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State v. Inzitari
STATE OF CONNECTICUT v. MICHAEL INZITARI
(SC 21008)
McDonald, D’Auria, Mullins, Ecker,
Alexander and Dannehy, Js.*
Syllabus
Pursuant to statute ((Rev. to 2019) § 53a-193 (13)), ‘‘child pornography’’
means ‘‘any visual depiction . . . of sexually explicit conduct, where the
production of such visual depiction involves the use of a person under
sixteen years of age engaging in sexually explicit conduct . . . .’’
Pursuant further to statute ((Rev. to 2019) § 53a-193 (14)), ‘‘sexually explicit
conduct’’ means ‘‘actual or simulated (A) sexual intercourse . . . (B) bestiality, (C) masturbation, (D) sadistic or masochistic abuse, or (E) lascivious
exhibition of the genitals or pubic area of any person.’’
The defendant appealed from his conviction of possession of child pornography in the first degree. The defendant claimed, inter alia, that the evidence
was insufficient to support his conviction because the state was required
to prove under the applicable statute ((Rev. to 2019) § 53a-196d (a) (1)) that
he had possessed fifty or more images of child pornography and thirteen
of the fifty-seven images in evidence depicted child nudity that constituted
protected expression under the first amendment to the United States constitution rather than sexually explicit conduct, as defined by § 53a-193 (14).
The defendant also claimed, inter alia, that the trial court had improperly
instructed the jury that it could consider the six factors articulated in United
States v. Dost (636 F. Supp. 828) in determining whether the images in
evidence depicted a lascivious exhibition of the genitals or pubic area for
purposes of § 53a-193 (14) (E). Held:
The evidence was sufficient to support the defendant’s conviction of possessing fifty or more visual depictions of child pornography, this court
having determined that at least eleven of the thirteen challenged images
depicted a lascivious exhibition of a child’s or children’s genitals or pubic
areas and, thus, constituted child pornography under § 53a-193 (13) and
(14), and, accordingly, the state met its burden of proving that the defendant
had possessed a total of fifty-five images of child pornography.
This court determined that the first five Dost factors—whether the focal
point of the visual depiction is on the child’s genitalia or pubic area; whether
the setting of the visual depiction is sexually suggestive; whether the child
is depicted in an unnatural pose or in inappropriate attire, considering the
age of the child; whether the child is fully or partially clothed, or nude; and
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
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State v. Inzitari
whether the visual depiction suggests sexual coyness or a willingness to
engage in sexual activity—are helpful in assessing whether a depiction is
a lascivious exhibition, but they should not be used to define the term
‘‘lascivious exhibition’’ and are simply nonexhaustive considerations that
may help in assessing whether a depiction is a lascivious exhibition.
This court also determined that the sixth Dost factor, whether the visual
depiction is intended or designed to elicit a sexual response in the viewer,
should not be considered for the purpose of determining whether an image
constitutes child pornography under this state’s child pornography statutes,
as Connecticut law does not make possession of child pornography turn
on the subjective reaction of a particular viewer.
The trial court’s instruction to the jury that it could consider the Dost factors,
including the sixth factor, in determining whether an image depicted a
lascivious exhibition of the genitals or pubic area was not improper, this
court having determined that it was not reasonably probable that this instruction misled the jury when the court did not expressly instruct the jury to
focus on the subjective response of the viewer and instructed the jury that
it was not obligated to consider any of the Dost factors.
The trial court did not err in declining the defense’s request for a specific
unanimity instruction directing the jurors that they had to be unanimous
as to which fifty images constituted child pornography and into which of
the five categories of sexually explicit conduct set forth in § 53a-193 (14)
each of those images fell.
The trial court did not abuse its discretion in admitting into evidence certain
exhibits that showed the file names of two images that had been deleted
from the defendant’s cell phone and that were associated with the defendant’s email address, as those exhibits were probative of the issue of whether
the defendant had knowledge that he possessed child pornography on his
phone, the defendant failed to demonstrate unfair prejudicial impact to
counter the substantial probative value of the exhibits, and the trial court
took measures to mitigate any potential undue prejudice.
Argued September 18, 2024—officially released January 21, 2025
Procedural History
Two part substitute information charging the defendant, in the first part, with the crime of possession of
child pornography in the first degree and, in the second
part, with being a persistent felony offender, brought
to the Superior Court in the judicial district of New
Britain, where the first part of the information was tried
to the jury before Baldini, J.; verdict and judgment of
guilty of possession of child pornography in the first
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State v. Inzitari
degree; thereafter, the state withdrew the second part of
the information, and the defendant appealed. Affirmed.
Conrad Ost Seifert, assigned counsel, for the appellant (defendant).
Danielle Koch, assistant state’s attorney, with whom,
on the brief, were Christian Watson, state’s attorney,
Gregory Borrelli, assistant state’s attorney, and Melissa
L. Streeto, former senior assistant state’s attorney, for
the appellee (state).
Opinion
DANNEHY, J. The defendant, Michael Inzitari, was
convicted, following a jury trial, of one count of possessing child pornography in the first degree in violation
of General Statutes (Rev. to 2019) § 53a-196d (a) (1),1
which requires proof that the accused possessed fifty
or more visual depictions of child pornography. On
appeal, the defendant claims that (1) the evidence was
insufficient to support his conviction, (2) the court
improperly instructed the jury that it could consider
the so-called Dost2 factors in determining whether the
images introduced by the state constituted a lascivious
exhibition of the genitals or pubic area,3 (3) the court
1
We note that references in this opinion to General Statutes §§ 53a-193
(13) and 53a-196d (a) (1) are to the 2019 revision of those statutes. Those
statutes were recently amended by No. 24-118, § 4 of the 2024 Public Acts,
effective October 1, 2024, which made technical changes to the statutes by
changing the term ‘‘child pornography’’ to ‘‘child sexual abuse material.’’
2
United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), aff’d,
813 F.2d
1231 (9th Cir. 1987), and aff’d sub nom. United States v. Wiegand,
812 F.2d
1239 (9th Cir.), cert. denied,
484 U.S. 856,
108 S. Ct. 164,
98 L. Ed. 2d
118 (1987).
3
Whether an image constitutes child pornography under our possession
of child pornography statutes turns, in part, on whether an image depicts
a child engaging in ‘‘[s]exually explicit conduct,’’ which our legislature has
defined in relevant part as a ‘‘lascivious exhibition of the genitals or pubic
area of any person.’’ General Statutes (Rev. to 2019) § 53a-193 (14). As will
be discussed in greater detail in this opinion, the so-called Dost factors stem
from the decision of the United States District Court for the Southern District
of California in United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986),
aff’d, 813 F.2d 1231 (9th Cir. 1987), and aff’d sub nom. United States v.
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State v. Inzitari
erred in not giving a unanimity instruction, and (4)
the court abused its discretion in admitting two of the
state’s exhibits. We disagree and affirm the judgment
of the trial court.
The underlying facts of this case are straightforward.
The New Britain Police Department obtained a search
warrant for the defendant’s cell phone. After locating
the device, the state conducted a cell phone extraction
and discovered images of suspected child pornography
on the cell phone and the memory card within it. The
defendant was subsequently charged with knowingly
possessing fifty or more visual depictions of child pornography in violation of § 53a-196d (a) (1).
At trial, the state introduced fifty-seven images in
support of its case. Each image was made an exhibit,
and the images were collectively presented to the jury
in a binder. After the prosecutor rested the state’s casein-chief, defense counsel moved for a judgment of
acquittal, arguing that the state had failed to prove that
the defendant possessed the fifty or more images of
child pornography required to convict him under § 53a-
196d (a) (1) because numerous images introduced by
the state did not depict sexual activity. The court denied
the motion, concluding that the jury reasonably could
find that the state had proven all of the elements of the
offense charged. Over defense counsel’s objection, the
court included in its instructions to the jury that it
‘‘may, but [was] not obligated to, consider’’ the six Dost
factors. The jury later found the defendant guilty of the
Wiegand, 812 F.2d 1239 (9th Cir.), cert. denied,
484 U.S. 856,
108 S. Ct. 164,
98 L. Ed. 2d 118 (1987), in which the court identified six nonexhaustive
factors to help it evaluate whether a visual depiction was a ‘‘lascivious
exhibition of the genitals or pubic area’’ under 18 U.S.C. § 2255 (2) (E)
(1982), now codified at 18 U.S.C. § 2256 (2) (A) (v) (2018). Many courts
around the country have used or approved these factors to help evaluate
whether an image depicts a ‘‘lascivious exhibition’’ and, thus, constitutes
child pornography.
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State v. Inzitari
single charge against him, and the court sentenced him
to eighteen and one-half years of incarceration, five of
which were mandatory.4 The defendant appealed from
the judgment of conviction to the Appellate Court, and
we transferred the appeal to this court pursuant to
General Statutes § 51-199 (c) and Practice Book § 65-1.
I
The defendant first claims that there was insufficient
evidence to support his conviction of possessing fifty
or more visual depictions of child pornography under
§ 53a-196d (a) (1) because thirteen of the fifty-seven
images introduced by the state at trial do not constitute
child pornography.5 He contends that, although the thirteen images depict nude children, they do not depict
sexually explicit conduct. Nudity, without more, he
argues, is protected expression under the first amendment to the United States constitution. In arguing that
these images are protected expression under the first
amendment, the defendant also challenges the legal
framework employing the Dost factors used in many
jurisdictions to assess whether a visual depiction constitutes child pornography. He argues that the jury should
not have been instructed on the Dost factors because
those factors should not be used to adjudicate whether
an image depicts a lascivious exhibition of the genitals
or pubic area. We address each of his arguments in turn.
A
For an image to constitute child pornography for
purposes of § 53a-196d (a) (1), it must depict ‘‘sexually
The state initially charged the defendant, in a part B information, as
4
being a persistent serious felony offender in violation of General Statutes
§ 53a-40 (c) and (k). Prior to sentencing, however, the state withdrew the
part B information. The defendant, therefore, was sentenced solely for his
conviction under § 53a-196d.
5
Specifically, the defendant contends that state exhibits 33, 35, 36, 37,
46, 49, 50, 70, 71, 72, 75, 77, and 83 do not constitute child pornography.
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State v. Inzitari
explicit conduct, where the production of such visual
depiction involves the use of a person under sixteen
years of age engaging in sexually explicit conduct
. . . .’’ General Statutes (Rev. to 2019) § 53a-193 (13).
The legislature defines ‘‘[s]exually explicit conduct’’ as
‘‘actual or simulated (A) sexual intercourse, including
genital-genital, oral-genital, anal-genital or oral-anal
physical contact, whether between persons of the same
or opposite sex, or with an artificial genital, (B) bestiality, (C) masturbation, (D) sadistic or masochistic abuse,
or (E) lascivious exhibition of the genitals or pubic area
of any person.’’ General Statutes (Rev. to 2019) § 53a-
193 (14).
The defendant contends that the thirteen images in
question clearly do not depict sexual intercourse, bestiality, masturbation, or sadistic or masochistic abuse. He
argues that this case turns on the meaning of ‘‘lascivious
exhibition of the genitals or pubic area’’ and that none
of the thirteen images in question falls within that category. We agree with the defendant that the thirteen images
clearly do not fall within the categories of sexual intercourse, bestiality, masturbation, or sadistic or masochistic abuse.6 The question of sufficiency, therefore, turns
on whether the thirteen images each depict a ‘‘lascivious
exhibition of the genitals or pubic area,’’ and, thus, constitute child pornography.7
In reviewing a sufficiency of the evidence claim, we
ordinarily apply a two part test. See, e.g., State v. Cook,
287 Conn. 237, 254,
947 A.2d 307, cert. denied,
555 U.S.
6
The state did not concede in its appellate briefing or at oral argument
before this court that the thirteen images in question do not exhibit sexual
intercourse, bestiality, masturbation, or sadistic or masochistic abuse. The
state ‘‘declines to take a position on this matter because it is unnecessary
to the resolution of this claim.’’ We disagree that it is unnecessary. Whether
the images in question exhibit sexual intercourse, bestiality, masturbation,
or sadistic or masochistic abuse is part and parcel of the defendant’s claim
that none of the thirteen images contains sexually explicit conduct.
7
The age of the victims is not at issue in this appeal.
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State v. Inzitari
970, 129 S. Ct. 464,
172 L. Ed. 2d 328 (2008). We first
‘‘construe the evidence in the light most favorable to
sustaining the verdict.’’ (Internal quotation marks omitted.) State v. Gary S., 345 Conn. 387, 398,
285 A.3d 29
(2022). We then ‘‘determine whether [on] the facts so
construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that
the cumulative force of the evidence established guilt
beyond a reasonable doubt.’’ (Internal quotation marks
omitted.) State v. Dawson, 340 Conn. 136, 146,
263 A.3d
779 (2021).
In certain contexts, however, including those like the
present case that implicate the first amendment, we
are required to apply a de novo standard of review. See
DiMartino v. Richens, 263 Conn. 639, 661–62,
822 A.2d
205 (2003). The presence of first amendment concerns
obligates an appellate court ‘‘to make an independent
examination of the whole record in order to make sure
that the judgment does not constitute a forbidden intrusion on the field of free expression.’’ (Internal quotation
marks omitted.) State v. Michael R., 346 Conn. 432, 463,
291 A.3d 567, cert. denied, U.S. ,
144 S. Ct. 211,
217 L. Ed. 2d 89 (2023); see also, e.g., Miller v. California,
413 U.S. 15, 25,
93 S. Ct. 2607,
37 L. Ed. 2d 419 (1973)
(independent appellate review of finding of obscenity).
This rule of ‘‘independent review’’ is in recognition that
an appellate ‘‘[c]ourt’s duty is not limited to the elaboration of constitutional principles; we must also in proper
cases review the evidence to make certain that those
principles have been constitutionally applied.’’ (Internal
quotation marks omitted.) Bose Corp. v. Consumers
Union of United States, Inc., 466 U.S. 485, 508,
104 S.
Ct. 1949,
80 L. Ed. 2d 502 (1984). When a defendant
challenges certain images as falling outside the definition of child pornography, rendering them protected
expression under the first amendment, our independent
review requires us to examine the four corners of each
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State v. Inzitari
image to determine whether each, in fact, constitutes
child pornography. See, e.g., State v. Sawyer, 335 Conn.
29, 45,
225 A.3d 668 (2020) (reviewing ‘‘the descriptions
of . . . two photographs’’ to determine whether there
was probable cause that defendant possessed lascivious
images of children); see also, e.g., United States v. Villard, 885 F.2d 117, 125 (3d Cir. 1989) (court must view
photograph itself to determine whether it is child pornography).
With our standard of review in mind, we begin with
our construction of the relevant law and then consider
the defendant’s challenge to the sufficiency of the evidence thereunder. We begin with the text of § 53a-193
(14), which defines ‘‘[s]exually explicit conduct’’ to include,
inter alia, ‘‘lascivious exhibition of the genitals or pubic
area of any person.’’ See State v. Dudley, 332 Conn.
639, 645,
212 A.3d 1268 (2019) (explaining that General
Statutes § 1-2z instructs that meaning of statute shall,
in first instance, be ascertained from text of statute
itself and its relationship to other statutes). We previously have explained that § 53a-193 (14) does not
define ‘‘lascivious exhibition of the genitals or pubic
area’’ but that Black’s Law Dictionary defines ‘‘lascivious’’ as ‘‘ ‘tending to excite lust; lewd; indecent; obscene.’ ’’
State v. Sawyer, supra, 335 Conn. 39, quoting Black’s
Law Dictionary (11th Ed. 2019) p. 1053. Other than
providing this definition of ‘‘lascivious’’ and offering a
few nonexhaustive factors to consider in determining
whether an image depicts a ‘‘lascivious exhibition,’’ we
have not had further occasion, until now, to analyze
the statutory provision to determine whether a more
precise meaning of the phrase ‘‘lascivious exhibition’’
can be ascertained. See State v. Sawyer, supra, 39.
In analyzing this language, we observe that standard
dictionaries are consistent with the Black’s Law Dictionary definition of ‘‘lascivious,’’ defining the term as
‘‘[g]iven to or expressing lust; lecherous’’ or ‘‘[e]xciting
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State v. Inzitari
sexual desires; salacious’’; The American Heritage College Dictionary (4th Ed. 2004) p. 781; or ‘‘lewd’’ or ‘‘lustful . . . .’’ Merriam-Webster’s Collegiate Dictionary
(11th Ed. 2003) p. 701. The term ‘‘lewd’’ means ‘‘[p]reoccupied with sex and sexual desire; lustful.’’ The American Heritage College Dictionary, supra, p. 796. In other
words, the term ‘‘lascivious’’ connotes something sexual in nature.
This meaning is reinforced by the fact that the word
‘‘lascivious’’ in § 53a-193 (14) modifies the ‘‘exhibition’’
of certain private parts. We recently explained that
‘‘exhibition’’ is defined as ‘‘ ‘an act or instance of exhibiting’ and ‘exhibit’ as ‘to present to view . . . to show
or display outwardly [especially] by visible signs or
actions . . . .’ Merriam-Webster’s Collegiate Dictionary [supra] pp. 437–38.’’ State v. Michael R., supra, 346
Conn. 459.
Reading the terms ‘‘lascivious’’ and ‘‘exhibition’’ together,
and considering them within the context of the child pornography statute, they establish that an image depicts
the use of a child engaged in a ‘‘lascivious exhibition’’
under § 53a-193 (14) when the child’s genitals or pubic
area is displayed in a sexual manner. Indeed, under the
definition of ‘‘child pornography’’ set forth in § 53a-193
(13), it is the photographed child who must be depicted
as engaged in ‘‘[s]exually explicit conduct’’ and, thus,
the child who must be depicted making a ‘‘lascivious
exhibition . . . .’’ General Statutes (Rev. to 2019) § 53a-
193 (13) and (14).
In evaluating whether an image depicts a ‘‘lascivious
exhibition,’’ many courts, including this court, have used
or approved the nonexhaustive factors set forth in
United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal.
1986), aff’d, 813 F.2d 1231 (9th Cir. 1987), and aff’d sub
nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir.),
cert. denied, 484 U.S. 856,
108 S. Ct. 164,
98 L. Ed. 2d
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State v. Inzitari
118 (1987). The Dost factors ask whether (1) the focal
8
point of the visual depiction is on the child’s genitalia
or pubic area, (2) the setting of the visual depiction is
sexually suggestive, i.e., in a place or pose generally
associated with sexual activity, (3) the child is depicted
in an unnatural pose, or in inappropriate attire, considering the age of the child, (4) the child is fully or partially
clothed, or nude, (5) the visual depiction suggests sexual coyness or a willingness to engage in sexual activity,
and (6) the visual depiction is intended or designed to
elicit a sexual response in the viewer. Id., 832.
In State v. Sawyer, supra, 335 Conn. 41, this court
described the Dost factors as being ‘‘generally relevant’’
and providing ‘‘some guidance’’ in assessing whether a
display is a lascivious exhibition. (Internal quotation
marks omitted.) Although Sawyer used the Dost factors
to determine whether descriptions of images contained
in a search warrant affidavit were sufficient to establish
probable cause that the defendant possessed child pornography, we signaled that the factors were helpful,
8
The federal definition of ‘‘sexually explicit conduct’’ is substantially similar to Connecticut’s statutory definition. Compare General Statutes (Rev.
to 2019) § 53a-193 (13) and (14) with 18 U.S.C. § 2256 (2) (A) and (B) and
(8) (2018). Many federal courts have used or approved the Dost factors to
assist in determining whether a depiction is a ‘‘lascivious exhibition’’ within
the meaning of the federal child pornography statutes. See, e.g., United
States v. Sanders, 107 F.4th 234, 261 (4th Cir. 2024); United States v. Petroske,
928 F.3d 767, 773 (8th Cir. 2019), cert. denied, U.S. ,
140 S. Ct. 973,
206 L. Ed. 2d 129 (2020); United States v. Isabella,
918 F.3d 816, 831 (10th
Cir. 2019), cert. denied, U.S. , 140 S. Ct. 2586,
206 L. Ed. 2d 508
(2020); United States v. Hunter, 720 Fed. Appx. 991, 996 (11th Cir. 2017);
United States v. Perkins, 850 F.3d 1109, 1121 (9th Cir. 2017); United States
v. Steen, 634 F.3d 822, 826 (5th Cir. 2011); United States v. Brown,
579 F.3d
672, 680 (6th Cir. 2009), cert. denied,
558 U.S. 1133,
130 S. Ct. 1106,
175 L.
Ed. 2d 920 (2010); United States v. Rivera,
546 F.3d 245, 250 (2d Cir. 2008),
cert. denied, 555 U.S. 1204,
129 S. Ct. 1395,
173 L. Ed. 2d 644 (2009); United
States v. Amirault, 173 F.3d 28, 31 (1st Cir. 1999); United States v. Knox,
32 F.3d 733, 745–46 (3d Cir. 1994), cert. denied,
513 U.S. 1109,
115 S. Ct.
897,
130 L. Ed. 2d 782 (1995). But see United States v. Hillie,
39 F.4th 674,
688 (D.C. Cir. 2022); United States v. Price, 775 F.3d 828, 840 (7th Cir. 2014).
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State v. Inzitari
more broadly, in determining whether a visual depiction
is lascivious. See id.; see also State v. Michael R., supra,
346 Conn. 467 (‘‘[a]s a matter of first impression in Sawyer,
we adopted a case specific approach to assessing whether
a display is lascivious and stated that ‘the Dost factors
are generally relevant and provide some guidance’ in
this evaluation’’). We made clear, however, that ‘‘these
factors are neither comprehensive nor necessarily applicable in every situation’’ and that the ‘‘inquiry will always
be [case specific].’’ (Internal quotation marks omitted.)
State v. Sawyer, supra, 41, quoting United States v.
Amirault, 173 F.3d 28, 32 (1st Cir. 1999).
Furthermore, and particularly relevant to the fourth
Dost factor—whether the child is fully or partially
clothed, or nude—we explained that ‘‘nudity alone, even
when it comes to images of children, is not sufficient
to constitute child pornography . . . .’’ State v. Michael
R., supra, 346 Conn. 467 n.29. That is because ‘‘depictions of nudity, without more, constitute protected
expression’’ under the first amendment. Osborne v.
Ohio, 495 U.S. 103, 112,
110 S. Ct. 1691,
109 L. Ed. 2d
98 (1990). This caveat ensures that persons are not
penalized for viewing or possessing otherwise innocuous nude photographs, a classic example of which is a
family snapshot of a child in a bathtub. See, e.g., United
States v. Hill, 459 F.3d 966, 970 (9th Cir. 2006) (‘‘Child
pornography is a particularly repulsive crime, but not
all images of nude children are pornographic. For example, ‘a family snapshot of a nude child bathing presumably would not’ be criminal.’’), cert. denied, 549 U.S.
1299,
127 S. Ct. 1863,
167 L. Ed. 2d 353 (2007); United
States v. Knox, 32 F.3d 733, 750 (3d Cir. 1994) (‘‘[n]o
one seriously could think that . . . an innocuous family snapshot of a naked child in the bathtub violates
the child pornography laws’’), cert. denied, 513 U.S.
1109,
115 S. Ct. 897,
130 L. Ed. 2d 782 (1995). Although
a ‘‘lascivious exhibition’’ under § 53a-193 (14) requires
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State v. Inzitari
more than mere nudity, the fourth Dost factor is a relevant and helpful inquiry when considered together with
the other factors in evaluating whether the exhibition
of a child’s genitals or pubic area is displayed in a sexual
manner. See State v. Michael R., supra, 461 (assuming
that ‘‘nude performance’’ under § 53a-193 (4) requires
sexual component to survive vagueness challenge).
The defendant contends that the Dost factors are
‘‘problematic’’ and should not be used to adjudicate
lasciviousness. Although he argues in a conclusory manner that all six factors should not be considered, his
primary objection is to the sixth Dost factor, which asks
whether the visual depiction is intended or designed to
elicit a sexual response in the viewer. He contends that
the sixth factor improperly adds a subjective component to the evaluation of lasciviousness that requires a
fact finder to determine whether the images in question
were intended to elicit a sexual response in the viewer
who is a pedophile.
The state argues that is precisely what is required of
the final factor. It contends that lasciviousness is not
a characteristic of the photographed child but of the
exhibition that the photographer sets up for an audience
consisting of himself and like-minded pedophiles. It
states that we must determine whether an image was
intended or designed to elicit a sexual response in the
viewer—the viewer being the pedophile viewer, not the
average viewer. In other words, the state argues that a
fact finder must step into the shoes—or, rather, into
the mind—of a pedophile to make a lasciviousness
determination.
We are cognizant that the sixth Dost factor has been
the subject of some criticism over the years. One court
has labeled it the ‘‘most confusing and contentious of
the Dost factors,’’ asking whether it is a ‘‘subjective or
objective standard, and should we be evaluating the
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State v. Inzitari
response of an average viewer or the specific defendant
in this case? Moreover, is the intent to elicit a sexual
response analyzed from the perspective of the photograph’s composition, or from extrinsic evidence (such
as where the photograph was obtained, who the photographer was, etc.)?’’ United States v. Amirault, supra,173 F.3d 34. Another court has stated that it is the ‘‘most
difficult [factor] to apply . . . .’’ United States v. Steen,
634 F.3d 822, 827–28 (5th Cir. 2011).
This lack of clarity has resulted in courts treating the
sixth factor in markedly different ways. Some courts
state that the sixth factor is a subjective consideration
for the court in determining whether the visual depiction was intended to elicit a sexual response in the
defendant himself or a like-minded pedophile. See, e.g.,
United States v. Helton, 302 Fed. Appx. 842, 849 (10th
Cir. 2008) (‘‘our task is simply to determine whether
[the defendant] intended the videotape he produced to
elicit a sexual response in the viewer—defined as himself and like-minded individuals’’), cert. denied, 556 U.S.
1199,
129 S. Ct. 2029,
173 L. Ed. 2d 1116 (2009); United
States v. Wiegand, 812 F.2d 1239, 1244 (9th Cir. 1987)
(‘‘[i]t was a lascivious exhibition because the photographer arrayed it to suit his peculiar lust’’), cert. denied,
484 U.S. 856,
108 S. Ct. 164,
98 L. Ed. 2d 118 (1987). Other
courts, including the United States Court of Appeals
for the Second Circuit, have put a judicial gloss on the
sixth factor by treating it as informing an objective
inquiry. See, e.g., United States v. Spoor, 904 F.3d 141,
150 (2d Cir. 2018) (‘‘[w]e . . . clarify that the sixth Dost
factor . . . should be considered by the jury in a child
pornography production case only to the extent that it
is relevant to the jury’s analysis of the five other factors
and the objective elements of the image’’), cert. denied,
586 U.S. 1120,
139 S. Ct. 931,
202 L. Ed. 2d 656 (2019);
United States v. Villard, supra,885 F.2d 125 (‘‘[w]e
believe that the sixth Dost factor, rather than being a
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separate substantive inquiry about the photographs, is
useful as another way of inquiring into whether any of
the other five Dost factors are met’’). And other courts
have taken their own unique approach or have outright
rejected not only the sixth but all of the Dost factors.
See, e.g., United States v. Hillie, 39 F.4th 674, 688–89
(D.C. Cir. 2022) (concluding that Dost factors are problematic and inconsistent with federal child pornography
statutes); United States v. Brown, 579 F.3d 672, 683
(6th Cir. 2009) (adopting ‘‘ ‘limited context’ ’’ test), cert.
denied, 558 U.S. 1133,
130 S. Ct. 1106,
175 L. Ed. 2d
920 (2010).
Although the sixth Dost factor, which asks whether
the image ‘‘is intended or designed to elicit a sexual
response in the viewer’’; (emphasis added) United States
v. Dost, supra,636 F. Supp. 832; does not specify who the
‘‘viewer’’ is, it certainly implies that a pedophile viewer’s
subjective response to an image may be relevant. The
court in Dost explained that it needed to look at the
combined effect of the setting, attire, pose, and emphasis on the genitals to determine whether the photograph
was ‘‘designed to elicit a sexual response in the viewer,
albeit perhaps not the ‘average viewer,’ but perhaps in
the pedophile viewer.’’ Id. We must therefore determine
whether a pedophile viewer’s subjective response to an
image is relevant in considering whether an image is a
lascivious exhibition under our possession of child pornography statutes.
In answering this question, we first look to the statute
itself. As we previously explained, under the definition
of ‘‘child pornography’’ set forth in § 53a-193 (13), it is
the photographed child who must be depicted as
engaged in ‘‘[s]exually explicit conduct,’’ and thus the
child who must be depicted making a ‘‘lascivious exhibition . . . .’’ General Statutes (Rev. to 2019) § 53a-193
(13) and (14). The focus therefore must be on the objective aspects of the photograph itself, not on the subjec-
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State v. Inzitari
tive reaction of a particular viewer. Indeed, a particular
viewer may be sexually aroused ‘‘by photo[graphs] of
children at a bus stop wearing winter coats, but these
are not pornographic.’’ United States v. Steen, supra,634 F.3d 829 (Higginbotham, J., concurring). And, if
subjective reaction were relevant, ‘‘a sexual deviant’s
quirks could turn a Sears catalog into pornography.’’
United States v. Amirault, supra,173 F.3d 34.
Second, it is not readily apparent how the sixth factor
is relevant or helpful to a possession of child pornography case, like the present case, in which there is no
allegation that the defendant himself located the victims, arranged or posed the scenes, or otherwise produced the images. See United States v. Rivera, 546 F.3d
245, 252 (2d Cir. 2008) (‘‘[t]he sixth Dost factor is not
easily adapted to a possession case’’), cert. denied, 555
U.S. 1204,
129 S. Ct. 1395,
173 L. Ed. 2d 644 (2009).
Notably, many of the federal cases that analyze the
sixth factor do so in circumstances in which the defendant was charged with the production of child pornography, not solely possession of it, which may explain
why those courts looked to the sixth factor. Dost itself
was a prosecution for the production of child pornography. United States v. Dost, supra,636 F. Supp. 832.
Taking this all into account, we are persuaded that
the sixth Dost factor should not be considered in
determining whether an image is child pornography
under our possession of child pornography statutes.
Connecticut law does not make possession of child
pornography turn on the subjective reaction of a particular viewer. And, although some courts have attempted
to make the sixth factor relevant to a possession case
by putting a judicial gloss on it that would make it an
objective inquiry relevant to an analysis of the other
five factors, we think this approach complicates, rather
than elucidates, what is required under our law.
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Although we conclude that the sixth Dost factor is
not an appropriate consideration in a possession of
child pornography case, we still believe that the first
five factors can be helpful in assessing whether a depiction is a lascivious exhibition. They provide jurors and
judges with neutral references and considerations for
making that determination. As the United States Court
of Appeals for the Second Circuit has aptly explained,
neutral considerations ‘‘avoid decisions based on individual values or the revulsion potentially raised in a
child pornography prosecution,’’ and they ‘‘mitigate the
risk that jurors will react to raw images in a visceral
way . . . .’’ United States v. Rivera, supra, 546 F.3d
252–53. Nevertheless, the first five Dost factors do not
define the term ‘‘lascivious exhibition’’ and should not
be used in that manner. See State v. Sawyer, supra,
335 Conn. 41 (Dost factors ‘‘should not be rigidly or
mechanically applied’’). They simply are nonexhaustive
considerations that may help the fact finder evaluate
whether the image depicts a ‘‘lascivious exhibition,’’
that is, whether a child’s genitals or pubic area is displayed in a sexual manner.
With those clarifications in mind, we turn our attention to the defendant’s sufficiency claim. In the present
case, for the defendant’s sufficiency challenge to succeed, we must agree with him that at least eight of the
thirteen challenged images do not constitute a lascivious exhibition of the genitals or pubic area and, thus,
are protected expression under the first amendment.
That would bring the state’s evidence to fewer than
fifty visual depictions, as required by § 53a-196d (a) (1).
Each of the images depicts one or more nude male
children, with nearly all of the images prominently
depicting the children’s genitals or pubic areas. At least
eight of the images depict a child lying on a bed or
mattress. See United States v. Villard, supra,885 F.2d
124 (‘‘[b]eds and mattresses are often associated with
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State v. Inzitari
sexual activity’’). Many of the images depict multiple
nude children, with those children located or positioned
in close proximity to one another. At least one photograph depicts a child with an erection, with the child
being the focal point of the image.
Although there are two images that we think are a
relatively close call—specifically, exhibits 37 and 50—
we have little difficulty concluding that there was sufficient evidence to support the defendant’s conviction
of possessing fifty or more visual depictions of child
pornography. Indeed, even if we assume that those two
images constitute protected expression, at least eleven
of the thirteen images challenged by the defendant
clearly go beyond the mere depiction of nudity and
constitute a ‘‘lascivious exhibition’’ under § 53a-193
(14). Because that brings the number of visual depictions of child pornography to more than fifty, the defendant’s sufficiency claim fails.9
B
The defendant next claims that the court improperly
instructed the jury that it could consider the Dost factors in determining whether an image depicted a lascivious exhibition of the genitals or pubic area. He contends
that the Dost factors are improper considerations for
the reasons that he raised in the context of his sufficiency challenge, but he adds that the Dost factors, like
many multifactor tests, take the depth and complexity
of human thought and perspective away from the jury
and replace those considerations with a rote and simplistic ‘‘recipe’’ to follow. He also suggests that the Dost
factors confuse or mislead juries. We are not persuaded.10
9
The defendant does not challenge forty-four of the images introduced
by the state. See footnote 4 of this opinion. Because we conclude that a
total of fifty-five images in evidence support the defendant’s conviction
under § 53a-196d (a) (1), the quantity element is satisfied.
10
The defendant objected to the state’s request to charge on the Dost
factors and defense counsel reiterated this objection at the charge conference The court ultimately granted the state’s request and instructed the jury
on the Dost factors.
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Our standard of review concerning claims of nonconstitutional instructional error is well settled.11 ‘‘When
reviewing the challenged jury instruction . . . we must
adhere to the well settled rule that a charge to the jury
is to be considered in its entirety, read as a whole, and
judged by its total effect rather than by its individual
component parts. . . . [T]he test of a court’s charge is
not whether it is as accurate [on] legal principles as
the opinions of a court of last resort but whether it
fairly presents the case to the jury in such a way that
injustice is not done to either party under the established rules of law. . . . As long as [the instructions]
are correct in law, adapted to the issues and sufficient
for the guidance of the jury . . . we will not view the
instructions as improper.’’ (Internal quotation marks
omitted.) State v. Denby, 235 Conn. 477, 484–85,
668
A.2d 682 (1995). To the extent an error has been made,
the defendant has the burden of establishing that it is
reasonably probable that the jury was misled. State v.
Gomes, 337 Conn. 826, 849,
256 A.3d 131 (2021).
The trial court in the present case adopted—nearly
verbatim—the Dost factors in its lascivious exhibition
11
The defendant, without elaboration, contends that the trial court committed constitutional error by instructing the jury on the Dost factors. This
court previously has held that instructions on the elements of an offense,
a defendant’s defense, the burden of proof, and the presumption of innocence
implicate a defendant’s constitutional rights. State v. Terwilliger, 294 Conn.
399, 411,
984 A.2d 721 (2009); State v. LaBrec,
270 Conn. 548, 557,
854 A.2d
1 (2004). The Dost factors, however, do not implicate these categories.
Indeed, the Dost factors are neither elements of the offense nor are they
definitional of an element. And they should not be used in such a manner.
See State v. Sawyer, supra, 335 Conn. 41 (Dost factors ‘‘should not be rigidly
or mechanically applied’’). They are merely a list of potentially relevant
considerations that a jury may consider in evaluating whether a particular
image depicts a lascivious exhibition of the genitals or pubic area, as that
element is defined. See United States v. Rivera, supra,546 F.3d 252 (Dost
factors are merely ‘‘neutral references and considerations to avoid decisions
based on individual values or the revulsion potentially raised in a child
pornography prosecution’’). Accordingly, the defendant’s claimed instructional error is not constitutional in nature.
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instruction. The court instructed that ‘‘[l]ascivious exhibition of the genitals or pubic area is an exhibition that
is lewd or lustful. In considering whether an image
constitutes lascivious exhibition of the genitals or pubic
area, you may, but are not obligated to, consider the
following: Whether the genitals or pubic area [is] the
focal point of the image; whether the setting of the image
is sexually suggestive, for example, a location generally
associated with sexual activity; whether the child is
depicted in an unnatural pose or inappropriate attire
considering his or her age; whether the child is fully or
partially clothed, or nude; whether the image suggests
sexual coyness or willingness to engage in sexual activity; and whether the image is intended or designed to
elicit a sexual response in the viewer.’’ In defining ‘‘[s]exually explicit conduct,’’ which includes a ‘‘lascivious
exhibition of the genitals or pubic area’’; General Statutes (Rev. to 2019) § 53a-193 (14); the trial court expressly
instructed the jury that ‘‘[n]udity, without more, is protected expression and does not constitute sexually
explicit conduct.’’
In part I A of this opinion, we provided some further
clarification and refinement of the statutory language
and the Dost factors that was not available to the trial
court in this case, insofar as we have concluded that
the first five factors are still generally relevant and
helpful to juries in determining whether an image in a
possession of child pornography case depicts a lascivious exhibition but that the sixth factor should not be
considered in possession of child pornography cases.
We nevertheless conclude that it is not reasonably probable that the trial court’s lascivious exhibition instruction, including its instruction of the sixth Dost factor,
misled the jury. First, the court explicitly instructed the
jury that it was not obligated to consider any of the
Dost factors, much less any single factor, such as the
sixth factor, by making clear that the jury ‘‘may, but
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[was] not obligated to, consider the following’’ factors.
The court’s instruction, instead, appropriately focused
the jury on the statutory definition of child pornography
and whether the images in question depicted a lascivious exhibition of the genitals or pubic area. Second,
although the trial court listed the sixth Dost factor,
it did not expressly instruct the jury to consider the
subjective response of the viewer. Rather, the instruction directed the jury to ‘‘the image’’ itself. It is therefore
not reasonably probable that the jury was misled on
this point.
Although we recognize that there are legitimate criticisms of the Dost factors, we think instructing jurors
on the first five Dost factors can be helpful in possession
of child pornography cases because, as we explained
in part I A of this opinion, they can help mitigate the
risk that jurors will react to raw images in a visceral
way. The starting point for trial courts in a possession
of child pornography case, however, should be on the
definition of what constitutes a lascivious exhibition,
and courts should instruct jurors that an image depicts
the use of a child engaged in a ‘‘lascivious exhibition’’
under § 53a-193 (14) when the child’s genitals or pubic
area is displayed in a sexual manner. See part I A of
this opinion. Trial courts then should determine, on a
case-by-case basis, whether the factors are helpful and,
to the extent they are used, ensure that the jury is
instructed that the five approved Dost factors (1) are
merely a guide, (2) are nonexhaustive and that other
considerations may be relevant to the determination of
whether an image depicts a lascivious exhibition, and
(3) should not be applied in a rigid or mechanistic
manner.
II
The defendant next claims that his right to a unanimous jury verdict under the sixth amendment to the
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United States constitution required the court to instruct
the jury that it needed to be unanimous as to which fifty
of the fifty-seven images in evidence fit the definition
of child pornography and on precisely which category
of sexually explicit conduct that each of the fifty or
more images fell within. In addition, the defendant
claims that, because there was a general verdict in this
case, we cannot determine whether his conviction was
predicated on the images that we concluded in part I
A of this opinion did not depict a lascivious exhibition
of the genitals or pubic area. He argues that the United
States Supreme Court’s decision in Stromberg v. California, 283 U.S. 359, 368,
51 S. Ct. 532,
75 L. Ed. 1117
(1931), requires that his conviction be set aside. Because
the defendant’s claims are premised on a claimed infringement of his constitutional rights, our review is plenary.
State v. Douglas C., supra, 345 Conn. 435.
A
The following additional procedural history is relevant to the defendant’s claim. The defendant requested
a specific unanimity instruction. His written request
provided: ‘‘The state has alleged that the defendant has
committed the offense of possession of child pornography by possessing fifty or more visual depictions of
child pornography. You may find the defendant guilty
of the offense only if you all unanimously agree on
which of the fifty visual depictions fit the definition of
child pornography as defined in these instructions. This
means you may not find the defendant guilty unless you
all agree that the state has proved beyond a reasonable
doubt which visual depictions are child pornography
and that those add up to fifty or more.’’
Defense counsel raised his proposed instruction
again at the charge conference. He argued that, because
the state is required to prove the quantity of fifty or
more visual depictions beyond a reasonable doubt, the
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constitution required jury unanimity regarding which
specific depictions the jury found to be child pornography. He argued that his requested charge mirrored the
specific unanimity charge in the form jury instructions.12
The prosecutor objected to this request, arguing that
the model instructions regarding unanimity of elements
apply only when a statute provides, and the state proves,
alternative ways of committing a single offense. The
prosecutor explained that the state had neither charged
nor adduced evidence of alternative ways by which the
defendant had committed the offense. The court agreed
with the prosecutor and denied the requested unanimity charge.
In the defendant’s motion for a new trial, he renewed
his arguments that a specific unanimity charge was
required. He pointed to additional case law, including
the Appellate Court’s decision in State v. Joseph V., 196
Conn. App. 712, 740,
230 A.3d 644 (2020), rev’d in part
on other grounds, 345 Conn. 516,
285 A.3d 1018 (2022),
arguing that a specific unanimity instruction is required
even if the offense is premised on one offense, if there
are multiple statutory subsections or elements of an
offense. He argued that the jury was required to be
unanimous as to which fifty of the fifty-seven images
12
It appears that defense counsel was referencing the specific unanimity
instruction regarding unanimity of elements, set forth in § 2.11-6 of the
Connecticut Judicial Branch Criminal Jury Instructions, available at https://
jud.ct.gov/JI/Criminal/Criminal.pdf (last visited January 10, 2025), which provides: ‘‘The state has alleged that the defendant has committed the offense
of <insert name of offense> in two different ways, <identify the two way[s]
of committing the offense>. You may find the defendant guilty of the offense
only if you all unanimously agree on which of the two ways the defendant
committed the offense. This means you may not find the defendant guilty
unless you all agree that the state has proved beyond a reasonable doubt
that the defendant <insert first theory of culpability> or you all agree that
the state has proved beyond a reasonable doubt that the defendant <insert
second theory of culpability>. Thus, in order for you to find the defendant
guilty of <insert name of offense>, you must be unanimous as to which of
the alternative ways the defendant is alleged to have committed it.’’
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constituted child pornography and which definition of
sexually explicit conduct, set forth in § 53a-193 (14), each
image fell within. Otherwise, the defendant argued, a
jury could find him guilty under several alternative theories of liability. The court denied his motion for a
new trial.
It is beyond dispute that the jury verdict in a criminal
trial must be unanimous. See, e.g., Ramos v. Louisiana,
590 U.S. 83, 92,
140 S. Ct. 1390,
206 L. Ed. 2d 583 (2020);
see also id., 93 (jury unanimity applies to states via
fourteenth amendment). The constitution ensures that
a jury ‘‘cannot convict unless it unanimously finds that
the [g]overnment has proved each element’’ of the charged
crime. (Emphasis added.) Richardson v. United States,
526 U.S. 813, 817,
119 S. Ct. 1707,
143 L. Ed. 2d 985
(1999). Although a general instruction that the verdict
must be unanimous will often suffice, a specific unanimity instruction can be required when, for example, an
information is duplicitous. We recently explained that
an information is duplicitous when it combines two or
more offenses in one count and may raise unanimity
concerns that generally fall into two categories: unanimity as to elements and unanimity as to instances of
conduct. State v. Douglas C., supra, 345 Conn. 425 n.1,
432–33; State v. Joseph V., 345 Conn. 516, 530–31,
285
A.3d 1018 (2022).
The defendant contends that the charge of possessing
fifty or more visual depictions of child pornography
requires the jury to be unanimous on precisely which
category of ‘‘sexually explicit conduct’’—sexual intercourse, bestiality, masturbation, sadistic or masochistic
abuse, or lascivious exhibition of the genitals or pubic
area of any person—that each one of the fifty images
fell within for purposes of determining whether they
constituted child pornography. He essentially argues
that the charge was duplicitous because these categories constitute elements of the offense, which require
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jury unanimity. See State v. Douglas C., supra, 345 Conn.
433, 432–33; State v. Joseph V., supra,
345 Conn. 531.
We therefore must determine whether each image and
category of sexually explicit conduct are facts that are
elements of the crime or, instead, constitute the means
to the commission of an element. See State v. Joseph
V., supra, 563.
We have recognized that ‘‘ ‘different jurors may be
persuaded by different pieces of evidence, even when
they agree [on] the bottom line,’ ’’ and ‘‘ ‘there is no
general requirement that the jury reach agreement on
the preliminary factual issues [that] underlie the verdict.’ ’’ Id., 530, quoting Schad v. Arizona, 501 U.S. 624,
631–32, 111 S. Ct. 2491,
115 L. Ed. 2d 555 (1991) (opinion
announcing judgment). In other words, ‘‘a . . . jury
need not always decide unanimously which of several
possible sets of underlying brute facts make up a particular element, say, which of several possible means the
defendant used to commit an element of the crime.’’
Richardson v. United States, supra, 526 U.S. 817. To
determine whether multiple statutes, statutory provisions, or statutory clauses constitute separate elements
or alternative means of committing a single element,
we adopted the Schad approach, pursuant to which we
consider the statutory language, its legislative history,
the overall structure of the statute at issue, relevant
legal traditions and practices, moral and practical equivalence between the alternative actus rei or mentes reae,
and any other implications for unfairness associated
with the absence of a specific unanimity instruction.
State v. Joseph V., supra, 345 Conn. 567–68; see also
Schad v. Arizona, supra, 637.
Section 53a-196d (a) provides in relevant part that
‘‘[a] person is guilty of possessing child pornography
in the first degree when such person knowingly possesses (1) fifty or more visual depictions of child pornography . . . .’’ As previously explained, ‘‘child
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pornography’’ is defined in relevant part in § 53a-193
(13) as ‘‘any visual depiction . . . of sexually explicit
conduct, where the production of such visual depiction
involves the use of a person under sixteen years of age
engaging in sexually explicit conduct . . . .’’ ‘‘Sexually
explicit conduct’’ is further defined as ‘‘actual or simulated (A) sexual intercourse, including genital-genital,
oral-genital, anal-genital or oral-anal physical contact,
whether between persons of the same or opposite sex,
or with an artificial genital, (B) bestiality, (C) masturbation, (D) sadistic or masochistic abuse, or (E) lascivious
exhibition of the genitals or pubic area of any person.’’
General Statutes (Rev. to 2019) § 53a-193 (14).
The plain language of § 53a-196d reveals that the provision under which the defendant was charged has three
elements—possession of child pornography (actus
reus), knowledge (mens rea), and quantity (fifty or
more). It is clear that the five categories of ‘‘sexually
explicit conduct’’ go directly to the element of whether
the defendant possessed child pornography. The language and structure of the statute, which separately
lists the different sexual conduct that must be depicted
in order for an image to constitute child pornography,
strongly suggest that the enumerated list simply spells
out the factual means of committing that element of
the offense.
An example in Mathis v. United States, 579 U.S. 500,
506, 136 S. Ct. 2243,
195 L. Ed. 2d 604 (2016), helps
illustrate the point. ‘‘[S]uppose a statute requires use
of a ‘deadly weapon’ as an element of a crime and
further provides that the use of a ‘knife, gun, bat, or
similar weapon’ would all qualify. . . . Because that
kind of list merely specifies diverse means of satisfying
a single element of a single crime—or otherwise said,
spells out various factual ways of committing some
component of the offense—a jury need not find (or a
defendant admit) any particular item: A jury could con-
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State v. Inzitari
vict even if some jurors ‘conclude[d] that the defendant
used a knife’ while others ‘conclude[d] he used a gun,’
so long as all agreed that the defendant used a ‘deadly
weapon.’ ’’ (Citation omitted.) Id.
The same is true with whether a particular image
constitutes child pornography. The listed definitions of
‘‘sexually explicit conduct’’ are merely diverse means of
satisfying an element of the offense, in this case, whether
the defendant possessed child pornography. It does
not matter whether one juror concluded that a particular visual depiction constituted child pornography
because it depicted a lascivious exhibition and another
concluded it depicted masturbation, so long as all jurors
agreed that each visual depiction that the defendant
possessed was child pornography. Further, the jury was
not required to be unanimous as to which fifty images
were relied on to satisfy the quantity element of the
offense because, like the categories of sexually explicit
conduct, different images are merely the means of proving the elements of the offense. See United States v.
Kearn, 863 F.3d 1299, 1303 (10th Cir. 2017) (‘‘[d]ifferent
images satisfying the statutory criteria are merely different means’’). Although the jury was required to be unanimous on the bottom line—that the defendant possessed
a minimum of fifty visual depictions of child pornography—it need not have been unanimous as to the exact
fifty images or category of sexually explicit conduct
depicted in those images. See, e.g., State v. Joseph V.,
supra, 345 Conn. 530 (‘‘[A] jury must come to agreement
on the principal facts underlying its verdict—what courts
have tended to call the elements of the offense. But
that requirement does not extend to subsidiary facts—
what the [United States Supreme] Court has called brute
facts.’’ (Internal quotation marks omitted.)).
In the present case, the trial court made clear to the
jury multiple times during its charge that its decision
must be unanimous. The court explained that, ‘‘[w]hen
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you reach a verdict, it must be unanimous; that is, one
with which all of you agree.’’ (Emphasis added.) At a
different time, it explained, ‘‘[i]f you unanimously find
that the state has proved all the elements of possession
of child pornography in the first degree as I’ve instructed
you beyond a reasonable doubt, your verdict would be
guilty to count one, possession of child pornography
in the first degree.’’ This was sufficient for present purposes. Although the defendant further argues that fundamental fairness warrants treating each image and
the definitions of sexually explicit conduct as separate
elements, none of the Schad considerations weighs in
favor of treating them in that manner. We therefore
conclude that the sole count against him provided alternative ways to violate the statute and was not duplicitous. A specific unanimity instruction was not required.13
B
Relying on Stromberg v. California, supra, 283 U.S.
359, the defendant next claims that, in failing to give
the requested unanimity instruction as to the fifty
images and accepting a general verdict, the trial court
committed reversible constitutional error. The defendant argues that, if this court concludes that any of the
fifty-seven images do not meet the definition of child
pornography, ‘‘there [would be] no way of knowing if
13
The defendant appears to argue that his claim is also one of unanimity
as to instances of conduct. Unanimity as to instances of conduct occurs
when a defendant is charged in a single count with having violated a single
statutory provision, subsection, or clause on multiple, separate occasions.
State v. Joseph V., supra, 345 Conn. 531. The charge against the defendant,
however, was not premised on multiple, separate instances of conduct.
Rather, the state charged and adduced evidence that the defendant possessed
fifty or more images of child pornography on one single date. The state’s
substitute information provided that, ‘‘on or about July 29, 2020, in the city
of New Britain, [the defendant] did knowingly possess fifty . . . or more
visual depictions of child pornography, in violation of . . . § 53a-196d (a)
(1).’’ Therefore, the defendant’s purported unanimity as to instances of
conduct claim lacks merit.
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State v. Inzitari
all or some of the six jurors counted those images to
be included in the [fifty] or more images their verdict
was based on’’ and that Stromberg would mandate that
his conviction be set aside. We disagree.
In Stromberg, the United States Supreme Court
addressed the validity of a general verdict that rested
on an instruction that the defendant could be found
guilty of displaying a red flag as ‘‘a sign, symbol, or
emblem of opposition to organized government, or [as]
an invitation or stimulus to anarchistic action, or as an
aid to propaganda that is of a seditious character . . . .’’
(Internal quotation marks omitted.) Stromberg v. California, supra, 283 U.S. 363. After concluding that the
first clause of the instruction proscribed constitutionally protected conduct, the court concluded that the
defendant’s conviction must be reversed because ‘‘it
[was] impossible to say under which clause of the
[instruction] the conviction was obtained.’’ Id., 368–70.
In Yates v. United States, 354 U.S. 298, 312,
77 S. Ct.
1064,
1 L. Ed. 2d 1356 (1957), overruled on other grounds
by Burks v. United States, 437 U.S. 1,
98 S. Ct. 2141,
57 L. Ed. 2d 1 (1978), the court extended this reasoning
to a conviction resting on multiple theories of guilt
when one of those theories is not unconstitutional but
is otherwise legally flawed. See, e.g., State v. Carter,
350 Conn. 43, 54–55,
323 A.3d 297 (2024) (court’s legal
error in instructing jury on definition of deadly weapon
precluded application of general verdict rule).14
Following Stromberg and Yates, however, the United
States Supreme Court has explained that, ‘‘[w]hen . . .
jurors have been left the option of relying [on] a legally
inadequate theory, there is no reason to think that their
own intelligence and expertise will save them from that
14
Notably, Stromberg and Yates were decided before the United States
Supreme Court concluded, in Chapman v. California, 386 U.S. 18, 21–22,
87
S. Ct. 824,
17 L. Ed. 2d 705 (1967), that constitutional errors can be harmless.
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error. Quite the opposite is true, however, when they
have been left the option of relying [on] a factually
inadequate theory, since jurors are well equipped to
analyze the evidence . . . .’’ (Citation omitted; emphasis in original.) Griffin v. United States, 502 U.S. 46,
59,
112 S. Ct. 466,
116 L. Ed. 2d 371 (1991). The court
added, ‘‘[i]t is one thing to negate a verdict that, while
supported by evidence, may have been based on an
erroneous view of the law; it is another to do so merely
on the chance—remote, it seems to us—that the jury
convicted on a ground that was not supported by adequate evidence when there existed alternative grounds
for which the evidence was sufficient.’’ (Internal quotation marks omitted.) Id. 59–60; see also, e.g., State v.
Turner, 340 Conn. 447, 457,
264 A.3d 551 (2021) (‘‘[t]he
inclusion of a legally valid but factually unsupported
theory of liability in the instructions does not implicate
the due process rights of the defendant because a jury
is well equipped to differentiate between factually supported and factually unsupported theories of guilt’’);
State v. Chapman, 229 Conn. 529, 540,
643 A.2d 1213
(1994) (‘‘[t]he jurors . . . were in a position to be able
to evaluate the testimony presented and to assess
whether the charged theory was supported by the
evidence’’).
In the present case, neither the statute nor the legal
theory presented to the jury was unconstitutional or
otherwise legally infirm. The trial court’s instruction
on the definition of child pornography, including its
definition of sexually explicit conduct, was correct under
Connecticut law. And the state’s theory was simply that
the defendant possessed fifty or more still images of
child pornography. We concluded in part I A of this
opinion that two images likely did not depict a lascivious exhibition and, therefore, could not be used to
support the defendant’s conviction, not that the statute
or legal theory was constitutionally or legally flawed.
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In light of Griffin, we conclude that a conviction by
general verdict for the possession of fifty or more visual
depictions of child pornography need not be set aside
if a court determines that some images considered by
the jury do not depict sexually explicit conduct (in this
case, a lascivious exhibition of the genitals or pubic
area), so long as the evidence is ultimately sufficient
to support the conviction. The jury in this case was
required to determine whether fifty or more of the
fifty-seven images introduced by the state constituted
sexually explicit conduct on the basis of the definitions
and explanation given by the trial court. The evidence
was legally and factually sufficient with respect to at
least fifty-five of the fifty-seven images, bringing the
number of visual depictions of child pornography over
the threshold of fifty or more. The fact that two of the
images did not sufficiently depict a lascivious exhibition
does not provide a proper basis for setting aside the
defendant’s conviction.
III
The defendant’s final claim is that the trial court
abused its discretion in admitting two of the state’s
exhibits that showed the file names of two images that
had been deleted from the defendant’s cell phone. He
argues that any probative value of those exhibits was
outweighed by their prejudicial effect. We are not persuaded.
The following additional procedural history is relevant to the defendant’s claim. During the state’s casein-chief, the prosecutor introduced testimony from Elizabeth Arpin, a forensic science examiner in the state’s
computer crimes unit. She testified that she used Cellebrite software to extract data files, including deleted
data, from the defendant’s cell phone.15 The fifty-seven
‘‘[A] Cellebrite [e]xtraction [r]eport lists all call logs, contacts, text
15
messages, and data files on a [cell] phone at the time of the extraction,
which is conducted using Cellebrite technology.’’ (Internal quotation marks
omitted.) State v. Michael R., supra, 346 Conn. 441 n.9.
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State v. Inzitari
images of alleged child pornography were admitted
through Arpin, who testified that the images were found
in a ‘‘download’’ folder in the internal memory of the
phone.
After defense counsel’s cross-examination of Arpin,
the prosecutor sought to offer, on redirect examination,
exhibits 107 through 111 as other acts of the defendant
to prove knowledge, possession, and identity. Outside
the presence of the jury, the prosecutor explained that
the proffered exhibits were not images, as those had
been deleted but, rather, were file names of deleted
images that had been on the phone associated with the
defendant’s email address. Defense counsel objected
to their admission on the grounds that they were highly
prejudicial to the defendant and offered no probative
value. He further argued that the exhibits were cumulative of other evidence already introduced by the state.
The trial court ruled that the proffered exhibits were
relevant and material to proving identity, knowledge,
and possession. The court further acknowledged that
the exhibits were relevant to rebutting a claim of mistake, or lack of knowledge, that defense counsel raised
during cross-examination by asking questions regarding
the chain of custody and the ability of third parties to
alter data on the phone. Nevertheless, the court only
permitted the state to introduce exhibits 108 and 109
into evidence. The court determined that those two
images were sufficient to enable the state to present
its case, while reducing any chance that the exhibits
would unduly arouse the emotions of the jurors.
The prosecutor proceeded to introduce exhibits 108
and 109 through Arpin. She testified that exhibits 108
and 109 were printouts of a portion of the Cellebrite
report that showed information about two images that
were deleted from the defendant’s phone. The information contained in exhibit 108 shows that the deleted
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State v. Inzitari
image was named ‘‘(Toddlerboy) Raamat 2Yo Boy Toddler Pedo 1 With Sound’’ and located in the ‘‘Google
Photos’’ application on the phone associated with the
defendant’s email address. As to exhibit 109, the deleted
image was named ‘‘(Toddlerboy) Raamat 2Yo Boy Toddler Pedo 2 With Sound’’ and again located in the Google
Photos application on the phone associated with the
defendant’s email address.
Turning to the relevant legal principles and our standard of review, we have explained that, in general, ‘‘evidence of prior misconduct is inadmissible to prove that
a criminal defendant is guilty of the crime of which
the defendant is accused.’’ (Internal quotation marks
omitted.) State v. Raynor, 337 Conn. 527, 561,
254 A.3d
874 (2020). ‘‘Such evidence cannot be used to suggest
that the defendant has a bad character or a propensity
for criminal behavior.’’ (Internal quotation marks omitted.) State v. Delacruz-Gomez, 350 Conn. 19, 27,
323
A.3d 308 (2024). ‘‘We have developed a two part test
to determine the admissibility of such evidence. First,
the evidence must be relevant and material to at least
one of the circumstances encompassed by the exceptions [set forth in § 4-5 (c) of the Connecticut Code
of Evidence].’’ (Internal quotation marks omitted.) Id.
Section 4-5 (c) provides that evidence of other crimes,
wrongs or acts is admissible ‘‘to prove intent, identity,
malice, motive, common plan or scheme, absence of
mistake or accident, knowledge, a system of criminal
activity, or an element of the crime, or to corroborate
crucial prosecution testimony.’’ ‘‘Second, the probative
value of the evidence must outweigh its prejudicial
effect.’’ (Internal quotation marks omitted.) State v.
Delacruz-Gomez, supra, 27. ‘‘Because of the difficulties
inherent in this balancing process, the trial court’s decision will be reversed only whe[n] abuse of discretion
is manifest or whe[n] an injustice appears to have been
done. . . . On review by this court, therefore, every
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State v. Inzitari
reasonable presumption should be given in favor of the
trial court’s ruling.’’ (Internal quotation marks omitted.)
State v. Patterson, 344 Conn. 281, 291,
278 A.3d 1044
(2022).
The evidence of the names of the deleted images and
the evidence that the images were associated with the
defendant’s personal email address were clearly relevant to and probative of the issue of whether the defendant knew that he possessed child pornography on his
phone. Defense counsel repeatedly questioned the
defendant’s knowledge by suggesting that the defendant’s phone had been tampered with and that someone
else had put the images on the phone. Specifically,
defense counsel elicited testimony from Edward G.
Wolcott, the defendant’s friend, with whom the defendant had left his phone just before his arrest, about
Wolcott’s accessing the defendant’s cell phone and downloading a special utility program to view images on the
phone.16 Defense counsel also elicited testimony from
Wolcott about others in Wolcott’s household having
access to the phone at certain times until he turned
the phone over to the police. This questioning was in
addition to the questioning of Arpin, who testified that
third parties could potentially add, alter, or delete files
from the phone.17
16
The evidence adduced at trial reveals that the defendant and Wolcott
were running errands on July 29, 2020. Wolcott dropped the defendant off
at a meeting and waited for him in the car. Wolcott testified that the defendant
had left his cell phone on the center console of Wolcott’s car when the
defendant went into the meeting. Shortly thereafter, the defendant called
Wolcott and informed him that he had been arrested, that the police had
searched his house with a warrant, and that the police wanted to search
the center console of Wolcott’s car. The defendant asked Wolcott to hold
onto his cell phone, which Wolcott did, until the police contacted him and
asked him to turn over the phone.
17
During closing arguments, defense counsel argued that Wolcott possessed the phone for approximately ten days before the police obtained the
phone from him and, during that time, removed the SD card from the phone
and used a special utility program to open files on it. He argued that there
was no evidence of how the images got on the phone and that anyone could
have put them there.
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Although the defendant maintains that the admission
of the two deleted file names was prejudicial, he has
not demonstrated unfair prejudicial impact to counter
the substantial probative value of the exhibits. The
deleted files associated with the defendant’s personal
email address, which are indicative that the defendant
had knowingly possessed child pornography, cannot be
said to be unduly prejudicial in the context of this case,
in which the jury had to view actual images of child
pornography. See, e.g., State v. Campbell, 328 Conn.
444, 522–23,
180 A.3d 882 (2018) (‘‘prejudicial impact
of uncharged misconduct evidence is assessed in light
of its relative ‘viciousness’ in comparison with the charged
conduct’’).
Furthermore, the trial court exhibited appropriate
sensitivity to the potential for unfair prejudice when it
allowed the state to introduce only two of its five proposed exhibits. The court endeavored to balance the
interests by excluding the state’s exhibits that contained
arguably more provocative file names than the ones
admitted into evidence.18 The court’s limiting instruction also mitigated any potential for undue prejudice
from the admission of the two exhibits. It made clear
that the jury could not consider the two exhibits as
establishing a predisposition on the part of the defendant to commit the crime charged or to demonstrate a
criminal propensity. The exhibits could be considered,
the court instructed, only for the purposes for which
they were admitted, ‘‘knowledge, possession and identity.’’
In sum, because the probative value of the evidence
was strong and the trial court took considerable measures to mitigate any potential undue prejudice, we
18
Two of the excluded exhibits, for instance, bore the file names ‘‘(Toddlerboy) Raamat 2Yo Boy Toddler urinates in a mouth,’’ and ‘‘4yo cute brown
hair boy playes with mns cock in the bath awesome home video.’’
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conclude that the trial court did not abuse its discretion
in admitting the two exhibits.
The judgment is affirmed.
In this opinion the other justices concurred.
