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       STATE OF CONNECTICUT v. JUAN C.*
                  (AC 37552)
                   Keller, Prescott and West, Js.
   Argued September 21, 2016—officially released January 10, 2017

   (Appeal from Superior Court, judicial district of
              Hartford, Bentivegna, J.)
  Heather N. Wong, certified legal intern, with whom
was Glenn W. Falk, assigned counsel, for the appel-
lant (defendant).
   Matthew A. Weiner, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and Richard J. Rubino, senior assistant state’s
attorney, for the appellee (state).
                         Opinion

   WEST, J. The defendant, Juan C., appeals from the
judgment of conviction, rendered after a jury trial, of
one count of sexual assault in the first degree in viola-
tion of General Statutes § 53a-70 (a) (1), one count of
risk of injury to a child in violation of General Statutes
§ 53-21 (a) (2),1 and one count of risk of injury to a
child in violation of General Statutes § 53-21 (a) (1).2
On appeal, the defendant claims that the trial court,
Bentivegna, J., improperly (1) refused to grant his
request for a continuance of his trial, and (2) denied
his motion for a judgment of acquittal as to the first
count, sexual assault in the first degree. We affirm the
trial court’s judgment in part and reverse the judgment
in part.
   The jury reasonably could have found the following
facts. The defendant is N’s3 biological father and,
although N has always lived with her mother, she visited
the defendant frequently between her birth in October,
1997, and 2005. During that time, both N and the defen-
dant lived in New York. The defendant later moved to
Hartford, and N did not see the defendant from 2005
until the summer of 2008, when he ‘‘popped back up’’
at the house of N’s mother and asked to spend more
time with N. N’s mother agreed, and a few weeks later,
in July, 2008, the defendant drove to New York to pick
up N and brought her to his apartment in Hartford. N
was ten years old at the time.4
  At some point during the visit, while they were home
alone, the defendant called N into his room to watch
cartoons on television. The defendant was lying in his
bed with only his boxer shorts on, and N was wearing
a T-shirt, pajama pants, and underwear. N entered the
bedroom, and the defendant asked her to lie on the bed
with him, which she did. The defendant then asked N
to move closer to him and lie on his chest, which she
did. The defendant began rubbing N’s back and buttocks
over her clothing. He then put his hands under N’s
pajama pants and underwear and penetrated her vagina
with his finger. While doing so, the defendant mastur-
bated with his other hand. N then got off the bed and
went back to her own room, sat on her bed, and
watched television.
  N called her mother at some point after the incident
to tell her that she wanted to go home to New York,
but did not disclose what had happened. The defendant
claimed that he did not have enough money for gas to
drive her home, so N stayed in Hartford for a few more
days. After he brought her home, the defendant ‘‘disap-
peared’’ again, and N did not see him for another two
years. N did not disclose to anyone that the July, 2008
incident had occurred until October, 2010, when she
told her teacher and her mother. Subsequently, New
York Child Protective Services (child protective ser-
vices), the Connecticut Department of Children and
Families (department), and the Hartford Police Depart-
ment became involved, and the defendant was arrested.
   Before the start of the evidentiary portion of the trial,
the defendant requested a continuance due to the fact
that he had received a department report that morning
that mentioned the child protective services investiga-
tion, and he wanted time to obtain more information
about the New York investigation. The court denied his
request and proceeded to trial. At trial, N, her mother,
a Hartford police officer, and a licensed clinical social
worker testified for the state. At the close of the state’s
evidence and again at the close of his own evidence,
the defendant moved for a judgment of acquittal as to
count one, charging sexual assault in the first degree.
The court denied the defendant’s motion.
   On July 17, 2014, the jury found the defendant guilty
on all three counts. The court sentenced the defendant
on October 27, 2014, to the following: twenty-five years
incarceration with a mandatory minimum of five years
incarceration, execution suspended after twelve years,
and fifteen years of probation for the first degree sexual
assault conviction; twenty years incarceration with a
mandatory minimum of five years incarceration, execu-
tion suspended after twelve years, and fifteen years of
probation for the risk of injury to a child conviction
under § 53-21 (a) (2);5 and ten years incarceration, exe-
cution suspended after five years, and fifteen years of
probation for the risk of injury to a child conviction
under § 53-21 (a) (1). The court ordered all three senten-
ces to run concurrently for a total effective sentence of
twenty-five years incarceration, suspended after twelve
years, and fifteen years of probation. This appeal fol-
lowed. Additional facts and procedural history will be
set forth as necessary.
                             I
   The defendant’s first claim on appeal is that the court
erred in refusing to grant a continuance, which the
defendant requested on the morning of trial to allow
him to obtain newly discovered information about the
child protective services investigation contained in the
department protocol. Specifically, the defendant argues
that the child protective services investigation records
would likely contain material essential to his defense,
which would cast doubt on the veracity of N’s state-
ments regarding the defendant’s prior uncharged mis-
conduct. The state argues that the court did not abuse
its discretion in denying the defendant’s request. We
agree with the state.
  The record reveals the following additional facts and
procedural history relevant to this claim. In addition to
the allegations that the defendant sexually assaulted
N in Hartford in July, 2008, there are also uncharged
misconduct allegations that the defendant sexually
assaulted N in New York in 2005. The court allowed
the state to question N at trial about this uncharged
conduct, and she testified that during a visit in New
York with the defendant in 2005, while N was seven
years old, the defendant sexually assaulted her by fond-
ling her vagina to see if she had ‘‘wet [her]self.’’ N did
not disclose this incident until October, 2010, when she
also told her mother about the July, 2008 Hartford
incident.
   There was evidence presented at trial that, shortly
after N’s disclosure, her mother contacted child protec-
tive services in New York, which then opened an investi-
gation into the matter. In an interview with child
protective services social worker Kelly Dickinson, N
disclosed information about the 2008 Hartford incident
only, and nothing about the 2005 New York incident.6
Child protective services subsequently referred the case
to the department because the only allegations were
those arising from the Hartford incident.
   Months before the beginning of trial, the defendant
received from the state a department form, called Form
737 (form), which the department had sent to the Hart-
ford Police Department to inform the police that the
department was conducting an investigation into the
July, 2008 Hartford incident.7 The form states, inter alia,
that ‘‘there is a companion investigation in the [s]tate
of New York as a result of current allegations,’’ and
also that N’s mother ‘‘reported [to the department] that
[N] also reported that when [the defendant] was resid-
ing in New York he used to touch her as well.’’ The
form also included the name and telephone number of
the child protective services social worker assigned
to investigate the allegations. The defendant’s counsel
stated that the form was ‘‘original discovery [material]
going back to pretrial’’ and that he had possessed this
prior to the date of trial. There is no evidence that the
defendant tried to contact the child protective services
social worker or requested any records regarding
that investigation.8
   On the morning of the start of trial, the defendant
received a copy of a the department’s investigation pro-
tocol (protocol). The protocol contained case notes
from a department social worker and included com-
ments made by Dickinson, who had referred the case to
the department. According to the case notes, Dickinson
reported to the department that N ‘‘did not make any
disclosures of any incidents taking place in the Orange
County [New York] jurisdiction. [N] did not make any
disclosures about anything happening in the Bronx area
either; she did not want to talk about it. [Dickinson]
reported that [N stated that] nothing happened in
Orange [County], and that it happened in Connecticut,
however, she was not clear. [Dickinson] reported that
[N] stated that she was too young when she visited
in the Bronx and she did not want to talk about it.
[Dickinson] reported that ‘they,’ meaning her and the
police in New York, did not want to press her for [an]
interview due to the fact that they did not know [how]
many more people she would have to talk to.’’
   Upon receiving the protocol, the defendant objected
to proceeding with trial and requested a continuance
in order to procure additional investigation materials
from New York. The defendant’s counsel stated: ‘‘There
is an indication—it’s a hearsay indication because it’s
the author’s report about what he or she was told by
what appeared to be state of New York authorities with
[child protective services] who are investigating this
claim because of [N] and her mother living in New York
and that’s where the disclosure was made. And that
indicates that [N] did make some disclosure to the New
York authorities about the incident that we’re presently
on trial for. . . . [I]n terms of the uncharged miscon-
duct, [N] specifically declined to discuss that issue with
the New York authorities. I do not know the reason for
that. There’s some suggestion by the [department social
worker] being told that—something about [N] thought
she was too young or didn’t remember.’’9
   Additionally, the defendant’s counsel argued:
‘‘[M]aybe a more practical nuts and bolts view of this.
[N] testifies. On cross, I ask her: Is it true that you went
in and talked to child protective services on the date
certain? And she says no or she says, I don’t remember,
I’m not in a position at the present time to follow that
up. I know it seems to have happened, but I know
essentially by hearsay. Any of the myriad of things that
we have discussed that could be described as exculpa-
tory, I’m in the same position. I’m not properly prepared
at this time, having only received the report today, to
properly represent [the defendant].’’ The state asked
the court to proceed with trial.
   In denying the defendant’s requested continuance,
the court noted, inter alia, that the case had been pend-
ing since June, 2011, and, in terms of the defendant’s
access to child protective services and department
reports, that the state’s attorney’s office had an open file
policy, and that the defendant did not file any discovery
motions. The court also noted that, although there had
been some difficulty communicating with child protec-
tive services, the department records, which were avail-
able to the defendant at least months before the start
of trial, mentioned the investigation done by child pro-
tective services in New York.10 Furthermore, the court
noted that N was subject to cross-examination.
   On appeal, the defendant argues that the court abused
its discretion in denying his continuance request
because the investigation records from child protective
services likely contained material essential to his
defense. The state argues that the court’s denial of the
defendant’s continuance request was not an abuse of
discretion. We agree with the state.
   The standard of review and applicable law relevant
to this claim are well settled. ‘‘The determination of
whether to grant a request for a continuance is within
the discretion of the trial court, and will not be disturbed
on appeal absent an abuse of discretion. . . . Every
reasonable presumption will be made in favor of the
trial court’s proper exercise of discretion. . . . There
is no mechanical test for determining whether the denial
of a continuance constitutes an abuse of discretion. A
reviewing court must consider the particular circum-
stances of each case, paying special attention to the
reasons presented to the trial court at the time the
request was denied.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Hamilton, 30 Conn. App.
68, 82–83, 618 A.2d 1372 (1993), aff’d, 228 Conn. 234,
636 A.2d 760 (1994).
   A court has the discretion to consider many factors
when considering a request for a continuance, including
‘‘the timeliness of the request for continuance; the likely
length of the delay . . . the impact of delay on the
litigants, witnesses, opposing counsel and the court;
the perceived legitimacy of the reasons proffered in
support of the request; [and] the defendant’s personal
responsibility for the timing of the request . . . . [A]n
appellate court should limit its assessment of the rea-
sonableness of the trial court’s exercise of its discretion
to a consideration of those factors, on the record, that
were presented to the trial court, or of which that court
was aware, at the time of its ruling on the motion for
a continuance.’’ (Citations omitted; internal quotation
marks omitted.) State v. Davis, 135 Conn. App. 385,
393–94, 42 A.3d 446, cert. denied, 305 Conn. 916, 46
A.3d 171 (2012).
   After considering the relevant information before the
trial court, we conclude that the court did not abuse
its discretion when it denied the defendant’s motion
for a continuance.
   First, the court properly considered the timeliness of
the defendant’s continuance request. This case had
been pending for more than three years, and the defen-
dant requested the continuance on the morning of trial,
right before the court began hearing evidence. In con-
sidering the timeliness of the request, it is important
to note that ‘‘[w]e are especially hesitant to find an
abuse of discretion where the court has denied a motion
for continuance made on the day of the trial.’’ (Internal
quotation marks omitted.) Id., 394.
   Second, the court properly considered whether a con-
tinuance would have negatively impacted opposing
counsel, the witnesses, and the court. The request was
made just before N, who lived out of state, took the
stand to testify. In addition to N, there were three other
witnesses prepared to testify that day, including N’s
mother, who also lived out of state. Additionally, the
parties and the court had invested significant time in
this three year old case, and the state’s attorney, defen-
dant’s counsel, and the court had already spent three
days prior to trial selecting the jury, who was prepared
to begin hearing evidence that day.
   Third, as to the legitimacy of the reasons proffered
in support of the defendant’s request, the defendant
argued that the continuance was necessary in order
to obtain additional information about the New York
investigation that could be exculpatory, and that may
cast doubt on the veracity of N’s testimony at trial. The
defendant was merely speculating that any additional
information from this investigation would benefit his
defense. We have held that it is proper for a court to
deny a continuance request, sought in order to obtain
discovery evidence, where the benefit of such evidence
is speculative. See id., 395.
  In addition, the court properly considered the defen-
dant’s personal responsibility for the timing of the
request. The defendant’s counsel argued that, without
more time to obtain further information about the New
York investigation, he would not be able to properly
represent the defendant. The defendant, however, could
have obtained further information well before the start
of trial, eliminating any need for the requested continu-
ance. The court noted that the defendant had access
to the state’s file through the open file policy of the
state’s attorney’s office, and that the defendant could
have filed discovery motions to obtain this information
well before trial. Additionally, the defendant had in his
possession months before trial the department form
that referenced the New York investigation and that
provided the name of and contact information for the
child protective services social worker assigned to the
investigation. Therefore, the defendant was on notice
well in advance of trial that there had been a New York
investigation, and he could have investigated further to
procure any other information or documents to assist
him in his defense.
    Lastly, the defendant did not specify in his request
how long of a continuance he was seeking. Therefore,
the court had no indication as to the likely length of
delay a continuance would cause. We have held that
‘‘[i]t is . . . within the trial court’s discretion to deny
a continuance when the length of the delay sought is
unspecified.’’ State v. Godbolt, 161 Conn. App. 367, 377,
127 A.3d 1139 (2015), cert. denied, 320 Conn. 931, 134
A.3d 621 (2016).
  Accordingly, we conclude that the trial court did not
abuse its discretion in refusing to grant the defendant’s
continuance request.
                            II
  The defendant’s second claim is that the trial court
improperly denied his motion for a judgment of acquit-
tal because the evidence was insufficient to support
his conviction of sexual assault in the first degree as
charged in the amended information.11 Specifically, the
defendant contends that the state presented no evi-
dence that he used force to compel N to engage in
sexual intercourse, and, therefore, the trial court erred
in denying his motion for a judgment of acquittal. The
state argues that the court properly denied the defen-
dant’s motion because the jury reasonably could have
concluded that the defendant had used force to compel
the sexual intercourse. We agree with the defendant,
and, accordingly, reverse the defendant’s conviction of
sexual assault in the first degree.
   We first set forth our standard of review and the
applicable statutes relevant to this claim. ‘‘The due pro-
cess clause of the fourteenth amendment protects the
accused against conviction except upon proof beyond
a reasonable doubt of every fact necessary to constitute
the crime with which he is charged.’’ (Internal quotation
marks omitted.) State v. Johnson, 165 Conn. App. 255,
288, 138 A.3d 1108, cert. denied, 322 Conn. 904, 138 A.3d
933 (2016). ‘‘A defendant who asserts an insufficiency of
the evidence claim bears an arduous burden. . . . In
reviewing a sufficiency of the evidence claim, we apply
a two part test. First, we construe the evidence in the
light most favorable to sustaining the verdict. Second,
we determine whether upon 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 reason-
able doubt . . . . This court cannot substitute its own
judgment for that of the jury if there is sufficient evi-
dence to support the jury’s verdict. . . . On appeal, we
do not ask whether there is a reasonable view of the
evidence that would support a reasonable hypothesis
of innocence. We ask, instead, whether there is a rea-
sonable view of the evidence that support’s the jury’s
verdict of guilty. . . . If, however, the evidence is insuf-
ficient to meet the burden of proof of guilt beyond a
reasonable doubt, bearing in mind that the state has
the burden of establishing by such proof every essential
element of the crime charged, the verdict must be set
aside.’’ (Citations omitted; internal quotation marks
omitted.) State v. Smith, 148 Conn. App. 684, 695, 86
A.3d 498 (2014), aff’d, 317 Conn. 338, 118 A.3d 49 (2015).
   Section 53a-70 (a) (1) provides in relevant part: ‘‘A
person is guilty of sexual assault in the first degree when
such person . . . compels another person to engage in
sexual intercourse by the use of force against such
other person or a third person, or by the threat of use
of force against such other person or against a third
person which reasonably causes such person to fear
physical injury to such person or a third person . . . .’’
General Statutes § 53a-65 (7) provides in relevant part:
‘‘Use of force means . . . (B) use of actual physical
force or violence or superior physical strength against
the victim.’’ (Internal quotation marks omitted.) We also
note that ‘‘[p]enal statutes are to be construed strictly
. . . and not extended by implication to create liability
that the legislature did not purport to create. . . .
Words and phrases, however, are to be understood
according to the commonly approved usage of the lan-
guage; General Statutes § 1-1 (a); and words used in a
criminal statute should not be accorded the narrowest
technical meaning in disregard of their context and in
frustration of the obvious legislative intent. . . . We
have previously acknowledged that the statutory defini-
tion of ‘use of force’ is clear and that ‘it contains no
words not commonly used which might not be under-
stood in their ordinary meaning.’ ’’ (Citations omitted.)
State v. Hufford, 205 Conn. 386, 392, 533 A.2d 866 (1987).
  The record reveals the following additional facts and
procedural history relevant to this claim. Count one of
the original information, dated July 2, 2014, charged
the defendant with sexual assault in the first degree
in violation of § 53a-70 (a) (1) and alleged that ‘‘the
defendant compelled another person to engage in sex-
ual intercourse by the use of force against such other
person or by the threat of use of force against said
person which reasonably caused such person to fear
physical injury.’’ (Emphasis added.)
   After the close of the state’s case, the defendant
moved for a judgment of acquittal on all three counts.
Thereafter, the court asked the state if, in count one,
it was still alleging that the defendant compelled the
sexual intercourse by the use of force or by the threat
of use of force, to which the state replied that it was
pursuing only the use of force element.12 The court
denied the defendant’s motion for a judgment of acquit-
tal. Thereafter, on July 16, 2014, the state filed an
amended information to reflect the change in count
one,13 which still charged the defendant with sexual
assault in the first degree in violation of § 53a-70 (a)
(1), but alleged: ‘‘[T]he defendant compelled another
person to engage in sexual intercourse by the use of
force against such other person.’’ (Emphasis added.)
The defendant rested without putting on any evidence
and renewed his motion for judgment of acquittal as
to count one only, sexual assault in the first degree. The
court denied the defendant’s motion. The jury found the
defendant guilty on all three counts.
  At trial, N’s testimony was the only direct evidence
regarding the alleged events that occurred during the
Hartford incident in July, 2008. When questioned by the
prosecutor, N testified as follows:
   ‘‘Q. Now, in July of 2008, while you were visiting your
father, the defendant in this case, what happened?
  ‘‘A. One early morning, I woke up and the defendant
was in his room and I woke up to use the bathroom.
And he called me in his room to watch cartoons. . . .
  ‘‘Q. So you walk into his bedroom, and what hap-
pens next?
  ‘‘A. He asked to me to come lay down with him.
  ‘‘Q. What do you do when he says that?
  ‘‘A. I go and lay down with my father.
  ‘‘Q. And then what happens?
  ‘‘A. He attempts to turn on the TV. . . .
  ‘‘Q. Was he successful?
  ‘‘A. No. . . .
  ‘‘Q. Then what happens?
   ‘‘A. He asked me to move a little closer to him and
lie on his chest.
  ‘‘Q. What do you do?
  ‘‘A. I move closer and lie on his chest.
  ‘‘Q. Then what happens?
   ‘‘A. He began to rub my back and then eventually—
I’m sorry. And then eventually my butt, buttocks.
  ‘‘Q. Now you said he was rubbing your back.
  ‘‘A. Uh-huh.
  ‘‘Q. He was rubbing your buttocks. Over the clothes
or under the clothes?
  ‘‘A. Over.
  ‘‘Q. So over the clothes. Then what happens?
  ‘‘A. He put his hand inside my pants.
  ‘‘Q. Okay. Does he—so he puts your—his hands in
your pants?
  ‘‘A. Yes.
  ‘‘Q. Okay. Are you wearing underwear?
  ‘‘A. Yes.
  ‘‘Q. All right. Is he touching skin?
  ‘‘A. Yes.
  ‘‘Q. Then what occurs?
  ‘‘A. He used his finger to penetrate my vagina.
  ‘‘Q. Okay. He had tried to turn the TV on. Did [he]
put the remote control down at this point?
  ‘‘A. Yes.
  ‘‘Q. So he had both hands free?
  ‘‘A. Yes.
  ‘‘Q. Was he doing anything else at this time? . . .
  ‘‘A. He had his hand in his boxer shorts and he was
touching himself.
  ‘‘Q. What do you mean touching himself? Touching
himself where?
  ‘‘A. He was touching his penis. . . .
  ‘‘Q. Okay. What happens? You said he penetrated
your vagina with his finger?
  ‘‘A. Yes.
  ‘‘Q. What happens next?
  ‘‘A. I just—I moved away from him.
  ‘‘Q. And you moved away from him. Were you still
on the bed?
  ‘‘A. No. I got up and walked away. . . .
  ‘‘Q. . . . So you left the room?
  ‘‘A. Yes.
  ‘‘Q. And then where did you go?
  ‘‘A. I went back to the room—the bedroom I was
staying in down the hall.
  ‘‘Q. And then what did you do?
   ‘‘A. I just sat on my bed, well, the bed I was sleeping
in, and turned on the TV.’’
   On the basis of this testimony, the defendant appeals
from the denial of his motion for judgment of acquittal
as to count one, sexual assault in the first degree. The
state was required to prove beyond a reasonable doubt
that the defendant used force to compel N to engage
in the sexual intercourse. The defendant argues that
the state did not meet its burden. We agree.
  Our Supreme Court has held that ‘‘use of force,’’ as
defined by § 53a-65 (7), does not extend to ‘‘mere touch-
ing.’’ State v. Hufford, supra, 205 Conn. 393. In Hufford,
the defendant, a paramedic, was convicted of sexual
assault in the third degree in violation of General Stat-
utes § 53a-72a (a) (1) (A),14 on the basis of allegations
that he opened the victim’s blouse and unzipped her
pants to fondle her breasts and massage her vagina with
his fingers while she was legally rendered immobile and
being transported to the hospital. Id., 390. The defen-
dant challenged his conviction and argued that ‘‘the
state presented no evidence that [he] used force to
compel the alleged sexual contact.’’ Id., 391. In
determining that the defendant’s actions did not consti-
tute force, the court stated that there was only ‘‘mere
touching’’ and further stated that ‘‘[n]either violence,
nor physical coercion, nor use of superior strength was
necessary to assault this complainant sexually,’’ and
that ‘‘[t]he evidence adduced at the trial of this case
demonstrated that the defendant had no need to exert
force to effect the sexual contact.’’ Id., 393.
  The state argues that Hufford was limited to its
unique facts by State v. Mahon, 97 Conn. App. 503, 905
A.2d 678, cert. denied, 280 Conn. 930, 909 A.2d 958
(2006), and, therefore, is inapplicable to the present
case. This court, in Mahon, stated: ‘‘Hufford did not
create a per se rule that the act of removing a victim’s
clothing to engage in sexual intercourse always is insuf-
ficient evidence of force. Rather, Hufford simply stands
for the proposition that if a complainant is already under
medical restraint, the act of unzipping her pants and
opening her blouse requires no force.’’ Id., 511. Although
we agree with the state that the factual scenario in the
present case is distinguishable from that in Hufford,
the court’s holding in Hufford still controls: mere touch-
ing, in the absence of violence,15 physical coercion, or
use of superior physical strength, is insufficient to prove
that the defendant used force to compel the sexual inter-
course.
   In the present case, like in Hufford, the defendant
had no need to exert force to compel the sexual inter-
course. N testified that she complied with the defen-
dant’s requests that she come into his room, lie on the
bed, move closer to him, and lie on his chest. She testi-
fied further that she stopped the intercourse by moving
away from him, getting off the bed, and leaving the
room. There was no testimony that the defendant
exerted force to make her come into his room and lie
on the bed with him, or to try to keep her on the bed.
It was not necessary, therefore, that the defendant use
physical coercion or his superior physical strength in
order to sexually assault N. We do not highlight these
facts to focus on the adequacy of N’s resistance, as we
recognize that is not the focus in a sexual assault case.
See State v. Kulmac, 230 Conn. 43, 75, 644 A.2d 887
(1994). This evidence, however, illustrates the defen-
dant’s lack of need to exert force in order to compel
the sexual intercourse.
   The state further argues that our decision in State v.
Mahon, supra, 97 Conn. App. 503, controls the outcome
of the present case. We disagree. The defendant in
Mahon was convicted of sexual assault in the first
degree, sexual assault in the first degree as an acces-
sory, and conspiracy to commit sexual assault in the
first degree. Id., 508. In that case, the defendant and
another man, Oraine Duncan, drove the victim to a field
and sexually assaulted her while she was in the back
seat of a two door car. Id., 506–507. The victim in Mahon
protested and told the defendants that she ‘‘ ‘didn’t want
to do this because she was saving [herself] for [her]
boyfriend.’ ’’ Id., 507. While Duncan was in the back
seat with the victim, he tried unsuccessfully to pull
down the victim’s underwear. Id., 507. The defendant
reached into the back seat and pulled down the victim’s
underwear past her knees, allowing Duncan to have
vaginal sexual intercourse with the victim. Id. The
defendant then also had vaginal sexual intercourse with
the victim. Id. The defendant appealed from the court’s
denial of his motion for a judgment of acquittal, and
argued, inter alia, that there was no evidence that he
used force, or threatened to use force, to compel the
victim to engage in sexual intercourse. Id., 509.
   In affirming his convictions, the court in Mahon
opined: ‘‘[T]he jury reasonably could have concluded
that the defendant’s act of removing her underpants,
to assist his companion in sexually assaulting her,
constituted force. Thus, as this claim relates to the
defendant’s conviction of conspiracy to commit sexual
assault in the first degree and sexual assault in the
first degree as an accessory, the jury reasonably could
have found that his forcible removal of [the victim’s]
underpants while she was under assault from Duncan
met the force requirement of the statute.’’ (Emphasis
added.) Id., 511–12. In contrast, though, the court fur-
ther opined: ‘‘The jury also reasonably could have
inferred that the defendant’s act of forcibly removing
[the victim’s] underpants, to assist Duncan in sexually
assaulting [her], constituted an implied threat that he
would use force to compel her to engage in sexual
intercourse with him and that such implied threat was
intended to and did in fact compel [the victim] to submit
to sexual intercourse with the defendant.’’ (Emphasis
added.) Id., 513–14. This distinction by the court
between when the defendant’s act of pulling down the
victim’s underwear constituted actual force and when
it constituted the threat of force is instructive of our
analysis in the present case.
  The state argues in the present case that, under
Mahon, ‘‘the jury reasonably could have concluded that
the defendant used his superior strength to move the
complainant’s underwear to allow the compelled inter-
course to occur.’’ We find the state’s reliance on Mahon
to be misplaced for two reasons.
   First, the action contemplated in Mahon was the
defendant’s forcible removal of the victim’s underpants.
There is no evidence in the present case that the defen-
dant forcibly removed N’s underwear. N testified that
the defendant ‘‘put his hand inside [her] pants’’ and
then ‘‘used his finger to penetrate [her] vagina.’’ The
state is asking us to extend the holding in Mahon to
mean that any incidental underwear movement that
may have occurred when the defendant put his hand
inside N’s underwear constitutes force. In our view,
however, there is a significant difference between forc-
ibly removing a victim’s underwear and the incidental
underwear movement that is required to commit the
penetration of the victim’s vagina. Therefore, we decline
to extend Mahon to include the facts of this case.
  Second, our decision in Mahon distinguished
between when the defendant’s forcible removal of the
victim’s underwear constituted actual use of force and
when it constituted a threat to use force. See id., 511–14.
Under Mahon, a defendant’s action of forcibly removing
the victim’s underwear can be used to prove that the
defendant used actual force to compel the sexual inter-
course, for purposes of a charge of sexual assault in
the first degree as an accessory or as a conspirator. Id.,
511–12. The same action by a defendant, though, can
be used to prove that the defendant threatened to use
force to compel the sexual intercourse, for purposes
of a charge of sexual assault in the first degree as a
principal. Id., 513–14. The defendant in the present case
was charged with sexual assault in the first degree as
a principal. Therefore, even if we were to extend the
holding in Mahon to include the facts of this case, any
incidental underwear movement required in order for
the defendant to penetrate the victim’s vagina could
only be used to show that the defendant threatened to
use force against N to compel the sexual intercourse.
The state explicitly declined to charge the defendant
as such. For these reasons, we do not agree with the
state that Mahon controls our analysis here.
   The state further relies on State v. Ferdinand R., 132
Conn. App. 594, 33 A.3d 793 (2011), aff’d, 310 Conn.
686, 82 A.3d 599 (2013), for the proposition that the
‘‘use of force’’ element of § 53a-70 (a) can be satisfied
by demonstrating those acts that are necessary to
accomplish the sexual assault, and nothing further. We
disagree with the state’s interpretation of Ferdinand R.
   The defendant in Ferdinand R. was convicted of
sexual assault in a spousal relationship in violation of
General Statutes § 53a-70b (b).16 Id., 595. In arguing that
the evidence was insufficient to sustain his conviction,
the defendant encouraged the court to ‘‘interpret the
statute to require proof beyond a reasonable doubt that
he . . . used force greater than necessary to separate
the victim’s legs . . . .’’ Id., 599–600. In declining to do
so, this court opined: ‘‘There is no qualifying language
that says that the force must be greater than is necessary
to separate the victim’s legs.’’ Id., 602. We do not read
this statement, as the state appears to, as creating a
per se rule that force used to separate the victim’s legs
is enough to satisfy the ‘‘use of force’’ element. The
court merely refused to find that the plain language
of the statute necessitated such an interpretation. Id.,
601–602. In fact, the court itself seemingly did not inter-
pret its own statement as a per se rule that the force
necessary to separate the victim’s legs was sufficient
to prove ‘‘use of force.’’ In affirming the defendant’s
conviction, the court considered the totality of the force
used by the defendant, not just that which was used to
separate the victim’s legs. Id., 605 (‘‘[t]here was evi-
dence before the jury that the defendant picked up the
victim against her will, carried her into the bedroom
and had sexual intercourse with her even though she
repeatedly indicated that she did not want to engage
in such activity’’).
  Our interpretation of Ferdinand R. aligns with earlier
jurisprudence on this question. Our Supreme Court, in
State v. Petitpas, 299 Conn. 99, 6 A.3d 1159 (2010),
considered similar actions by a defendant convicted of
sexual assault in the first degree. The jury in Petitpas
had before it evidence that the defendant spread the
victim’s legs apart in order to engage in oral sex on the
victim and continued to pull her legs open when she
tried to close them before lying on top of the victim and
engaging in vaginal intercourse with her. Id., 105–106. In
affirming the conviction, the court opined: ‘‘[T]he jury
reasonably could have concluded that the cumulative
force of the evidence established guilt beyond a reason-
able doubt . . . .’’17 (Emphasis added; internal quota-
tion marks omitted.) Id., 106.
    In the present case, the jury had no evidence before
it that the defendant used any force whatsoever to sepa-
rate N’s legs in order to effectuate the sexual inter-
course. Additionally, even if we were to infer that the
defendant did use the minimum force necessary to sepa-
rate N’s legs, under our interpretation of Ferdinand R.
and Petitpas, there was no additional or cumulative use
of force sufficient to bring the facts of the present case
within those holdings. Unlike Ferdinand R. and Pet-
itpas, there is no evidence that the defendant here
engaged in other forceful behavior, such as picking the
victim up and carrying her, pulling the victim’s legs
open when she tried to shut them, or lying on top of
her, in order to compel the sexual intercourse. In fact,
N testified that the defendant only ever used one hand
to touch her, and the other he used to masturbate.
Therefore, we do not agree with the state that Ferdi-
nand R. controls our analysis here.
   The state further argues that, on the basis of our
Supreme Court’s ruling in State v. DePastino, 228 Conn.
552, 638 A.2d 578 (1994), ‘‘the jury reasonably could
have concluded that the child complainant did not want
to participate in the sexual intercourse imposed on her
by her physically stronger father, and that the defendant
used his superior strength to compel her to engage in
sexual intercourse.’’ We do not agree. The defendant
in DePastino was convicted of sexual assault in the
first degree on the basis of allegations that he inserted
his penis into his eighteen month old daughter’s vagina.
State v. DePastino, supra, 569–70. In finding that the
defendant’s actions constituted use of superior physical
strength, and, therefore, use of force, the court stated:
‘‘Considering the relative size difference between the
defendant and his eighteen month old daughter, the
injuries to her vaginal area, the fact that she was crying
during the assault and the testimony of the physician
that the assault would have been very painful to the
child, the jury from the evidence reasonably could have
concluded beyond a reasonable doubt that the defen-
dant compelled the younger child to engage in sexual
intercourse by using superior physical strength.’’ Id.,
571.
   In the present case, unlike in DePastino, the jury had
before it no evidence that N suffered any injuries to
her vaginal area or that she was crying or experienced
pain during the assault, and there was no testimony
from a medical expert that the digital penetration that
occurred here would have been painful for N. Therefore,
we do not agree that the court’s decision in DePastino
necessitates a finding here that the defendant used
superior physical strength against N.
   Lastly, the state argues that the defendant’s use of
force to compel the sexual intercourse can be proven
by the fact that the defendant, an adult male, was
stronger than N, a ten year old girl, and that N was
afraid of him.18 We do not agree. In State v. Mahon,
supra, 97 Conn. App. 512, this court stated: ‘‘[W]e have
consistently held that one also may be guilty of sexual
assault in the first degree if one uses one’s physical
size or strength to threaten another to submit to sexual
intercourse . . . .’’19 (Emphasis added.) In Mahon, the
victim testified that ‘‘she was afraid to resist the defen-
dant’s . . . sexual advances because she knew that her
resistance . . . would be futile.’’ Id., 513. This court
held, in affirming the defendant’s conviction, that the
defendant’s actions that led to the victim’s fear of
resisting his advances constituted an implied threat to
use force. Id. The court did not go so far as to say that
the victim’s fear of the defendant constituted the use
of actual force against the victim. Therefore, N’s testi-
mony at trial that she was afraid of the defendant could
have been used to prove only that the defendant threat-
ened to use force against her in order to compel her
to engage in sexual intercourse. The state, however,
explicitly declined to charge the defendant in this
manner.
  A review of additional jurisprudence on this question
supports our conclusion that the defendant’s actions
did not constitute use of actual force to compel N to
engage in sexual intercourse. In State v. Gagnon, 18
Conn. App. 694, 699, 561 A.2d 129, cert. denied, 213
Conn. 805, 567 A.2d 835 (1989), we concluded that the
evidence admitted below was sufficient for the jury to
reasonably conclude that the defendant used physical
coercion, and, therefore, actual force, for purposes of
a conviction of sexual assault in the third degree.20 In
Gagnon, the defendant impersonated a police officer
to pull over the victim’s car, and, while she was pulled
over on the side of the road, the defendant reached
inside of her car and fondled her breasts. Id., 696. This
court reasoned that it was significant that the defendant
had illegally rendered the victim immobile, unlike in
Hufford, and concluded that ‘‘the defendant’s conduct
constituted physical coercion. By using a subterfuge of
being a police officer, the defendant caused the victim
to stop her vehicle. Such coercion was intended to and
did in fact place the victim in a position wherein she
was compelled to submit to sexual contact by the defen-
dant.’’ Id., 699.
   In the present case, unlike in Gagnon, the jury had
before it no evidence that the defendant used imperson-
ation or subterfuge, or that he illegally rendered N
immobile, in order to compel N to engage in sexual
intercourse. Therefore, the facts of the present case
were insufficient to establish beyond a reasonable
doubt that the defendant used physical coercion, and
therefore actual force, to compel N to engage in sex-
ual intercourse.
   On the basis of this review, we decline to extend the
ordinary meaning of ‘‘use of force’’ to fit this particular
case. It was the state’s burden to prove, beyond a rea-
sonable doubt, every element of sexual assault in the
first degree as charged in the amended information,
including that the defendant used actual force in com-
pelling N to engage in sexual intercourse. Even when
viewed in the light most favorable to the state, the
record discloses no evidence upon which the jury could
reasonably have concluded as such. Accordingly, we
hold that the state’s evidence was insufficient to convict
the defendant of sexual assault in the first degree in
violation of § 53a-71 (a) (1), and, therefore, the trial
court improperly denied the defendant’s motion for a
judgment of acquittal.
  The judgment is reversed with respect to the defen-
dant’s conviction of sexual assault in the first degree
and the case is remanded to the trial court with direction
to render judgment of acquittal on that charge only and
to resentence the defendant on the remaining charges.
The judgment is affirmed in all other respects.
   In this opinion the other judges concurred.
  * In accordance with our policy of protecting the privacy interests of
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.
  1
    General Statutes § 53-21 (a) (2) provides in relevant part: ‘‘Any person
who . . . has contact with the intimate parts, as defined in section 53a-65,
of a child under the age of sixteen years or subjects a child under sixteen
years of age to contact with the intimate parts of such person, in a sexual
and indecent manner likely to impair the health or morals of such child . . .
shall be guilty of [risk of injury to, or impairing the morals of, a child] . . . .’’
  2
    General Statutes § 53-21 (a) (1) provides in relevant part: ‘‘Any person
who . . . wilfully or unlawfully causes or permits any child under the age
of sixteen years to be placed in such a situation that the life or limb of such
child is endangered, the health of such child is likely to be injured or the
morals of such child are likely to be impaired, or does any act likely to
impair the health and morals of any such child . . . shall be guilty of [risk
of injury to, or impairing the morals of, a child] . . . .’’
  3
    In accordance with General Statutes § 54-86e, the minor victim in this
case will be referred to as N.
  4
    Because N was ten years old at the time of the alleged offense, the state
could have, but chose not to, charge the defendant with a violation of § 53a-
70 (a) (2), which provides in relevant part: ‘‘A person is guilty of sexual
assault in the first degree when such person . . . engages in sexual inter-
course with another person and such other person is under thirteen years
of age and the actor is more than two years older than such person . . . .’’
  5
    Due to N’s age at the time of the offense, the defendant’s sentence for
count two was enhanced pursuant to § 53-21 (a) (2) (B).
   6
     N testified at trial that she did not disclose the 2005 New York incident
in the interview with the child protective services social worker because
she ‘‘wasn’t ready to talk about it and the lady that interviewed [N] in New
York didn’t make [her] feel comfortable about talking about it.’’ On cross-
examination, she also testified that she did not disclose the New York
incident to the interviewer because ‘‘the Hartford incident was the one [N]
remembered the most.’’
   7
     It is not clear from the record the precise date that the defendant received
this discovery. The defendant, however, does not dispute that his counsel
received the form long before trial, and agreed with the characterization of
the period as ‘‘months and months’’ at oral argument before this court.
   8
     Rather, the defendant argues the state should have conducted a further
investigation by contacting child protective services.
   9
     In addition to this argument, the defendant’s attorney argued that there
may be possible exculpatory material alluded to in the form or the protocol.
See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d. 215 (1963).
Because the defendant did not raise this argument in his brief and specifically
stated at oral argument before this court that he was not pursuing a Brady
claim, we do not discuss this argument here.
   10
      We also note that the defendant could have accessed the department
records at any time as the parent under investigation. See General Statutes
§ 17a-28 (g) (1).
   11
      The defendant does not challenge the sufficiency of the evidence for
either of his two convictions for risk of injury to a child.
   12
      The entire colloquy is as follows:
   ‘‘The Court: All right. In terms of count one, the sexual assault in the first
degree, is the state still pursuing the alternative by the threat or use of
force, or is it one or the other? And this also has to go with the—in terms
of the jury instructions that I’m going to need to prepare.
   ‘‘[The Prosecutor]: Am I pursuing both?
   ‘‘The Court: So I guess, basically, is the state’s—right now, the information
alleges that the—was by the use of force against such other person or by
the threat of—
   ‘‘[The Prosecutor]: The state will, based on the testimony, we’ll just go
with use of force.
   ‘‘The Court: All right. So that’s the—so it’s basically in terms of the sex
assault in the first degree, the state’s alleging that the defendant compelled
another person to engage in sexual intercourse by the threat or the use?
   ‘‘[The Prosecutor]: By the use.
   ‘‘The Court: Okay. So the defendant compelled another person to engage
in sexual intercourse by the use of force against such other person, and the
court—the state’s not pursuing the threat of use of force allegation. Correct?
   ‘‘[The Prosecutor]: Correct.’’
   13
      Counts two and three did not change from the original information.
   14
      Because ‘‘ ‘use of force,’ ’’ as defined by § 53a-65 (7) (B), is an element
of both §§ 53a-70 (a) (1) and 53a-72a (a) (1) (A), the court’s analysis in
Hufford is instructive here.
   15
      The parties agree that the facts of the present case do not support a
finding that the defendant used violence in order to compel N to engage in
sexual intercourse. The state argues only that ‘‘the jury reasonably could
have concluded that the defendant used his superior physical strength or
actual physical force to compel [N] to engage in sexual intercourse.’’
   16
      Because ‘‘ ‘use of force,’ ’’ as defined by § 53a-65 (7) (B), is an element
of both §§ 53a-70 (a) (1) and 53a-70b (b), this court’s analysis in Ferdinand
R. is instructive here.
   17
      This court in State v. Ferdinand R., supra, 132 Conn. App. 603, cited
to Petitpas and stated in an explanatory parenthetical ‘‘defendant guilty of
sexual assault in first degree even though force used was no greater than
necessary to separate victim’s legs.’’ We question the court’s characterization
of the holding in Petitpas as it appears that the jury reasonably could have
considered more than just the defendant’s use of force to separate the
victim’s legs in convicting him of sexual assault in the first degree. State v.
Petitpas, supra, 299 Conn. 106.
   18
      N testified at trial that she saw the defendant ‘‘in rages in incidents
when he didn’t like what was going on, so he became violent.’’ When ques-
tioned further on cross-examination, however, she could not remember a
time when she saw him in a ‘‘violent rage.’’
   19
      It is worth noting, however, that in each of the cases that the court cited
in support of this proposition, the defendant was charged with compelling a
victim to engage in sexual assault by the use of force or by the threat of
use of force. See State v. Kulmac, supra, 230 Conn. 75; State v. Davis, 61
Conn. App. 621, 639, 767 A.2d 137, cert. denied, 255 Conn. 951, 770 A.2d 31
(2001). As previously noted, the state, in the present case, declined to pursue
charging the defendant with ‘‘threat of use of force.’’
   This court in Mahon also cited to State v. Chapman, 229 Conn. 529,
643 A.2d 1213 (1994). In Chapman, the information alleged only that the
defendant compelled the victim to engage in sexual intercourse by the use
of force. Id., 537. The court, however, instructed the jury that it could convict
the defendant of sexual assault in the first degree if it found that he compelled
the sexual intercourse by the use of force or the threat of use of force. Id.
Our Supreme Court held that that was improper. Id.
   20
      The defendant in Gagnon was charged under § 53a-72a (a) (1) (A). State
v. Gagnon, supra, 18 Conn. App. 695. See footnote 14 of this opinion.
