NORCOTT, J.

The defendant, Cameron M., appeals1 from the judgment of the trial court, rendered after a jury trial, convicting him of one count of risk of injury to a child in violation of General Statutes § 53-21(a)(1) and one count of risk of injury to a child in violation of § 53-21(a)(2).2 On appeal, the defendant claims that: (1) the trial court improperly admitted into evidence a video recording and transcript of a forensic interview of the victim (forensic interview) pursuant to the tender years exception to the hearsay rule; see Conn.Code Evid. § 8-10 (tender years exception);3 in violation of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); and (2) his multiple risk of injury convictions for the same act under both the situation and conduct prongs of § 53-21(a) violate his constitutional protections against double jeopardy. Relying on the state's proffered alternate ground for affirmance, we conclude that the forensic interview was admissible substantively as a prior inconsistent statement under the rule set forth in State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986); see also Conn.Code Evid. § 8-5(1) (Whelan rule);4 and that the defendant's confrontation rights under Crawford were not violated because the victim appeared and testified at trial, where she could have been subjected to cross-examination. We further conclude that the record is inadequate for review of the defendant's unpreserved double jeopardy claims. Accordingly, we affirm the judgment of the trial court.

The record reveals the following relevant facts and procedural history. The jury reasonably could have found that, over the course of several months between 2006 and 2007, the defendant engaged in oral sexual contact with the buttocks and genitals of the victim, his daughter, when she was approximately two and one-half to three years old. These acts occurred while the defendant was caring for the victim and her older sister, H, pursuant to a joint custody arrangement with their mother, S, who is the defendant's former wife. The defendant's acts came to light in April, 2007, after the victim, while being dressed by S, spontaneously reported to S that "Daddy kisses me in my butt," and subsequently demonstrated on a doll that the defendant had kissed her between her legs. S, on the advice of Sherry D'Elia, a family therapist, reported the victim's allegations to the department of children and families (department).

Shortly thereafter, the department referred the victim to the Danbury Regional Child Advocacy Center (child advocacy center), to be interviewed and examined by a multidisciplinary investigative team, constituted pursuant to General Statutes § 17a-106a,5 consisting of professionals from mental health, law enforcement and the department working collaboratively to investigate and treat cases of reported sexual abuse. Donna Meyer, the director of the teams program at the child advocacy center, conducted the forensic interview6 of the victim in the child advocacy center's interview room, which other team members, including Danielle Williams, a clinical psychologist employed by the child advocacy center, and Joseph Bukowski, a state police detective investigating the allegations against the defendant, watched from behind one-way glass.7 The forensic interview was recorded on video and transcribed for subsequent investigative and trial use.8

During the forensic interview, while discussing with Meyers where various relatives kiss her, the victim stated that the defendant "kiss right on my butt," including on her "butt cheeks." She then demonstrated using anatomically correct dolls that the defendant would kiss "inside" and "put his [face] in my butt," indicating that the defendant would put his mouth between her legs and bite and kiss her genital area.9 After the forensic interview, the victim made similar statements during the first of her thirteen after care counseling sessions with Williams,10 reporting spontaneously11 that the defendant "kisses her butt."

The state charged the defendant in a four count information with: (1) one count of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a)(1)(A); (2) one count of risk of injury to a child in violation of § 53-21(a)(2) for having "contact with the intimate parts of [the victim] ... in a sexual and indecent manner likely to impair [her] health or morals"; (3) one count of risk of injury to a child in violation of § 53-21(a)(2) for causing the victim to contact the defendant's genital area; and (4) one count of risk of injury to a child in violation of § 53-21(a)(1), for "[wilfully] and unlawfully causing [the victim] to be placed in such a situation that [her] morals ... were likely to be impaired...."

Prior to trial, the state filed notice of its intent to offer into evidence numerous out-of-court statements of the victim, namely, her disclosures to S and the forensic interview. With respect to the forensic interview, the state claimed its admissibility under two hearsay exceptions, namely, the tender years exception and the Whelan rule. The defendant objected, contending specifically that the forensic interview was inadmissible under the sixth amendment's confrontation clause under the tender years exception or the Whelan rule as applied consistently with Crawford v. Washington, supra, 541 U.S. at 36, 124 S.Ct. 1354, because it had been conducted in conjunction with a police investigation. The trial court then held a hearing on the state's motion, at which S and Meyer testified, but reserved decision on that motion until after the victim had testified before the jury out of concern that the victim might be retraumatized should she make an unexpected disclosure of abuse during her testimony.

At trial, the victim, who was then six years old, testified that she remembered the interview taking place, but not its content,12 and did not remember anything from when she was three years old, going to the defendant's house, wearing diapers or "playing any games" with the defendant. She further testified that she remembers the defendant hugging and kissing her on her head, but not any place else. She also testified that no one "bites" her and that the defendant is a "nice daddy" who has never been a "bad daddy."13 The defendant elected not to cross-examine the victim.

After the victim testified, the trial court concluded that her disclosures to S, and the forensic interview, were admissible under both Crawford and the tender years exception. In so concluding, the court relied on State v. Arroyo, 284 Conn. 597, 935 A.2d 975 (2007); see footnote 19 of this opinion; and specifically rejected the defendant's claim that the forensic interview was "testimonial" or "made in preparation for a legal proceeding."14 The court further relied on State v. Simpson, 286 Conn. 634, 945 A.2d 449 (2008), and determined that the victim was available for cross-examination under Crawford, notwithstanding her lack of memory in court. Thereafter, the forensic interview was published to the jury.

After the trial court denied the defendant's motion for a judgment of acquittal on the basis of insufficient evidence,15 the jury returned a verdict finding the defendant not guilty on counts one and three of the information, and guilty on counts two and four, namely, risk of injury to a child in violation of § 53-21(a)(1) and (2). The trial court rendered a judgment of conviction in accordance with the jury's verdict and sentenced the defendant to a total effective sentence of fifteen years imprisonment, execution suspended after five years, along with sexual offender registration and fifteen years of probation with special conditions. This appeal followed.

On appeal, the defendant claims that: (1) the trial court improperly admitted the forensic interview into evidence; and (2) his convictions on counts two and four of the information violate his constitutional protections against double jeopardy.

I

ADMISSIBILITY OF THE FORENSIC INTERVIEW

We begin with the defendant's claims that the forensic interview was inadmissible under both Crawford v. Washington, supra, 541 U.S. at 36, 124 S.Ct. 1354 and the tender years exception as a statement made in preparation for a legal proceeding. Specifically, the defendant argues that: (1) the interview was inadmissible under the tender years exception, which must be read consistently with the preclusion in Crawford of testimonial hearsay, and that our decision in State v. Arroyo, supra, 284 Conn. at 597, 935 A.2d 975, concluding that statements made during a multidisciplinary forensic interview were not testimonial, is both distinguishable and wrongly decided; and (2) his rights under Crawford were violated because the victim was "functionally unavailable" for cross-examination by virtue of her lack of memory at trial.

Before turning to the defendant's specific Crawford claims, we note that, as "a general matter, hearsay statements may not be admitted into evidence unless they fall within a recognized exception to the hearsay rule.... In the context of a criminal trial, however, the admission of a hearsay statement against a defendant is further limited by the confrontation clause of the sixth amendment. Under Crawford v. Washington, supra, 541 U.S. at 59, 124 S.Ct. 1354, hearsay statements of an unavailable witness that are testimonial in nature may be admitted in accordance with the confrontation clause only if the defendant previously has had the opportunity to cross-examine the unavailable witness. Nontestimonial statements, however, are not subject to the confrontation clause and may be admitted under state rules of evidence.... Thus, the threshold inquiries that determine the nature of the claim are whether the statement was hearsay, and if so, whether the statement was testimonial in nature, questions of law over which our review is plenary." (Citations omitted; emphasis added.) State v. Smith, 289 Conn. 598, 618-19, 960 A.2d 993 (2008).

A

"Unavailability" of the Victim under Crawford

We begin with the defendant's claim that the victim was "functionally unavailable" for purposes of Crawford because, although she testified at trial, she could not remember anything regarding the forensic interview or the allegations as a consequence of the difference in her age, namely, as a three year old child when she allegedly was abused and participated in the forensic interview, and as six year old child when she testified at trial, and, therefore, the jury could not appropriately draw inferences about her reliability.16 The defendant contends that there "essentially was no opportunity to cross-examine the declarant at all" because of this memory loss. In response, the state argues that there was no Crawford violation because the victim testified at trial, notwithstanding her inability to remember the events in question, and the defendant's theory of "functional unavailab[ility]" has been rejected in our past decisions, namely, State v. Simpson, supra, 286 Conn. at 634, 945 A.2d 449, and State v. Pierre, 277 Conn. 42, 890 A.2d 474, cert. denied, 547 U.S. 1197, 126 S.Ct. 2873, 165 L.Ed.2d 904 (2006). We agree with the state and conclude that the victim was available at trial for cross-examination as contemplated by Crawford.

Specifically, our decision in State v. Simpson, supra, 286 Conn. at 634, 945 A.2d 449, is dispositive of the defendant's Crawford claims. In that case, we rejected a defendant's claims that a child sexual assault victim, who was five years old at the time of the assaults and could not remember whether the acts forming the basis for the allegations against the defendant had occurred, was "`functionally unavailable' for cross-examination because she testified that she did not recall making the statements on the videotape" of her interview. Id., at 651, 945 A.2d 449. Following, inter alia, State v. Pierre, supra, 277 Conn. at 42, 890 A.2d 474, after concluding that the victim's statements properly were admitted into evidence pursuant to the Whelan rule; see also part IB of this opinion; we emphasized that "Crawford makes clear ... that, when the declarant appears for cross-examination at trial, the [c]onfrontation [c]lause places no constraints at all on the use of his prior testimonial statements.... It is therefore irrelevant that the reliability of some outof-court statements cannot be replicated, even if the declarant testifies to the same matters in court.... The [c]lause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it."17 (Internal quotation marks omitted.) State v. Simpson, supra, at 652-53, 945 A.2d 449. Relying on sister state case law in rejecting the defendant's argument that Pierre was "distinguishable because that case involved a witness who subsequently changed his mind about testifying against his friend, whereas [Simpson] involved a child witness who received statutorily mandated special accommodations... and was unable to answer questions about the videotaped statement during cross-examination"; (citation omitted) id., at 654 n. 19, 945 A.2d 449; we emphasized that "[t]he principle articulated in Pierre has been held equally applicable to cases involving young victims of sexual assault who, at trial, did not recall making statements contained in videotaped interviews." Id. Thus, we concluded that, despite her memory lapses, the defendant was not denied an opportunity to cross-examine the victim "because she was not `functionally unavailable' under Crawford." Id., at 654, 945 A.2d 449.

In the present case, the defendant does not contend that Simpson is no longer good law or seek its overruling,18 although at oral argument before this court, he posited that Simpson is distinguishable because the defendant therein engaged in a relatively lengthy cross-examination that tested the victim's memory, perception and understanding of the concepts of truth and fantasy; see id., at 654-55, 945 A.2d 449; while in the present case, the defendant elected not to cross-examine the victim. This distinction does not operate to save the defendant's confrontation clause claims. "[A] defendant cannot assert that he was denied his right of confrontation unless he first attempts to cross-examine the witness on the core accusations in the case. Because [the] defendant had the opportunity to cross-examine the child at trial about her out-of-court testimony implicating him in the crime but chose not to do so, he cannot claim that he was denied his right of confrontation." State v. Nyhammer, 197 N.J. 383, 389, 963 A.2d 316, cert. denied, ___ U.S. ___, 130 S.Ct. 65, 175 L.Ed.2d 48 (2009). Thus, lack of cross-examination in this case results from a strategic election by the defendant; that the victim could have been cross-examined on, for example, her memory and understandings of truth and fantasy, was sufficient to render her available for confrontation purposes under Crawford. See id., at 414, 963 A.2d 316 ("[D]efense counsel chose not to cross-examine [the child witness] about the core accusations in the taped interview, perhaps for good reason, fearing that such questioning might have elicited the type of damning responses that eluded the prosecutor on [direct examination]. That counsel decided to forgo critical cross-examination because of [the child witness'] unresponsiveness to many questions on direct does not mean that [the] defendant was denied the opportunity for cross-examination."); see also, e.g., Davis v. State, Docket No. CR-10-1143, 2011 WL 4396967, *3, 2011 Ark. LEXIS 474, *6 (Ark. September 22, 2011) ("The fact that [the witness] was unable to recall the details of her out-of-court statement on direct examination is of no consequence in this particular case where [the defendant] declined the opportunity to cross-examine the witness. That [the defendant] chose not to cross-examine the witness does not mean that he was denied the opportunity to do so."); People v. Lewis, 223 Ill.2d 393, 405, 307 Ill.Dec. 645, 860 N.E.2d 299 (2006) (defendant had opportunity to cross-examine witness about out-of-court identification, despite fact that he "may have declined" to do so "based on trial strategy"). Accordingly, we conclude that the defendant's confrontation clause rights under Crawford were not violated by the admission of the forensic interview.

B

Evidentiary Basis for Admission of the Forensic Interview

Having determined that the admission of the forensic interview into evidence did not violate the defendant's confrontation clause rights under Crawford v. Washington, supra, 541 U.S. at 36, 124 S.Ct. 1354, because the victim testified at trial, we next turn to the defendant's claim that the forensic interview was inadmissible under the rules of evidence. Noting that the tender years exception, which does not apply to "statement[s] ... made in preparation of a legal proceeding," must be read consistently with the preclusion of "testimonial" hearsay under Crawford, the defendant contends that, in admitting the forensic interview into evidence, the trial court improperly relied on our decision in State v. Arroyo, supra, 284 Conn. at 597, 935 A.2d 975, which had concluded that statements made during a multidisciplinary team forensic interview were not testimonial in nature.19 Specifically, the defendant contends that Arroyo: (1) is distinguishable, because the record in the present case demonstrates that the forensic interview was not therapeutic in nature but, rather, plainly was conducted in contemplation of a criminal trial, and Meyer simply was a surrogate for the police rather than a participant in the victim's treatment; and (2) is wrongly decided and should be overruled. In response, the state concedes that the tender years exception must be read consistently with the preclusion in Crawford of testimonial hearsay, but contends in its main brief and a supplemental brief filed after the transfer of this appeal to this court that Arroyo is both controlling and good law. The state also contends, in the alternative, that the forensic interview properly was admitted into evidence pursuant to the Whelan rule. See State v. Whelan, supra, 200 Conn. at 743, 513 A.2d 86; Conn.Code Evid. § 8-5(1). Inasmuch as our conclusion in part I A of this opinion obviates the need to consider whether the forensic interview was testimonial for confrontation clause purposes under Crawford, which is an issue that remains a question of considerable factual and legal complexity notwithstanding our now five year old decision in Arroyo;20 see footnote 19 of this opinion; we conclude that the defendant's evidentiary claim can be resolved on the basis of the state's alternate ground for affirmance under Whelan.21

The state, relying heavily on our decision in State v. Simpson, supra, 286 Conn. at 634, 945 A.2d 449, contends that the forensic interview was admissible substantively as a prior inconsistent statement under the Whelan rule because the victim's failed memory at trial created the requisite inconsistency, and the video recording satisfied Whelan's need for a signed document. In response, the defendant contends that the state's Whelan claim is unreviewable on appeal because the trial court, by not ruling on the state's Whelan arguments, never exercised its discretion to determine whether the necessary inconsistency exists, and the state never sought an articulation to rectify this deficiency in the record. Relying on the distinction raised in State v. Meehan, 260 Conn. 372, 388, 796 A.2d 1191 (2002), the defendant also contends that Whelan applies only to feigned or evasive losses of memory, rather than ordinary lapses such as may have been experienced by the victim herein. We agree with the state and conclude that the interview properly was admitted under the Whelan rule.

Now codified in § 8-5(1) of the Connecticut Code of Evidence; see State v. Simpson, supra, 286 Conn. at 642 n. 12, 945 A.2d 449; see also footnote 4 of this opinion; "[i]n State v. Whelan, supra, 200 Conn. at [753, 513 A.2d 86] this court determined that an out-of-court statement is admissible as substantive evidence if (1) the statement is a prior inconsistent statement, (2) it is signed by the declarant, (3) the declarant has personal knowledge of the facts stated therein, and (4) the declarant testifies at trial and is subject to cross-examination.... Under State v. Woodson, 227 Conn. 1, 21, 629 A.2d 386 (1993), the signature of a witness is unnecessary for the admission of a tape-recorded statement offered under Whelan." (Citation omitted; internal quotation marks omitted.) State v. Outing, 298 Conn. 34, 40 n. 3, 3 A.3d 1 (2010), cert. denied, ___ U.S. ___, 131 S.Ct. 1479, 179 L.Ed.2d 316 (2011). "The Whelan hearsay exception applies to a relatively narrow category of prior inconsistent statements ... [and was] carefully limited ... to those prior statements that carry such substantial indicia of reliability as to warrant their substantive admissibility. As with any statement that is admitted into evidence under a hearsay exception, a statement that satisfies the Whelan criteria may or may not be true in fact. But, as with any other statement that qualifies under a hearsay exception, it nevertheless is admissible to establish the truth of the matter asserted because it falls within a class of hearsay evidence that has been deemed sufficiently trustworthy to merit such treatment. Thus, as with all other admissible nonhearsay evidence, we allow the fact finder to determine whether the hearsay statement is credible upon consideration of all the relevant circumstances. Consequently, once the proponent of a prior inconsistent statement has established that the statement satisfies the requirements of Whelan, that statement, like statements satisfying the requirements of other hearsay exceptions, is presumptively admissible." (Internal quotation marks omitted.) State v. Simpson, supra, at 642-43, 945 A.2d 449.

We begin with the defendant's claim that the state's alternate ground for affirmance is unreviewable because the trial court, by not ruling on the state's Whelan arguments, never exercised its discretion to determine whether the necessary inconsistency exists, and the state never sought an articulation to rectify this deficiency in the record. We disagree and conclude that the state's failure to seek an articulation by the trial court is not fatal to its reliance on Whelan as an alternate ground for affirmance. First, the defendant raises no claim that the interview was not sufficiently reliable to be admitted under Whelan, a claim that would have required the trial court to act as a gatekeeper. See, e.g., State v. Simpson, supra, 286 Conn. at 644-45 and n. 14, 945 A.2d 449 (describing trial court's responsibility to conduct hearing under State v. Mukhtaar, 253 Conn. 280, 306, 750 A.2d 1059 [(2000)], to determine reliability of Whelan material). Second, in upholding the decision of the trial court on alternate grounds that were raised before it and are supported by well established case law, but not formally acted upon by the trial court, we do not act to usurp or disturb the trial court's discretion, thus obviating any issues of potential ambuscade occasioned by our deciding this issue in the first instance, particularly because this issue is "one [on which] the trial court would have been forced to rule in favor of the appellee." (Internal quotation marks omitted.) Vine v. Zoning Board of Appeals, 281 Conn. 553, 568-69, 916 A.2d 5 (2007).

Turning to the merits of the Whelan issue, in light of a long line of decisions from this court and the Appellate Court released after State v. Meehan, supra, 260 Conn. at 388, 796 A.2d 1191, in 2002, we disagree with the defendant's reliance on that case for the proposition that whether the Whelan rule should be limited to feigned loss of memory, rather than the genuine loss of memory experienced by the victim herein, remains an open question. Rather, the trial court would have had no choice but to rule for the state on the Whelan issue; see Vine v. Zoning Board of Appeals, supra, 281 Conn. at 568-69, 916 A.2d 5; because, as was noted at oral argument before this court, the defendant's claim is controlled by State v. Simpson, supra, 286 Conn. at 634, 945 A.2d 449, wherein we followed two Appellate Court decisions, namely, State v. Luis F., 85 Conn.App. 264, 856 A.2d 522 (2004), and State v. Francis D., 75 Conn.App. 1, 815 A.2d 191, cert. denied, 263 Conn. 909, 819 A.2d 842 (2003). In State v. Francis D., supra, at 18, 815 A.2d 191, the Appellate Court observed that "[t]he victim's inability to recall material facts ... clearly satisfies the inconsistency element" of Whelan.22 In Simpson, we concluded that a videotaped interview of a five year old sexual assault complainant properly was admitted pursuant to Whelan because, "even after attempts to refresh her memory, [the complainant] testified at trial that she did not remember the defendant [sexually assaulting her]. Because it is well settled that failures of memory and omissions in trial testimony satisfy the inconsistency element of Whelan, we conclude that the trial court did not abuse its broad discretion by relying on State v. Luis F., supra, at [269-70, 856 A.2d 522], in admitting portions of the videotaped interview into evidence." (Internal quotation marks omitted.) State v. Simpson, supra, at 650-51, 945 A.2d 449. Thus, because the victim in this case testified that she remembered going to the forensic interview, but could not remember anything from the interview or the time period surrounding the abuse and denied any abusive behavior by the defendant, we conclude that Whelan provides a proper alternate evidentiary basis for the admission of the forensic interview into evidence.

II

DOUBLE JEOPARDY CLAIM

We next address the defendant's claim that we should vacate his conviction under count four of the information, alleging a violation of the situation prong of the risk of injury statute, § 53-21(a)(2), because his convictions under that prong and the conduct prong, § 53-21(a)(1), for the same conduct violate his constitutional protections against double jeopardy. In response, the state acknowledges the potential for a double jeopardy violation for multiple punishments for the same conduct under both the situation and conduct prongs, but argues that the record is inadequate for review of this unpreserved claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), because nothing in the record, such as a bill of particulars, closing argument or jury instructions, indicates the factual basis for the jury's verdict on count four, particularly given the factual inconsistency in the jury's verdict on counts one and two. We agree with the state and conclude that the record is inadequate for review of the defendant's double jeopardy claim under Golding.

"A defendant's double jeopardy claim presents a question of law, over which our review is plenary.... The double jeopardy clause of the fifth amendment to the United States constitution provides: [N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb. The double jeopardy clause [applies] to the states through the due process clause of the fourteenth amendment.... This constitutional guarantee prohibits not only multiple trials for the same offense, but also multiple punishments for the same offense in a single trial.... Although the Connecticut constitution does not include a double jeopardy provision, the due process guarantee of article first, § 9, of our state constitution encompasses protection against double jeopardy....

"Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met." (Citation omitted; internal quotation marks omitted.) State v. Gonzalez, 302 Conn. 287, 315-16, 25 A.3d 648 (2011). "The defendant on appeal bears the burden of proving that the prosecutions are for the same offense in law and fact." (Internal quotation marks omitted.) State v. Alvaro F., 291 Conn. 1, 6, 966 A.2d 712, cert. denied, ___ U.S. ___, 130 S.Ct. 200, 175 L.Ed.2d 140 (2009).

Because the defendant's double jeopardy claim implicates his constitutional rights, we may review it pursuant to State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823, despite his failure to raise it before the trial court.23 See, e.g., State v. D'Antonio, 274 Conn. 658, 715, 877 A.2d 696 (2005). "[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail." State v. Golding, supra, at 239-40, 567 A.2d 823.

We agree with the state that the defendant's claim fails under the first prong of Golding because the record is inadequate for review of the double jeopardy claims given the multiplicity of charged acts in the information, unamplified by a bill of particulars,24 particularly when viewed in conjunction with the jury's factually inconsistent verdict. Specifically, the state charged the defendant: (1) in the first count with sexual assault in the fourth degree in violation of § 53a-73a (a)(1)(A), for "intentionally subject[ing the victim] to sexual contact," without specifying the particular underlying act; (2) in the second count with risk of injury to a child under the conduct prong of that statute, alleging "contact with the intimate parts of a child under the age of sixteen years in a sexual and indecent manner likely to impair the health or morals of such child," namely, "contact with a three year old female child's genital area, inner thighs, buttocks, or breasts in violation of ... § 53-21(a)(2)"; (3) in the third count with risk of injury to a child under the conduct prong of that statute, alleging that the defendant "subjected a child under sixteen years of age to contact with the intimate parts of [the defendant] in a sexual and indecent manner likely to impair the health or morals of such child," namely, "contact between a three year old female child and the defendant's genital area, in violation of... § 53-21(a)(2)"; and (4) in the fourth count with risk of injury to a child under the situation prong, when the defendant "[wilfully] and unlawfully caused a child under the age of sixteen years to be placed in such a situation that the morals of such child were likely to be impaired, in violation of ... § 53-21(a)(1)." After trial, the jury returned a factually inconsistent verdict finding the defendant not guilty on the first count, sexual assault in the fourth degree in violation of § 53a-73a (a)(1)(A), and not guilty of the third count, risk of injury under the conduct prong, alleging that the defendant had subjected the victim to contact with his genitals, but guilty of two counts of risk of injury on the second count under the conduct prong, § 53-21(a)(1), for contact with the victim's genitals, and also under the fourth count alleging the broadly charged situation prong, § 53-21 (a)(2).

Given the factual inconsistencies in the jury's verdict, it is unclear which charged conduct served as the bases for the defendant's convictions. Specifically, we note that, although the jury found, by virtue of the fact that it found the defendant guilty on count two, that the defendant had engaged in sexually inappropriate contact with the victim's genitals, that verdict is factually and logically inconsistent with the jury's verdict acquitting him of the first charged count, namely, sexual assault in the fourth degree. Given this logical inconsistency, and the lack of a bill of particulars elaborating on the allegations supporting the fourth count of the information, it is conceivable that the other charged conduct, namely, the victim's contact with the defendant's genital area, may well have formed the basis for his conviction under the situation prong of the risk of injury statute, notwithstanding his acquittal on the third count. Thus, the record is not clear as to whether the defendant's risk of injury convictions are based on the same act or transaction, thereby precluding us from reviewing his double jeopardy claim under the first prong of Golding, let alone concluding that he has carried his burden of proving that the convictions are for the same offense in law or fact.25

The judgment is affirmed.

In this opinion the other justices concurred.