendant also contends that the alleged prosecu-
torial impropriety deprived him of a fair trial. We are
not persuaded.
The following additional facts are relevant to this
claim. As stated previously in this opinion, Madel testi-
fied regarding DNA testing she had performed on two
samples taken from A’s leggings. A different analyst
tested the known samples from the defendant and A
to avoid cross contamination. Madel explained the pro-
cess used in developing a DNA profile, which includes
extracting DNA from the samples and purifying it, quan-
tifying the DNA to determine the amount of DNA, if
any, that has been extracted, then amplifying the DNA
Page 30 CONNECTICUT LAW JOURNAL 0, 0

32 ,0 0 Conn. App. 1
State v. Nathan S.

by creating copies of the targeted DNA, and analyzing
and interpreting the DNA to generate a DNA profile,
which is represented by a series of numbers.26 In this
case, Madel ‘‘developed two separate DNA profiles from
the two different samples that [she] processed.’’ The
type of profile that was developed for each sample
contained a mixture of more than one person’s DNA
for each sample, i.e., the profile generated was not a
single source profile, and the profiles were mixtures of
male and female. In other words, she generated one
overall profile for each sample, with multiple contribu-
tors to each profile, and each profile had at least one
male contributor. Madel thereafter compared the DNA
profiles from the samples from the leggings with the
DNA profiles developed from the known samples of
the defendant and A to ‘‘see if the types in the known
profile[s] [were] present in the types in the evidentiary
profile.’’ These results were represented in the allele
table that was admitted into evidence, which contained
four profiles—the two known profiles of the defendant
and A, and the two profiles developed from the samples
from the leggings. Madel concluded that at least three
people contributed to the DNA profile developed from
the sample taken from the exterior waistband of the
leggings, and at least two people contributed to the DNA
profile developed from the sample from the interior
waistband of the leggings. Madel testified that she con-
cluded that the defendant was eliminated as a contribu-
tor to the DNA profiles generated from both samples
26
‘‘A DNA profile is determined by looking at different locations on a
genetic chain.’’ (Internal quotation marks omitted.) State v. Police, 343 Conn.
274, 302, 273 A.3d 211 (2022). In the present case, Madel looked to twenty-
four locations on the genetic chain. ‘‘A person has, at most, two distinct
genetic markers (alleles) at any location—one from [his] mother and one
from [his] father. A person will often have the same genetic marker from
both [his] mother and [his] father, so a single location on an individual DNA
profile can have either one or two alleles. If there are three alleles at a
location, then the sample contains DNA from more than one person.’’ (Inter-
nal quotation marks omitted.) Id.
0, 0 CONNECTICUT LAW JOURNAL Page 31

0 Conn. App. 1 ,0 33
State v. Nathan S.

taken from the leggings and that A was presumed to
be a contributor to both samples. As Madel explained:
‘‘You can include somebody as a contributor if it’s a
mixture and their types are . . . conclusively there.
You can have an inconclusive conclusion where . . .
there’s not enough information . . . to say someone’s
included or excluded and you can eliminate somebody.’’
When asked whether her conclusion that the defendant
was eliminated as a contributor to both profiles from
the samples meant ‘‘that he can’t be the person who
deposited the DNA on . . . that evidence,’’ Madel
responded: ‘‘I can’t give an identity statement. I can just
say that his types are not present—not detected in the
evidentiary profile that I developed.’’

During cross-examination, the prosecutor questioned
Madel about ‘‘touch DNA’’ and the primary and ‘‘second-
ary transfer’’ of DNA.27 Thereafter, the prosecutor offered,
and the court admitted into evidence, exhibit 57A—a
copy of the same allele table that already had been
27
Our Supreme Court has recognized that ‘‘touch DNA does not necessarily
indicate a person’s direct contact with the object. Rather . . . abandoned
skin cells, which make up touch DNA, can be left behind through primary
transfer, secondary transfer, or aerosolization. Primary or ‘touch’ transfer
occurs, for example, when you directly touch or pick up an object. Secondary
transfer, alternatively, occurs when, for example, person A bleeds onto a
table and, subsequently, person B walks by the table, accidentally brushes
against it, and then sits in a chair. Person A’s blood can potentially be on
that chair via secondary transfer, although person A personally never came
into contact with the chair. Finally, skin cells can be deposited on an object
through aerosolization, which . . . occurs when, for example, a person
speaks, breathes, coughs, or sneezes on or near an item.’’ State v. Dawson,
340 Conn. 136, 153–54, 263 A.3d 779 (2021); see also State v. Glass, 214
Conn. App. 132, 140 n.15, 279 A.3d 203 (2022). Madel described touch DNA
as ‘‘when a person comes in contact with something and leaves skin cells
behind, and that’s where you get the DNA from. It is a much smaller amount
of DNA compared to a blood sample or a semen sample or a saliva sample.’’
Madel further explained that ‘‘[p]rimary transfer is when DNA is transferred
from a person to object or person to person. Secondary transfer is when
DNA is transferred from a person to an object to a person, [or] a person
to an object to an object . . . .’’
Page 32 CONNECTICUT LAW JOURNAL 0, 0

34 ,0 0 Conn. App. 1
State v. Nathan S.

admitted into evidence as defense exhibit N, which
included the results of the four different profiles but
with certain numbers or alleles highlighted. See foot-
note 14 of this opinion. The prosecutor then continued
cross-examining Madel about her conclusion that the
defendant had been eliminated as a contributor to the
DNA from the leggings, and Madel explained that the
defendant was ‘‘eliminated because his profile was not
detected at . . . all sites [on the allele table] and
[because] the overall interpretation [was] that he [was]
not a contributor to this profile.’’ The prosecutor
responded by asking, ‘‘you’re not saying that [the defen-
dant] didn’t touch those leggings, are you?’’ Madel
answered that she could not say if the defendant ever
touched the leggings, as it is ‘‘possible to touch some-
thing and not leave enough DNA behind to be detected.’’
Throughout cross-examination, the prosecutor repeat-
edly asked questions as to whether the DNA results
indicated whether the defendant ever touched the leg-
gings.
In connection with exhibit 57A, the prosecutor asked
whether there was any ‘‘hard and fast rule that some-
thing has to be there for all sites,’’ and Madel answered:
‘‘Correct, there’s no certain amount of alleles that have
to—or types that have to be present in order to be
included or excluded. It’s looking at the profile overall,
looking at all twenty-four sites, looking at the peak
heights of the profile to the major, the minor, the con-
tributors and where somebody might be dropping out,
where they’re not dropping out and you make the con-
clusion for the overall profile, not just at each—one
each—at each site, individually,’’ as it depends on the
‘‘[i]ndividual sample.’’ She agreed with the prosecutor
when asked whether ‘‘you could have less than twenty-
four and still have an inclusion . . . .’’ When the prose-
cutor, utilizing the allele table in exhibit 57A, pointed
out that the defendant’s ‘‘profile’’ showed up at various
0, 0 CONNECTICUT LAW JOURNAL Page 33

0 Conn. App. 1 ,0 35
State v. Nathan S.

testing sites on the table, Madel clarified that the defen-
dant’s ‘‘types’’ were at the sites, but that some of those
types were not unique to an individual, after which
the prosecutor again stated, ‘‘[b]ut that is part of his
profile,’’ and Madel replied, ‘‘[h]e does have those types,
yes.’’ (Emphasis added.) Throughout his cross-examina-
tion of Madel, the prosecutor repeatedly asked ques-
tions pertaining to whether the results depicted in
exhibit 57A supported a conclusion that the defendant
never touched the leggings. Defense counsel also raised
multiple objections, most of which were overruled by
the court.28
28
Specifically, the following colloquy transpired during cross-examination:
‘‘[The Prosecutor]: Now, when you say that [the defendant] was eliminated,
okay, what you’re saying is that his—based on whatever protocol you use,
his profile was not detected in sufficient quantities that you could either
say, inclusive or included, correct?
‘‘[Madel]: His profile was—
‘‘[Defense Counsel]: Objection. I’m not quite sure what he’s asking.
‘‘[The Prosecutor]: It’s cross-examination, Your Honor, and I want to make
sure that—
‘‘The Court: And the question is—if your issue is that you’re unclear, is
the witness clear as to the question?
‘‘[Madel]: —I—he is eliminated because his profile was not detected at
. . . all sites and the overall interpretation is that he is not a contributor
to this profile.
‘‘[The Prosecutor]: Okay. And—but it’s not required that he be there at
all sites, is it, for you to make an inclusion?
‘‘[Defense Counsel]: Objection, he’s testifying.
‘‘[The Prosecutor]: It’s cross-examination, Your Honor.
‘‘The Court: . . . I agree. It’s cross-examination. The witness can, cer-
tainly, answer whether that’s right or wrong. So, it’s overruled.
‘‘[The Prosecutor]: And, you’re not saying—you’re not saying that [the
defendant] didn’t touch those leggings, are you?
‘‘[Defense Counsel]: Objection, she wasn’t asked if [the defendant]
touched them.
‘‘The Court: Overruled.
‘‘[Madel]: I’m not saying that he didn’t touch it, no. I can’t say if he touched
it or not.
‘‘[The Prosecutor]: Okay. He could very well have touched it and just not
left a profile there, isn’t that correct?
‘‘[Defense Counsel]: Objection, calls for speculation.
‘‘The Court: Overruled.
‘‘[Madel]: Yes, it’s possible to touch something and not leave enough DNA
behind to be detected.
Page 34 CONNECTICUT LAW JOURNAL 0, 0

36 ,0 0 Conn. App. 1
State v. Nathan S.

‘‘[The Prosecutor]: And, in terms of your own protocols, okay, I understand
that you had somebody review it, okay, and you came to the conclusion
with the person who reviewed it that you made an elimination, correct?
‘‘[Madel]: Correct.
‘‘[The Prosecutor]: Okay, but there’s no hard and fast rule that something
has to be there for all sites, correct?
‘‘[Madel]: Correct, there’s no certain amount of alleles that have to—or
types that have to be present in order to be included or excluded. It’s looking
at the profile overall, looking at all twenty-four sites, looking at the peak
heights of the profile to the major, the minor, the contributors and where
somebody might be dropping out, where they’re not dropping out and you
make the conclusion for the overall profile, not just at each—one each—
at each site, individually.
‘‘[The Prosecutor]: So, it depends on the individual case?
‘‘[Madel]: Individual sample.
‘‘[The Prosecutor]: And, you could have less than twenty-four and still
have an inclusion, correct?
‘‘[Madel]: Less than twenty-four?
‘‘[The Prosecutor]: Twenty-four sites, less . . . than the full twenty-four
sites and still have an inclusion.
‘‘[Madel]: Yes, that’s possible. You can have DNA—yes.
‘‘[The Prosecutor]: Okay. So, let me just show you what’s been marked
as . . . state’s exhibit 57A. . . . [T]he first table, that line [002] are the
defendant’s profile in each site, correct?
‘‘[Madel]: His types at each . . . different testing site, yes.
‘‘[The Prosecutor]: Okay. Cause that’s all you’re . . . measuring. You’re
not measuring whether or not somebody actually touched something. You’re
measuring . . . whether or not the sites are showing up, correct?
‘‘[Madel]: Well, for a known sample you would expect to have results at
every single site, because it’s a known profile, there’s plenty of DNA there.
‘‘[The Prosecutor]: You’re talking about . . . the known?
‘‘[Madel]: The knowns, [002], yes.
‘‘[The Prosecutor]: Okay. I’m just . . . we’re talking about the knowns,
but what you’re actually measuring on the unknown is not whether or not
they touched something, but whether or not their profile is showing up?
‘‘[Madel]: Right. I’m seeing if there’s any DNA there, yes.
‘‘[The Prosecutor]: Right.
‘‘[Madel]: Not that if they touched it, or they didn’t touch it, who touched
it, when. None of that.
‘‘[The Prosecutor]: Right. Somebody . . . can touch it and not have their
profile show up, correct?
‘‘[Madel]: That’s possible, yes.
‘‘[The Prosecutor]: And that would be an exclusion?
‘‘[Madel]: Yes, if their DNA . . . if the types aren’t there, that would be
an exclusion, yes.
‘‘[The Prosecutor]: Even though they touched it?
‘‘[Madel]: If they touched it, yes.
‘‘[The Prosecutor]: And . . . but it doesn’t show up?
‘‘[Madel]: Right. If I didn’t detect the profile and they’re not there then,
0, 0 CONNECTICUT LAW JOURNAL Page 35

0 Conn. App. 1 ,0 37
State v. Nathan S.

I’d have to eliminate, yes.
‘‘[The Prosecutor]: Okay. . . . [B]ut that doesn’t determine whether or
not they touched it?
‘‘[Madel]: Correct.
‘‘[The Prosecutor]: Okay. And, if someone didn’t touch it . . . their profile
could show up on it because of secondary transfer, is that correct?
‘‘[Madel]: That is possible, yes.
‘‘[The Prosecutor]: Okay. So . . . and I know . . . that under your evalu-
ation on this case, you’ve excluded it, but if you look at state’s exhibit 57A,
and you look at the top box in each table, okay, those are examples of
where the defendant’s profile shows up.
‘‘[Defense Counsel]: I’m gonna—
‘‘[The Prosecutor]: Is that correct?
‘‘[Defense Counsel]: —I’m gonna object because that’s not exactly true.
‘‘The Court: Well, that’s what the witness . . . who is an expert in this
field, can testify to. . . .
‘‘[Madel]: So, looking at, say, that first box there, that—next to the item
number on the top, it says D3S1358, that’s like one of the testing sites. You
can see my results for the [001-001] was types 14, 15, 17 and 18.
‘‘[The Prosecutor]: Okay. And [the defendant’s] profile shows up there?
‘‘[Madel]: The types that [the defendant] has at that site, yes, are there—
‘‘[The Prosecutor]: Okay.
‘‘[Madel]: —but that’s not unique to an individual. Other people do have
those types so, that doesn’t—
‘‘[The Prosecutor]: Other people do have . . .
‘‘[Madel]: —mean, that those are—they came from him.
‘‘[The Prosecutor]: But that is part of his profile?
‘‘[Madel]: He does have those types, yes.
‘‘[The Prosecutor]: Okay. And, in each one of those, okay, where there’s a
yellow marker, what’s listed as his profile shows up in each of those sections.
‘‘[Defense Counsel]: Objection, that’s not what the exhibit shows.
‘‘[The Prosecutor]: It’s cross-examination, Your Honor.
‘‘The Court: Sustained. It’s a question. Does . . . it show up?
‘‘[Madel]: At each—where he highlighted, so, the next one [genetic marker
vWA], the defendant is a 16 [and] 17, and in that evidentiary profile there’s
a 16 [and] 17. The next one . . . .
‘‘[The Prosecutor]: Okay, but they’re the same as—and, I don’t want to
go through each box. It’s where . . . the markings are, that particular num-
ber shows up that’s reflected as also showing up for the defendant.
‘‘[Madel]: Some of them, yes.
‘‘[The Prosecutor]: Okay, some of them.
‘‘[Madel]: Yes.
‘‘[The Prosecutor]: Okay.
‘‘[Madel]: Not all of them. Yes.
‘‘[The Prosecutor]: Not . . . all of them. Okay.
‘‘[Madel]: Yes.
‘‘[The Prosecutor]: And you made a determination that there is an exclu-
sion, correct?
‘‘[Madel]: Correct.
Page 36 CONNECTICUT LAW JOURNAL 0, 0

38 ,0 0 Conn. App. 1
State v. Nathan S.

Prior to the commencement of evidence the next day,
defense counsel orally moved for a mistrial, arguing
that the state’s highlighted allele table, exhibit 57A, and
the prosecutor’s questions on cross-examination of
Madel pointing out that some of the alleles on the male
sample are alleles on the defendant’s profile was mis-
leading and ‘‘propounded a false theory,’’ and that the
prosecutor thereby engaged in misconduct. The court
denied the motion.
On appeal, the defendant contends that, during the
prosecutor’s cross-examination of Madel, ‘‘the prosecu-
tor deliberately suggested to the jury . . . that the
defendant’s DNA may have been present on [A’s] leg-
gings even though [the defendant] had been eliminated
as a possible contributor [which] . . . was contrary to
Madel’s testimony . . . . The prosecutor marked for
the jury, on a full exhibit the jury would have with it
in the jury room, each allele type within the defendant’s
DNA that matched an allele type found on the first
sample taken from the leggings. The prosecutor thereby
effectively invited the jury to assess whether enough
alleles matched (using [the jurors’] own judgment for
what seemed like enough) to convince [the jury] that
the defendant’s DNA was there, despite the lack of
any evidentiary basis for such a procedure to analyzing
DNA. . . .
‘‘The prosecutor compounded this impropriety by
repeatedly suggesting that the defendant’s profile was
found at individual sites, when a profile is indisputably
composed of the entirety of the allele types found at
all twenty-four test sites. By suggesting that the defen-
dant’s profile was found anywhere his allele types hap-
pened to be the same as allele types found in the test
‘‘[The Prosecutor]: Okay. And you can’t—as I said, but as you sit here
today, you can’t say whether or not he actually touched the item.
‘‘[Madel]: I do not know if he touched it. No.’’
0, 0 CONNECTICUT LAW JOURNAL Page 37

0 Conn. App. 1 ,0 39
State v. Nathan S.

samples, the prosecutor created the potential for seri-
ous confusion on the part of the jury regarding precise
and nuanced distinctions in nomenclature that easily
may be . . . misunderstood . . . . Such misuse of the
scientific terminology, even if not calculated to confuse
the jury, certainly had a strong tendency to nullify the
established science and Madel’s expert testimony,
which established that the threshold of the number of
matching alleles had not been reached for the defendant
to even be considered a possible contributor. In short,
the science showed that there was no possibility that
the defendant’s DNA was in the tested samples; the
prosecutor committed impropriety by inviting the jury
to entertain such a possibility. . . . Accordingly, the
jur[ors], equipped with the marked-up exhibit, [were]
led to believe they could deliberate on whether they
thought it seem[ed] like the defendant’s DNA was on
the leggings despite the expert’s testimony.’’ (Citations
omitted; emphasis altered.)
In response, the state asserts that ‘‘[t]here was noth-
ing even bordering on inflammatory regarding the
state’s cross-examination, which, at most, elicited two
vague objections by the defendant that the court over-
ruled.’’ The state points out that ‘‘the defendant does
not argue, nor does the record reflect, that the state
ever argued to the jury what the defendant now believes
it ‘suggested’ during cross-examination, i.e., that the
jury could conclude that the defendant’s DNA profile
was found on the leggings despite Madel’s conclusion
that his profile was excluded. Rather, it simply argued
that, notwithstanding Madel’s conclusion of exclusion
at the time of testing, the jury could consider whether
the defendant had touched the leggings in the past, and
any potential DNA left had been degraded through time
and, in particular, through washing of the leggings.
Thus, the state’s theory was simple, and fully consistent
with what Madel testified to—that the defendant’s DNA
Page 38 CONNECTICUT LAW JOURNAL 0, 0

40 ,0 0 Conn. App. 1
State v. Nathan S.

was not on the leggings, but that did not mean that he
had not touched them in the past, and it is possible for
DNA to degrade over time.’’ (Emphasis omitted.) The
state highlights the fact that the prosecutor ‘‘never once
disputed Madel’s ultimate conclusion that the [defen-
dant] was excluded as a contributor to the DNA profile
on the leggings’’ and merely sought to demonstrate that
this conclusion ‘‘did not necessarily mean that the
defendant had never touched the leggings in the past.’’
(Emphasis in original.) Finally, the state contends that,
even if the prosecutor ‘‘mistakenly used the word ‘pro-
file’ ’’ when referring to the twenty-four testing sites,
rather than ‘‘the word ‘type,’ ’’ any such misstatement
did not rise to the level of impropriety, especially given
that ‘‘Madel clarified in her answers that it was actually
the types that were found on the leggings profile and
not the full profile.’’ (Emphasis omitted.) We agree with
the state.
We first set forth our well established legal principles
and standard of review pertaining to claims of prosecu-
torial impropriety. ‘‘It is well established that ‘[p]rosecu-
torial impropriety can occur during . . . the cross-
examination of witnesses . . . .’ ’’ State v. Diaz, 348
Conn. 750, 770, 311 A.3d 714 (2024). ‘‘[W]hen a defen-
dant raises on appeal a claim that improper remarks
by the prosecutor deprived the defendant of his consti-
tutional right to a fair trial, the burden is on the defen-
dant to show . . . that the remarks were improper
. . . . State v. Turner, 181 Conn. App. 535, 557, 187
A.3d 454 (2018), aff’d, 334 Conn. 660, 224 A.3d 129
(2020); see also State v. Taft, 306 Conn. 749, 762, 51
A.3d 988 (2012).’’ (Internal quotation marks omitted.)
State v. Henry B.-A., supra, 234 Conn. App. 206. ‘‘In
evaluating whether a defendant has carried that burden,
[appellate courts] recognize that prosecutorial inquiries
or comments that might be ‘questionable’ when ‘read
in a vacuum’ often are, indeed, appropriate when
0, 0 CONNECTICUT LAW JOURNAL Page 39

0 Conn. App. 1 ,0 41
State v. Nathan S.

‘review[ed] . . . in the context of the entire trial.’ ’’
State v. O’Brien-Veader, 318 Conn. 514, 524, 122 A.3d
555 (2015).
‘‘In analyzing claims of prosecutorial impropriety, we
engage in a two step analytical process. . . . The two
steps are separate and distinct. . . . We first examine
whether prosecutorial impropriety occurred. . . . Sec-
ond, if an impropriety exists, we then examine whether
it deprived the defendant of his due process right to a
fair trial.29 . . . In other words, an impropriety is an
impropriety, regardless of its ultimate effect on the fair-
ness of the trial. Whether that impropriety was harmful
and thus caused or contributed to a due process viola-
tion involves a separate and distinct inquiry.’’ (Footnote
added; internal quotation marks omitted.) State v.
Henry B.-A., supra, 234 Conn. App. 206; see also State
v. Parris, 352 Conn. 652, 658–59, 338 A.3d 1139 (2025).
‘‘A basic and proper purpose of cross-examination
of an expert is to test that expert’s credibility. . . .
Thus, [i]t is well established that an expert witness can
be examined concerning the factual basis of his [or her]
29
‘‘To prove prosecutorial [impropriety], the defendant must demonstrate
substantial prejudice. . . . In order to demonstrate this, the defendant must
establish that the trial as a whole was fundamentally unfair and that the
[impropriety] so infected the trial with unfairness as to make the conviction
a denial of due process. . . . In weighing the significance of an instance
of prosecutorial impropriety, a reviewing court must consider the entire
context of the trial, and [t]he question of whether the defendant has been
prejudiced by prosecutorial [impropriety] . . . depends on whether there
is a reasonable likelihood that the jury’s verdict would have been different
[in the absence of] the sum total of the improprieties. . . .
‘‘To determine whether the impropriety deprived the defendant of a fair
trial, this court applies the factors set forth in State v. Williams, 204 Conn.
523, 540, 529 A.2d 653 (1987). These factors include [1] the extent to which the
[impropriety] was invited by defense conduct or argument, [2] the severity
of the [impropriety], [3] the frequency of the [impropriety], [4] the centrality
of the [impropriety] to the critical issues in the case, [5] the strength of the
curative measures adopted, and [6] the strength of the state’s case.’’ (Citation
omitted; internal quotation marks omitted.) State v. Parris, 352 Conn. 652,
676–77, 338 A.3d 1139 (2025).
Page 40 CONNECTICUT LAW JOURNAL 0, 0

42 ,0 0 Conn. App. 1
State v. Nathan S.

opinion.’’ (Internal quotation marks omitted.) State v.
O’Brien-Veader, supra, 318 Conn. 525. Nevertheless, a
‘‘prosecutor has a heightened duty to avoid argument
[or questioning] that strays from the evidence or diverts
the jury’s attention from the facts of the case.’’ (Internal
quotation marks omitted.) State v. Reddick, 174 Conn.
App. 536, 564, 166 A.3d 754, cert. denied, 327 Conn. 921,
171 A.3d 58 (2017), cert. denied, 583 U.S. 1135, 138 S.
Ct. 1027, 200 L. Ed. 2d 285 (2018).
With these standards in mind, we turn to the merits
of the defendant’s claim. We conclude that the prosecu-
tor’s questions during cross-examination of Madel were
not improper. First, we disagree with the defendant’s
contention that ‘‘the prosecutor deliberately suggested
to the jury . . . that the defendant’s DNA may have
been present on [A’s] leggings even though [the defen-
dant] had been eliminated as a possible contributor.’’
From our review of the entire transcript of the cross-
examination of Madel, it is clear that the questions
posed by the prosecutor during that cross-examination
were intended to make the point that the defendant’s
exclusion as a contributor of the DNA found on the
leggings did not necessarily mean that the defendant
never touched the leggings. This was demonstrated at
various times during the colloquy, including when the
prosecutor asked, ‘‘[a]nd you made a determination that
there is an exclusion,’’ to which Madel replied, ‘‘[c]or-
rect.’’ That was immediately followed by the prosecu-
tor’s question, ‘‘but as you sit here today, you can’t say
whether or not he actually touched the item,’’ and Madel
replied, ‘‘I do not know if he touched it.’’
The defendant’s claim of prosecutorial impropriety
centers on the prosecutor’s questions regarding the
allele table in state exhibit 57A. As stated previously;
see footnote 14 of this opinion; both the defendant and
the state separately offered that table into evidence
0, 0 CONNECTICUT LAW JOURNAL Page 41

0 Conn. App. 1 ,0 43
State v. Nathan S.

during direct and cross-examination of Madel, respec-
tively, with the difference being that state’s exhibit 57A
included yellow highlighting of the defendant’s DNA
profile and various alleles that were not highlighted
in defense exhibit N, which the court previously had
admitted into evidence. Although defense counsel
objected to the admission of the state’s exhibit with
the highlighting, the court admitted it into evidence.
Given that Madel had generated the table as part of
her DNA analysis and that the table was admitted into
evidence, twice, by the court, it was not improper for
the prosecutor to question Madel regarding that evi-
dence and how the data therein formed the basis for
her conclusion that the defendant was excluded as a
contributor to the DNA on the leggings. The trial tran-
script shows that the prosecutor utilized exhibit 57A
in questioning Madel regarding the fact that certain of
the allele types in the defendant’s DNA profile matched
some of the allele types in the DNA profiles generated
from the samples taken from the leggings. The defen-
dant’s claim that this questioning improperly suggested
to the jury that it could make its own conclusion regard-
ing the DNA evidence is unfounded and based on specu-
lation. The prosecutor never stated that the jury could
do so, and it would be speculative to conclude that
the prosecutor impliedly encouraged the jury to do so
simply by questioning Madel about the connection
between the defendant’s allele types and those found
in the DNA profiles generated from the samples from
the leggings.
As our Supreme Court has stated: ‘‘Our courts have
recognized that it is usually not impropriety for a prose-
cutor to ask a question that may elicit objectionable
testimony, let alone one—as in this case—that garners
an objection that the trial court overrules, in favor of
the prosecution. See, e.g., State v. Holmes, 169 Conn.
App. 1, 15, 148 A.3d 581 (simply posing an objectionable
Page 42 CONNECTICUT LAW JOURNAL 0, 0

44 ,0 0 Conn. App. 1
State v. Nathan S.

question does not amount to an actionable impropri-
ety), cert. denied, 323 Conn. 951, 151 A.3d 847 (2016)
. . . . Moreover, [a]rguing on the basis of evidence
explicitly admitted [by the trial court] for that purpose
cannot constitute prosecutorial [impropriety].’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Graham, 344 Conn. 825, 857–58, 282 A.3d 435 (2022).
‘‘A basic and proper purpose of cross-examination of
an expert is to test that expert’s credibility. . . . Thus,
[i]t is well established that an expert witness can be
examined concerning the factual basis of his [or her]
opinion.’’ (Internal quotation marks omitted.) State v.
O’Brien-Veader, supra, 318 Conn. 525. We cannot con-
clude that the prosecutor engaged in impropriety by
questioning Madel, the expert witness for the defense
on DNA evidence, regarding the basis for her findings.
Our Supreme Court repeatedly has held that ‘‘[i]t is not
. . . improper for the prosecutor to comment [on] the
evidence presented at trial . . . .’’ (Internal quotation
marks omitted.) State v. Simmons, 352 Conn. 556, 576,
337 A.3d 1097 (2025); State v. Elmer G., 176 Conn. App.
343, 376, 170 A.3d 749 (2017) (same), aff’d, 333 Conn.
176, 214 A.3d 852 (2019); see also State v. Carey, 187
Conn. App. 438, 462, 202 A.3d 1067 (2019) (‘‘[t]he prose-
cutor’s statement about the defendant’s credibility was
permissible because the prosecutor was commenting
on facts properly in evidence and reasonable inferences
to be drawn from them’’), aff’d, 337 Conn. 463, 254
A.3d 265 (2020). It necessarily follows that a prosecutor
properly may question an expert witness about evi-
dence presented at trial provided such questioning does
not ‘‘[stray] from the evidence or [divert] the jury’s
attention from the facts of the case’’; (internal quotation
marks omitted) State v. Reddick, supra, 174 Conn. App.
564; especially when that evidence consists of a chart
that was generated by the expert witness and included
0, 0 CONNECTICUT LAW JOURNAL Page 43

0 Conn. App. 1 ,0 45
State v. Nathan S.

the results of her DNA analysis, and nothing in the
questions themselves was inflammatory.30
We also reject the defendant’s claim that the prosecu-
tor engaged in impropriety by using the term ‘‘profile’’
rather than ‘‘type’’ in questioning Madel about the allele
table. ‘‘There is . . . a distinction between misstate-
ment and misconduct. State v. Dawes, 122 Conn. App.
303, 314, 999 A.2d 794, cert. denied, 298 Conn. 912, 4
A.3d 834 (2010); see also State v. Orellana, [89 Conn.
App. 71, 105, 872 A.2d 506] (isolated misstatement not
prosecutorial impropriety) [cert. denied, 274 Conn. 910,
876 A.2d 1202 (2005)]. . . . [W]e do not scrutinize each
individual comment in a vacuum, but rather we must
review the comments complained of in the context of
the entire trial.’’ (Internal quotation marks omitted.)
State v. Henry B.-A., supra, 234 Conn. App. 221. The
few instances in which the prosecutor mistakenly used
the term ‘‘profile’’ instead of ‘‘type’’ do not amount to
prosecutorial impropriety, especially when viewed in
the context of the entire trial, in which Madel utilized
the correct terminology in her answers to the prosecu-
tor’s questions. See, e.g., State v. Simmons, supra, 352
30
As we have stated in this opinion, ‘‘[appellate courts] recognize that
prosecutorial inquiries or comments that might be ‘questionable’ when ‘read
in a vacuum’ often are, indeed, appropriate when ‘review[ed] . . . in the
context of the entire trial.’ ’’ State v. O’Brien-Veader, supra, 318 Conn. 524.
In that regard, we note that, during closing argument before the jury, the
prosecutor did not suggest that the defendant’s DNA was present on the
leggings, that Madel’s testing yielded an inaccurate result, or that the jury
was permitted to reach its own conclusion with respect to the DNA results.
Instead, the prosecutor highlighted the potential significance of the DNA
testing by arguing that the results ‘‘[did not] mean that the defendant did
not touch [A’s] leggings; it just means that, at the time the testing was
conducted, [the defendant’s] DNA was not detected on them.’’ Defense
counsel, in turn, argued to the jury that the state had ‘‘fought the DNA
evidence’’ and that he had never before seen ‘‘a [prosecutor] try to cross-
examine a DNA expert.’’ During the prosecutor’s rebuttal closing argument,
the prosecutor replied that the state did not try to ‘‘explain away the DNA
[results]’’ and that ‘‘the state didn’t fight the DNA [results] . . . [but, rather]
explained what touch DNA is and its limitation.’’
Page 44 CONNECTICUT LAW JOURNAL 0, 0

46 ,0 0 Conn. App. 1
State v. Nathan S.

Conn. 576 n.15 (‘‘prosecutor’s imprecise language did
not rise to the level of an impropriety’’).
Finally, the defendant’s contention that ‘‘the jur[ors],
equipped with the marked-up exhibit, [were] led to
believe31 they could deliberate on whether they thought
it seem[ed] like the defendant’s DNA was on the leg-
gings despite the expert’s testimony’’ requires little dis-
cussion.32 (Emphasis in original; footnote added.) This
claim, although framed and briefed as one of prosecu-
torial impropriety, is a veiled attempt to challenge the
31
We note that, although the prosecutor utilized the ‘‘marked-up exhibit’’
during cross-examination of Madel, the prosecutor made no reference to it
during closing remarks to the jury. Rather, defense counsel referred to it
during his closing remarks, stating that the prosecutor had been ‘‘asking
about with the yellow highlighter and the alleles; well, I just want to be
clear about this, okay, [Madel] eliminated the defendant.’’
32
Specifically, the defendant contends that, after offering the highlighted
allele table into evidence, the prosecutor pursued cross-examination of
Madel ‘‘using the highlighted exhibit to show the jury that, although Madel
testified that the defendant was scientifically eliminated as even a possible
contributor, a number of his alleles matched. This tended to lead the jury
to disbelieve the scientific evidence and substitute its own lay judgment
posing a substantial risk of distracting the jury from, and undermining
confidence in, the science.’’ In support of this claim, he relies on State v.
Brett B., 186 Conn. App. 563, 585, 200 A.3d 706 (2018), cert. denied, 330
Conn. 961, 199 A.3d 560 (2019), for the proposition that it is improper for
a prosecutor to state ‘‘that the defendant’s DNA was found on any item
from which he had been eliminated as a possible contributor to the DNA
profile . . . .’’ In Brett B., the prosecutor never made such a statement. Id.
Likewise, in the present case the prosecutor never did so and, thus, the
defendant’s reliance on Brett B. is misplaced. Instead, the prosecutor in the
present case utilized the highlighted allele table, which had been admitted
into evidence and which admission has not been challenged on appeal, to
question Madel regarding certain alleles represented in the table for the
samples from the leggings that matched those on the defendant’s profile.
Again, as we have stated, it is not improper for a prosecutor to question an
expert witness regarding the basis for the witness’ opinion. Notably, any
alleged suggestion by the prosecutor about those matching alleles was imme-
diately refuted by Madel, who explained that some of those matching alleles
were not unique to an individual and that only some, not all, were the
same. Immediately following that colloquy, on redirect examination Madel
explained further that the full DNA profile must be evaluated and stated
two more times that the defendant had been eliminated as a contributor to
the DNA from the leggings.
0, 0 CONNECTICUT LAW JOURNAL Page 45

0 Conn. App. 1 ,0 47
State v. Nathan S.

court’s admission of exhibit 57A. Although defense
counsel objected at trial to the court’s admission of
that exhibit and, after the court overruled that objection
and admitted the exhibit in full, requested a mistrial,
which the court denied, on appeal the defendant has
not raised or briefed a distinct claim challenging the
admission of exhibit 57A. See, e.g., Goshen Mortgage,
LLC v. Androulidakis, 205 Conn. App. 15, 35 n.15, 257
A.3d 360 (‘‘arguments [that] have not been advanced
on appeal . . . are deemed abandoned’’), cert. denied,
338 Conn. 913, 259 A.3d 653 (2021); State v. Walker,
147 Conn. App. 1, 20, 27, 82 A.3d 630 (2013) (although
confrontation clause of federal constitution was basis
for objection at trial, defendant did not brief or analyze
any claim pertaining to confrontation clause on appeal,
and, thus, this court deemed any claim concerning con-
frontation clause abandoned), aff’d, 319 Conn. 668, 126
A.3d 1087 (2015). Consequently, we deem any such
claim pertaining to the court’s admission of that exhibit
abandoned, and, to the extent that the defendant’s pros-
ecutorial impropriety claim is premised on the jury’s
consideration of that exhibit, it fails.
Because we have concluded that the prosecutor’s
cross-examination of Madel was not improper, we need
not address the factors set forth in State v. Williams,
204 Conn. 523, 540, 529 A.2d 653 (1987), for determining
whether prosecutorial impropriety deprived the defen-
dant of his due process right to a fair trial. See, e.g.,
State v. Cusson, 210 Conn. App. 130, 165, 269 A.3d 828,
cert. denied, 343 Conn. 913, 274 A.3d 114 (2022); see
also footnote 29 of this opinion.
III
The defendant’s final claim is that the court violated
his constitutional right to a unanimous verdict with
respect to the charge of sexual assault in the fourth
degree, which he alleged was duplicitous in that it
Page 46 CONNECTICUT LAW JOURNAL 0, 0

48 ,0 0 Conn. App. 1
State v. Nathan S.

charged the defendant with having committed that
offense by touching A’s breast and buttocks and by
having A touch his penis on multiple occasions. Specifi-
cally, he asserts that the court failed to provide the jury
with a proper specific unanimity instruction, which the
court had acknowledged was necessary and had prom-
ised to give, and that the specific unanimity instruction
provided by the court was insufficient to cure the
duplicitous nature of the sexual assault in the fourth
degree charge in the operative information because
‘‘there was evidence of the same type of sexual contact
occurring on multiple occasions’’ and the court did not
instruct the jury that it had to be unanimous as to which
instance of sexual contact occurred. The defendant
asserts that his claim was properly preserved for appel-
late review as a result of the trial court having sua
sponte raised the issue and told the parties that it would
include a specific unanimity instruction, the state’s fail-
ure to object, and defense counsel’s blanket objection
to the jury charge in its entirety after it was given. The
defendant further asserts that the claim, nevertheless,
is reviewable pursuant to State v. Golding, 213 Conn.
233, 239–40, 567 A.2d 823 (1989), as modified by In re
Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015).33
The state counters that the defendant’s jury instruc-
tion challenge is unpreserved and that the unpreserved
claim is not reviewable under Golding because the
defendant implicitly waived it pursuant to State v.
Kitchens, 299 Conn. 447, 10 A.3d 942 (2011), which
established a framework for review of claims of waiver
33
In a footnote in his principal appellate brief, the defendant also suggests
that the court’s failure to provide a specific unanimity instruction as to
instances of conduct warrants reversal under the plain error doctrine. See
Practice Book § 60-5. We conclude that any such claim of plain error is
inadequately briefed and, thus, decline to review it. The defendant devoted
one short paragraph in a footnote to this issue, which is lacking in any
meaningful analysis of the relevant law as applied to the facts of this case.
See, e.g., State v. Owens, 235 Conn. App. 482, 484 n.2, 345 A.3d 489 (2025).
0, 0 CONNECTICUT LAW JOURNAL Page 47

0 Conn. App. 1 ,0 49
State v. Nathan S.

of instructional error. Alternatively, the state contends
that the defendant’s claim is meritless.
The following additional facts are relevant to this
claim. At the end of the day on January 17, 2023, the
court stated to counsel: ‘‘Now, I have sent to everybody
the draft—and I underline draft—of the jury charge. If
we have any ability to do the closing arguments tomor-
row, we obviously need to do a jury charge. That’s why
I asked the jury to come in late, so that we could do
that. So, this is what I ask of everybody: Take a look
at what I did. It’s not—it’s actually not an incredibly
long one, so I think we can get through it. We can
email each other with different requests back and forth
tonight. We will have further argument, and I am happy
to change anything. This, again, is a draft. So, it’s the
first course of looking at these issues. I did add—and
I’ll send it to you separately—since the time that I sent
it to you, I did add the two cautionary instructions that
I gave, one relating to what would be deemed to be
propensity or misconduct evidence and one relating to
the grooming. If people feel that I’ve already given those
instructions and so you don’t need them highlighted, I
can take them out. But I wanted to include them for
purposes of everybody’s consideration. You now have
the jury charge. We will talk tomorrow. And we are
adjourned.’’
The next day, January 18, 2023, the court again raised
the issue of its proposed jury charge with counsel, stat-
ing, ‘‘[s]o, everybody’s had an opportunity to review the
draft.’’ Defense counsel indicated that, after reading the
court’s proposed charge, she had only two requests,
which concerned the defendant’s election to testify and
the adequacy of the police investigation. Thereafter, a
discussion ensued between the court and counsel about
those requests, after which the court mentioned that the
state had ‘‘sent things last night related to the unanimity
charge’’ and asked whether counsel had an opportunity
Page 48 CONNECTICUT LAW JOURNAL 0, 0

50 ,0 0 Conn. App. 1
State v. Nathan S.

to review certain related case law referenced the prior
day. Defense counsel stated that she had not seen a
proposed charge, to which the prosecutor responded
that it was part of an email that had been sent. The
prosecutor indicated that his proposed charge, which
the court stated it was ‘‘going to put . . . in’’ its charge
to the jury, was based on a specific unanimity charge
that had been requested by the defendant in State v.
Joseph V., 345 Conn. 516, 538 n.9, 285 A.3d 1018 (2022).
The court followed by stating that it believed it was
required to give a specific unanimity charge in light of
Joseph V. and State v. Douglas C., 345 Conn. 421, 285
A.3d 1067 (2022). Defense counsel asked whether the
court would be able to send counsel a draft of the
particular charge that it intended to give, and the court
responded, ‘‘[a]bsolutely, but I was going to say, I don’t
see it as more than a standard unanimity instruction
. . . that they have to be unanimous as to—but I will
actually give you the exact wording.’’
At the end of the day on January 18, 2023, the court
again discussed the proposed charge with counsel.
After addressing various issues pertaining to the charge,
defense counsel stated, ‘‘[a]nd the court was going to
do—draft . . . [a] unanimous,’’ to which the court
responded: ‘‘It is in there. And I did, I . . . actually
took a lot of [the state’s] language and then when we
[were] on break, I jumped into a meeting with the crimi-
nal jury instructions committee, so I’m going to actually
forward that so that [you] can . . . tell me if there’s
something different that you think is appropriate
. . . .’’ The court also indicated that the language it
used came from the standard unanimity charge plus
the language submitted by the state based on Joseph
V., and that defense counsel had not submitted any
proposed language.
The next day, January 19, 2023, before closing argu-
ments from counsel, the court noted that everyone had
0, 0 CONNECTICUT LAW JOURNAL Page 49

0 Conn. App. 1 ,0 51
State v. Nathan S.

a copy of the proposed charge ‘‘for over a day,’’ and
that it had received two additional requests. Those
requests did not pertain to the unanimity charge. Fol-
lowing a brief discussion concerning the proposed
charge, counsel made their closing remarks to the jury.
The court subsequently charged the jury. With respect
to the issue of unanimity as to the charge of sexual
assault in the fourth degree, the court instructed: ‘‘Now,
the state, as I indicated, has charged that the defendant
has committed the offense of sexual assault in the
fourth degree in multiple different ways, alleging that
the defendant touched [A’s] breast and buttocks and
[had A] touch the defendant’s penis. You may find the
defendant guilty of the offense of sexual assault in the
fourth degree only if you all unanimously agree on
which of the ways the defendant committed the offense
and that it occurred during the time and place charged
by the state. This means you may not find the defendant
guilty of sexual assault in the fourth degree unless you
all agree that the state has proved beyond a reasonable
doubt that [the] defendant did subject [A], who was
under thirteen years of age, to sexual contact by touch-
ing [A’s] breast or by touching [A’s] buttocks or by
having [A] touch the defendant’s penis, and the defen-
dant was more than two years older than [A]. The state
charges that these crimes were committed between
August, 2018, and February, [2019, at the defendant’s
residence].
‘‘If the state has not met its burden of proving sexual
assault in the fourth degree by way of the defendant
either touching [A’s] breast or touching [A’s] buttocks
or having [A] touch the defendant’s penis, you must
return a verdict of not guilty. As I’ve instructed you,
when you reach a verdict, it must be unanimous on all
elements of the offense.’’
After the court finished charging the jury, defense
counsel made ‘‘an objection to the charge in its entirety
Page 50 CONNECTICUT LAW JOURNAL 0, 0

52 ,0 0 Conn. App. 1
State v. Nathan S.

and every part thereof for the reasons previously stated
on the record,’’ none of which pertained to the unanim-
ity instruction.
A
As an initial matter, we must address the state’s argu-
ment that the defendant’s jury instruction challenge is
unpreserved and that he implicitly waived it pursuant
to Kitchens, which thereby precludes Golding review.
‘‘In Kitchens, [our Supreme Court] held that, ‘when
the trial court provides counsel with a copy of the
proposed jury instructions, allows a meaningful oppor-
tunity for their review, solicits comments from counsel
regarding changes or modifications and counsel affirm-
atively accepts the instructions proposed or given, the
defendant may be deemed to have knowledge of any
potential flaws therein and to have waived implicitly
the constitutional right to challenge the instructions
on direct appeal.’ State v. Kitchens, supra, 299 Conn.
482–83. Under Kitchens, an unpreserved claim of
improper jury instructions is unreviewable under the
third prong of Golding if the claim has been implicitly
waived by defense counsel. See id., 468. ‘Such a determi-
nation by the reviewing court must be based on a close
examination of the record and the particular facts and
circumstances of each case.’ Id., 483.’’ State v. Mebane,
350 Conn. 483, 508–509, 325 A.3d 168 (2024).
We first must determine whether the defendant’s
claim is preserved. ‘‘[A] party may preserve for appeal
a claim that an instruction . . . was . . . defective
either by: (1) submitting a written request to charge
covering the matter; or (2) taking an exception to the
charge as given. . . . Under either method [of submit-
ting a written request to charge or taking an exception
to the charge as given], some degree of specificity is
required, as a general request to charge or exception
will not preserve specific claims. . . . Thus, a claim
0, 0 CONNECTICUT LAW JOURNAL Page 51

0 Conn. App. 1 ,0 53
State v. Nathan S.

concerning an improperly delivered jury instruction will
not be preserved for appellate review by a request to
charge that does not address the specific component
at issue . . . or by an exception that fails to articulate
the basis relied upon on appeal with specificity.’’ (Cita-
tion omitted; internal quotation marks omitted.) State
v. Wilson, 209 Conn. App. 779, 797, 267 A.3d 958 (2022).
In the present case, the defendant did not file a written
request to charge, and his blanket objection ‘‘to the
charge in its entirety . . . for the reasons previously
stated on the record,’’ which did not concern the una-
nimity charge, was not sufficient to preserve his particu-
lar claim concerning the court’s specific unanimity
charge.34 Accordingly, we conclude that the defendant’s
claim of instructional error is unpreserved.
We turn next to the issue of whether the defendant
implicitly waived his unpreserved claim of instructional
error under Kitchens. The record shows that the court
provided counsel with a copy of the proposed jury
instructions, allowed a meaningful opportunity for their
review, and solicited comments from counsel regarding
changes or modifications as to other portions of the
charge, to which counsel assented. With respect to the
court’s specific unanimity charge, the court stated on
the record that it would provide a charge consistent
with Joseph V. and provided a copy of a proposed
charge to counsel. The record before us, however, does
not include a copy of the court’s proposed charge; there-
fore, we are unable to discern whether the charge as
given was the same as the language in the court’s pro-
posed charge that had been provided to counsel.
Although ‘‘the waiver rule in Kitchens does not
require that a copy of the proposed jury instructions
34
In his appellate reply brief, the defendant concedes that ‘‘defense coun-
sel’s postcharge blanket objection was [not] adequate to preserve for appeal
the issue raised in [this] appeal.’’
Page 52 CONNECTICUT LAW JOURNAL 0, 0

54 ,0 0 Conn. App. 1
State v. Nathan S.

be marked as an exhibit’’ and requires only ‘‘that the
trial court gave the parties a ‘copy of the proposed jury
instructions’ ’’; State v. Bellamy, 323 Conn. 400, 411,
147 A.3d 655 (2016); a ‘‘reviewing court’s determination
of implied waiver [must] be based on a close examina-
tion of the record and the particular facts and circum-
stances of each case.’’ (Internal quotation marks omit-
ted.) Id. ‘‘[T]he burden is on the state to secure an
adequate record to support [a Kitchens waiver] argu-
ment.’’ State v. Ruocco, 151 Conn. App. 732, 742, 95
A.3d 573 (2014), aff’d, 322 Conn. 796, 144 A.3d 354
(2016). ‘‘ ‘[C]ourts indulge every reasonable presump-
tion against waiver of fundamental constitutional rights
and . . . do not presume acquiescence in the loss of
fundamental rights.’ . . . State v. Shockley, 188 Conn.
697, 707, 453 A.2d 441 (1982), quoting Johnson v. Zerbst,
304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938).
‘[A] waiver of a fundamental constitutional right is not
to be presumed from a silent record.’ State v. Shockley,
supra, 707, citing Boykin v. Alabama, 395 U.S. 238, 243,
89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). For a waiver to
be effective, ‘it must be clearly established that there
was an intentional relinquishment or abandonment of
a known right or privilege.’ . . . Brookhart v. Janis,
384 U.S. 1, 4, 86 S. Ct. 1245, 16 L. Ed. 2d 314 (1966).’’
State v. Rivera, 200 Conn. App. 401, 408, 240 A.3d 303
(2020). On the basis of this record, we cannot conclude
that the defendant implicitly waived his right to chal-
lenge the court’s specific unanimity charge, as we can-
not determine whether defense counsel was aware in
advance of the alleged deficiency in the charge. See
State v. Brown, 299 Conn. 640, 659, 11 A.3d 663 (2011).
Accordingly, we proceed to review the defendant’s
unpreserved challenge to the court’s specific unanimity
charge pursuant to Golding.
B
‘‘Under Golding, a defendant can prevail on a claim
of constitutional magnitude not preserved at trial only
0, 0 CONNECTICUT LAW JOURNAL Page 53

0 Conn. App. 1 ,0 55
State v. Nathan S.

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 constitu-
tional violation . . . exists and . . . deprived the
defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harm-
lessness of the alleged constitutional violation beyond
a reasonable doubt. . . . [T]he inability to meet any
one prong requires a determination that the defendant’s
claim must fail. . . . The appellate tribunal is free,
therefore, to respond to the defendant’s claim by focus-
ing on whichever condition is most relevant in the par-
ticular circumstances.’’ (Emphasis in original; internal
quotation marks omitted.) State v. Wright, 235 Conn.
App. 143, 161, 345 A.3d 504 (2025). In the present case,
the record contains a transcript of the court’s specific
unanimity charge to the jury, and the defendant’s claim
is of constitutional magnitude. See, e.g., State v. Edwin
B., 231 Conn. App. 702, 713–14, 334 A.3d 1064 (defen-
dant has right to jury unanimity under sixth amendment
to federal constitution), cert. granted, 352 Conn. 905,
335 A.3d 846 (2025). We, therefore, examine whether
the defendant has established a violation of that consti-
tutional right that deprived him of a fair trial.
The following legal principles are relevant to our
analysis of the defendant’s claim that the court’s spe-
cific unanimity instruction concerning the charge of
sexual assault in the fourth degree was insufficient to
cure the duplicitous nature of that charge in count one
of the operative information. ‘‘It is beyond dispute that
the jury verdict in a criminal trial must be unanimous.
See, e.g., Ramos v. Louisiana, 590 U.S. 83, 92, 140 S.
Ct. 1390, 206 L. Ed. 2d 583 (2020); see also id., 93 (jury
unanimity applies to states via fourteenth amendment).
The constitution ensures that a jury ‘cannot convict
unless it unanimously finds that the [g]overnment has
Page 54 CONNECTICUT LAW JOURNAL 0, 0

56 ,0 0 Conn. App. 1
State v. Nathan S.

proved each element’ of the charged crime. . . . Rich-
ardson v. United States, 526 U.S. 813, 817, 119 S. Ct.
1707, 143 L. Ed. 2d 985 (1999). Although a general
instruction that the verdict must be unanimous will
often suffice, a specific unanimity instruction can be
required when, for example, an information is duplici-
tous. [Our Supreme Court] recently explained that an
information is duplicitous when it combines two or
more offenses in one count and may raise unanimity
concerns that generally fall into two categories: unanim-
ity as to elements and unanimity as to instances of
conduct. State v. Douglas C., supra, 345 Conn. 425 n.1;
State v. Joseph V., [supra, 345 Conn. 530–31].’’ (Empha-
sis in original.) State v. Inzitari, 351 Conn. 86, 108–109,
329 A.3d 215, cert. denied, U.S. , 145 S. Ct. 2787,
L. Ed. 2d (2025).
Specifically, in Douglas C., which was released on
the same day as Joseph V., our Supreme Court stated:
‘‘[C]ourts have explained that this first kind of unanim-
ity claim involves the question of ‘when is a disputed
fact—e.g., whether the crime occurred on a Monday or
a Tuesday, with a knife or a gun, against this or that
victim—one that the jury must unanimously agree [on],
and when is it merely dispensable detail [i.e., element
vs. means]? And the second [involves the question]:
when is a defendant’s conduct one violation of a statute,
and when is it many?’ ’’ State v. Douglas C., supra, 345
Conn. 440. The court further explained: ‘‘[A] claim of
unanimity as to elements implicates different concerns
than a claim of unanimity as to instances of conduct.
Specifically, for claims of unanimity as to elements,
unanimity concerns arise from the statutory language
or scheme at issue. . . . The concern . . . is whether
the statutory language creates multiple elements, each
of which the government must charge as a separate
offense, or alternative means of committing an element.
In contrast, for claims of unanimity as to instances,
0, 0 CONNECTICUT LAW JOURNAL Page 55

0 Conn. App. 1 ,0 57
State v. Nathan S.

unanimity concerns arise from the evidence of the
defendant’s conduct, viewed in light of the statutory
language. In the latter situation, there is no dispute over
whether the defendant violated multiple subsections of
a statute, each of which constitutes a separate offense;
rather, the dispute is over whether the defendant may
be convicted of a single count of violating a statute
based on evidence of multiple, separate occurrences of
the prohibited act or acts. See United States v. Correa-
Ventura, 6 F.3d 1070, 1080 (5th Cir. 1993) (discussing
difference between unanimity as to elements cases and
unanimity as to instances cases). For example, a claim
of unanimity as to instances of conduct may arise in a
case in which the defendant is charged with a single
count of assault but there was evidence presented to
the jury that the defendant assaulted the victim three
separate times on three separate dates. In such a case,
the concern arises that the jury may have agreed that the
defendant committed assault but may not have agreed
which assault the defendant committed. Because of the
distinct nature of these two unanimity claims, federal
courts have applied a different test to claims of unanim-
ity as to elements than to claims of unanimity as to
instances.’’ (Citation omitted.) State v. Douglas C.,
supra, 441.
In Douglas C., our Supreme Court adopted the ‘‘fed-
eral test for claims of unanimity as to instances of
conduct.’’ Id., 463. Pursuant thereto, a defendant is enti-
tled to a specific unanimity charge as to instances of
conduct under the following three-pronged test: ‘‘(1)
Considering the allegations in the information and the
evidence admitted at trial, does a single count charge
the defendant with violating a single statute in multiple,
separate instances? (2) If so, then does each instance
of conduct establish a separate violation of the statute?
If the statute contemplates criminalizing a continuing
course of conduct, then each instance of conduct is
Page 56 CONNECTICUT LAW JOURNAL 0, 0

58 ,0 0 Conn. App. 1
State v. Nathan S.

not a separate violation of the statute but a single,
continuing violation. To determine whether the statute
contemplates criminalizing a continuing course of con-
duct, we employ our well established principles of statu-
tory interpretation. Only if each instance of conduct
constitutes a separate violation of the statute is a count
duplicitous. And (3) if duplicitous, was the duplicity
cured by a bill of particulars or a specific unanimity
instruction? If yes, then there is no unanimity issue. If
not, then a duplicitous count violates a defendant’s right
to jury unanimity but reversal of the defendant’s convic-
tion is required only if the defendant establishes preju-
dice.’’ Id., 448.
Because a jury unanimity ‘‘claim is premised on an
alleged infringement of the defendant’s constitutional
rights, [appellate] review is plenary.’’ Id., 435. ‘‘[A] single
count is not duplicitous merely because it contains sev-
eral allegations that could have been stated as separate
offenses. . . . Rather, such a count is . . . duplicitous
[only when] the policy considerations underlying the
doctrine are implicated. . . . These [considerations]
include avoiding the uncertainty of whether a general
verdict of guilty conceals a finding of guilty as to one
crime and a finding of not guilty as to another, avoiding
the risk that the jurors may not have been unanimous as
to any one of the crimes charged, assuring the defendant
adequate notice, providing the basis for appropriate
sentencing, and protecting against double jeopardy in
a subsequent prosecution. . . . A duplicitous informa-
tion [implicating a defendant’s right to jury unanimity],
however, may be cured either by a bill of particulars
or a specific unanimity instruction.’’ (Internal quotation
marks omitted.) State v. Joseph V., supra, 345 Conn. 529.
In the present case, the court provided the jury with
a specific unanimity instruction that required the jury
to be unanimous as to which of the three types of
ways the defendant was alleged to have committed the
0, 0 CONNECTICUT LAW JOURNAL Page 57

0 Conn. App. 1 ,0 59
State v. Nathan S.

offense. The court instructed that, in light of the lan-
guage of count one charging the defendant with having
committed ‘‘sexual assault in the fourth degree in multi-
ple different ways . . . [the jurors could] find the
defendant guilty of th[at] offense . . . if [they] all unan-
imously agree[d] on which of the ways the defendant
committed the offense and that it occurred during the
time and place charged by the state.’’ This meant that
the jurors could ‘‘not find the defendant guilty of sexual
assault in the fourth degree unless [they] all agree[d]
that the state ha[d] proved beyond a reasonable doubt
that [the] defendant did subject [A], who was under
thirteen years of age, to sexual contact by touching
[A’s] breast or by touching [A’s] buttocks or by having
[A] touch the defendant’s penis, and the defendant was
more than two years older than [A].’’ As is evident from
the court’s instruction, the court did not instruct the
jury that it had to be unanimous as to which instance
or instances of conduct, if any, it found the defendant
to have committed.
With this background in mind, we now address the
merits of the defendant’s claim. Pursuant to the test
set forth in Douglas C., we first must determine whether
count one of the operative information is duplicitous,
an issue the parties do not dispute. Count one charged
the defendant with having committed sexual assault in
the fourth degree, in violation of § 53a-73a (a) (1) (A),
‘‘on or about August, 2018, through February of 2019,’’
by subjecting A to sexual contact, namely, by touching
A’s breasts and buttocks and by having A touch his
penis, and there was testimony at trial, at least in part,
as to specific instances of sexual contact. Similar to
the information in Joseph V., which charged that the
defendant committed sexual assault in the first degree
‘‘on or about diverse dates between August 23, 2006,
and December 25, 2010’’; State v. Joseph V., supra, 345
Conn. 539; the operative information in the present case
Page 58 CONNECTICUT LAW JOURNAL 0, 0

60 ,0 0 Conn. App. 1
State v. Nathan S.

charges the defendant with having violated a single
statute in multiple instances, each of which would con-
stitute a violation of the statute. See id., 551; see also,
e.g., State v. Velasquez-Mattos, 347 Conn. 817, 846 and
n.11, 300 A.3d 583 (2023) (parties did not dispute that
information charging defendant with sexual assault in
first degree on ‘‘diverse dates between August, 2014,
[through] October, 2014,’’ was duplicitous in that it was
premised on multiple acts, each of which would have
been separate violation of statute (internal quotation
marks omitted)).
With respect to the second step of the Douglas C.
test, the defendant contends that the sexual assault
statutes criminalize separate acts, as opposed to the
risk of injury statute, which criminalizes an ongoing
course of conduct. See State v. Douglas C., supra, 345
Conn. 469. The state does not oppose this contention
and makes no assertion that § 53a-73a (a) (1) (A)—the
statute governing sexual assault in the fourth degree—
criminalizes a continuing course of conduct such that
‘‘each instance of conduct is not a separate violation
of the statute but a single, continuing violation.’’ Id.,
448. Although our Supreme Court, in Joseph V., deter-
mined that the statute governing sexual assault in the
first degree—General Statutes § 53a-70 (a) (2)—crimi-
nalizes separate acts of sexual intercourse, in Douglas
C., decided the same day as Joseph V., the court noted,
in addressing a statutory revision to the risk of injury
statute, that, at the time of that revision, ‘‘our case law
was clear that sexual assault is a single act crime,
not a continuous course of conduct crime.’’ (Emphasis
added.) Id., 460 n.22; see also State v. Cody M., 337
Conn. 92, 101, 259 A.3d 576 (2020) (‘‘sexual assault . . .
is a separate act crime’’). These broader statements of
the court in Douglas C. and Cody M. regarding the
crime of sexual assault in general, along with Joseph
V., support a conclusion that sexual assault in the fourth
0, 0 CONNECTICUT LAW JOURNAL Page 59

0 Conn. App. 1 ,0 61
State v. Nathan S.

degree is a single act crime and not a continuous course
of conduct crime.35

Accordingly, because the first two steps of the test
set forth in Douglas C. have been satisfied, we proceed
to the third step. Pursuant to step three of that test,
we must determine whether the duplicity was ‘‘cured
by a bill of particulars or a specific unanimity instruc-
tion . . . . If yes, then there is no unanimity issue. If
not, then a duplicitous count violates a defendant’s right
to jury unanimity but reversal of the defendant’s convic-
tion is required only if the defendant establishes preju-
dice.’’ State v. Douglas C., supra, 345 Conn. 448. Further-
more, it is important to note that, in Douglas C., our
Supreme Court specifically rejected the defendant’s
argument ‘‘that a trial court’s failure to give a specific
unanimity instruction when a single count is premised
35
Nonetheless, we note that the court in Joseph V. based its conclusion
on the plain language of the sexual assault in the first degree statute, which
requires the state to establish that the defendant ‘‘engage[d] in sexual inter-
course’’; General Statutes § 53a-70 (a) (2); when considered in relation to the
definition of sexual intercourse. See General Statutes § 53a-65 (2) (‘‘‘Sexual
intercourse’ means vaginal intercourse, anal intercourse, fellatio or cunnilin-
gus between persons regardless of sex. Penetration however slight, is suffi-
cient to complete vaginal intercourse, anal intercourse or fellatio . . . .’’);
and found that the statutory language and definition ‘‘suggest[ed] that the
statute intended to criminalize each single act of sexual intercourse, [as it]
is defined in singular terms.’’ State v. Joseph V., supra, 345 Conn. 544. In
comparison, a person is guilty of sexual assault in the fourth degree when
such person ‘‘subjects another person to sexual contact’’; General Statutes
§ 53a-73a (a) (1); which is defined in part as ‘‘any contact with the intimate
parts of a person for the purpose of sexual gratification of the actor . . . .’’
(Emphasis added.) General Statutes § 53a-65 (3) (A). The verb ‘‘subject’’ is
defined in part as ‘‘to cause or force to undergo or endure (something
unpleasant . . .).’’ Merriam-Webster’s Collegiate Dictionary (11th Ed. 2014)
p. 1243. That definition does not provide clarification on the issue of whether
the statute criminalizes a course of conduct, and the word ‘‘subjects,’’ like
the term ‘‘engages’’ in Joseph V., could be suggestive of ongoing conduct.
Similar to Joseph V., however, when the word ‘‘subjects’’ is considered in
context with the definition of ‘‘sexual contact,’’ which is also defined in
singular terms as ‘‘any contact,’’ it suggests a legislative intent to criminalize
single acts of sexual contact.
Page 60 CONNECTICUT LAW JOURNAL 0, 0

62 ,0 0 Conn. App. 1
State v. Nathan S.

on multiple, separate instances of conduct constitutes
structural error,36 regardless of prejudice to the defen-
dant.’’ (Footnote added.) Id., 447 n.16. In doing so, our
Supreme Court determined that the defendant’s posi-
tion ‘‘conflicts with the test established by the federal
courts of appeals for constitutional claims’’ and that
‘‘our appellate courts have never applied structural
error to unanimity claims.’’ Id.
In the present case, the defendant never requested
a bill of particulars and takes issue with the specific
unanimity instruction provided by the court, arguing
that ‘‘the court’s charge informed the jury that it must
be unanimous as to each of the elements of the crime
of sexual assault in the fourth degree . . . . It also
informed the jury that it must unanimously agree on
which of the ways the defendant committed the offense
and that it occurred during the time and place charged
by the state. . . . The court did not ever inform the
jury that it must also . . . agree on which incident or
incidents it was basing its verdict, even though the state
presented evidence of at least seven separate incidents
falling with[in] the time and place description in count
one.’’ (Citations omitted; internal quotation marks omit-
ted.) Thus, the defendant contends that the court’s
instruction did not conform to the requirements of
Joseph V., thereby warranting a new trial on that count.
There is no question that the court did not give the
jury a specific unanimity instruction regarding instances
36
‘‘Structural errors are those which ‘by their very nature cast so much
doubt on the fairness of the trial process that, as a matter of law, they
can never be considered harmless. . . . These are structural defects in the
constitution of the trial mechanism, which defy analysis by [harmless error]
standards. . . . Instead, structural errors require reversal of the defendant’s
conviction and a new trial. . . . Constitutional violations have been found
to be structural, and thus subject to automatic reversal, only in a very limited
class of cases.’ . . . State v. Joseph A., 336 Conn. 247, 264–65, 245 A.3d 785
(2020).’’ State v. Christopher R., 222 Conn. App. 763, 784 n.10, 306 A.3d 1117
(2023), cert. denied, 348 Conn. 946, 308 A.3d 34 (2024).
0, 0 CONNECTICUT LAW JOURNAL Page 61

0 Conn. App. 1 ,0 63
State v. Nathan S.

of conduct and, therefore, we must determine whether
‘‘the defendant establishe[d] prejudice’’; that is, whether
‘‘the duplicity created the genuine possibility that the
conviction resulted from different jurors concluding
that the defendant committed different acts.’’ State v.
Douglas C., supra, 345 Conn. 447. For the following
reasons, we conclude that, under the circumstances of
this case and applying the test set forth by our Supreme
Court in Douglas C., the defendant has not demon-
strated that he was prejudiced by the court’s failure to
provide the jury with a specific unanimity instruction
as to instances of conduct.37 See State v. Velasquez-
Mattos, supra, 347 Conn. 851 (‘‘[w]hether the defen-
dant’s duplicity claim requires reversal depends on
whether the lack of a specific unanimity charge or bill
of particulars ultimately prejudiced him’’).
We begin our analysis with a discussion of Joseph V.
In Joseph V., ‘‘the victim testified about three distinct
incidents of abuse by the defendant,’’ and another wit-
ness ‘‘testified about an additional distinct incident of
abuse of the victim by the defendant during which [the
witness] was present but did not participate.’’ State v.
Joseph V., supra, 345 Conn. 525. Thus, the jury had
before it testimony regarding ‘‘four specific, separate
incidents of conduct’’ by the defendant. Id., 534. On
appeal, the defendant argued that, ‘‘because the trial
court did not provide the jury with a specific unanimity
instruction,38 the jury verdict violated his right to jury
37
Because we are reviewing this claim pursuant to Golding, for the defen-
dant to establish the third Golding prong—the existence of a constitutional
violation that deprived him of a fair trial—he must establish the three part
test set forth in Douglas C. See State v. Velasquez-Mattos, supra, 347 Conn.
857 (‘‘because the defendant was not prejudiced by the uncured violation
of his right to jury unanimity as to instances of conduct, there was no
constitutional violation, and the defendant is not entitled to a new trial’’).
38
Instead, the court provided the jury with a general instruction regarding
unanimity, which provided in part that ‘‘[i]n order to convict the defendant
on this count you must be unanimous that at least one violation of this
statute by one of the methods alleged occurred between the defendant and
Page 62 CONNECTICUT LAW JOURNAL 0, 0

64 ,0 0 Conn. App. 1
State v. Nathan S.

unanimity and created the possibility that the jury found
him guilty without having agreed on which instance of
conduct he committed.’’ Id., 538–39. Our Supreme Court
agreed with the defendant and determined that he suf-
fered prejudice as a result of the violation, thereby
warranting a new trial on the count of sexual assault
in the first degree. In particular, the court stated:
‘‘Because we hold that a single count of sexual assault
premised on specific testimony of multiple separate
acts, committed other than in the course of a single
criminal episode of relatively brief, temporal duration,
is duplicitous and violates a defendant’s right to jury
unanimity when no specific unanimity instruction is
given, we must determine whether this duplicity preju-
diced the defendant. In light of the evidence of multiple,
separate instances of sexual intercourse, we conclude
that the jury reasonably could have interpreted the trial
court’s instruction that it ‘must be unanimous that at
least one violation of this statute by one of the methods
alleged occurred between the defendant and [the vic-
tim] during the time frame indicated’ to require it to be
unanimous as to whether an instance of sexual inter-
course occurred but not to require it to be unanimous
as to which instance of sexual intercourse occurred.
This is especially so in light of the specific nature of
the testimony and defense counsel’s extensive cross-
examination and closing argument directed at unique
credibility concerns related to each incident, as well
as the prosecutor’s closing argument that any of the
alleged incidents would establish the element of sexual
intercourse. . . . The duplicitous nature of count one
created the potential for the jury to be confused or
to disagree about which of the various acts of sexual
intercourse the defendant committed, thereby prejudic-
ing him.’’ (Emphasis altered; footnote omitted.) Id., 556–
57.
[the victim] during the time frame indicated.’’ (Emphasis in original; internal
quotation marks omitted.) State v. Joseph V., supra, 345 Conn. 540.
0, 0 CONNECTICUT LAW JOURNAL Page 63

0 Conn. App. 1 ,0 65
State v. Nathan S.

In Joseph V., our Supreme Court noted that ‘‘this
state’s case law regarding unanimity and ongoing sexual
assault of children has created some confusion on this
issue,’’ partly in light of ‘‘an understandable motivation
to accommodate the difficulties inherent in prosecuting
such cases involving children, particularly traumatized
children.’’ Id., 552. Although the court made that state-
ment in the context of addressing whether it has ever
recognized a common-law exception for a continuing
course of sexual assault, we find informative to the
issue of harm in the present case the court’s discussion
of case law that distinguishes ‘‘between sexual assault
cases in which there is specific testimony regarding
multiple, separate incidents of sexual assault, and cases
in which there is only general testimony that multiple
incidents of sexual assault occurred but precise details
regarding time and location are unknown,’’ which
‘‘occurs commonly in cases involving the ongoing sex-
ual assault of children.’’ Id. As the court explained,
these cases have ‘‘caused confusion in the Appellate
Court . . . over whether an information is duplicitous
or whether any duplicity creates a risk of a nonunani-
mous verdict when a sexual assault case involves only
general testimony about multiple incidents of sexual
assault.’’ Id. The court held that, ‘‘[t]o the extent the
defendant relies on this case law to argue that the Appel-
late Court has held that a single count of sexual assault,
premised on specific testimony of multiple, separate
incidents of conduct may be alleged under a continuing
course of conduct theory, we disagree. Rather, these
cases show that, when there is only general testimony
regarding the ongoing sexual assault of a child, a defen-
dant more likely than not will not be prejudiced by a
single count of sexual assault premised on multiple
incidents of conduct.’’ Id., 552–53.
In explaining its determination, the court stated:
‘‘This issue first arose in State v. Saraceno, 15 Conn.
Page 64 CONNECTICUT LAW JOURNAL 0, 0

66 ,0 0 Conn. App. 1
State v. Nathan S.

App. 222, 229, 545 A.2d 1116, cert. denied, 209 Conn.
823, 552 A.2d 431 (1988), and cert. denied, 209 Conn.
824, 552 A.2d 432 (1988), in which the defendant claimed
that the information was duplicitous because the two
counts of sexual assault of which he was convicted
each alleged the commission of a single crime based
on multiple, separate incidents of sexual intercourse.
Id., 227–28. In resolving this claim, the court addressed
the five policy considerations underlying the doctrine
of duplicity. See id., 229–32. As to the possible lack of
jury unanimity, the Appellate Court concluded ‘that
with regard to the evidence adduced . . . it was not
possible for the jury to return a verdict [that] was not
unanimous. Given the complainant’s age and her rela-
tive inability to recall with specificity the details of
separate assaults, the jury was not presented with the
type of detail laden evidence [that] would engender
differences of opinion on fragments of her testimony.
In other words, the bulk of the state’s case rested on
the credibility of the young complainant. When she testi-
fied . . . that on many occasions the defendant forced
her to engage in fellatio while in a motor vehicle parked
on the banks of the Connecticut River, the jury was
left, primarily, only with the decision of whether she
should be believed. With such general testimony, the
spectre of lack of unanimity cannot arise. . . . Under
the specific circumstances . . . [the court] con-
clude[d] that the defendant was not prejudiced by the
potential lack of jury unanimity.’ Id., 230–31.
‘‘In so holding, the court clearly focused on whether
the defendant was prejudiced by the potential lack of
unanimity, specifically, whether the jury possibly was
confused. See id., 229–31. The court concluded that, in
light of the nature of the general testimony, there was
no possibility that the jury had a difference of opinion
as to which acts the defendant had committed because
the nature of the testimony did not allow the jury to
0, 0 CONNECTICUT LAW JOURNAL Page 65

0 Conn. App. 1 ,0 67
State v. Nathan S.

be divided as to which instance of conduct occurred
but, rather, required the jury to credit all or none of
the victim’s testimony. See id., 230. In other words, the
court determined that any potential duplicity, assuming
it existed, was not harmful. Saraceno did not hold that
a single count of sexual assault premised on specific
testimony of multiple separate instances of conduct
may be alleged under a continuing course of conduct
theory. Thus, under neither the statutory scheme at
issue nor our state’s common law may first degree sex-
ual assault be charged as a continuing course of conduct
crime when premised on specific testimony of multiple,
separate incidents of conduct.’’39 State v. Joseph V.,
supra, 345 Conn. 553–54.
39
In a footnote, the court stated further: ‘‘We are sympathetic to the plight
of both the young victims, often unable to state except in the most general
terms when the acts were committed, and of prosecutors, either hampered
by the lack of specific information or, when it is reported that the conduct
occurred dozens or hundreds of times over a significant period, faced with
the practical problem of how to deal with such a multitude of offenses.
. . . Sympathies aside, however, we have only the words of our sexual
assault statute to interpret and apply to the federal case law.
‘‘We note the observation of Saraceno and its progeny that a defendant
is not prejudiced when a single count of sexual assault is premised on only
general testimony that the defendant continuously sexually assaulted the
minor victim over a period of time if this general testimony did not allow
the jury to be divided as to which instance of conduct occurred but, rather,
required the jury to credit all or none of the victim’s testimony. This is
consistent with how other state courts have treated general testimony regard-
ing multiple instances of sexual assault of a child when applying federal
law [in connection with a claim involving jury unanimity]. See State v. Voyles,
284 Kan. 239, 253–55, 160 P.3d 794 (2007) (considering general nature of
victims’ testimony and general nature of defendant’s defense challenging
victims’ credibility in determining harm of duplicitous indictment in multiple
acts case); State v. Ashkins, 357 Or. 642, 654, 357 P.3d 490 (2015) (in
addressing harm, explaining that, in the context of nonspecific and undiffer-
entiated evidence of multiple occurrences of a single charged offense, a
jury concurrence instruction may have been unnecessary because there
would have been no basis for the jurors to choose any particular occurrence
as the one proven); State v. Fitzgerald, Docket No. 38347-7-I, 1997 WL
327421, *2 (Wn. App. June 16, 1997) (decision without published opinion,
86 Wn. App. 1059) (in multiple acts case in which defendant entered only
general denial and proof of crime was solely dependent on victim’s credibility
Page 66 CONNECTICUT LAW JOURNAL 0, 0

68 ,0 0 Conn. App. 1
State v. Nathan S.

Following Joseph V., our Supreme Court again
addressed a specific unanimity claim and whether the
defendant in that case was prejudiced by the lack of a
specific unanimity instruction as to instances of con-
duct in State v. Velasquez-Mattos, supra, 347 Conn. 817.
Although the present case differs slightly from Velas-
quez-Mattos, we find the court’s analysis of harm
therein to be instructive. A brief discussion of that case
will be helpful to our analysis. The defendant lived in
the first floor apartment of a multifamily house. Id.,
823. An eight year old boy, J, and J’s family lived in the
second floor apartment. Id. ‘‘The defendant befriended
then eight year old J and purchased various gifts for
him, including clothes, video games, and a PlayStation
4 gaming console. Almost nightly, the defendant invited
J downstairs to do homework and play video games in
the defendant’s bedroom, locking the bedroom door
each time. During these visits in the locked bedroom,
the defendant touched J’s and his own penis and anally
penetrated J with his penis.’’ Id., 823–24. The defendant
subsequently was arrested and ‘‘charged with, ‘on or
about diverse dates between August, 2014, [through]
October, 2014,’ ’’ one count of sexual assault in the first
degree, and two counts of risk of injury to a child. Id.,
824. The case was tried to a jury, which found the
defendant guilty on all three counts. Id., 825. On appeal,
the defendant claimed, inter alia, that the sexual assault
charge was duplicitous, in violation of his right to jury
unanimity, and that, under State v. Douglas C., supra,
versus that of defendant, court’s failure to give jury unanimity instruction
may be harmless when rational trier of fact would have no reasonable doubt
about other indistinguishable incidents).
‘‘The state may argue that, if these kind of general testimony cases do
not prejudice a defendant, it might be that there exists a common-law
exception to the right to jury unanimity for a continuing course of conduct
of sexual assault of children when there is only general testimony. Because
the state has not raised this issue, however, and because the present case
does not involve only general testimony, we do not address it.’’ (Internal
quotation marks omitted.) State v. Joseph V., supra, 345 Conn. 554–55 n.20.
0, 0 CONNECTICUT LAW JOURNAL Page 67

0 Conn. App. 1 ,0 69
State v. Nathan S.

345 Conn. 421, and State v. Joseph V., supra, 345 Conn.
516, the trial court’s failure to provide a specific unanim-
ity instruction required reversal of his sexual assault
conviction because ‘‘the duplicity violation created a
genuine possibility that the conviction occurred as a
result of different jurors concluding that the defendant
committed different acts, thereby prejudicing him.’’
State v. Velasquez-Mattos, supra, 843. The defendant
also contended that his case was ‘‘not one in which the
duplicitous count was based only on general testimony
that the jury would either credit or discredit in its
entirety because J testified about at least three specific
incidents that took place over the course of three
months.’’ Id.

In addressing the issue of whether the lack of a spe-
cific unanimity charge prejudiced the defendant, our
Supreme Court stated: ‘‘The record demonstrates that
the prosecutor explored multiple instances of sexual
conduct during the state’s case-in-chief. J testified in
detail as to the ‘first time’ that the defendant touched
him inappropriately, and J subsequently testified that
the defendant had touched him or asked him to touch
the defendant approximately four to six times. J also
testified in detail as to an occasion when he was ‘in
[the defendant’s] bedroom and something happened
with [J’s] behind . . . .’ J stated that ‘the thing with [his]
butt happen[ed]’ approximately five times. On cross-
examination, defense counsel asked J whether ‘the
thing with [his] butt happen[ed] on the Wednesday or
Thursday before that Monday—before the weekend,’
and J responded that ‘it was on the Thursday.’ On redi-
rect examination, the prosecutor clarified that the
Thursday to which defense counsel was referring was
October 2, 2014, and, during closing argument, the pros-
ecutor explained to the jury the legal definition of ‘sex-
ual intercourse.’
Page 68 CONNECTICUT LAW JOURNAL 0, 0

70 ,0 0 Conn. App. 1
State v. Nathan S.

‘‘During closing argument, defense counsel drew
attention to accounts of the incident from [J and two
other witnesses] with respect to ‘October 2, which [was]
a Thursday . . . .’ He also observed that ‘[w]e have a
case alleging sexual assault with sexual intercourse,
anal penetration . . . .’ He continued: ‘Now, you [have]
heard [J] testify that he was raped multiple times; he
couldn’t tell you how many. Sometimes it was three,
sometimes it was five, sometimes it was six, sometimes
it was every day.’ The trial court then instructed the
jury that, to find the defendant guilty of sexual assault
in the first degree, the state had to prove that the defen-
dant had engaged in sexual intercourse, meaning ‘vagi-
nal intercourse, anal intercourse, fellatio, or cunnilin-
gus.’ ’’ (Footnotes omitted.) Id., 851–52.
Our Supreme Court started its analysis with a discus-
sion of Joseph V., after which it noted that, ‘‘[a]lthough
Joseph V. is the only decision applying the test articu-
lated in Douglas C., the Appellate Court’s previous deci-
sion in State v. Saraceno, [supra, 15 Conn. App. 222],
is also instructive. See State v. Joseph V., supra, 345
Conn. 553–56.’’ State v. Velasquez-Mattos, supra, 347
Conn. 854. The court proceeded to discuss the basis
for this court’s decision in Saraceno, and then it stated:
‘‘Although the defendant in the present case contends
that J testified to at least three specific, discrete inci-
dents that took place over the course of several months,
our review of the record reveals that J testified to two
specific instances of conduct as examples of the reoc-
curring sexual activity—the first being the ‘first time’
and the second being when ‘something happened with
[J’s] behind’—with only the latter instance containing
allegations of sexual intercourse within the meaning of
the sexual assault statute. . . . J testified that the ‘first
time’ that the defendant had been inappropriate with
him was when the defendant touched J’s penis and
forced J to touch the defendant’s penis for about ten
0, 0 CONNECTICUT LAW JOURNAL Page 69

0 Conn. App. 1 ,0 71
State v. Nathan S.

seconds. . . . J then testified about, and both the pros-
ecutor and defense counsel focused their examinations
on throughout the trial, the October 2, 2014 incident,
when the defendant anally penetrated J’s ‘behind.’ . . .
Specifically, on cross-examination, defense counsel
asked J about ‘the one that happened on Thursday,’
and, on redirect examination, the prosecutor clarified
that the Thursday that defense counsel was referring
to was October 2, 2014. . . .
‘‘Beyond the evidence focusing on the sexual assault
allegations on Thursday, October 2, 2014, at trial, the
defendant . . . advanced essentially the same defense
that the defendant advanced in Joseph V., namely, that
the victim and witness or witnesses lacked credibility.
See State v. Joseph V., supra, 345 Conn. 539. However,
unlike in the present case, defense counsel in Joseph
V. ‘extensive[ly]’ cross-examined the victim and the wit-
ness regarding the specifics of each of the three particu-
lar incidents of conduct, argued in closing the unique
credibility concerns relating to each incident, and
attacked the prosecutor’s closing argument that any of
the alleged incidents would establish the element of
sexual intercourse. See id., 556–57 and n.21; see also
id., 557 n.21 (‘[t]he primary focus of the trial was on
these specific incidents of conduct’). . . .
‘‘Although neither the information nor the jury charge
indicated which instance of sexual intercourse the first
degree sexual assault charge was based on, the prosecu-
tor specified during closing argument that the state was
relying on the October 2, 2014 incident as the basis for
that charge, and the prosecutor’s direct examination
of [J and other witnesses] was consistent with that
approach. During closing argument, defense counsel
also attacked the testimony of [J and two other wit-
nesses] regarding the October 2, 2014 incident, while
maintaining that J had fabricated the abuse entirely.
Page 70 CONNECTICUT LAW JOURNAL 0, 0

72 ,0 0 Conn. App. 1
State v. Nathan S.

Thus, the risk of prejudice to the defendant was mini-
mized when . . . the defendant utilized the same the-
ory of defense for both the single specific incident
alleged and the general conduct alleged, namely, that
the sexual abuse never happened and that it was entirely
fabricated. Put differently, there was no realistic possi-
bility of juror confusion or disagreement concerning
the multiple incidents because the jurors were required
either to find that the allegations were fabricated and
that no sexual conduct ever occurred at all, or to believe
J’s testimony, as corroborated by the other witnesses,
that anal penetration had in fact occurred on October
2, 2014. Compare State v. Hufford, 205 Conn. 386, 397,
533 A.2d 866 (1987) (there was no prejudice when
defense was simple denial that incident had ever
occurred, and defendant did not assert that he would
have changed his defense if information had charged
him with each alternative in separate counts or in con-
junctive), with Jackson v. State, 342 P.3d 1254, 1256,
1258–59 (Alaska App. 2014) (prejudice existed because
defense clearly differentiated between vaginal and anal
penetration, asserting that one was consensual and one
was accidental), and State v. Trujillo, 296 Kan. 625,
630, 294 P.3d 281 (2013) (‘cases not containing a unified
defense are reversed’ . . .). Likewise, J was only ten
years old when he testified and approximately eight or
nine years old when the abuse took place. See State v.
Saraceno, supra, 15 Conn. App. 230 (relying on victim’s
age and ‘relative inability to recall with specificity the
details of separate assaults’ in upholding conviction).’’
(Citations omitted; emphasis in original.) State v. Velas-
quez-Mattos, supra, 347 Conn. 855–57.
In the present case, our review of the record demon-
strates that A provided testimony that was, in part,
general in nature,40 describing sexual abuse that occurred
40
For example, A testified regarding a course of sexual assault that started
in August, 2018, and escalated thereafter, continuing into February, 2019.
A testified that most of the sexual assaults took place while she and the
0, 0 CONNECTICUT LAW JOURNAL Page 71

0 Conn. App. 1 ,0 73
State v. Nathan S.

on an ongoing basis, almost every time that she went
to the defendant’s home, and, in part, provided details
as to instances of sexual contact that occurred between
A and the defendant in different locations of the defen-
dant’s home, at different time periods, as examples of
the type of sexual abuse that had taken place.41 Of those
defendant were watching movies, either in his basement or living room,
during which times he would wrap his arms around her, cuddle her, kiss
her and touch her breasts over her clothes. There were times when the
defendant would touch A’s breasts under her clothes but over her bra, and
when he touched her vaginal area under her clothes but over her underwear,
and moved his hand back and forth. A further testified that the defendant
would wear loose pajama pants with no underwear to make ‘‘his penis more
accessible,’’ and he would put A’s hand on his penis and make her move it
up and down, and that this would happen ‘‘every time’’ that A went to the
defendant’s house, which was approximately three times per week every
week from August to February.
41
In his principal appellate brief, the defendant alleges that ‘‘the state
presented evidence of at least seven separate incidents falling [within] the
time and place description in count one,’’ and that ‘‘there was great potential
for the jury to be confused as to the multiple types of unanimity required
and to disagree about which of the various alleged incidents the defendant
committed.’’ He lists those incidents as follows: (1) ‘‘August 2 or 3, 2018.
Bedroom. [A] got on the bed and the defendant got on top of her while
both were clothed, pushing his genitals back and forth against hers. The
defendant also felt A’s breast through her clothes’’; (2) ‘‘ ‘Towards the winter
season.’ Living room. [A] was on top of the defendant and they were ‘cud-
dling’ on the couch. The defendant was moving [A’s] hips back and forth
on him with her vagina over his penis. The defendant got up and ran to the
bathroom, and [A] felt wetness on her leggings. She later gave those leggings
to the police’’; (3) ‘‘Around Halloween. 2018. Living room. [A] testified she
touched the defendant’s penis, but was inconsistent as to whether the touch-
ing was through his clothes. In her initial description, she stated that she
remembered ‘looking and his penis was out and I remember looking behind
me and seeing the—the Halloween lights.’ . . . Shortly thereafter, [A] stated
that she touched the defendant’s penis on this occasion ‘over the clothes,’
as opposed to ‘under the clothes’ ’’; (citation omitted); (4) ‘‘November 29,
2018. Living room. [A] went to the defendant’s house to watch ‘How the
Grinch Stole Christmas.’ The defendant put his hands in her pants and
rubbed her vagina through her underwear. Afterwards, the defendant said,
‘good girl,’ and she ‘burrowed’ her head in his shoulder’’; (5) ‘‘Date unspeci-
fied. Kitchen. The defendant stood against the counter with his legs spread
a bit. [A] stood against the defendant, who grabbed her hips and pushed
her into him. The defendant said, ‘You drive me nuts’ ’’; (6) Date unspecified.
Attic stairs. The defendant hit [A’s] ‘ass’ and told her to ‘get [her] cute ass
Page 72 CONNECTICUT LAW JOURNAL 0, 0

74 ,0 0 Conn. App. 1
State v. Nathan S.

incidents to which A testified, we conclude that only
two involve the type of sexual contact alleged in the
operative information regarding the charge of sexual
assault in the fourth degree—touching A’s breasts and
buttocks and A touching the defendant’s penis—and
are sufficiently distinguishable from A’s general testi-
mony to be regarded as specific, separate instances of
conduct, ‘‘each of which could independently establish
a violation of the charged statute.’’42 State v. Douglas
C., supra, 345 Conn. 426. Those two separate instances
include the following: (1) A’s testimony about the first
time that she went into the defendant’s bedroom, which
took place on August 2 or 3 and in which the defendant
touched A’s breasts; and (2) A’s testimony about the
first time that she touched the defendant’s penis, which
occurred on the couch in the living room around the
time of Halloween. Furthermore, during A’s forensic
interview, a transcript and video recording of which was
downstairs’ ’’; and (7) ‘‘Date unspecified. Basement. The defendant hugged
[A], rubbed up against her, and held her.’’
Although we do not agree that all of these separate instances fall within
the type of sexual contact that forms the basis for the sexual assault in the
fourth degree charge in count one, we do, for the reasons stated in this
opinion, agree that there was testimony about separate instances of sexual
contact pertaining to count one.
42
In making this determination, we also are mindful that sexual assault
in the fourth degree is a specific intent crime that requires a specific intent
to obtain sexual gratification. See, e.g., State v. Vickers, 228 Conn. App. 830,
846–47, 326 A.3d 287, cert. denied, 350 Conn. 930, 326 A.3d 556 (2024). For
that reason, we do not believe that A’s testimony about how, when she and
the defendant were on the attic stairs one time, the defendant hit A’s ‘‘ass’’
and said, ‘‘get [your] cute ass downstairs,’’ falls within the type of incident
that could independently establish a violation of the statute. Likewise, A’s
general testimony that, every time they were in the defendant’s living room,
they would cuddle on the couch and he would touch her breasts and ‘‘butt’’
is not sufficiently detailed or specific to be distinguishable as a separate
incident for purposes of a specific unanimity claim, despite the fact that it
could support a finding of the type of sexual contact necessary for a convic-
tion of the charge. Nevertheless, even if we were to construe the attic
incident as a fourth, separate instance of conduct that was before the jury,
that would not alter our conclusion regarding prejudice under the circum-
stances of this case.
0, 0 CONNECTICUT LAW JOURNAL Page 73

0 Conn. App. 1 ,0 75
State v. Nathan S.

admitted into evidence, A described a specific incident
occurring in February, 2019, one of the last times she
went to the defendant’s home, in which the defendant
was being ‘‘extra, extra creepy’’ and made her touch
his penis on the couch and grabbed her ‘‘butt’’ and
breasts. Even though there was testimony and other
evidence regarding three specific instances of conduct
and the court’s specific unanimity charge did not refer-
ence instances of conduct, that does not, by itself,
require a new trial. See State v. Douglas C., supra, 345
Conn. 447 n.16. In both Joseph V. and Velasquez-Mattos,
our Supreme Court, in determining whether prejudice
was established, considered other factors, including the
primary focus of the trial, the theory of defense advan-
ced by the defendant, the extent of defense counsel’s
cross-examination regarding the specific instances, and
the closing arguments of both the prosecutor and defense
counsel. See State v. Velasquez-Mattos, supra, 347
Conn. 855–57.
On the issue of prejudice, the circumstances of the
present case are, in large part, distinguishable from
Joseph V. In finding prejudice in Joseph V., our Supreme
Court noted that defense counsel ‘‘ ‘extensive[ly]’ cross-
examined the victim and the witness regarding the spe-
cifics of each of the three particular incidents of con-
duct [described by the victim], argued in closing the
unique credibility concerns relating to each incident,
and attacked the prosecutor’s closing argument that
any of the alleged incidents would establish the element
of sexual intercourse.’’ (Emphasis in original.) Id., 855–
56. In contrast, in the present case, defense counsel
did not cross-examine A with respect to any alleged
‘‘instances’’ of sexual abuse, let alone the details of any
of the alleged incidents, or with respect to any of A’s
general testimony concerning the ongoing sexual abuse
that took place at the defendant’s house. Instead, the
bulk of defense counsel’s cross-examination focused
Page 74 CONNECTICUT LAW JOURNAL 0, 0

76 ,0 0 Conn. App. 1
State v. Nathan S.

on the text messages between A and the defendant and
how those messages came to be in the possession of
the police, and it covered other topics such as, inter alia,
the arrangement whereby A would go to the defendant’s
house when her mother was at work, A’s forensic inter-
view, and photographs of A on her Instagram account.
For the most part, defense counsel sought to challenge
A’s credibility by, for example, cross-examining her
about statements she had made during her forensic
interview that were untrue. At one point, defense coun-
sel asked A whether, during her forensic interview, she
told Nichols that she had sat on top of the defendant,
that the defendant moved his hips back and forth, and
that A thought that the defendant’s bodily fluids might
be on her leggings. Apart from that general reference,
which does not relate to the three specific instances
at issue with count one, no other questions on cross-
examination were directed toward A’s testimony about
the instances of sexual contact.
Defense counsel’s closing argument was equally
devoid of references to any specific instances of sexual
assault by the defendant. Rather, in a closing argument
that spanned more than thirty pages of transcript,
defense counsel made one brief reference to the sub-
stance of A’s testimony about the sexual abuse, stating:
‘‘The trial . . . is two days, three days a week we’re
cuddling, he’s humping me, he’s on top of me, I’m sitting
on his lap, he’s moving my hips back and forth, he’s
getting excited, he’s got to run to the bathroom a few
times. This is what’s going on, I’m touching his—his
personal anatomy, I’m touching his penis, I’m rubbing
it the way, whatever, okay.’’ Instead of criticizing or
discrediting any of the alleged specific instances of
sexual contact, defense counsel sought to discredit A’s
testimony in its entirety, stating, ‘‘I don’t know this kid,
I don’t know what’s inside of her head. I know what
didn’t happen, and what didn’t happen is any of her
0, 0 CONNECTICUT LAW JOURNAL Page 75

0 Conn. App. 1 ,0 77
State v. Nathan S.

iterations of what did happen.’’ (Emphasis added.) At
one point, defense counsel referred to A as a ‘‘dangerous
child,’’ suggesting that A’s allegations were calculated
and manipulative. Defense counsel concluded his clos-
ing argument by stating to the jury that, either ‘‘it all
happened or none of it happened,’’ and that it was the
defendant ‘‘versus the forensic interview . . . [a]
forensic interview after the girl repudiates it, and isn’t
that a reasonable doubt. And isn’t that really this case.’’
(Emphasis added.) In addressing the evidence that sup-
ported the charge of sexual assault in the fourth degree
in her closing remarks,43 the prosecutor referred to A’s
general testimony about how the defendant would
touch her breasts and buttocks both over and under
her clothes, and how the defendant would have A touch
his penis. The prosecutor did not refer to any specific
instances of conduct during those remarks.44
43
Specifically, the prosecutor, in discussing the element of sexual contact
with respect to the charge of sexual assault in the fourth degree, stated:
‘‘What evidence do you see here or see to support this element of the
charge? You heard testimony from [A]. You heard [A] testify before you.
She explained that, starting in August of 2018, the defendant started touching
her. He would touch her on her breasts and her buttocks, both over the
clothes and under the clothes. You then heard testimony from [A] that,
starting in the fall of 2018, [the defendant] would have her touch his penis,
and that throughout their time together on Wednesdays and Thursdays, he
would touch her breasts and he would touch her buttocks. And then, when
they would lay together on the couch, he would have her touch his penis;
that is all sexual contact. You reviewed the forensic interview where [A]
similarly said that she would go there on Wednesdays and Thursdays and
that he would—touch her breasts and her buttocks under the clothes and
over the clothes and that he—starting in the fall, he would have her touch
his penis. And that he would take his penis out and she would touch the
skin. Again, that’s all sexual . . . contact.’’
44
Later in the prosecutor’s initial closing remarks, she stated: ‘‘The judge
is going to instruct you that you need to be unanimous as to the specific
act of touching. So, touching of the breast or the buttocks or having . . .
her touch his penis. There is evidence of all of these but it’s, or, so if you’re
satisfied that a specific [act] of the defendant touching [A’s] breasts occurred
or a specific act of touching her buttocks occurred or a specific act of her
touching his penis, and you believe all the other elements are met, then you
. . . should and can find him guilty. So, here are examples of that, for
example, how in the forensic interview when she talks about one of the
Page 76 CONNECTICUT LAW JOURNAL 0, 0

78 ,0 0 Conn. App. 1
State v. Nathan S.

The present case is similar to Velasquez-Mattos in
that the defendant’s theory of defense was that A was
lying and that he never had any sexual contact with A.
This was borne out through defense counsel’s many
attacks on the credibility of A’s allegations, either in
closing remarks or through direct examination and
cross-examination of witnesses, which exposed the fact
that A had lied during her forensic interview; challenged
the significance of the volume of text messages between
A and the defendant, pointing out that in the thousands
of messages there was no mention of the sexual contact
between the two; suggested that, under the circum-
stances as alleged by A, she would not have delayed
her disclosure of the abuse; and demonstrated that the
defendant was not a contributor to the DNA profile
generated from the sample of the leggings. Defense
last times she was there, so in February of 2019, he was being, in [A’s]
words, extra, extra creepy. Where he was making her touch his penis on
the couch and grabbed her butt and breasts. Or, for example, how in her
testimony here in court, she recalled the first time she went into his bedroom
in August of 2018 and how she recalls him bringing her into his bedroom
and, while in the bedroom, laying her on the bed, and he started touching
her breasts over the clothes. Or how she testified on direct examination
how, starting in October of 2018, when they started hanging out in the living
room . . . they would cuddle and she testified his hands would be a lot of
places, her thighs, her stomach, her vagina and her breasts and that her
hands were on his penis.’’
With respect to these remarks, the defendant asserts that the prosecutor
‘‘appeared to conflate the various ways the offense could be committed (the
different types of touching) with the various incidents on which a conviction
could be based into a confusing reference to ‘the specific act of touching.’ ’’
We do not agree that the jury could have been confused by the prosecutor’s
remarks about specific acts of touching by the defendant, which pertained
to the means by which the defendant was alleged to have committed the
sexual assault charge and were consistent with the unanimity instruction
provided by the court. Although, in making these remarks, the prosecutor
did refer to two of the three specific instances of sexual contact by the
defendant, the remarks were made in the context of discussing the court’s
unanimity charge, not the elements establishing the sexual assault in the
fourth degree charge, and the prosecutor merely highlighted the evidence
demonstrating the various ways in which the defendant had sexual contact
with A.
0, 0 CONNECTICUT LAW JOURNAL Page 77

0 Conn. App. 1 ,0 79
State v. Nathan S.

counsel never differentiated between A’s general testi-
mony and the three specific ways the state alleged that
the defendant committed assault in the fourth degree.
Consequently, the primary question before the jury was
whether A should be believed, not whether any particu-
lar incident proved the defendant guilty of sexual
assault in the fourth degree beyond a reasonable doubt.
As our Supreme Court explained in Velasquez-Mattos,
‘‘the risk of prejudice to the defendant was minimized
when . . . the defendant utilized the same theory of
defense for both the single specific incident alleged and
the general conduct alleged, namely, that the sexual
abuse never happened and that it was entirely fabri-
cated. Put differently, there was no realistic possibility
of juror confusion or disagreement concerning the mul-
tiple incidents because the jurors were required either
to find that the allegations were fabricated and that no
sexual conduct ever occurred at all, or to believe J’s
testimony, as corroborated by the other witnesses, that
anal penetration had in fact occurred on October 2,
2014.’’ State v. Velasquez-Mattos, supra, 347 Conn. 856.
The present case, however, in which we have deter-
mined that the jury had before it testimony and other
evidence regarding three separate instances of sexual
conduct that could support the sexual assault charge
in count one, differs from Velasquez-Mattos, in which
the court ultimately concluded that the record in that
case ‘‘demonstrate[d] that the state presented substan-
tial evidence of one specific instance of sexual inter-
course to serve as an exemplar of the ongoing sexual
abuse that J had endured at the hands of the defendant,’’
‘‘the prosecutor specified during closing argument that
the state was relying on the October 2, 2014 incident
as the basis for [the] charge [of sexual assault in the
first degree],’’ and the prosecutor’s direct examination
of witnesses ‘‘was consistent with that approach.’’ Id.
Those factors, along with the fact that the defendant
Page 78 CONNECTICUT LAW JOURNAL 0, 0

80 ,0 0 Conn. App. 1
State v. Nathan S.

utilized the same theory of defense for the specific
incidents and the general conduct—that the abuse
never occurred and that J’s testimony was entirely fabri-
cated—provided the basis for the court’s determination
of no prejudice in that case. Id. The circumstances of
the present case, therefore, fall somewhere between
Joseph V. and Velasquez-Mattos, and present a much
closer call on the issue of prejudice.
After taking into consideration the other factors
noted by our Supreme Court, such as the defendant’s
theory of defense that no sexual contact occurred and
that A’s testimony should not be believed, as well as
the facts that defense counsel never cross-examined A
regarding the specific instances at issue with respect to
count one and never differentiated between A’s general
testimony or her specific testimony as to the instances
of sexual contact by the defendant, either during trial
or in closing remarks, and, instead, ended his closing
remarks by telling the jury that ‘‘it all happened or none
of it happened,’’ we do not agree with the defendant
that the duplicitous nature of count one of the operative
information created a potential for the jury ‘‘to disagree
about which of the various alleged incidents the defen-
dant committed.’’ Like the defendant in Velasquez-
Mattos, the defendant in the present case advanced a
theory of defense simply denying A’s allegations in their
entirety. As our Supreme Court stated in Velasquez-
Mattos, when a defendant advances a theory of defense
that the sexual abuse was fabricated and never hap-
pened, there is ‘‘no realistic possibility of juror confu-
sion or disagreement concerning the multiple incidents
because the jurors were required either to find that the
allegations were fabricated and that no sexual conduct
occurred at all, or to believe [the victim’s] testimony’’
that the sexual conduct did, in fact, occur.45 State v.
45
We reach this conclusion with due consideration for the well established
principle that a jury may find credible all, some or none of a witness’
testimony. See, e.g., State v. Wright, supra, 235 Conn. App. 153. We, however,
0, 0 CONNECTICUT LAW JOURNAL Page 79

0 Conn. App. 1 ,0 81
State v. Nathan S.

Velasquez-Mattos, supra, 347 Conn. 856; see also State
v. Hufford, supra, 205 Conn. 397 (defendant was not
prejudiced when he denied that incident had ever
occurred and did not assert that he would have changed
his defense had he been charged in separate counts
with each alternative).46 Likewise, in the present case
are bound by our Supreme Court’s decision in Velasquez-Mattos concerning
the impact that such an ‘‘all-or-nothing’’ defense can have on a determination
of prejudice. See State v. Velasquez-Mattos, supra, 347 Conn. 856.
46
Other state courts agree with this reasoning. See, e.g., State v. Moyer,
306 Kan. 342, 358–63, 410 P.3d 71 (2017) (any error in court’s failure to
instruct jury that it had to be unanimous as to specific act of fellatio that
constituted criminal sodomy was harmless given that defendant asserted
general denial to all of alleged sexual acts); State v. Voyles, 284 Kan. 239,
253, 160 P.3d 794 (2007) (‘‘Kansas appellate courts have held a ‘failure to
instruct’ in multiple acts cases to be reversible error except when the defen-
dant presents a unified defense, e.g., a general denial. If there is no unified
defense, we do not tolerate verdict uncertainty in these cases. Stated in the
language of the clearly erroneous standard of review applicable when no
unanimity instruction has been requested, cases not containing a unified
defense are reversed because the reviewing court is firmly convinced that
there is a real possibility the jury would have returned a different verdict
if the instruction had been given.’’); State v. Escobar, 523 S.W.3d 545, 552–53
(Mo. App. 2017) (when defendant denied allegations of sexual abuse as
whole, argued that victim fabricated story and presented no incident-specific
evidence to contest either of two specifically described instances of abuse,
no reversible error resulted from court’s failure to provide jury with specific
unanimity instruction as to instances of conduct, especially given that ‘‘mem-
bers of jury had to decide whether they found [the victim’s] testimony
credible, and defendant’s convictions show that they did so,’’ in light of ‘‘the
totality of the circumstances, the nature of [the victim’s testimony, and [the
defendant’s] defense’’); State v. Payne, 414 S.W.3d 52, 56–57 (Mo. App. 2013)
(no manifest injustice resulted from trial court’s failure to provide specific
unanimity instruction as to instances of conduct when defendant’s ‘‘defense
consisted entirely of attacking [v]ictim’s credibility and identifying numerous
inconsistencies in his statements and testimony so as to prove that all of
[v]ictim’s allegations were fabricated’’ and ‘‘was simply a general denial and
not incident specific,’’ and when ‘‘defendant does not rely upon evidentiary
inconsistencies and factual improbabilities respecting each specific allega-
tion . . . it [is] unlikely that individual jurors convicted him based on differ-
ent acts’’; ‘‘[s]imply put, if the jury credited [the defendant’s] defense, it
would have found him not guilty . . . [but it] . . . apparently credited the
[s]tate’s evidence and found [the defendant] guilty’’ (emphasis in original;
internal quotation marks omitted)), overruled on other grounds by Hoeber
v. State, 488 S.W.3d 648 (Mo. 2016); Jaimes v. State, Docket No. 05-24-00380-
Page 80 CONNECTICUT LAW JOURNAL 0, 0

82 ,0 0 Conn. App. 1
State v. Nathan S.

any risk of prejudice or likelihood that the jury could
have disagreed or been confused about the multiple
separate incidents was minimized by the defendant’s
theory of defense that sexual contact never occurred
at all, which, in effect, required the jury either to believe
A’s testimony, which was corroborated in part by other
testimony and documentary evidence, or to find that
no sexual contact of the type alleged in count one
occurred at all. In other words, the primary issue before
the jury in this case was A’s credibility. Even though
the jury had before it testimony as to three instances
of sexual contact, that alone cannot form the basis for
a finding of prejudice, as it would be tantamount to
a finding of structural error, and, in Douglas C., our
Supreme Court expressly rejected a claim that the fail-
ure to provide a specific unanimity instruction as to
instances of conduct is structural error. See State v.
Douglas C., supra, 345 Conn. 447 n.16. That is further
evidenced by the fact that, in Joseph V., the court’s
finding of prejudice was based on not only the specific
nature of the testimony concerning three to four dis-
creet instances of sexual abuse, but on certain addi-
tional factors, such as ‘‘defense counsel’s extensive
CR, 2025 WL 2456130, *7 (Tex. App. August 26, 2025) (defendant did not
demonstrate egregious harm when he ‘‘presented an all-or-nothing defense
that attacked [the victim’s] credibility as to any and all alleged instances of
abuse equally and, in reaching a guilty verdict, the jury necessarily disbe-
lieved [the defendant’s] defensive theories and found [the victim] credible
equally as to all instances of abuse alleged’’) (review denied, November 20,
2025); State v. Nelson, 213 Vt. 368, 391–95, 246 A.3d 937 (2020) (because
defendant asserted ‘‘all or nothing’’ theory of case that complainant’s testi-
mony was not credible, defendant did not distinguish any of specific allega-
tions of sexual assault or deny them on individualized basis, it was not
reasonably possible that ‘‘some members of the jury found the complainant
credible as to certain instances of sexual assault while other members of
the jury believed her credible as to different, exclusive instances’’; as result,
there was no reversible error resulting from court’s failure to provide jury
with specific unanimity instruction as to instances of conduct); State v.
Bellanger, 206 Vt. 489, 502–503, 183 A.3d 550 (2018) (defendant did not
demonstrate that lack of specific unanimity instruction gave rise to prejudice,
especially given defendant’s ‘‘ ‘all or nothing’ ’’ defense at trial).
0, 0 CONNECTICUT LAW JOURNAL Page 81

0 Conn. App. 1 ,0 83
State v. Nathan S.

cross-examination and closing argument directed at
unique credibility concerns related to each incident, as
well as the prosecutor’s closing argument that any of
the alleged incidents would establish the element of
sexual intercourse.’’ State v. Joseph V., supra, 345
Conn. 556–57.
Accordingly, we are not convinced that ‘‘the duplicity
created the genuine possibility that the [defendant’s]
conviction resulted from different jurors concluding
that the defendant committed different acts’’; State v.
Douglas C., supra, 345 Conn. 447; given the circum-
stances of this case, including the defendant’s theory
of defense, the focus of the trial and the closing remarks
of counsel.47 On the basis of the record in this case, we
conclude, consistent with Velasquez-Mattos, that ‘‘the
defendant was not prejudiced by the uncured violation
of his right to jury unanimity as to instances of conduct
. . . .’’ State v. Velasquez-Mattos, supra, 347 Conn. 857.
Accordingly, no constitutional violation exists, and the
defendant is not entitled to a new trial as to the charge
of sexual assault in the fourth degree. See id.
The judgment is affirmed.
In this opinion SUAREZ, J., concurred.

47
It is also noteworthy that this case involved a significant amount of
general testimony from A concerning the ongoing sexual abuse that she
endured, although, as we have indicated, this is not a case in which the jury
was presented with general testimony only. See State v. Douglas C., supra,
345 Conn. 461 (our Supreme Court left ‘‘open the possibility that ‘there [may
exist] a common-law exception to the right to jury unanimity for a continuing
course of conduct of sexual assault of children when there is only general
testimony’ ’’ and stated further that, ‘‘in sexual assault cases involving only
general testimony, a duplicitous count that is not cured by a specific unanim-
ity instruction likely will not be harmful’’).