State v. Peluso

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STATE OF CONNECTICUT v. BERNARD J. PELUSO
               (SC 20303)
         McDonald, D’Auria, Mullins, Kahn, Ecker and Keller, Js.*

                                   Syllabus

Convicted of the crimes of sexual assault in the first degree, sexual assault
   in the fourth degree, and risk of injury to a child in connection with
   the alleged sexual abuse of the minor victim, the defendant appealed.
   The sexual abuse allegedly occurred when the defendant was living in
   the same condominium complex as the victim and her family. The
   original information and the long form substitute information, the latter
   of which was filed three weeks before the start of evidence, both alleged
   that the abuse occurred in 2010 or 2011, when the victim was in the
   fifth grade, which was consistent with the victim’s sworn statement to
   the police. At trial, however, the victim testified that the alleged abuse
   occurred in 2008 or 2009, when she was in the third grade. Thereafter,
   the defense moved for a judgment of acquittal on the ground that the
   alleged offenses could not have occurred in the time frame alleged in
   the long form information because the defendant did not live in the
   condominium complex at that time. In response, the state moved to
   amend its information to allege that the incidents of abuse had occurred
   in 2008 or 2009, consistent with the victim’s testimony. Defense counsel
   objected, arguing that the state had failed to show good cause for the
   late amendment, as required by the applicable rule of practice (§ 36-
   18), insofar as the prosecutor admitted to the court that the state had
   become aware two to four weeks before the start of trial, when preparing
   the victim for her court appearance, that the time frame alleged in the
   information was inaccurate and that the alleged incidents of abuse could
   not have occurred in 2010 or 2011. Defense counsel also argued that
   the defendant would be prejudiced by the late amendment because the
   defendant’s entire defense was based on the fact that he did not live in
   the condominium complex in 2010 or 2011. The trial court granted the
   state’s motion to amend its information, determining that there was
   good cause for the late amendment, in part because of the victim’s
   young age. The Appellate Court affirmed the judgment of conviction,
   concluding that the trial court had not abused its discretion when it found
   that good cause existed to permit the state to amend its information
   after the start of trial and that the defendant had not been prejudiced
   by the late amendment. On the granting of certification, the defendant
   appealed to this court. Held that the Appellate Court incorrectly concluded that the trial court had not abused its discretion in permitting
   the state to amend its information after the start of trial on the ground
   that good cause existed for the late amendment, and, accordingly, the
   judgment of the Appellate Court was reversed, and the case was
   remanded with direction to reverse the judgment of conviction and to
   remand for a new trial: although Connecticut courts routinely have
   allowed the state to amend its information in light of a minor victim’s
   testimony at trial when the state could not have reasonably anticipated
   a change in the victim’s testimony or when the state experienced some
   unforeseeable difficulty in limiting the time frame in question before
   trial, in the present case, the state became aware, two to four weeks
   prior to trial, that the time frame alleged in its information was inaccurate
   or incomplete, the state knew, prior to the start of trial, that the defendant
   did not live in the condominium complex in 2010 or 2011, and, therefore,
   that the abuse must have occurred before 2009, when the defendant
   moved out of the condominium complex, and the state failed to act on
   that knowledge; moreover, although the victim’s trial testimony that the
   abuse occurred when she was in the third grade may have alleged a
   narrower time frame than the state anticipated prior to trial, this additional degree of specificity did not obviate the state’s duty to amend its
   information before trial to provide the defendant with the more accurate
   information in its possession, and the focus on the victim’s young age
   and the general deficiencies in the testimony of minor victims regarding
   dates distracted from the central question of whether the state had good
   cause to amend its information after the start of trial, even though it
   first became aware weeks before the defendant’s trial that the time
   frame alleged in the information was inaccurate; furthermore, although
   the timing of the alleged abuse was not a material ingredient of the
   charged offenses and the defendant did not assert an alibi defense, the
   defendant was prejudiced by the late amendment to the information
   because that timing was a material factor in the defendant’s theory of
   defense, as a review of the record, including defense counsel’s cross-examination of various witnesses and his focus on the victim’s conflicting accounts of the timing of the alleged abuse, confirmed that the
   defendant’s defense was predicated on the fact that he did not live in
   the condominium complex in 2010 or 2011 and that it was impossible
   for him to have been there at that time, the amendment to the information
   effectively precluded him from asserting that defense, and the record
   suggested that the defendant would likely have presented a different
   defense if the amendment to the information had been made prior to trial.
        Argued March 29—officially released August 18, 2022**

                           Procedural History

   Substitute information charging the defendant with
two counts each of the crimes of sexual assault in the
first degree and sexual assault in the fourth degree, and
with three counts of the crime of risk of injury to a child,
brought to the Superior Court in the judicial district of
Waterbury and tried to the jury before K. Murphy, J.;
thereafter, the state filed an amended information; verdict and judgment of guilty, from which the defendant
appealed; subsequently, the Appellate Court, DiPentima, C. J., and Sheldon and Bear, Js., affirmed the trial
court’s judgment, and the defendant, on the granting
of certification, appealed to this court. Reversed; new
trial.
  James P. Sexton, assigned counsel, with whom was
Megan L. Wade, assigned counsel, for the appellant
(defendant).
   Ronald G. Weller, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Amy Sedensky, senior assistant state’s
attorney, for the appellee (state).
                         Opinion

   McDONALD, J. We consider in this certified appeal
whether the trial court abused its discretion by allowing
the state to amend its information after the commencement of trial when the state was aware, between two
to four weeks prior to the start of trial, that the time
frame alleged in its information was inaccurate.1 The
defendant, Bernard J. Peluso, appeals from the judgment of the Appellate Court, which affirmed the trial
court’s judgment of conviction, rendered after a jury
trial, of two counts each of sexual assault in the first
degree and sexual assault in the fourth degree, and of
three counts of risk of injury to a child. See State v.
Peluso, 

, 500–501, 511, 

(2019). On appeal to this court, the defendant contends
that the Appellate Court incorrectly concluded that the
state had demonstrated good cause to amend its information during trial and that the defendant’s substantive
rights would not be prejudiced by the late amendment.
See 

. We agree with the defendant and, accordingly, reverse the judgment of the Appellate Court and
order a new trial.
   The Appellate Court’s opinion, as supplemented by
the record, sets forth the facts and procedural history;
see 

 501–505; which we summarize in relevant part.
In 2008 and 2009, when the victim, S,2 was in third
grade, she lived in a condominium complex with her
mother, her older sister, L, and her older brother. At
that time, the defendant was living with his girlfriend
in the same condominium complex. S and L spent a lot
of time with the defendant during that time period;
approximately three to five times per week, S and L
would go to the defendant’s condominium after school.
The defendant was ‘‘like an uncle’’ to S and L, and
he called them his nieces. Generally, the defendant’s
girlfriend was not home during the times he spent with
S and L after school. On certain occasions, S spent time
alone with the defendant. It was during these times, in
particular, that the defendant began making sexually
suggestive comments to S. Soon thereafter, he allegedly
began sexually assaulting her.
   In connection with three separate incidents of alleged
abuse that occurred ‘‘[o]n or about . . . 2010–2011’’;
see 

 502 and n.3 (describing those three incidents
and other uncharged misconduct); the defendant was
arrested and charged on January 14, 2015, with one
count of sexual assault in the first degree and two
counts of risk of injury to a child. In April, 2016, more
than fifteen months after the defendant was originally
charged and during the first day of jury selection, the
state filed a long form substitute information, in which
it charged the defendant with two counts each of sexual
assault in the first degree and sexual assault in the
fourth degree, and with three counts of risk of injury
to a child, but continued to allege that the incidents
occurred ‘‘on or about a date during the year 2010 or
2011 . . . .’’3 The long form information was filed while
the prosecutor was in court and in the presence of
defense counsel. At trial, approximately three weeks
later, however, during her direct examination, S
acknowledged that she had been prepared for her courtroom appearance by the prosecutor ‘‘a few weeks’’
beforehand and testified that the incidents had occurred
when she was in third grade, in 2008 or 2009.
  On cross-examination, defense counsel inquired
regarding the inconsistency in the time frames. Specifically, defense counsel confirmed that, in her sworn
statement to the police, taken in 2015, S alleged that
the incidents occurred in 2010 or 2011, when she was
in fifth grade. The following colloquy occurred:
  ‘‘[Defense Counsel]: Was your memory better [in
2015] or was it better today?
  ‘‘[S]: Today.
  ‘‘[Defense Counsel]: And it is better today because
you testified that, two weeks before this trial, you
start[ed] preparing with the state . . . is that correct?
  ‘‘[S]: Yes.
  ‘‘[Defense Counsel]: And is it correct that you were
told by either the assistant state’s attorney or an investigator that [the defendant] did not live in that [condominium] unit in the year[s] 2010 and 2011?
  ‘‘[S]: Yes.4
  ‘‘[Defense Counsel]: And, when you were in fifth
grade, ten years old . . . [although] you swore [in your
statement to the police] that this is when [the incidents]
occurred, that was impossible because [the defendant]
didn’t live there. Isn’t that correct?
  ‘‘[S]: Yes.’’ (Footnote added.)
   The next day, the defense moved for a judgment of
acquittal on the ground that the alleged offenses could
not have occurred in 2010 or 2011, the time frame
alleged in the state’s long form information filed at the
beginning of jury selection approximately three weeks
earlier, because the defendant did not live in the condominium complex at that time. The state, in turn, moved
to amend its information to allege that the incidents
had occurred in 2008 or 2009, consistent with S’s trial
testimony. The court inquired: ‘‘[W]hen did the state
become aware that the approximate date was not the
year 2010 or [20]11?’’ The prosecutor responded: ‘‘When
we met with [S] . . . two to four weeks ago. In discussing the facts of the case, she indicated to us, in our
interview . . . that she couldn’t recall specifically
when it was. My recollection of our conversation was
that she indicated that it was sometime in grammar
school, fifth grade or [earlier]. . . . So, she did not
narrow it down for us, like she did in court yesterday,
essentially left it with us that she thought it was fifth
grade or earlier, that she was younger but not [in] middle school. And, when she was in court yesterday, we
all know that she was quite specific and testified . . .
that she was eight years old or in third grade.’’
   Defense counsel objected to the state’s motion to
amend, arguing that the state failed to show good cause
for the late amendment, as required by Practice Book
§ 36-18. Defense counsel contended that the state knew,
two to four weeks before trial, when it prepared S for
her court appearance, that the time frame alleged in its
information was inaccurate and that the alleged incidents could not have occurred in 2010 or 2011. Defense
counsel argued that the state had no justifiable reason
for failing to properly amend its information before the
commencement of trial. In addition, defense counsel
argued that the defendant would be prejudiced by the
late amendment insofar as his ‘‘entire defense was
based on [the] fact that it was impossible for [the defendant] to be there [in 2010 or 2011],’’ as the defendant
did not live in the condominium complex when the
events allegedly occurred.
  In response to defense counsel’s claim of prejudice,
and without directly addressing the good cause aspect
of defense counsel’s objection,5 the prosecutor argued
that the defendant was not unduly prejudiced by the
change in time frame, as S—in her police statement
and subsequent testimony—consistently indicated that
the offenses occurred when the defendant was living in
the condominium complex. The prosecutor specifically
noted: ‘‘[S] talk[ed] about [the defendant’s] couches,
his pornography magazine, his desks, his bed when he
clearly is living there. . . . She talked about how they
cooked, how they watched TV. So, this is not an undue
surprise to the defendant.’’
   Ultimately, the trial court granted the state’s motion
to amend its information. In reaching its decision, the
court considered the requirements set forth in Practice
Book § 36-18. First, the court stated: ‘‘I will find good
cause. This is a child sexual assault case. This does
involve a very young child. The incident[s] occurred
when [S] was eight or nine [years old] . . . . [T]here
[are] [a] substantial amount of studies that indicate
[that] children of those age[s] have no conception of
dates and times. [S] was very clear that [the abuse]
occurred with the defendant. And it’s very clear . . .
that the defendant had access to [S] for a period of
time, whether it was 2010 or 2008. So, you know, we’re
[talking] basically of semantics.’’ Second, the court
found that ‘‘there are no additional charges [in] . . .
the [state’s amended information].’’ Finally, the court
went on to discuss whether the defendant’s substantive
rights would be prejudiced due to the state’s late amendment. The court explained: ‘‘I don’t believe it’s [the]
defense’s position that the defendant committed these
acts two years earlier, so . . . their defense is . . .
just that they were committed [on] a different date than
the [long form] information [alleged].’’6
   In light of the newly amended information, the trial
court offered to grant the defendant a continuance in
order to prepare his defense. Because the case was
‘‘early in the game,’’ the court expressed that it was
confident that it would have available jurors ‘‘[one]
week from now, [or one] month from now.’’ Accordingly, the court indicated that it would provide the
defendant ‘‘as long a continuance as . . . [was]
need[ed] to prepare . . . .’’ Following a recess, defense
counsel informed the court that the defendant would
need a continuance. Defense counsel requested ‘‘at least
five weeks.’’ The court responded: ‘‘To do what? No.
No. No. Be specific here, [counsel]. We’re not taking a
five week continuance unless—if you need a five week
continuance, you’ll get it.’’ The court then asked defense
counsel to be specific and explain what the defense
would need to do during the continuance period. Once
the court established that the continuance was needed
to ‘‘do some records checking,’’ the court granted
defense counsel a one week continuance. The court
further stated: ‘‘[Y]ou can subpoena . . . any witness
that you feel you need to examine, as well as anyone
that’s already been called, you could examine again.’’
    Later that day, defense counsel informed the court:
‘‘I talked to [the defendant], Your Honor. If it works
out better for Friday rather than next Tuesday to resume
. . . we would be willing to come back Friday.’’ Thus,
although the court was prepared to grant the defendant
a one week continuance, defense counsel informed the
court that, under the circumstances, the defense would
be ready to resume three days later, on Friday, May
13, 2016.
   At the conclusion of trial, the jury found the defendant guilty as charged. The trial court rendered judgment accordingly and sentenced the defendant to a total
effective sentence of twenty-two years of incarceration,
execution suspended after twelve years, followed by
fifteen years of probation.
   The defendant appealed and claimed that the trial
court had abused its discretion in concluding that the
state had good cause to amend its information during
trial and that the defendant was not prejudiced by the
amendment. State v. 

.
The Appellate Court disagreed and affirmed the judgment of the trial court. 

.
   Thereafter, the defendant filed a petition for certification to appeal, which we granted, limited to the following two issues: (1) ‘‘Did the Appellate Court properly
hold that the trial court did not abuse its discretion
when it found that the state had demonstrated ‘good
cause’ to amend the information after the commence-
ment of trial, as required by Practice Book § 36-18?’’
And (2) ‘‘[d]id the Appellate Court properly hold that
the defendant failed to demonstrate that the state’s
amendment to the information caused prejudice to his
substantive rights, in violation of . . . § 36-18?’’ State
v. Peluso, 

, 924–95, 

 (2019).7
   The defendant claims that the Appellate Court incorrectly concluded that the circumstances surrounding
the state’s late amendment to its information satisfied
the requirements set forth in Practice Book § 36-18. See
State v. 

. Specifically,
the defendant contends that the state could not demonstrate that it had good cause to amend its information,
particularly insofar as the state knew, two to four weeks
before trial, that the time frame it alleged in its information was inaccurate. The defendant contends that he
was prejudiced by the late amendment because his
defense was predicated on the fact that he did not live
in the condominium complex in 2010 or 2011, the time
frame alleged in the information. In conjunction with
this claim, the defendant also argues that the trial court
improperly shifted the burden of proving prejudice from
the state to the defendant when the court requested
that defense counsel explain the need for a five week
continuance, as opposed to the one week continuance
offered by the trial court.
   The state contends that the Appellate Court correctly
concluded that the trial court acted within its discretion
in allowing the state to amend its information. See 

With respect to the good cause requirement, the state
argues that the Appellate Court correctly concluded
that, in light of S’s age and the length of time between
when the alleged offenses occurred and the prosecution
of the case took place, the state had good cause to
amend its information during trial to conform to S’s
testimony. See 

. In addition, the state claims that
the defendant’s substantive rights were not prejudiced
by the late amendment because time was not an element
of the offenses, and the defendant did not assert an
alibi defense. The state also argues that the record supports the Appellate Court’s conclusion that the defendant, regardless of the time frame alleged in the information, was on notice that the alleged abuse occurred
when he lived at the condominium, before he moved
out in February, 2009. See 

. Finally, the state
contends that the trial court did not abuse its discretion
in granting the defendant a one week continuance, particularly in light of the fact that defense counsel could
not justify why a five week continuance was warranted.
   We begin our analysis with the standard of review and
relevant legal principles. ‘‘Before the commencement
of trial, a prosecutor has broad authority to amend an
information under Practice Book § [36-17]. Once the
trial has started, however, the prosecutor is constrained
by the provisions of Practice Book § [36-18]. . . . For
purposes of Practice Book § 36-18, a trial begins with
the commencement of voir dire.’’ (Citation omitted;
internal quotation marks omitted.) State v. Ayala, 

, 

 (2017).
  Practice Book § 36-18 provides in relevant part: ‘‘After
commencement of the trial for good cause shown, the
judicial authority may permit the prosecuting authority
to amend the information at any time before a verdict
or finding if no additional or different offense is charged
and no substantive rights of the defendant would be
prejudiced. . . .’’ It is well settled that the state shoulders the burden of establishing that it has complied
with the requirements of § 36-18 in seeking permission
to amend the information. See, e.g., State v. 

; see also, e.g., State v. Tanzella,

, 

 (1993). On appeal, our
standard of review of the trial court’s decision to permit
an amendment to the information is one of abuse of
discretion. See, e.g., State v. 

.
   Our case law has traditionally viewed Practice Book
§ 36-18 as containing three predicates, all of which the
state must prove to obtain permission to amend the
information after the start of trial: (1) good cause for the
amendment, (2) that no additional or different offense
is charged, and (3) that no substantive right of the
defendant will be prejudiced by the late amendment.
See, e.g., id.; State v. 

.
These requirements serve two main purposes. First,
they encourage the state to prepare its case carefully.
See, e.g., State v. 

 614–15. Second, the
requirements ensure that the defendant has adequate
notice of the charges against which he must defend.
See, e.g., 

. Accordingly, we have described § 36-
18 not merely as a rule of procedure, but also as ‘‘a
prophylactic rule designed to protect a criminal defendant’s constitutional right to be informed of the nature
and cause of the charges against him with sufficient
precision to enable him to meet them at trial.’’ (Internal
quotation marks omitted.) State v. 

.
   In this case, the defendant concedes that the state
satisfied the second prong of the test—as no additional
or different offense was charged—but he argues that
the state failed to satisfy the first and third prongs of
the test. Accordingly, we begin with the defendant’s
claim that the state lacked good cause to amend the information. We agree with the defendant.
   ‘‘To comply with the first prong of the test and meet
its burden of showing good cause to amend an information pursuant to [Practice Book § 36-18], the state must
provide more than a bare assertion that it is merely
conforming the charge to the evidence. . . . The state
must demonstrate why the information necessitated
substitution.’’ (Citation omitted; emphasis in original;
internal quotation marks omitted.) State v. Victor C.,


, 

, cert. denied, 

, 

 (2013); see also, e.g., State v.
Jordan, 

, 

, cert.
denied, 

, 

 (2012).
   The state argues that it had good cause to amend the
information given the young age of S. It is true that our
courts have long adhered to the principle that ‘‘[t]he
testimony of minor victims . . . requires special consideration . . . .’’ State v. Enrique F., 

, 

 (2013), cert. denied, 

, 

 (2014); cf. In re Tayler F., 

, 544–47, 

 (2010) (creating special procedures for hearsay testimony of child witnesses pursuant
to which trial court properly may conclude that child
is unavailable if there is competent evidence that child
will suffer psychological harm from testifying). This is
because, ‘‘[i]n a case involving the sexual abuse of a
very young child, that child’s capacity to recall specifics,
and the state’s concomitant ability to provide exactitude
in an information, are very limited.’’ (Internal quotation
marks omitted.) State v. Stephen J. R., 

,
596, 

 (2013). A careful review of our case
law in this context reflects that, although our courts
have ‘‘allowed the state to amend the time frame in [its]
information in light of a minor victim’s testimony at
trial’’; State v. Enrique F., supra, 824; they have consistently recognized that good cause exists only when
some circumstance arises ‘‘that the state could not have
reasonably anticipated or safeguarded against before
trial commenced.’’ (Emphasis added.) State v. 

 324 Conn. 585–86. Accordingly, our courts have
routinely allowed the state to amend its information in
light of a minor victim’s testimony at trial when the
state could not have reasonably anticipated a change
in the victim’s testimony or when the state experienced
some unforeseeable difficulty in obtaining a narrower
time frame before trial.
   The Appellate Court’s decision in State v. Enrique F.,
supra, 146 Conn. App. 823–25, is instructive. In Enrique
F., when trial commenced, the state’s information
alleged that the conduct that formed the basis of the
risk of injury to a child charges had occurred ‘‘in or
around January–June 2010 . . . .’’ (Internal quotation
marks omitted.) Id., 823. Three days into trial, the state
moved to amend its information to allege that the conduct occurred ‘‘in or around August 2009–August 2010,’’
so that the information would conform to the victim’s
testimony that the conduct occurred when she was in
the seventh grade. (Internal quotation marks omitted.)
Id. In support of its motion to amend, the state contended that the victim’s testimony ‘‘came in differently’’
than anticipated because it had expected that the victim
would have been able to ‘‘narrow [the alleged conduct]
down to a six month [time frame] and [was] unable
to . . . .’’ (Internal quotation marks omitted.) Id., 825.
Ultimately, the Appellate Court cited ‘‘the state’s unex-
pected difficulty in establishing a narrower time frame
through the testimony of the minor victim’’ in determining that good cause existed to amend the information.
(Emphasis added.) Id.
   Similarly, in State v. Wilson F., 

,

, cert. denied, 

, 

 (2003), the Appellate Court upheld the trial court’s
decision to allow the state to amend its information
after the start of trial. Id., 414. The Appellate Court
considered the age of the victim at the time of the
alleged incidents, the victim’s age at the time of trial,
and the victim’s trial testimony concerning dates. Id.,
413. In finding that good cause existed for the late
amendment in that case, the court specifically noted
that there was no reason to believe that the state could
have solicited a more accurate date from the victim in
earlier interviews. Id.; see also, e.g., State v. Mullien,

, 312–13, 

 (2013) (court
found good cause for late amendment, in light of victim’s age at time of alleged incidents, age at time of
trial, and trial testimony concerning dates, as well as
fact that there was ‘‘no reason to believe that a more
accurate date could have been solicited in earlier interviews [with the victim or through other witnesses]’’
(internal quotation marks omitted)); State v. Grant, 

, 

 (court found good cause
for late amendment ‘‘by virtue of the change from the
anticipated testimony of the victim, which occurred at
trial’’), cert. denied, 

, 

 (2004).8
   Unlike the aforementioned cases, in which the state
could not have reasonably anticipated a change in the
minor victim’s testimony before trial, in this case, the
state freely acknowledges that it was well aware that
the time frame alleged in its information was inaccurate
or, at a minimum, incomplete. A review of S’s testimony
and the prosecutor’s comments to the trial court confirms that, at their meeting two to four weeks prior to
trial, which encompasses the time period during which
the state filed its long form information that continued
to allege that the abuse occurred in the year 2010 or
2011, S expressed uncertainty regarding the time frame
alleged in the state’s information. According to the prosecutor, in her pretrial interview with S, S indicated
that the sexual assault occurred ‘‘sometime in grammar
school, fifth grade or [earlier],’’ namely, between 2005
and 2011. Moreover, as the state conceded at oral argument before this court, it was also aware prior to the
start of trial that the defendant did not live in the condominium complex in the year 2010 or 2011, the time
frame alleged in its original information and the long
form information filed on the first day of jury selection,
as he moved out of the complex in 2009. The state,
therefore, was aware—weeks prior to the start of trial—
that the charged conduct had to have occurred between
2005 (the year S began grammar school) and 2009 (the
year that the defendant moved out of the condominium
complex).
    Although S’s trial testimony further narrowed the
time frame to third grade, a more specific time frame
than the state may have anticipated prior to trial, the
state’s contention and the Appellate Court’s conclusion;
see State v. 

; that this
additional degree of specificity somehow obviated the
state’s duty to amend the information before trial to
provide the defendant with the more accurate time
frame learned weeks earlier miss the crux of the issue
in this case. By focusing their respective good cause
analyses principally on S’s age—and the deficiencies in
minor victims’ testimony regarding dates, generally—
the state, the trial court, and the Appellate Court were
distracted from the central question to be addressed.
The relevant inquiry is not whether the state had good
cause to amend the information at any point in time
in light of the minor victim’s age and more specific trial
testimony regarding the timing of the alleged abuse.
Rather, the relevant inquiry is whether the state had
good cause to amend its information after the start of
trial, notwithstanding the fact that it had first become
aware—two to four weeks before the commencement
of trial—that the time frame alleged in its information
was inaccurate. To be sure, because the state asserted
that it did not know, before trial, that S would testify that
the abuse occurred in third grade, it was not required
to amend its information before trial to allege that the
conduct occurred in 2008 or 2009. See, e.g., State v.
Laracuente, 

, 

 (1987)
(‘‘[t]he state does not have a duty . . . to disclose information which the state does not have’’ (internal quotation marks omitted)), cert. denied, 

, 

, 

 (1988). But that fact does
not obviate the state’s duty to provide more accurate
information within its possession prior to trial when it
knows that the operative charging instrument is materially inaccurate. In short, within reasonable limits, the
state and the defendant should have the same understanding of the relevant time period of the alleged crime
prior to the start of trial. See, e.g., 

 (‘‘[t]he state has
a duty to inform a defendant, within reasonable limits,
of the time when the offense charged was alleged to
have been committed’’ (internal quotation marks omitted)).
   A review of the record confirms that, in this case,
the state possessed information weeks earlier that
could have provided the defendant with greater notice
as to the relevant time frame than what it had previously
provided in its information at both the time of the defendant’s arrest and the commencement of jury selection.
Accordingly, we conclude that the trial court abused
its discretion in concluding that good cause existed for
the late amendment in the present case, as the state
was aware—two to four weeks prior to trial—that the
time frame alleged in its information was inaccurate
and failed to act on the information it possessed. This
was not a circumstance ‘‘that the state could not have
reasonably anticipated or safeguarded against before
trial commenced.’’ State v. 

 324 Conn. 585–
86.
   Our conclusion that the trial court abused its discretion in permitting the state to amend its information
without good cause does not end the inquiry. As we
have explained, ‘‘a trial court’s abuse of discretion in
allowing the state to amend the information midtrial
without a showing of good cause, standing alone,
would fall squarely within our jurisprudence requiring
the defendant to show that the nonconstitutional error
was harmful to reverse the judgment of conviction.’’
(Emphasis added.) 

. This is because ‘‘the good
cause requirement in Practice Book § 36-18, standing
alone, is not intended to vindicate any constitutional
right; rather, its purpose is to encourage the state to
diligently prepare its case. . . . As such, consistent
with our harmless error jurisprudence for nonconstitutional claims, our appellate case law has never treated
a lack of good cause, in and of itself, as reversible
error.’’ (Citation omitted.) Id.
   Accordingly, we turn to the prejudice component of
our inquiry to determine whether the late amendment
prejudiced the defendant’s substantive rights. ‘‘[T]he
burden clearly rests with the state at trial to demonstrate that the defendant’s substantive rights are not
prejudiced. See State v. 

 [226 Conn.]
614–15. On appeal, the defendant ‘must provide a specific showing of prejudice in order to establish that he
was denied the right of due process of law as a result
of the state’s delay in modifying the date alleged in the
information.’ State v. Ramos, 

, 279–80,

 (1978).’’ (Emphasis in original.) State v.
Wilson F., supra, 

.9
   As we have explained, ‘‘it is entirely proper for a
court to permit an amendment or a substitute information . . . to correct the time of the commission of the
offense when time is not a material ingredient of the
crime charged.’’ State v. 

;
see also, e.g., 

 (trial court did not abuse its discretion
in allowing state to amend time frame in information
when time was neither material element of crimes
charged nor material factor in defendant’s case). ‘‘For
purposes of [Practice Book § 36-18], the decisive question
is whether the defendant was informed of the charges
with sufficient precision to be able to prepare an adequate defense.’’ State v. 

.
Ultimately, if the late amendment has no effect on the
defendant’s asserted defense, there is no prejudice. See,
e.g., 

 (amendments’ effect was ‘‘logically distinct’’ from asserted defense).
  In this case, the defendant does not dispute that the
timing of the abuse was not a ‘‘material ingredient’’ of
the charged offenses. State v. 

. Nevertheless, he argues that he was prejudiced by
the state’s late amendment because his entire defense
was predicated on the fact that he did not live in the
condominium complex in 2010 or 2011, the time frame
alleged in the state’s original information and, indeed,
in its long form information filed on the first day of
jury selection, more than fifteen months later.10 We
agree and conclude that, because the timing of the
alleged abuse was a ‘‘material factor in the defendant’s
case’’; id.; namely, his defense, the defendant was prejudiced by the state’s late amendment. Therefore, we
conclude that the trial court abused its discretion by
allowing the state to file a late amendment to its information.
   At the outset, we pause to emphasize that the defendant’s claim of prejudice is bolstered by the fact that
he may have won an acquittal as a matter of law had
the state not amended its information and, instead,
brought its long form information to judgment, alleging
an inaccurate time frame of ‘‘on or about’’ 2010 or 2011.
Cf. United States v. Charley, 

, 1272–73
(10th Cir. 1999) (when state’s information alleged that
sexual abuse occurred ‘‘ ‘on or about’ ’’ October, 1995,
but, at trial, there was no evidence of even any contact
between defendant and minor victim during entire year
of 1995, court concluded that government had not satisfied its burden of proof and reversed defendant’s conviction), cert. denied, 

, 

, 

 (2000); United States v. Gilliam, Docket
No. ARMY 20180209, 

, *4–5 (A. Crim.
App. July 15, 2020) (when evidence revealed distinct
possibility that certain acts of sexual assault could have
happened approximately eleven months outside of time
frame alleged by government, court found that evidence
adduced at trial was insufficient to establish defendant’s
guilt and, accordingly, dismissed charges). This court
has previously explained that, ‘‘ ‘[when an information]
alleges that an offense . . . occurred ‘‘on or about’’ a
certain date, the defendant is deemed to be on notice
that the charge is not limited to a specific date. . . .
The courts agree that when the [information] uses the
‘‘on or about’’ designation, proof of a date reasonably
near to the specified date is sufficient.’ ’’ (Emphasis
added.) State v. Bergin, 

, 

 (1990). Nevertheless, we have never concluded that
a date as much as ten months11 outside the time frame
alleged in the state’s information, as in this case, was
‘‘reasonably near’’ that which it actually alleged at trial.
In fact, case law from this state illuminating the concept
has only gone so far as to hold that a less significant
time differential, namely, days or, at most, a couple of
months, can be ‘‘reasonably near’’ the date alleged. See,
e.g., State v. John B., 

, 475–76, 

 (date alleged in information, May 8, 2001,
was reasonably near date that state later argued, at trial,
was when charged offenses occurred, May 9, 2001),
cert. denied, 

, 

 (2007); State
v. Carneiro, 

, 437–38, 

(court determined that date in late April or early May,
1998, fell within charged time frame in information,
which alleged that sexual assault occurred ‘‘on a date in
approximately June, 1998’’ (emphasis omitted; internal
quotation marks omitted)), cert. denied, 

,

, cert. denied, 

, 

,

 (2003); State v. Clark, 

, 49–50, 

 (2002) (date alleged in information, ‘‘on or about June 12, 1999,’’ was within reasonable
limits of date that state later argued, at trial, was when
charged offense occurred, June 11, 1999 (internal quotation marks omitted)); see also, e.g., United States v.

 (‘‘[when] ‘the phrase ‘‘on or about’’
is used in an indictment in connection with a specific
date . . . if the prosecution proves that the offense
was committed within a few weeks of the date, the
proof will be deemed sufficient to hold [the] defendant
responsible for the charge’ ’’ (emphasis added)). Thus,
in this case, the defendant was not on notice with sufficiently adequate precision that the specific years of
2008 and 2009 were at issue. As a result, the charge
was not sufficiently precise to allow the defendant to
prepare an adequate defense, and, thus, the late amendment necessarily affected his asserted defense.
   Turning now to our prejudice analysis, we look, first,
to our decisions in State v. 

, and State v. 

, for
guidance. In Ramos,12 this court rejected the defendant’s claim that the state’s amendment to its information prejudiced his ability to present his defense. State
v. 

 279–80. The state’s information in
Ramos, filed in the Court of Common Pleas, alleged
that the offenses occurred in May, 1975. 

. When
the case was transferred to the Superior Court, the
information alleged that the offenses occurred on April
15, 1975. 

 Subsequently, the state prepared a substitute information, changing the date of the alleged
offenses back to May, 1975, but failed to inform the
defendant of the change until approximately eight
months later, on the day before trial began. 

 278–79.
This court concluded that, because the date of the
offenses was not ‘‘an essential element of the crimes
with which the defendant was charged,’’ and because
the date was not ‘‘an otherwise material factor in the
defendant’s case,’’ the trial court did not abuse its discretion by allowing the state to file the substitute information. 

. Specifically, this court cited the defendant’s lack of an alibi defense to the April 15, 1975
allegations as evidence that ‘‘he was not prejudiced in
making his defense on the basis of the amended date.’’

.
  In Tanzella, this court considered whether the trial
court had abused its discretion when it allowed the
state to amend its information after the commencement
of trial. State v. 

. In concluding that the trial court did not abuse its discretion
in finding that the defendant’s substantive rights were
not prejudiced by the amendments to the information,
we looked specifically to whether the defendant’s theory of the case was ‘‘logically distinct from the difference between the original and amended charges.’’ 

. The defendant’s defense to the charges brought
against him in that case was that the encounter with
the alleged victim was voluntary and consensual. See

. The state’s amendments, which ‘‘changed the
mental states and types of harm for the charges of
assault and threatening’’; id.; were irrelevant to the
defendant’s defense and, therefore, ‘‘did not prejudice
the defense because the effect of the amendments was
logically distinct from the defense asserted.’’ 

.
In addition, we noted that there was nothing in the
record to suggest ‘‘that the defendant would have presented a different defense if the amended offenses had
been alleged at the outset, or that the defendant suffered
any unfair surprise that deprived him of substantive
rights.’’ 

   Guided by this precedent, we conclude that, under
the prejudice component of our inquiry, the operative
question is whether the defendant’s ‘‘theory of defense
was logically distinct from the difference between the
original and amended charges.’’ 

; see also, e.g.,
42 C.J.S., Indictments § 273 (2022) (‘‘if an amendment
to an information does not affect any particular defense
or change the positions of either of the parties, it does
not violate [the] rights [to sufficient notice and an
opportunity to be heard regarding the charge]’’). When
the amendment is not logically distinct from the defendant’s theory of defense, the state’s late amendment
almost certainly will cause prejudice to the defendant’s
substantive rights, as the defendant has been deprived
of timely notice of the charges ‘‘with sufficient precision
to be able to prepare an adequate defense.’’ State v.

; see also, e.g., Fisher v.
People, 

, 1087 (Colo. 2020) (factors relevant to prejudice inquiry include ‘‘(1) the theory of the
defense . . . (2) the timing of the amendment . . .
and (3) whether the amendment requires a different
defense strategy’’ (citations omitted)); Erkins v. State,

, 405–406 (Ind. 2014) (explaining that, for
purposes of determining whether defendant suffered
prejudice as result of state’s late amendment, ‘‘the question is whether the defendant had a reasonable opportunity to prepare for and defend against the charges,’’
and, ‘‘if the amendment does not affect any particular
defense or change the positions of either of the parties,’’
defendant’s substantive rights are not violated (internal
quotation marks omitted)). When the late amendment
at issue concerns the timing of the alleged offenses, as
in the present case, our focus is on whether the timing
alleged in the information was a material component
of the defendant’s theory of the case. When the timing
is an essential element of the crime charged, or when
the date of the alleged offense is a ‘‘material factor in
the defendant’s case’’; State v. 

; the state’s late amendment to the time frame
alleged in the information will serve to prejudice the
defendant’s substantive rights.
   Although it is true that the timing of an alleged offense
is most often a material factor in a defense when alibi
is the asserted theory, the date or time of the offense
can be significant to a defense in other contexts as well.
We therefore reject the Appellate Court’s categorical
rule stating that, ‘‘[i]f the defendant has not asserted
an alibi defense and time is not an element of the crime,
then there is no prejudice when the state amends the
information to amplify or to correct the time of the
commission of the offense . . . .’’ (Internal quotation
marks omitted.) State v. 

, quoting State v. Enrique F., supra, 

. This rule, originally articulated by the Appellate
Court in Enrique F., is derived from what is, in our
view, too narrow a reading of State v. 

176 Conn. 276–77. We observed, in Ramos, that the
timing of the alleged offenses was not a central component of the defendant’s defense because he did not raise
an alibi defense, but we never stated that a defense of
alibi was the only avenue through which a defendant
could claim that the timing of an alleged offense was
a ‘‘material factor in the defendant’s case . . . .’’ (Footnote omitted.) 

. Accordingly, we reject the Appellate Court’s cramped understanding of prejudice in this
context.
   In this case, although the defendant did not assert
an alibi defense,13 he argued that his entire theory of
the case was predicated on the fact that he did not live
in the condominium complex during the time alleged in
the state’s information. At trial, defense counsel argued:
‘‘[O]ur defense is completely based on [the 2010 to 2011]
time frame. . . . [O]ur defense is [that] we knew [that
the defendant] didn’t live [in the condominium complex] in 2010 or 2011. And, therefore, our entire defense
was based on [the] fact that it was impossible for him
to be there at that time. . . . [W]e questioned every
single witness about the timing, and . . . the crux of
our defense here was that it didn’t happen during those
time frames.’’ A review of defense counsel’s cross-examination of the state’s witnesses confirms that this
was the defendant’s theory of the case. For example,
after S testified, but before the state moved to amend
its information, among other witnesses, the state called
S’s friend, I. The focal point of defense counsel’s cross-examination of I was the timing of the allegations. He
asked: ‘‘Did you tell the police that, when [S] told you
[about the alleged instances of sexual assault], she said
[they] happened when she was ten years old?’’ I
responded, ‘‘[y]es.’’ I confirmed that she relayed this
information to the school psychologist, G. During his
subsequent cross-examination of G, defense counsel
asked: ‘‘[W]hen you filed [the] form [reporting the
alleged abuse] with [the Department of Children and
Families], you . . . put that [S] was [eleven] years old,
correct?’’ G responded: ‘‘Mm-hmm.’’
   It is therefore not the case here, as it was in Tanzella,
that ‘‘[t]he defendant could not have been prejudiced
because his theory of defense was logically distinct
from the difference between the original and amended
charges.’’ State v. 

; see
also 

 (when amendments to information changed
mental states and types of harm for charges of assault
and threatening, there was no impact on defense that
incident had involved voluntary, consensual encounter). Instead, the defendant claimed that his entire theory of defense was derailed by the changes made
between the original and long form informations, and
the subsequent amended information. This claim was
reasonable given that, because of the change in the
amended information to a time not reasonably near
2010 or 2011, the defendant was effectively precluded
from making the argument that, contrary to what S said
and the state alleged in its information, he did not live
in the condominium complex in 2010 or 2011. Cf. State
v. McKnight, 

, 

 (1983)
(substitute information alleging that different participant in robbery, not defendant, threatened to use firearm did not prejudice defendant who asserted alibi
defense); State v. Enrique F., supra, 

 (expanding time frame in information by six months
did not have effect on defense to intimate contact
charge when defense was centered on attacking victim’s
credibility); State v. Victor C., supra, 

 (expanding time frame in information did not impact
defendant’s theory of defense, as defendant did not
present alibi defense, and, instead, his theory was that
victim had fabricated story because she did not like
him). Moreover, we cannot say that there was nothing
in the record to suggest ‘‘that the defendant would have
presented a different defense if the amended offenses
had been alleged at the outset, or that the defendant
suffered any unfair surprise that deprived him of substantive rights.’’ State v. 

. To the
contrary, at trial, defense counsel stated that, ‘‘had [he]
known about the different dates,’’ the defense ‘‘would
have gone about things differently . . . .’’
  The state nevertheless argues that the defendant’s
theory of defense was that S was lying, and, because
the defendant was fully able to explore this defense
regardless of the dates alleged in the information, he
was not prejudiced by the state’s late amendment. We
disagree.
  Although, before the trial court, defense counsel con-
ceded that he did ‘‘attack the credibility of [S] a little
bit,’’ he claimed that this was not the defendant’s ‘‘main
theory.’’ Consistent with this representation, although
defense counsel pointed out some inconsistencies
between S’s direct examination testimony and the statement she gave to the police, most of his questioning
centered on S’s conflicting accounts of the timing of
the alleged abuse.
   The state further contends that the defendant was not
prejudiced by its late amendment because, regardless
of the time frame alleged in the state’s original and long
form informations, the defendant was on notice that
the alleged abuse occurred at the time that he lived at
the condominium, before he moved out in February,
2009. As we have explained, however, ‘‘[f]or purposes
of [Practice Book § 36-18], the decisive question is
whether the defendant was informed of the charges
with sufficient precision to be able to prepare an adequate defense.’’ (Emphasis added.) State v. 

. Regardless of whether the defendant knew that S’s allegations of abuse centered on the
time in which he lived in the condominium complex,
his defense was predicated on the time frame S initially
reported to the police and the state alleged in its information. For purposes of the prejudice inquiry, we must
consider whether the late amendment to the state’s
information impaired the defendant’s right to fair notice
insofar as it hindered his ability to prepare an adequate
defense. In this case, as we explained, the defendant’s
theory of defense—predicated on the fact that he did
not live in the condominium complex during the time
alleged in the state’s information—was effectively precluded by the state’s late amendment, and he, therefore,
suffered prejudice.
   Accordingly, we conclude that the trial court abused
its discretion in permitting the state to amend its information after the start of trial, as the defendant’s substantive rights were prejudiced as a result of the late amendment. Indeed, the state’s late amendment vitiated the
very purpose of the information, namely, to ‘‘apprise
the defendant of what he must be prepared to meet.’’
(Internal quotation marks omitted.) Russell v. United
States, 

, 

, 

(1962). ‘‘[B]ecause this error affected the fairness of
the trial proceedings and impairs the reliability of [the]
conviction, this abuse of discretion constitutes reversible error.’’ (Internal quotation marks omitted.) Fisher
v. People, supra, 

; see, e.g., State v. 

 (acknowledging that defendant is
entitled to new trial if defect caused by state’s late
amendment ‘‘impair[ed] his ability to prepare for trial
or [to] present his defense’’); see also, e.g., State v.
Artis, 

, 151, 

 (2014) (‘‘[S]tructural defect cases contain a defect affecting the framework within which the trial proceeds, rather than simply
an error in the trial process itself. . . . Such errors
infect the entire trial process . . . and necessarily render a trial fundamentally unfair . . . .’’ (Internal quotation marks omitted.)); cf. Howard v. State, 

 (Ind. App.) (reversing defendant’s conviction
under amended counts because defendant’s strategy
was impaired by timing of state’s amendment, and his
substantial rights were therefore prejudiced), transfer
denied, 

 (Ind. 2019).
   Because we conclude that the trial court abused its
discretion in permitting the state’s late amendment to
its information, and the defendant’s conviction must be
reversed on the basis of that error, we need not reach
the defendant’s argument that the trial court abused its
discretion in granting him a one week continuance,
as opposed to the five weeks defense counsel initially
requested. We do, however, pause to provide one point
of clarification regarding the defendant’s contention
that the trial court granted him a continuance in an
effort to help the state defeat any claim that the defendant suffered prejudice as a result of the state’s amendment of the information.
  The defendant’s argument emanates from a misapprehension regarding the relatedness of the prejudice and
continuance inquiries. The question as to whether the
state may permissibly amend its information after the
commencement of trial pursuant to Practice Book § 36-
18 is separate from the inquiry as to whether the defendant should be afforded a continuance. Cf. State v.
Victor C., supra, 

 (this court commented that, in arguing for continuance, ‘‘[d]efense
counsel advanced no separate argument in favor of a
continuance, but rather conflated that initial request
with his argument in support of his objection to the
proffered substitute information’’).14
  The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
reverse the judgment of the trial court and to remand
the case to that court for a new trial.
   In this opinion the other justices concurred.
  * This case originally was scheduled to be argued before a panel of this
court consisting of Justices McDonald, D’Auria, Mullins, Kahn, Ecker and
Keller. Although Justice Kahn was not present at oral argument, she has
read the briefs and appendices, and listened to a recording of the oral
argument prior to participating in this decision.
  … August 18, 2022, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
  1
    We emphasize, at the onset, that the issue presented in this case, whether
the trial court properly permitted the state to amend its information after
the commencement of trial, is different from the issue of whether the state
was required to amend its information or, alternatively, whether it could
have gone to judgment on its original information alleging an inaccurate
time frame. The state did not argue, at trial or on appeal, that it was not
required to amend its information. Accordingly, we confine our analysis to
the precise question posed in this appeal, namely, whether the trial court
properly permitted the state to amend its information after the commencement of trial.
  2
    In accordance with federal law; see 

 (d) (3) (2018), as
amended by the Violence Against Women Act Reauthorization Act of 2022,

, 

; 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.
   Moreover, in accordance with our policy of protecting the privacy interests
of the victims of sexual assault and the crime of risk of injury to a child,
we decline to identify the victim or others through whom the victim’s identity
may be ascertained. See General Statutes § 54-86e.
   3
     Although two of the seven counts in the long form information used
language that was slightly different from the quoted language, these minor
differences do not affect our analysis.
   4
     Later in S’s testimony, defense counsel asked: ‘‘[W]ho told you that [the
defendant and his girlfriend] didn’t live in that unit in the year[s] 2010 and
2011?’’ S responded, ‘‘I don’t know.’’ Later on, when asked directly whether
her mother told her that the defendant did not live in the condominium
complex in the years alleged in the information, S responded, ‘‘[y]es.’’
   5
     The reference to good cause, in fact, was introduced by the trial court,
not by the prosecutor. Following the state’s motion to amend, the trial court
commented: ‘‘I do think it’s appropriate for the court to [permit the state
to amend its information]. I will say, having tried [child] sexual assault
cases, it is fairly common that a child, [like] in this case, an eight or ten
year old . . . [will] not disclose [the alleged abuse] for a number of years,
[and it] is also not unusual to get [a] date wrong.’’ Only then, in response
to defense counsel’s subsequent argument in opposition to the state’s motion
to amend, did the prosecutor argue: ‘‘This is a child sexual assault case.
And, as the court indicated earlier, these types of cases are such that the
children, being so young, [delay] . . . their disclosure, [so] exact, precise
dates and time[s] are difficult for them to recall.’’ (Emphasis added.)
   6
     Although the trial court did not make any explicit findings regarding
prejudice, it went on to permit the state to amend its information, which
required a finding that the substantive rights of the defendant would not
be prejudiced.
   7
     Although the certified questions reference Practice Book § 38-18, both
parties agree that the provision at issue in this case is Practice Book § 36-
18. As a result, pursuant to our authority to modify certified questions,
we reformulate the certified questions to accurately reflect the relevant
provision in the rules of practice. See, e.g., Rosado v. Bridgeport Roman
Catholic Diocesan Corp., 

, 191–92, 

 (2005).
   8
     To the extent the Appellate Court’s decision in State v. Victor C., supra,

, suggests a contrary good cause analysis, we respectfully
disagree. In Victor C., the state’s information stated that the alleged crimes
occurred at ‘‘an undetermined date in November or December of 2009
. . . .’’ (Internal quotation marks omitted.) Id., 63. After the start of trial,
the state sought to amend its information to expand the time frame to ‘‘an
undetermined date between March and December of 2009 . . . .’’ (Internal
quotation marks omitted.) Id. The Appellate Court concluded that the state
established good cause for its late amendment because the prosecutor adequately explained why the information necessitated substitution. See id., 66.
   In Victor C., the victim initially stated that the alleged abuse occurred in
November or December, 2009, but, in a pretrial interview, she alleged with
certainty that the incident occurred while her mother was staying at a drug
rehabilitation center. Id. The state learned that the victim’s uncle would be
testifying that the victim’s mother attended the rehabilitation center in
March, 2009, through September, 2009, necessitating the amended time
frame. Id. It is unclear from the Appellate Court’s decision, however, when
the state learned that the victim’s uncle would be testifying regarding the
March through September, 2009 time frame. Thus, it is entirely possible that
this was a circumstance in which there is no reason to ‘‘believe that a more
accurate date could have been solicited [prior to the commencement of
trial].’’ State v. Wilson F., supra, 

. Nevertheless, to the
extent Victor C. is inconsistent with the principle that good cause, in this
context, exists only when there is some circumstance that the state could
not reasonably have anticipated or safeguarded against before the commencement of trial; see, e.g., State v. 

 324 Conn. 585–86; we
now reaffirm that this is the principle that guides the good cause inquiry.
   9
     We disagree with the defendant that our decision in State v. 

, supports his argument that the burden, on appeal, rests with
the state to demonstrate that the defendant’s substantive rights were not
prejudiced by the state’s late amendment to its information. In Ayala, we
concluded that the state did not demonstrate good cause to amend its
information and that the state impermissibly charged additional offenses.


 574–75. We went on to explain that, when the state amends its information after the start of trial to charge an additional or different offense, it is
a matter of constitutional magnitude, namely, a violation of the defendant’s
constitutional right to fair notice of the charges against him, and, thus, the
state must prove that the error was harmless beyond a reasonable doubt.
See 

 598–99. Although confusion may have emanated from the interchangeable use of the terms ‘‘prejudice’’ and ‘‘harmless error’’ in Ayala, it
is clear from the full context of the decision that this court went on to
conduct a harmless error analysis, not a prejudice analysis. See, e.g., Fisher
v. Big Y Foods, Inc., 

, 424–25, 

 (2010) (‘‘an opinion
must be read as a whole, without particular portions read in isolation, to
discern the parameters of its holding’’). Although regrettable, our use of
these terms interchangeably in Ayala was not without reasonable basis; the
determinations as to whether the amendment prejudiced the defendant’s
substantive rights and whether the error was harmless involve similar considerations. It was made clear, earlier in our decision in Ayala, that, in light
of our conclusion that Practice Book § 36-18 is violated without a showing
of prejudice, we did not consider whether the defendant’s substantive rights
were prejudiced by the late amendment. State v. 

 584 n.5.
   10
      The defendant further argues that, when the state moves to amend the
time frame in its information in child sexual assault cases, defendants should
be entitled to a presumptive four week continuance to undertake ‘‘an investigation [into] the child’s life to determine whether there are grounds to
believe that the child may be confabulating various events from earlier in
their childhood.’’ He further contends that, ‘‘[when] a continuance is required
to ensure that the state can satisfy its burden under [Practice Book] § 36-
18, it should be the state that retains the burden [of] rebutting the presumption that the presumptive four week continuance is not reasonable.’’ We
agree with the Appellate Court that a presumptive four week continuance
‘‘would be an unworkable constraint on the inherent discretion of the trial
court’’ because it would create ‘‘a presumptively reasonable continuance
period that would not account for the unique factual and procedural circumstances that may arise in a given case.’’ (Internal quotation marks omitted.)
State v. 

.
   11
      We note that the evidence, including the testimony of the defendant and
his girlfriend, established that the defendant moved out of the condominium
complex in February, 2009. The earliest time frame alleged in the state’s
original and long form informations was 2010. Affording the greatest amount
of latitude to the state, this would result in a time differential of at least
ten months. According to S’s trial testimony, the alleged abuse could have
occurred any time during her third grade school year, before the defendant
moved out in 2009, and, therefore, an even greater time differential was possible.
   12
      Although, in Ramos, the state was granted permission to amend its
information before trial began, the defendant contended that the amendment
constituted a due process violation, which required him to make a specific
showing of prejudice. See State v. 

. Accordingly,
we find Ramos instructive insofar as it informs our prejudice inquiry.
   13
      An ‘‘alibi’’ is ‘‘a claim by the defendant that he or she was in a place
different from the scene of the crime at the time of the alleged offense.’’
State v. Tutson, 

, 

 (2006). On appeal, the
defendant does not argue that he raised such a defense at trial, which would
have required him, upon written demand of the state, to file a written notice
of his intention to offer an alibi defense. See Practice Book § 40-21. The
defendant, in this case, was not alleging that he was not present when the
crime was committed but, instead, that the alleged events could not have
occurred during the period that S originally told the police. Although different, both theories are intended to create reasonable doubt by attacking the
time frame alleged in the information.
   14
      We therefore explicitly reject the defendant’s characterization of the
circumstances surrounding the trial court’s offer to grant the defendant a
continuance. Although the discussion surrounding the continuance was
made in the context of discussing the prejudice component of Practice Book
§ 36-18, this does not support an inference that the trial court offered the
defendant a continuance to help the state prove that its amendment would
not prejudice the defendant’s substantive rights. Here, the trial court determined that the state had good cause to amend its information and that no
additional or different offense was charged. Although the trial court did
not make an explicit finding that the amendment would not prejudice the
defendant’s substantive rights, we presume that it made this finding by
virtue of the fact that it allowed the state to amend its information and a
conclusion that the amendment would not prejudice the defendant’s substantive rights is essential to permitting the state to amend its information. See,
e.g., DiBerardino v. DiBerardino, 

, 

 (1990).
Although the trial court offered the defendant a continuance—in the midst
of its consideration of the requirements set forth in § 36-18—its decision to
grant the defendant a continuance was separate from the trial court’s distinct
inquiry as to whether the state could amend its information after the start
of trial.