State v. Juan J.

***********************************************
    The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.

   All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
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 the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.
***********************************************
          STATE OF CONNECTICUT v. JUAN J.*
                     (SC 20406)
              Robinson, C. J., and McDonald, D’Auria, Mullins,
                        Kahn, Ecker and Keller, Js.

                                    Syllabus

Convicted of sexual assault in the first degree, attempt to commit sexual
    assault in the first degree and risk of injury to a child in connection
    with the alleged sexual abuse of his daughter, P, on two separate occasions, the defendant appealed to this court. Before the defendant’s trial,
    the state filed a notice of intent to present evidence that the defendant
    had inappropriately touched P in a sexual manner multiple times beyond
    the two charged instances. The defendant objected to the admission of
    such uncharged misconduct evidence, claiming, inter alia, that he was
    denying that the alleged sexual abuse ever occurred and that the jury
    could consider the uncharged misconduct as evidence of a propensity
    on his part to engage in sexual misconduct. The state indicated that it
    did not intend to offer the uncharged misconduct evidence as propensity
    evidence but intended to offer it under the Connecticut Code of Evidence
    (§ 4-5 (c)) for the purposes of proving intent, a common plan or scheme,
    and to complete the story of the defendant’s pattern of conduct. The
    court overruled the defendant’s objection, and P testified not only about
    the two charged incidents but about numerous other instances in which
    the defendant had allegedly touched her inappropriately. P specifically
    testified that the defendant had touched her inappropriately more than
    ten times and that he touched the inside of her vagina, her butt, and
    her breasts. After P testified, the court instructed the jury that P’s
    testimony regarding these additional instances could be considered only
    as proof that the defendant had the intent to engage in the type of sexual
    behavior with which he was charged and that such behavior was not a
    mistake or an accident. The court also admitted into evidence video
    recordings of two forensic interviews of P under the hearsay exception
    for statements made in furtherance of medical diagnosis or treatment.
    P had stated in those interviews that the defendant’s sexual abuse of
    her spanned approximately two years and beyond the date on which
    the last of the two charged incidents occurred, that the inappropriate
    touching had occurred ‘‘all the time’’ and ‘‘every other day,’’ and that
    the defendant had, among other things, performed oral sex on her and
    digitally penetrated her anus. The court did not give the jury a limiting
    instruction before or after the jury viewed those video recordings. In
    its final instructions to the jury, the trial court indicated that the evidence
    of other misconduct was not being admitted to prove bad character or
    propensity but was being admitted solely to show the defendant’s intent
    and the absence of mistake or accident on the part of the defendant. The
    trial court also instructed the jury that it could consider the statements
    in the video recordings for their content. The prosecutor referred to
    the uncharged misconduct evidence in his closing argument to the jury.
    On appeal, the defendant claimed, inter alia, that he was entitled to a
    new trial because the trial court had abused its discretion in admitting
    the uncharged misconduct evidence and that the trial court’s error was
    harmful. Held:
1. This court declined to review the state’s unpreserved claim that the
    judgment of conviction could be affirmed on the alternative ground
    that the uncharged misconduct evidence was admissible as propensity
    evidence under the Connecticut Code of Evidence (§ 4-5 (b)): the state
    did not offer the uncharged misconduct evidence at trial to demonstrate
    propensity, and, because this court did not know how the trial court
    would have exercised its discretion if the evidence had been offered to
    demonstrate propensity, this court would be usurping the trial court’s
    discretion as the decision maker if it were to determine that the challenged uncharged misconduct evidence would have been admissible as
    evidence of propensity; moreover, this court could not speculate about
    what defense counsel would have argued if the state had offered the
    evidence to demonstrate propensity, there was no record from which
    to assess whether the trial court would have admitted the evidence or
    limited its scope, the trial court would have been obligated to issue a
    different limiting instruction if the evidence had been admitted to show
    propensity, and this court could not assess whether the jury would have
    considered the evidence differently or have reached a different verdict,
    as the trial court instructed the jury several times not to consider the
    uncharged misconduct as evidence of propensity.
2. The trial court abused its discretion in admitting the uncharged misconduct
    evidence under § 4-5 (c), as it was not relevant to the issues in the case:
    the defendant’s theory of defense did not raise a disputed issue of intent,
    as he claimed that the alleged inappropriate touching of P did not happen
    at all, he never wavered from that defense or posed a different defense,
    and the jury was not required to find that he had the specific intent to
    sexually assault P or the specific intent to put her at risk of injury in
    order to find him guilty of the general intent crimes with which he was
    charged; moreover, contrary to the state’s assertion that the uncharged
    misconduct evidence allowed the jury to learn that the defendant had
    a sexual interest in P, on which he acted in sexually abusing P before
    and after the charged incidents, that evidence tended to show only
    that the defendant had the propensity to deliberately, consciously or
    purposefully touch P, and, because the state did not seek to admit the
    uncharged misconduct evidence to demonstrate propensity, there was
    no link between this evidence and the defendant’s intent.
3. The defendant having demonstrated that the trial court’s erroneous admission of the uncharged misconduct evidence was harmful, the judgment
    of conviction was reversed, and the case was remanded for a new trial:
    the state’s case was not strong, as the only evidence of the defendant’s
    guilt was P’s testimony and that of those to whom she spoke, there was
    no corroborating physical evidence or any witnesses to the alleged
    sexual assaults, and, thus, the case turned largely on whether the jury
    believed P; moreover, the uncharged misconduct evidence detailed in P’s
    testimony and the video recordings of the forensic interviews presented
    a much more shocking case than the state had charged in both the
    severity and the frequency of abuse, the prosecutor’s summation to the
    jury covered a broader time frame than the span between which the
    two charged incidents occurred, and the court’s jury instruction on the
    proper use of the challenged evidence could not cure the potential
    prejudice to the defendant.
       Argued December 20, 2021—officially released July 5, 2022

                             Procedural History

   Substitute information charging the defendant with
two counts of the crime of risk of injury to a child and
with one count each of the crimes of sexual assault in
the first degree and attempt to commit sexual assault
in the first degree, brought to the Superior Court in the
judicial district of New Britain and tried to the jury
before Oliver, J.; thereafter, the court denied the defendant’s motion to preclude certain evidence; verdict and
judgment of guilty, from which the defendant appealed
to this court. Reversed; new trial.
 Emily C. Kaas, assigned counsel, with whom were
Michael O. Sheehan, assigned counsel, and Kara E.
Moreau, assigned counsel, for the appellant (defendant).
  Denise B. Smoker, senior assistant state’s attorney,
with whom, on the brief, were Brian W. Preleski, former
state’s attorney, and Brett J. Salafia, executive assistant
state’s attorney, for the appellee (state).
                          Opinion

   D’AURIA, J. The dispositive issue in this appeal concerns the admission of uncharged misconduct evidence,
specifically, prior incidents of sexual abuse, to prove
a general intent to commit the incidents of sexual abuse
with which the defendant, Juan J., was charged. A jury
found the defendant guilty of sexual assault in the first
degree, attempt to commit sexual assault in the first
degree, and risk of injury to a child.1 The defendant
claims that he is entitled to a new trial because the
trial court abused its discretion in admitting irrelevant,
uncharged misconduct evidence of alleged prior incidents of sexual abuse by the defendant against the
complainant and that this error was harmful.2 We conclude that, in a general intent crime case, in which the
theory of defense is that the conduct did not occur at
all, rather than a theory of defense in which the conduct
occurred unintentionally, uncharged misconduct is
irrelevant and inadmissible to prove intent. We agree
with the defendant that the trial court abused its discretion in admitting this uncharged misconduct evidence
because it was irrelevant to the issue of intent—the
only issue for which the evidence was proffered—and,
therefore, inadmissible. This error was harmful, and we
therefore order a new trial.
   The jury reasonably could have found the following
facts. The complainant, P, is the defendant’s daughter.
P was sixteen years old at the time of trial and testified
regarding two specific incidents of inappropriate sexual
conduct by the defendant. The first incident, which
involved the defendant touching her vagina under her
clothing,3 occurred on January 5, 2015, when she was
twelve years old. The second incident, which involved
the defendant attempting, but failing, to touch her
vagina under her clothing,4 occurred less than one year
later on December 24, 2015, when she was thirteen
years old.
   P did not disclose the defendant’s inappropriate contact with her until late May or early June, 2016. P’s
older cousin, A, had taken P dress shopping because
P’s mother, S, had told A that P had been ‘‘having some
issues with her attitude [and] trouble in school . . . .’’
A testified that she had asked P ‘‘what was going on
with mom, what was going on with dad, and, once I
mentioned dad, she was crying hysterically. She said
that we didn’t know what he was doing to her.’’ A took
P back home and told S ‘‘that something was up with
dad.’’ The next day, after P went to school, A told S
that P and her siblings ‘‘could no longer be in the house’’
and should come stay with her. S allowed P, but not
her other children, to live with A, who, at the time of
the defendant’s criminal trial, had legal guardianship of
P. One week later, P met with her school counselor
because she had gotten into a fight at school. When
asked whom she would like the school to contact about
bringing her home, P explained that she wanted to go
home with A and not her mother. P disclosed that she
was living with A ‘‘because something had happened
with her father . . . .’’ The counselor discussed with
P some examples of why children may be having a hard
time at home, including financial issues, parents having
issues, not getting along with siblings and, sometimes,
that children are being touched inappropriately. Seemingly surprised at the mention of inappropriate touching, P responded by asking, ‘‘how did you know?’’ The
counselor then asked P, ‘‘was it your father,’’ and P
said yes. P did not share any further details with the
counselor other than that the defendant had touched
her from ‘‘summer, 2015, until three weeks’’ before that
day’s meeting.
   The counselor, a mandated reporter, reported the
allegations to the Department of Children and Families
(department). The department opened an investigation
and informed the local police, whereupon a criminal
investigation also was opened. The department referred
P to the Greater Hartford Family Advocacy Center at
Saint Francis Hospital and Medical Center in Hartford
for a forensic interview that was conducted on June
6, 2016, by Lisa Murphy-Cipolla, the clinical services
coordinator. A follow-up forensic interview was conducted several months later after A found P’s journal,
which ‘‘contained what [A] believe[d] [to be] facts
related to the case.’’ During both interviews, a detective
and a department worker observed the interview from
behind a one-way mirror.
   At the first interview, P told Murphy-Cipolla that the
defendant had touched her from the summer of 2014,
to May, 2016. Murphy-Cipolla showed P anatomical diagrams of the male and female human bodies and asked
her to show where she had been touched by the defendant and with what. P circled the vagina and buttocks on
the female diagram and the hands on the male diagram.
  At the second interview, P made more detailed disclosures to Murphy-Cipolla. P informed Murphy-Cipolla
that the touching had started in 2014 but, at another
point during the interview, alleged that the touching
had begun in 2015. P said that the touching stopped in
May, 2016, and had occurred ‘‘all the time’’ and ‘‘every
other day.’’ P also said that the defendant performed
oral sex on her, put his mouth on her breasts, and
digitally penetrated her anus.
   At the end of both interviews, Murphy-Cipolla
referred P for a medical examination. Neither examination revealed any physical evidence of sexual assault.
Subsequently, the police arrested the defendant.
  The following additional procedural history is relevant to our consideration of the defendant’s claim. The
state’s substitute long form information contained four
counts.5 The first two counts—sexual assault in the first
degree and risk of injury to a child—refer specifically
to the January 5, 2015 incident; the second two counts—
attempt to commit sexual assault in the first degree
and risk of injury to a child—refer specifically to the
December 24, 2015 incident.
   Prior to trial, the state filed a notice of intent to
‘‘present testimony and evidence’’ of prior uncharged
misconduct, specifically, evidence that the defendant
had inappropriately touched P in a sexual manner multiple times beyond the two particular incidents alleged.
The defendant filed a broadly worded motion in limine,
objecting to the admission of any evidence of prior
uncharged misconduct. Specifically, the defendant
argued in the motion that he ‘‘denies any of the conduct
that is alleged in this case’’ and that the evidence invites
improper propensity considerations. On the first day of
trial, the court conducted a hearing on the defendant’s
motion in limine. Outside the jury’s presence, the state
proffered the testimony of P that the defendant had
touched her inappropriately ‘‘[m]ultiple times, like,
more than twice,’’ and ‘‘a lot of times . . . .’’ When
asked by the prosecutor, P also agreed that the touching
occurred ‘‘more than ten times’’ and that it probably
happened every week. P additionally testified that each
incident would last ‘‘a couple of minutes,’’ during which
the defendant would ‘‘try to put . . . his fingers inside
[her] pants . . . .’’ P said that the defendant would also
touch her ‘‘bra area, [her] vagina, [her] back area, [her]
butt . . . and [her] boobs.’’
   The state specifically declined to offer this evidence
under the propensity exception for uncharged sexual
misconduct pursuant to § 4-5 (b) of the Connecticut Code
of Evidence. Rather, the state offered the uncharged
misconduct evidence under § 4-5 (c) for the purposes of
proving intent, common plan or scheme, and completing the story of the defendant’s pattern of conduct. The
trial court overruled the defendant’s objection, reasoning that the ‘‘state has carried its burden of proof that,
pursuant to . . . § 4-5 (c), the proffered uncharged
misconduct from [P] is so connected with the charge[d]
conduct so as to be material and relevant to . . . the
issue of the intent to commit the crime charged in the
information. . . . The court, also having . . . [per]-
formed the balancing test necessary, finds that the probative value in the case of this sort and, specifically,
on these facts, outweighs any prejudicial tendency,
especially with the proper limiting instruction, which
this court will give, and also that the allegations are
not too remote in time to diminish the probative value.’’6
  In the state’s case-in-chief, P testified regarding the
two charged incidents of January 5 and December 24,
2015. She also testified that she recalled many other
instances of the defendant’s having touched her inappropriately, such as when he touched the ‘‘[i]nside of
[her] vagina, [her] butt, [and her] boobs.’’ The inappro-
priate touching occurred throughout the house but,
more often than not, in P’s bedroom. At various points
in her testimony to the jury, P recounted that the defendant touched her inappropriately ‘‘[o]ver ten times,’’
that the inappropriate touching took place ‘‘[f]requently’’; she agreed with the prosecutor that the touching took place ‘‘about ten times and [that] it was essentially the same conduct each of those times,’’ and she
testified that the touching continued after December
24, 2015, until she began living with A in June, 2016.
  Immediately after P’s testimony, the court gave the
jury the following limiting instruction: ‘‘[C]ertain testimony from [P] as to evidence of the commission by the
defendant of other criminal sexual behavior may be
considered by you if you believe it and [you find it]
relevant to prove that the defendant had the intent to—
engage in the type of criminal sexual behavior with
which he’s charged and that such criminal sexual behavior was not a mistake or an accident. Any testimony or
evidence which I identify as being for a limited purpose,
that you will consider only as it relates to the limits for
which it is allowed, and you should not consider such
testimony and evidence in finding any other facts as to
any other issue. Any other such use of testimony or
evidence would be improper.’’
  The trial court also admitted into evidence as full
exhibits the video recordings of the two forensic interviews of P under the hearsay exception for medical
diagnosis and treatment set forth in § 8-3 (5) of the
Connecticut Code of Evidence. In the first interview,
P disclosed that the defendant touched her vagina and
buttocks with his hands from the summer of 2014 to
May, 2016. In the second interview, P said that the
touching started in 2014 but, at another point in the
interview, indicated that it began in 2015. P related that
the touching had occurred ‘‘all the time’’ and ‘‘every
other day.’’ P also said that the defendant had performed
oral sex on her, put his mouth on her breasts, and
digitally penetrated her anus. The trial court did not
give the jury a limiting instruction before or after it
viewed the videos.
   In its final instructions, the trial court charged the
jury that, ‘‘[a]s to other misconduct of [the] defendant,
the state has offered evidence of other acts of misconduct of the defendant. This is not being admitted to
prove the bad character, propensity or criminal tendencies of the defendant. Such evidence is being admitted
solely to show or establish (1) the defendant’s intent,
and (2) the absence of mistake or accident on the part
of the defendant. You may not consider such evidence
as establishing a predisposition on the part of the defendant to commit any of the crimes charged or to demonstrate a criminal propensity. You may consider such
evidence if you believe it and further find that it logically, rationally and conclusively supports the issues
for which it is being offered by the state but only as it
may bear on the issues of the defendant’s intent and
the absence of mistake or accident on the part of the
defendant.’’ As to the forensic interview videos, the trial
court charged the jury that ‘‘[s]tatements made by a
complainant to a professional—professional, pursuant
to receiving or seeking treatment, have been admitted
as substantive evidence in exhibits 6A and 7A. This
means that your consideration of these statements is
not limited to credibility or corroboration. These statements may be fully considered for their content.’’
   In his closing argument, the prosecutor specifically
relied on this prior uncharged misconduct evidence.
For example, the prosecutor stated that ‘‘[t]he evidence
here clearly demonstrates that this defendant repeatedly violated this trust, touching [P] in a sexual and
indecent manner to suit his whims.’’ He did not confine
his argument to the January 5 and December 24, 2015
incidents alleged, which took place during one calendar
year. Rather, the prosecutor argued to the jury that the
‘‘relevant time line that you need to consider is framed
by two school years—the conclusion of the sixth grade
year to essentially the conclusion of the eighth grade
year. Most likely, this is summer, 2014, to May, early
June of 2016. And you heard testimony from various
people that supports that. . . . The four counts that
the defendant is charged with fit squarely into that time
frame, essentially in the middle of that time frame.’’
The prosecutor asked the jury to look ‘‘at the two videos
particularly to reconcile [the defendant’s] role as a protector with this physically and emotionally violating
conduct that took place, that she testified happened
repeatedly, not just on her [brother’s] birthday or [the]
holiday . . . .’’ (Emphasis added.)
                             I
   Because it is useful in framing the dispositive evidentiary issue in this appeal, we begin with the state’s
claimed alternative ground to affirm the judgment. Specifically, the state argues that the evidence of uncharged
misconduct, detailed by P both in her trial testimony
and forensic interviews, was admissible as propensity
evidence under § 4-5 (b) of the Connecticut Code of
Evidence and State v. DeJesus, 

, 

 (2008). The state argues that we should therefore
affirm the judgment of conviction on this alternative
ground. See Practice Book § 63-4 (a) (1).
   The state concedes, as it must, that it ‘‘did not request
that the uncharged misconduct evidence be admitted
for propensity purposes, and the trial court did not
instruct the jury that it could be used as such.’’ In fact,
after the prosecutor proffered the uncharged misconduct ‘‘as both intent and sort of a common plan or
scheme,’’ the trial court asked him whether he had
any response to defense counsel’s argument that the
evidence should not come in under § 4-5 (b) to prove
propensity to commit the charged crimes. The prosecutor forthrightly declined ‘‘to characterize [the evidence]
as propensity’’ and noted specifically that he did not
intend to argue that ‘‘there is a particular propensity
as a character trait.’’ Accordingly, the trial court admitted the evidence only under § 4-5 (c) as relevant to
prove intent or the absence of mistake or accident,
and instructed the jury not to consider the evidence as
propensity evidence. On this record, we cannot accept
the state’s invitation to affirm the judgment on its
claimed alternative ground.
   ‘‘[O]nly in [the] most exceptional circumstances can
and will this court consider a claim, constitutional or
otherwise, that has not been raised and decided in the
trial court. . . . This rule applies equally to alternat[ive] grounds for affirmance.’’ (Internal quotation
marks omitted.) Perez-Dickson v. Bridgeport, 

, 498–99, 

 (2012). ‘‘Such exceptional
circumstances may occur [when] a new and unforeseen
constitutional right has arisen between the time of trial
and appeal or [when] the record supports a claim that
a litigant has been deprived of a fundamental constitutional right and a fair trial. . . . An exception may also
be made [when] consideration of the question is in the
interest of public welfare or of justice between the
parties.’’ (Internal quotation marks omitted.) 

 499–
500. None of those circumstances is present in this
appeal.
   And, although it is true that ‘‘this court may rely on
any grounds supported by the record in affirming the
judgment of a trial court’’; State v. Burney, 

, 

 (2008); the record is lacking
support in a critical way: we do not know precisely
how the trial court would have exercised its discretion
had it been called on to determine whether to admit
the uncharged misconduct for propensity purposes. Put
differently, if the issue had been preserved, we would
afford significant deference to the trial court’s admission of propensity evidence, reviewing it only for abuse
of discretion. See, e.g., State v. Mark T., 

,
232, 

 (2021). Essentially, the state asks us
to defer to discretion that the trial court never exercised
or was asked to exercise. See State v. Fernando V., 

, 212–13, 

 (2019). Sound principles of appellate review counsel otherwise.7
   We previously have concluded that, ‘‘[w]hen a trial
court that has excluded (or admitted) evidence for the
wrong reason nonetheless would have been required
to make the same evidentiary ruling on the unpreserved
alternative ground as a matter of law, there is no reason
that a reviewing court should be prevented from substituting the legally compelled ground for the legally
flawed ground. The present case is altogether different,
however, because it involves an unpreserved alternative
ground [propensity] that ordinarily is discretionary in
nature; the state has not, and could not, argue that the
trial court . . . ‘would have been forced to rule’ in its
favor on this ground.’’ (Emphasis in original.) 

 213
n.4; see also Vine v. Zoning Board of Appeals, 

, 

 (2007) (addressing unpreserved
alternative ground for affirmance because both parties
relied on same factual basis in support of their claims
on appeal, claim involved pure question of law, there
was no possibility that court would be usurping discretion of decision maker, record was adequate for review,
and, because issue had been fully briefed, there was
no possibility of prejudice to parties); cf. Grady v. Somers, 

, 349–50 n.28, 

 (2009)
(reaching alternative ground for affirmance when ‘‘it
is a question of law, the essential facts of which are
undisputed, over which our review is plenary,’’ and
plaintiff, who raised issue at trial and on appeal, would
not be prejudiced or unfairly surprised). A discretionary
issue such as the one before us—regardless of whether
the uncharged misconduct is offered for propensity purposes under § 4-5 (b) or for other purposes allowed
under § 4-5 (c)—is not ‘‘one that the trial court would
have been forced to rule in favor of the [party prevailing
at trial].’’ Zahringer v. Zahringer, 

,

 (2003), quoting W. Horton & S. Cormier,
Rules of Appellate Procedure (2003 Ed.) § 63-4 (a) (1),
authors’ comment, p. 138.
   ‘‘[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. Meehan, 

, 

(2002); see also Conn. Code Evid. § 4-5 (a). This court
has recognized an exception to the general rule for
sexual offenses: evidence of uncharged sexual misconduct, assessed under a liberal standard, is admissible
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
persons similar to the prosecuting witness.’ ’’ State v.

. 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 it had been offered for propensity, would have
required 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. Because the trial court was not afforded
the opportunity to weigh the applicable factors and
determine if, in its discretion, it would admit the
uncharged misconduct as evidence to prove propensity,
we would be ‘‘usurp[ing] the trial court’s discretion’’ as
the decision maker to rule that the evidence would
have been admitted or admitted in its entirety. (Internal
quotation marks omitted.) Vine v. Zoning Board of

.
   The state relies on DeJesus and State v. Johnson, 

, 456–57, 

 (2008), overruled in
part on other grounds by State v. Payne, 

,

 (2012), to support its contention that this
court can assess whether the uncharged misconduct
evidence could have been admitted under the propensity exception despite the state’s failure to offer it for
such purposes. In DeJesus, the trial court admitted
uncharged sexual misconduct to prove intent and a
common plan or scheme. See State v. 

. In Johnson, we assessed whether evidence admitted to prove intent or common scheme or
plan was harmful and concluded that, assuming the
evidence was not admissible to prove intent or common
scheme or plan, the error was harmless because the
evidence was admissible under the new propensity
exception articulated in DeJesus. See State v. 

 456–57. In both cases, however, the trial court
admitted the uncharged sexual misconduct by employing
the same standard by which to assess and admit the
evidence under the new propensity exception. In the
present case, to admit the uncharged misconduct for
propensity purposes, the trial court would have had to
conduct a different inquiry than it did when it admitted
the evidence for the purpose of proving intent.
   Not only did the state not raise the propensity issue
before the trial court and thereby ask for such a discretionary ruling, it affirmatively stated that it did not
intend to offer P’s testimony about the numerous other
acts of sexual abuse that occurred across a period of
two years to show propensity on the defendant’s part.
We cannot speculate about what defense counsel would
have argued or whether he would have asked the trial
court to limit the evidence of other alleged acts as
indicative of propensity on the defendant’s part. We
also have no record from which to assess whether the
trial court, if, after conducting a § 4-5 (b) analysis, would
have exercised its discretion to admit the evidence or
limit its scope. Further, if the evidence had been offered
and admitted to prove the defendant’s propensity or
tendency to engage in aberrant sexual misconduct, the
trial court would have issued a different limiting instruction to the jury.8 We likewise cannot assess whether
the jury would have considered the evidence differently
or come to a different verdict because the trial court
specifically instructed the jury several times not to consider the evidence for propensity purposes. The state
cannot now take shelter in the liberal standard for the
admission of uncharged sexual misconduct evidence
for propensity purposes on appeal. ‘‘Under these circumstances, we decline to review the state’s unpreserved claim.’’ State v. Fernando V., supra, 

.
                             II
   We now turn to the sole basis on which the trial court
admitted the uncharged misconduct under § 4-5 (c) of
the Connecticut Code of Evidence. The defendant contends that the trial court abused its discretion by admitting this evidence because it was irrelevant, as neither
specific intent, accident, nor absence of mistake was
at issue. He argues that (1) intent was not presumptively
at issue because he was charged only with general intent
crimes, not specific intent crimes, and (2) intent was
not affirmatively at issue because his theory of defense
was that the conduct never happened at all, not that
the conduct occurred as a result of unintentional
actions. We agree with the defendant.
   ‘‘Evidence that is not relevant is inadmissible.’’ Conn.
Code Evid. § 4-2. ‘‘It is axiomatic that the [t]rial court’s
ruling on the admissibility of evidence is entitled to
great deference. . . . In this regard, the trial court is
vested with wide discretion in determining the admissibility of evidence, including issues of relevance . . . .
Accordingly, [t]he trial court’s ruling on evidentiary
matters will be overturned only upon a showing of a
clear abuse of the court’s discretion. . . . In determining whether there has been an abuse of discretion, every
reasonable presumption should be made in favor of the
correctness of the trial court’s ruling . . . .’’ (Internal
quotation marks omitted.) State v. Mark 

.
   ‘‘Section 4-1 of the Connecticut Code of Evidence
provides: ‘Relevant evidence means evidence having
any tendency to make the existence of any fact that is
material to the determination of the proceeding more
probable or less probable than it would be without the
evidence.’ . . . This concept embodies two components: (1) probative value, and (2) materiality. Conn.
Code Evid. § 4-1, commentary . . . . Regarding the
second component, ‘[t]he materiality of evidence turns
[on] what is at issue in the case, which generally will
be determined by the pleadings and the applicable substantive law.’ Conn. Code Evid. § 4-1, commentary
. . . . ‘The degree to which any evidence is material
and relevant must be assessed in light of the fact or
issue that it was intended to prove.’ ’’ (Citations omitted.) State v. Mark 

 339 Conn. 241–42.
  Although the general rule precludes admission of evidence of prior misconduct 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 out-
weighs its prejudicial tendency.’’ (Internal quotation
marks omitted.) State v. 

;
see Conn. Code Evid. § 4-5 (c). ‘‘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.’’ (Internal quotation marks omitted.) State v. Beavers, 

, 400–401, 

 (2009).
   Our case law distinguishes between using evidence
to prove an act and using evidence to prove intent. See
State v. 

. ‘‘Because intent
is almost always proved, if at all, by circumstantial
evidence, prior misconduct evidence, [when] available,
is often relied [on].’’ State v. Baldwin, 

, 

 (1993). In State v. 

396–97, this court catalogued appellate cases in which
evidence was irrelevant and inadmissible to prove an
act but relevant and admissible to prove intent to commit that act. See State v. 

 353–56 (evidence of defendant being observed running to cars and
found in possession of narcotics was irrelevant and
inadmissible to prove act of possession but relevant
and admissible to prove possession with intent to sell);
State v. Tucker, 

, 415–16, 

(1980) (evidence of prior acts of child abuse against
same victim was inadmissible to prove act of murder
but admissible to prove specific intent to murder and
lack of accident); State v. James, 

,
40–41, 

 (evidence of defendant’s prior
threats against victim was irrelevant and inadmissible
to prove act of killing but relevant and admissible to
prove intent and motive to kill her), cert. denied, 

, 

 (1999); State v. Cepeda, 

, 

 (prior aggression
against victim was irrelevant and inadmissible to prove
act of shooting but relevant and admissible to prove
intent and motive to shoot victim), cert. denied, 

, 

 (1999).
   We have noted the fine line between using uncharged
misconduct to prove intent and using it to show the
defendant’s bad character or propensity to commit the
crime charged. See State v. 

 260 Conn.
395–96. The risk that the evidence will be used improperly is particularly high when the uncharged misconduct
is ‘‘extrinsic,’’ meaning, separate and distinct from the
crime charged, because the uncharged misconduct ‘‘is
practically indistinguishable from prohibited propensity evidence. Uncharged misconduct may logically be
used to rebut a claim of mistake or no knowledge . . .
but to use misconduct at one time to prove an intent
to do the same thing at another time borders on the
forbidden theme of ‘once a thief always a thief.’ ’’ (Citation omitted.) E. Prescott, Tait’s Handbook of Connecticut Evidence (6th Ed. 2019) § 4.15.6, p. 176; see also
State v. Conroy, 

, 

 (1984)
(‘‘[E]vidence of similar but unconnected crimes is generally not admissible to prove a criminal defendant’s
guilt. Such evidence can show no more than the defendant’s bad character or an abstract disposition to commit a crime; it provides no proof of guilt of the specific
offense in question.’’). In light of these concerns, 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.’’ (Internal
quotation marks omitted.) State v. 

.
   In the present case, the state was required to prove
each element of first degree sexual assault, attempt to
commit first degree sexual assault, and risk of injury
to a child beyond a reasonable doubt to sustain the
defendant’s conviction. As the state concedes, all of
these are crimes of general intent. Sexual assault in the
first degree requires the state to prove that ‘‘(1) the
defendant engage[d] in sexual intercourse with another
person, (2) such other person is under thirteen years
of age, and (3) the [defendant] is more than two years
older than such person . . . .’’ (Internal quotation
marks omitted.) State v. Jose A. B., 

,

 (2022), quoting General Statutes § 53a-70
(a) (2); see also State v. Pierson, 

,

 (1986) (‘‘[w]e have held that sexual assault
in the first degree is a general intent crime with no
element of specific intent’’). The crime of attempt to
commit sexual assault in the first degree requires the
state to prove that the defendant acted with the mens
rea ‘‘identical to the ‘mental state required for commission of’ the underlying offense.’’ State v. Pond, 

, 470, 

 (2015). Finally, risk of injury to
a child in violation of § 53-21 (a) (2) requires the state
to prove that the defendant ‘‘(1) . . . had contact with
the intimate parts of, or subjected to contact with his
intimate parts, (2) a child under the age of sixteen years,
(3) in a sexually and indecent manner likely to impair
the health or morals of such child.’’ (Internal quotation
marks omitted.) State v. Jose A. B., supra, 535. As the
state correctly notes in its brief to this court, general
intent ‘‘is the term used to define the requisite mens
rea for a crime that has no stated mens rea; the term
refers to whether a defendant intended deliberate, conscious or purposeful action, as opposed to causing a
prohibited result through accident, mistake, carelessness, or absent-mindedness. [When] a particular
crime requires only a showing of general intent, the
prosecution need not establish that the accused
intended the precise harm or precise result which
resulted from his acts.’’ (Emphasis added; footnotes
omitted.) 21 Am. Jur. 2d 213–14, Criminal Law § 127
(1998); see also State v. Salamon, 

,

 (2008) (general intent is ‘‘an intent to
engage in certain conduct,’’ and specific intent is ‘‘an
intent to bring about a certain result’’). Rather, as to
all of these charges, the state needed to prove only that
the defendant intended to ‘‘make the bodily movement
[that] constitutes the act [that] the crime requires
. . . .’’ (Internal quotation marks omitted.) State v. Jose
A. B., supra, 536, quoting State v. James, 

, 

 (1989).
   This burden of proof differs from the state’s burden
in specific intent crimes in which intent is a legislatively
prescribed element that the state must prove beyond
a reasonable doubt unless explicitly admitted by the
defendant. See, e.g., State v. 

.9 For example, 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 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.’’ (Internal quotation marks omitted.) State v.
Jose A. B., supra, 342 Conn. 534–35; accord State v.
Roy D. L., 

, 

 (2021).10
   Intent can be at issue in a general intent crime case,
such as sexual assault or risk of injury to a child, when
the defendant poses as a defense that he touched the
complainant innocently, or by accident or mistake. In
State v. John G., 

, 

, cert.
denied, 

, 

 (2007), for example,
the Appellate Court concluded that evidence of the
defendant’s prior misconduct was admissible to prove
intent because the defendant argued that ‘‘he was simply an affectionate grandfather who enjoyed cuddling
with his grandchildren . . . . The issue of intent, therefore, was central to the charges against the defendant,
and, on the issue of intent, the evidence of prior sexual
misconduct was especially relevant.’’ Id., 365. Likewise,
in State v. Wild, 

, 462–65, 

, cert. denied, 

, 

 (1996),
evidence of prior sexual misconduct was admissible
and relevant to prove intent because the defendant had
stated to the police that his touching of the victim was
the result of an epileptic seizure and that he may have
been ‘‘unaware of what he was doing.’’ Id., 462. The
Appellate Court agreed with the state that these statements ‘‘brought the element of intent into question,’’
and, therefore, the prior misconduct was admissible
‘‘to show that the defendant’s touching of the victim’s
vaginal area was intentional, not inadvertent, and was
not behavior of which the defendant was unaware or
that he could not control.’’ Id.
  Consistent with our own cases, the United States
Court of Appeals for the Second Circuit has similarly
long recognized, in interpreting rule 404 (b) of the Federal Rules of Evidence, the federal counterpart to § 4-
5 (c) of the Connecticut Code of Evidence,11 that ‘‘[a]
dispute as to whether . . . a party performed a particular physical act is not an issue as to intent.’’ Hynes v.
Coughlin, 

 (2d Cir. 1996). ‘‘A defendant
may . . . forestall the admission of [misconduct] evidence by advancing a theory that makes clear that the
object [that] the [misconduct] evidence seeks to establish, while technically at issue, is not really in dispute.
. . . For example, a defense theory that the defendant
did not commit the charged act effectively removes the
issue of intent and knowledge from the case.’’ (Citation
omitted.) United States v. Siddiqui, 

(2d Cir. 2012), cert. denied, 

, 

,

 (2013); see id. (defendant, charged
with attempted murder of United States nationals, officers and employees, armed assault of United States
officers and employees, using firearm during crime of
violence, and assault of United States officers and
employees, removed issue of intent with theory that
she did not pick up and ‘‘fire the M-4 [rifle]’’).12Admitting
this evidence only when necessary to prove an issue
that has been placed in dispute is consistent with what
we have recognized as a trial court’s ‘‘duty to safeguard
against undue prejudice in cases involving uncharged
misconduct evidence. Indeed, we emphasize that our
trial courts are required to take great caution in admitting this evidence and in ensuring that our juries use
it only for its proper purpose.’’ State v. Ortiz, 

, 603 n.14,       A.3d      (2022).
   In the present case, the defendant did not make the
issue of intent ‘‘central to the charges’’ against him
because his defense was that the touching never happened. Indeed, before the trial began, the defendant
objected to the state’s notice of intent to present evidence of his prior misconduct, arguing that it was inadmissible because he ‘‘denies any of the conduct that is
alleged in this case.’’ He never wavered from this
defense during the trial or posed a different defense.
This theory of defense did not raise a disputed issue
of intent—either as a matter of general intent or as to
a defense of mistake or accident. The jury was not
required to find that, on the dates in question, the defendant intended to sexually assault P or intended to put
her at risk of injury but only that he did, in fact, deliberately, consciously, or purposefully touch her so that
the result of his actions constituted first degree sexual
assault, attempt to commit first degree sexual assault,
and risk of injury to a child. Although the prior misconduct evidence might be relevant to the defendant’s general intent if he had raised a mistake or accident
defense, it sheds no light on whether he purposefully
touched P because it tended to show only that he had
the propensity and proclivity to deliberately, consciously, or purposefully touch her. This is the very
inference prohibited by the rule rendering uncharged
misconduct evidence generally inadmissible.
   The state nevertheless argues under the guise of
intent that the trial court properly admitted evidence
of the defendant’s uncharged misconduct because it
‘‘allowed the jury to learn that the defendant had a
sexual interest13 in [P], upon which the defendant acted
by sexually abusing [P] before and during the charged
period, and by continuing to do so until the last act
of abuse.’’ (Internal quotation marks omitted.) We can
discern from this argument, however, nothing other
than that the evidence showed a propensity to deliberately, consciously, or purposefully touch P. See Black’s
Law Dictionary (11th Ed. 2019) p. 1470 (defining ‘‘propensity’’ as ‘‘[a] natural tendency to behave in a particular way; esp[ecially], the fact that a person is prone to
a specific type of bad behavior’’). As explained previously, the prosecutor specifically conceded at trial
that the state did not seek to admit this evidence for
propensity purposes, and we will not allow the state
to alter its theory on appeal. See, e.g., State v. Mark T.,
supra, 339 Conn. 247–48. Without the theory of propensity underlying the state’s argument, there is no link
between this evidence and intent.14 The uncharged misconduct evidence, therefore, was inadmissible because
it was not relevant or material to the issues in this case.15
   On remand, if the state again moves to admit the
uncharged misconduct evidence, we leave it to the trial
court’s judgment to determine whether it would be
appropriate to admit the evidence to prove propensity
after conducting the necessary analysis under § 4-5 (b)
of the Connecticut Code of Evidence.
                             III
   Having concluded that the trial court erroneously
admitted the uncharged misconduct evidence, we must
determine whether the defendant has demonstrated
that this error was harmful. See, e.g., State v. Mark
T., supra, 

 (defendant bears burden of
demonstrating harmfulness of nonconstitutional evidentiary error). The defendant argues that the admission of the evidence harmed him because (1) without
the uncharged misconduct evidence, the state’s case
was not strong, (2) the nature of the evidence was
prejudicial because it inflamed the passions and the
sympathy of the jurors by ‘‘portray[ing] an alleged pattern of abuse that was far more serious and frequent
than the charged conduct,’’ and (3) the state relied on
the evidence in its closing summation to the jury. We
agree with the defendant that the error was harmful.
   ‘‘[W]hether [an improper ruling] is harmless in a particular case depends [on] a number of factors, such as
the importance of the witness’ testimony in the [defendant’s] case, whether the testimony was cumulative,
the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material
points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case. . . . Most importantly, we must examine
the impact of the . . . evidence on the trier of fact and
the result of the trial. . . . [T]he proper standard for
determining whether an erroneous evidentiary 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.’’ (Internal quotation marks omitted.) State v. Mark T., supra, 

.
  In child sexual assault cases, the state’s case is often
not strong in the absence of ‘‘corroborating physical
evidence or any witnesses to the alleged sexual assault.’’
State v. Fernando V., supra, 331 Conn. 215–16. In the
present case, there was no corroborating physical evidence or any witnesses to the alleged sexual assault.
P’s testimony and the testimony of those who spoke to
her constituted the only evidence of the defendant’s
guilt, and, therefore, ‘‘this case largely turned on
whether the jury believed’’ P. (Internal quotation marks
omitted.) Id., 216.
  Appellate courts often must determine whether the
improper admission of evidence ‘‘may have [had] a tendency to excite the passions, awaken the sympathy, or
influence the judgment, of the jury . . . .’’ (Internal
quotation marks omitted.) State v. Ellis, 

,
367–68, 

 (2004). Uncharged misconduct
evidence that leads the jury to conclude that the defendant had a propensity to commit acts of sexual misconduct—when that propensity evidence is not properly
before the jury—is one example of evidence that will
often yield such a result.
   For example, in Ellis, this court concluded that the
trial court had abused its discretion by admitting the
testimony of three witnesses that the defendant sexually abused them; see 

; reasoning that the defendant’s abuse of one of the three complainants was ‘‘far
more frequent and severe.’’ 

. The uncharged
misconduct was therefore not similar to the offense
charged and inadmissible to prove the existence of a
common scheme. 

. We reasoned that, by improperly advising the jury that it could consider the
uncharged misconduct as evidence of a common
scheme, ‘‘the court permitted the jury to be influenced
by evidence that was not relevant or material to the
issues in [that complainant’s] case.’’ 

. ‘‘That the
defendant’s abuse of the other [witnesses] was not as
severe as his abuse of [that complainant] does not mean
that the evidence of such abuse was harmless. The
sheer quantity of testimony concerning the defendant’s
abuse of the other [witnesses] was likely to have been
harmful in its cumulative effect [on] the jury’s delibera-
tions.’’ 

 In State v. Gupta, 

, 

 (2010), overruled in part by State v. Payne, 

, 

 (2012), this court, relying on
Ellis, similarly concluded that the trial court had abused
its discretion by consolidating the cases against the
defendant, a physician, because the testimony of one
of the witnesses was too dissimilar and, thus, was irrelevant and not cross admissible in the cases against the
defendant involving the other witnesses. See 

 226–28,
230–31. We focused on the fact that the defendant’s
misconduct as against one witness was ‘‘markedly different’’ and ‘‘far more egregious’’ than his misconduct
against the other witnesses because, unlike the extent
of the conduct alleged by those other witnesses, the
scope of the inappropriate touching was broader and
could not be mistaken for a legitimate medical examination. Id., 226.16
   Likewise, in the present case, the admission of the
uncharged misconduct evidence at issue was undoubtedly harmful. The charges against the defendant pertained only to two specific incidents that took place in
January and December, 2015. The two charged incidents related to the defendant’s touching the inside of
P’s vagina and his attempt to do so on another occasion.
P’s testimony before the jury, as well as the two forensic
interview videos,17 however, presented a much more
shocking case than the state had charged in both the
severity and the frequency of abuse. The uncharged
misconduct broadened the scope of the alleged touching to include allegations that the defendant digitally
penetrated her anus, performed oral sex on her, and put
his mouth on her breasts. P testified that the defendant
touched her inappropriately ‘‘[o]ver ten times,’’ that the
inappropriate touching took place ‘‘[f]requently,’’ and
agreed with the state that the touching took place
‘‘about ten times and [that] it was essentially the same
conduct each of those times . . . .’’ The jury also heard
P state in the forensic interview videos that the sexual
abuse occurred ‘‘all the time’’ and ‘‘every other day.’’ In
both interviews, P claimed that the defendant sexually
abused her from the summer of 2014, to May, 2016,
although, at one point, she said that the touching had
begun in the summer of 2015. If believed, P’s statements
expanded the uncharged misconduct potentially to hundreds of instances.
   In his summation, the prosecutor argued that the
‘‘evidence here clearly demonstrates that this defendant
repeatedly violated [the trust between a parent and
child] . . . .’’ (Emphasis added.) The prosecutor further explained to the jury that the ‘‘relevant time line
that you need to consider is framed by two school
years—the conclusion of the sixth grade year to essentially the conclusion of the eighth grade year. Mostly
likely, this is summer 2014 to May, early June, of 2016.
. . . The four counts that the defendant is charged with
fit squarely into that time frame, essentially in the mid-
dle of that time frame.’’ This narrative went well beyond
the nearly twelve month time period that the two
charged incidents covered. The state pointed to the
forensic interviews, asking the jury ‘‘to reconcile her
father’s role as a protector with this physically and
emotionally violating conduct that took place that she
testified happened repeatedly, not just on her [brother’s] birthday or [the] holiday . . . .’’ (Emphasis added.)
  As in Ellis, the trial court’s instructions to the jury
on the proper use of this evidence could not ‘‘cure the
potential prejudice to the defendant.’’ State v. 

. The harm to the defendant is
particularly acute in this case. The uncharged misconduct was far more severe and frequent than the charged
conduct. The uncharged misconduct was admitted not
to prove propensity but to prove the irrelevant issue of
intent. The defendant likewise did not receive the
proper jury instruction.
  The judgment is reversed and the case is remanded
for a new trial.
   In this opinion the other justices concurred.
   * In accordance with our policy of protecting the privacy interests of
alleged 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 complainant
or others through whom the complainant’s identity could be ascertained.
See General Statutes § 54-86e.
   1
     Specifically, the defendant was convicted of one count of sexual assault
in the first degree in violation of General Statutes § 53a-70 (a) (2), one count
of attempt to commit sexual assault in the first degree in violation of General
Statutes §§ 53a-49 (a) (2) and 53a-70 (a) (1), and two counts of risk of injury
to a child in violation of General Statutes § 53-21 (a) (2).
   2
     The defendant additionally claims that the trial court abused its discretion
in admitting two video-recorded forensic interviews of the complainant and
constancy of accusation testimony. Because we conclude that the erroneous
admission of uncharged misconduct evidence entitles the defendant to a
new trial, we do not need to reach his second and third claims.
   3
     P testified that she specifically recalled the January 5, 2015 incident
because it was her brother’s birthday, and she was sitting on a couch next
to the defendant when he put his hands in her pants and started touching
her ‘‘private area.’’ P’s mother, S, who was on a separate section of the
couch, had fallen asleep watching television. P testified that the touching
went on for ‘‘a while, like, minutes,’’ and that the defendant touched her
under her clothing and inside her private area. The incident stopped when
S woke up because P’s aunt and grandmother were coming over.
   4
     P testified that she specifically recalled the December 24, 2015 incident
because it was Christmas Eve, and the defendant tried to touch her again.
P was lying down in her room because her younger siblings were playing
with Nerf guns and bothering her. P was in her room for approximately five
minutes before the defendant came in and ‘‘tried to put his hand inside [her]
pants,’’ but, because everybody was ‘‘up and, like, laughing,’’ he ‘‘didn’t get
to,’’ and she was able to tell him, ‘‘no, like, don’t like touch me.’’ P testified
that she thought she had the ability to say ‘‘no’’ during this incident because
there were other people alert and ‘‘up and around’’ in the house.
   5
     The state’s original information charged the defendant with committing
sexual assault in the first degree on or about January 5, 2015, risk of injury
to a child on or about January 5, 2015, attempt to commit sexual assault in
the first degree on or about December 24, 2015, risk of injury to a child on
or about December 24, 2015, sexual assault in the fourth degree on or about
diverse dates from January, 2015, to May, 2016, and risk of injury to a child
on or about diverse dates from January, 2015, to May, 2016. The state later
abandoned the last two charges in its substitute long form information.
   6
     The trial court cited as support State v. Donald H. G., 

, 

, cert. denied, 

, 

 (2014), and
State v. Tucker, 

, 

 (1980).
   7
     Indeed, in dictum, we have previously agreed with the principle that the
state waives its ability to contest on appeal an alleged error that it has
induced, thereby removing it as a potential alternative ground for affirmance.
See State v. Marquez, 

, 138 n.14, 

 (2009), cert.
denied, 

, 

, 

 (2009); see also State
v. Cruz, 

, 

 (2004) (‘‘a party who induces an
error cannot be heard to later complain about that error’’).
   8
     Even in a case in which evidence of sexual misconduct is offered by
the state to establish both propensity under § 4-5 (b), and any of the specific
purposes allowed under § 4-5 (c), such as absence of mistake or common
plan or scheme, the trial court would have to instruct the jury that the
evidence was admissible for both purposes.
   9
     We are therefore not convinced by the state’s citation of cases involving
specific intent crimes to support the proposition that the defendant’s intent
in a general intent case ‘‘is always in issue unless directly and explicitly
admitted before the trier of fact.’’ (Internal quotation marks omitted.) See,
e.g., State v. 

. As explained, the state’s burden
of proving intent in a specific intent crime case differs significantly from
its burden in a general intent crime case and unfairly borders on propensity
evidence when used in such a way. The state cannot use the logic of specific
intent cases to overwhelm a general intent case with uncharged misconduct.
   10
      In fact, the state initially charged the defendant with having committed
sexual assault in the fourth degree on or about diverse dates from January,
2015, to May, 2016, and risk of injury to a child on or about diverse dates
from January, 2015, to May, 2016. The state later abandoned those charges
in the substitute information it filed. See footnote 5 of this opinion.
   11
      See Fed. R. Evid. 404 (b) (1) and (2) (‘‘Evidence of any other crime,
wrong, or act is not admissible to prove a person’s character in order to
show that on a particular occasion the person acted in accordance with the
character. . . . This evidence may be admissible for another purpose, such
as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.); see State v. Hedge, 

, 

 (2010) (‘‘there is no substantive difference between
the pertinent federal and Connecticut rules [of evidence governing evidence
of other crimes, wrongs or acts]’’ (internal quotation marks omitted)).
   12
      We leave it to the sound discretion of our trial courts to determine the
precise procedure to employ in a particular case, consistent with their
‘‘duty to safeguard against undue prejudice in cases involving uncharged
misconduct evidence.’’ State v. Ortiz, 

, 603 n.14,          A.3d
(2022). We note with approval, however, procedures employed by several
other state and federal courts when defendants have sought to remove the
issue of intent through a particular defense theory, thereby implicating how
trial courts should handle the admission of uncharged misconduct evidence.
By detailing the procedures undertaken in these jurisdictions, we merely
intend to emphasize the caution that courts must take in admitting this
evidence and that, often, a court’s appropriate exercise of its discretion
becomes more informed as the trial plays out.
   For example, the approach of the Supreme Court of Michigan is commendable, requiring that the state provide pretrial notice of its intent to introduce
uncharged misconduct evidence and that the defendant articulate his or her
theory of defense. See People v. VanderVliet, 

, 89–90, 

 (1993). In doing so, the court encourages flexibility in a trial court’s
exercise of discretion, allowing them to rule on the admission of uncharged
misconduct using pretrial procedures if there is ‘‘a record basis to reliably
determine the relevance and admissibility of other acts evidence’’; id.; but
cautioning that, if ‘‘the [trial] court still remains uncertain of an appropriate
ruling at the conclusion of the prosecutor’s other proofs, it should permit
the use of other acts evidence on rebuttal, or allow the prosecution to
reopen its proofs after the defense rests, if it is persuaded in light of all the
evidence presented at trial, that the other acts evidence is necessary to
allow the jury to properly understand the issues . . . .’’ (Citation omitted.)

.
   In federal courts within the Second Circuit, ‘‘if the evidence is offered to
prove the defendant’s knowledge or intent, the offer of similar acts evidence
should await the conclusion of the defendant’s case and should be aimed
at a specifically identified issue. This enables the trial judge to determine
whether the issue sought to be proved by the evidence is really in dispute
and, if so, to assess the probative worth of the evidence on this issue against
its prejudicial effect.’’ (Internal quotation marks omitted.) United States v.
Colon, 

 (2d Cir. 1989). The United States Court of Appeals
for the Tenth Circuit has similarly explained that, although it is preferable
to delay the admission of uncharged misconduct evidence until after the
defense rests ‘‘because it places the trial court in the best position to determine whether the issue sought to be proved by the extrinsic act evidence
is really in dispute,’’ a trial court does not abuse its discretion by admitting
uncharged misconduct during the government’s case-in-chief when it is
obvious that the proper issue will be in dispute. (Internal quotation marks
omitted.) United States v. Robertson, 

, 725 n.1 (10th
Cir. 2008).
   This was approximately the procedure undertaken in the present case.
The state provided notice of its intent to use evidence of prior uncharged
misconduct, and the trial court appropriately convened a pretrial hearing.
This process appears to be the practice of the state and of trial courts in
cases our research has revealed. See, e.g., State v. O’Brien-Veader, 

, 544–45, 

 (2015); State v. Acquin, 

, 

 (1977).
   13
      Uncharged misconduct evidence to prove a defendant has a sexual
interest or ‘‘lustful inclination’’ toward a particular victim is more accurately
characterized as evidence showing motive, propensity, or specific intent,
as opposed to general intent. Compare State v. Donald H. G., 

, 

 (uncharged sexual misconduct was admissible
in case involving charges of first degree sexual assault, third degree sexual
assault, and risk of injury to child because it was ‘‘probative of the defendant’s intent and his motive for committing the acts of sexual abuse against
the victim, namely, his lustful inclinations toward this specific victim’’), cert.
denied, 

, 

 (2014), with State v. James, supra, 

, 578 (uncharged sexual misconduct to show defendant’s sexual
interest or lustful inclination toward particular victim was relevant and
admissible to prove motive in case involving charges of attempt to commit
second degree sexual assault, fourth degree sexual assault, and risk of injury
to child). Because the state in the present case did not offer the uncharged
misconduct evidence at trial to prove motive and does not rely on motive
as an alternative ground for affirmance on appeal, we do not address whether
the evidence would have been admissible for that purpose.
   14
      Additionally, the state’s reliance on State v. Anthony L., 

, 

, cert. denied, 

, 

 (2018),
and other Appellate Court cases preceding it, is misplaced because those
cases did not involve whether uncharged sexual misconduct was relevant
to general intent; rather, the evidence in those cases was relevant to motive
under § 4-5 (c) or propensity under § 4-5 (b) of the Connecticut Code of
Evidence. We find all of the Appellate Court cases the state cites either
distinguishable or uninstructive. In Anthony L., the defendant challenged
the uncharged misconduct evidence only as being more prejudicial than
probative and did not contest the evidence as being irrelevant to intent. See
id., 523–25. The state also erroneously relies on State v. Gonzalez, 

, 

, cert. denied, 

, 

 (2016),
a specific intent case in which the uncharged misconduct was admitted to
prove not only intent but also motive and a system of criminal activity. State
v. Barry A., 

, 

, cert. denied, 

, 

 (2013), relies on State v. 

,
in which this court created an evidentiary exception to permit the admission
of uncharged sexual misconduct to prove propensity. Thus, the court in
Barry A. concluded that uncharged sexual misconduct was properly admitted under a different evidentiary exception to prove ‘‘the defendant’s motive
or intent in committing the charged crime.’’ State v. Barry A., supra, 595.
While State v. Raynor, 

, 

, cert. denied, 

, 

 (2004), held that uncharged misconduct was properly
admitted against a defendant charged only with general intent crimes to
show that ‘‘he had a sexual interest in thirteen year old girls’’ and, further,
that the misconduct ‘‘tended to show that he possessed the requisite general
intent to commit a sexual assault on a thirteen year old girl’’; id., 760; the
court also held that the uncharged misconduct was relevant and admissible
to prove motive. See id., 759–60. Last, in State v. Faria, 

,
171–73, 

 (1997), cert. denied, 

, 

(1998), the court ultimately held that the uncharged misconduct evidence
offered to prove intent and motive in a sexual assault and kidnapping case
was inadmissible because the prejudicial impact of the evidence outweighed
its probative value.
   15
      The defendant argues that the trial court also abused its discretion in
admitting this evidence because the prior uncharged misconduct was more
prejudicial than probative, as it ‘‘portrayed an alleged pattern of abuse that
was far more serious and frequent than the charged conduct . . . .’’ We
hold that this evidence was irrelevant as offered and, thus, inadmissible,
and do not address this alternative argument.
   16
      Admittedly, the inadmissible evidence in Ellis and Gupta came from
several witnesses and not the same complainant. But, because the state in
the present case specifically declined to offer the uncharged misconduct
evidence to prove propensity, we cannot assess how the trial court would
have considered the implication that the uncharged misconduct was coming
into evidence through the prosecuting witness, as opposed to other witnesses. It would therefore constitute a different exercise of discretion if the
trial court had been asked to admit the evidence to prove propensity rather
than intent.
   17
      The state contends that, because the defendant did not object to the
forensic interview videos as containing uncharged misconduct, any argument as to that evidence is unpreserved and unreviewable. We disagree.
Practice Book § 60-5 provides in relevant part that, ‘‘[i]n jury trials, [when]
there is a motion . . . pertaining to an issue that later arises in the presence
of the jury, and counsel has fully complied with the requirements for preserving any objection or exception to the judge’s adverse ruling thereon in the
absence of the jury, the matter shall be deemed to be distinctly raised at
the trial for purposes of this rule without a further objection or exception
provided that the grounds for such objection or exception, and the ruling
thereon as previously articulated, remain the same. . . .’’ In light of the
broad wording of the pretrial pleadings, we read the trial court’s subsequent
ruling admitting uncharged misconduct as reaching any evidence of prior
bad acts, not just limited to P’s trial testimony, to prove the issue of intent.
The defendant was not required to restate or repeat his objection to the
uncharged misconduct in the videos because his earlier motion in limine
and objection, having received a final adverse ruling by the trial court
earlier in the trial, preserved his claim that any evidence of prior uncharged
misconduct was irrelevant and inadmissible. See, e.g., State v. Johnson, 

, 169–70, 

 (1990); State v. Patel, 

,
842–44, 

, cert. denied, 

, 

 (2019).