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******************************************************STATE OF CONNECTICUT v. ROBERT H.* (AC 36742) (AC 37544)
Lavine, Sheldon and Flynn, Js. Argued November 17, 2015—officially released September 20, 2016 (Appeal from Superior Court, judicial district of

Hartford, Suarez, J.)
Glenn W. Falk, assigned counsel, for the appellant (defendant).
Lisa Herskowitz, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and John F. Fahey, senior assistant state’s attorney, for the appellee (state).Opinion SHELDON, J. The defendant, RobertH., appealsfrom his conviction on one of two charges of risk of injury to, orimpairingmorals ofachildinviolation ofGeneral Statutes § 53-21 (a) (1),1 of which he was found guilty after ajury trial. The defendant claims that there was insufficient evidence to supportthejury’s guiltyverdict
on the second ofthose two charges. Following thejury verdict, the defendant admitted that he had violated his probation in violation of General Statutes § 53a-32. Thereafter, the court sentenced the defendant on all three charges to a total effective sentence of twenty years incarceration.
The two charges ofrisk ofinjury ofwhich the defendant was convicted were based upon separate acts of masturbationinthepresence ofaminorchild, S.W. The defendant argues that the only evidence presented at trial to support the jury’s finding that he had masturbated in S.W.’s presence on more than one occasion
were two statements he made to police, which were admitted into evidence against him without objection at trial. The defendant now claims that such evidence
was insufficient to support his conviction on a second chargeofriskofinjurybecause, underthecorpusdelicti rule, also referred to as the corroboration rule, there
was not substantial independent evidence tending to establishthe trustworthiness ofhis confessionto asecond act of masturbation in the presence of S.W. The state argues that the defendant’s claim is unreviewable because the corroboration rule is a rule of evidence governing the admissibility of oral and written statements, andthe defendantneverchallengedthe admissibility of his statements at trial. Because this court recently held, in State v. Leniart, 166 Conn. App. 142, 152–53, 140 A.3d 1026 (2016), that the corroboration rule is solely a rule of admissibility, we agree with the state that the defendant cannot raise his unpreserved claim as part of his claim of insufficient evidence. Accordingly, itisnotnecessaryforustodecidewhether there was substantial independent evidence tending to establishthe trustworthiness ofthe defendant’s confession, andwe will considerhis unobjected-to statements in the light most favorable to the state in evaluating his current claim ofevidentiaryinsufficiency. We conclude that the defendant’s statements that he masturbated in the presence of S.W. ‘‘at least twice’’ provided a sufficient evidentiary basis for the jury reasonably to conclude that he was guilty beyond a reasonable doubt of bothcounts ofriskofinjuryofwhichhewas convicted.
The following facts are relevant to this appeal. On September3, 2013, the defendantwas chargedinalongforminformationwiththefollowingoffenses: (1) sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2);2 (2) sexual assault in the first degree inviolation of § 53a-70 (a) (1);3 (3) injury orriskof injury to, or impairing morals of a child in violation of § 53-21 (a) (2);4 (4) injury or risk of injury to, or impairing morals of a child in violation of § 53a-21 (a) (1); and (5) injury or risk of injury to, or impairing morals of a child in violation of § 53a-21 (a) (1).
At the defendant’sjury trial in September 2013, S.W. testified as follows. When she was ten or eleven years old, the defendant, who was then her mother’s boyfriend, would spend time at the home she lived in with her mother. In that time frame, two specific incidents occurred between her and the defendant. In one, she
was lying in her bed when the defendant entered her bedroom, took his penis out, and started masturbating. He then ejaculated on her bed. After he had ejaculated
on her bed, he wet a cloth and attempted to wipe his
semen off the bed. In the second incident described by S.W., which occurred after the first incident, the defendantpenetratedhereithervaginallyoranallywith hispeniswhileheandshewereinthe kitchen. Although S.W. testified that something ‘‘unusual’’ had occurred between her andthe defendant on more than one occasion, she also testifiedthatthe defendanthad onlymasturbated in her room on one occasion5 and thatthe two specific incidents to which she testified were the only such incidents that had occurred between them.6
The defendant did not testify at trial. However, the state introduced into evidence a portion of a DVD recording ofthe defendant’s interview with police and his sworn, written statement to the officer who interviewed him. In his sworn statement, the defendant admitted that he had masturbated in the presence of S.W. in herbedroom ‘‘at least twice.’’ He averred, more particularly, asfollows: ‘‘Iwaslyingin [S.W.’s mother’s] bed and could see [S.W.] in her bedroom, lying in her bedwithherhandsinsideherpants. Shewasmasturbating. She knew that I could see her but it was like she wanted me to see her. After watching her masturbate for about fifteen minutes I went into [S.W.’s] room. I stood about two or three feet away from her bed and, with my clothes on, pulled my penis out and started to masturbatemyself. Sheseemedlikeshewashappywith
me doing that. I ejaculated in her general direction but not on top ofher. I don’t know ifshe came or not. This
same thing happened at least twice, where I masturbated in front ofher in her room and this [is] probably how my semen got on herbed or clothes. I neverpenetrated her with my penis or anything else. I think she might have touched my penis on one of those times right after I ejaculated, which might explain any ofmy
semen in her pants.’’ The defendant’s sworn statement and the DVD recording of his police interview were both admitted into evidence without objection by the defendant.7
The defendant moved for a judgment of acquittal after the close ofthe prosecution’s case-in-chief, at theclose of all the evidence, and again at his sentencing. Heclaimedoneachoccasionthattherewasnoevidence to support a finding of two incidents of masturbation in S.W.’s presence because S.W. had testified to only
one such incident, and thus the state assertedly could not establish that S.W. was harmed or affected by the alleged second incident if she was not even aware that it had occurred.8 The state responded by noting that the risk of injury counts did not require that the child actually be aware of what the defendant was doing, only that the defendant’s conduct was ofsuch a nature that it was likely to impair the health or morals of a minor. The court denied each of the defendant’s motions forjudgment ofacquittal, rulingthatthere was sufficient evidence for thejury to find that incidents of masturbation in S.W.’s presence had occurred on more than one occasion.
In the state’s closing argument, it explained that the sexual assault alleged in counts one and two referred to the incident that S.W. claimed to have occurred in the kitchen, andthatthe charge ofrisk ofinjuryalleged in count three was based upon that same alleged incident. The state further explained that the risk ofinjury charges set forth in counts four and five were based uponthetwoincidentsinwhichthe defendantallegedly had masturbated in the presence of S.W. The state specificallynotedthatthe defendanthadconfessedtomasturbating in the presence of S.W. at least twice. In the defendant’s closing argument, defense counsel suggested that S.W.’s story had changed each time she told it, and again argued that she could not have been affected by a second masturbation incident if she only recalled one such incident.
After deliberating for approximately two and onehalf hours, the jury returned verdicts of not guilty on the first three counts, relating to the alleged sexual assaultinthekitchen, andguiltyoncountsfourandfive, relating to the two alleged incidents ofmasturbation in S.W.’s bedroom.
While thejurywas deliberating, the courtheard additional evidence on the charge ofviolation ofprobation under § 53a-32. On October 29, 2013, after the jury returneditsguiltyverdictontwocountsofriskofinjury, the defendant admitted to that charge on the basis of that verdict. Thereafter, on January 21, 2014, the court sentenced the defendant to ten years incarceration on each charge of risk of injury, to run concurrently with
one another, and ten years incarceration on the charge of violation of probation, to run consecutively to his concurrent risk ofinjury sentences, for atotal effective sentence of twenty years incarceration.
The defendant appeals, requesting that we vacate his conviction on one charge of risk of injury and remand this case for resentencing on the remaining charge of risk of injury and the charge ofviolation ofprobation.The defendant claims that there was insufficient evidence to support a guilty verdict on two counts of risk ofinjury because the only evidence to support the findingthathe hadmasturbated inthe presence ofS.W.
on more than one occasion were his oral and written statements to the police. He argues that allowing his conviction on a second count ofrisk ofinjury to stand based solely upon his bare extrajudicial confessions would violate the corroboration rule. The state first argues that the defendant’s claim is unreviewable because he failed to object to the admission of his statements at trial. Ifthe claim is reviewable at all, the state argues, it must fail because there was sufficient evidence to corroborate the defendant’s admission to
a second act of masturbation in S.W.’s presence. ‘‘The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whetheruponthe facts so construed andthe inferences reasonably drawn therefrom the [finder of fact] reasonablycouldhave concludedthatthe cumulative force of the evidence established guilt beyond a reasonable doubt.

. . . This court cannot substitute its
own judgment for that of the jury if there is sufficient evidence to support thejury’s verdict.

. . . [W]e do not sit as the seventhjuror when we review the sufficiency ofthe evidence

. . . rather, we must determine, in the light most favorable to sustaining the verdict, whether the totality ofthe evidence, including reasonable inferences therefrom, supports the jury’s verdict of guilt beyond areasonable doubt.’’ (Citation omitted; internal quotation marks omitted.) Statev. Miles, 97 Conn. App. 236, 240, 903 A.2d 675 (2006). ‘‘The corpus delicti rule, which is often also referred to as the corroboration rule, exists to protect against conviction of offenses that have not, in fact, occurred, in other words, to prevent errors in convictions based solely upon untrue confessions to nonexistent crimes. Statev.Arnold, 201 Conn. 276, 287, 514A.2d330 (1986). An early version of Connecticut’s corroboration rule
was extensively discussed in State v. Doucette, 147 Conn. 95, 98–100, 157A.2d 487 (1959), overruled inpart by State v. Tillman, 152 Conn. 15, 20, 202 A.2d 494 (1964). The court in Doucette described the rule as follows: [T]he corpus delicti [that is, that the crime charged has been committed by someone] cannot be established by the extra-judicial confession of the defendant unsupported by corroborative evidence.

. . . ‘‘The Connecticut rule

. . . is that, although the confession is evidence tending to prove both the fact that the crime [charged] was committed [by someone, that is, the corpus delicti] and the defendant’s agency therein, it is not sufficient ofitselfto prove the former,and, without evidence [from another source] of facts also tendingtoprove the corpus delicti, itis not enough to warrant a conviction; and that there must be such extrinsic corroborative evidence as will, when taken in connection with the confession, establish the corpus delicti in the mind of the trier beyond a reasonable doubt.

. . . The independent evidence must tend to establish that the crime charged has been committed and must be material and substantial, but need not be such as would establish the corpus delicti beyond a reasonable doubt apart from the confession.

. . . Properlythis [extrinsic] evidence should be introduced and the court satisfied of its substantial character and sufficiency to render the confession admissible, before the latter is allowed in evidence. State v. LaLouche, [116 Conn. 691, 695, 166 A. 252 (1933)].

. . . State v. Doucette, supra, 147 Conn. 98–100.’’ (Emphasis in original; internalquotationmarks omitted.)Statev. Leniart, supra, 166 Conn. App. 152–53.
The current version ofthe rule, set forth in Opperv. United States, 348 U.S. 84, 93, 75 S. Ct. 158, 99 L. Ed. 101 (1954), andfollowedbyour Supreme CourtinState

v. Harris, 215 Conn. 189, 192–97, 575 A.2d 223 (1990), andState v. Hafford, 252 Conn. 274, 746 A.2d 150, cert. denied, 531 U.S. 855, 121 S. Ct. 136, 148 L. Ed. 2d 89 (2000), statesthat ‘‘the corroborative evidenceneednot be sufficient, independent of the statements, to establish the corpus delicti. It is [only] necessary, therefore, to require the Government to introduce substantial independent evidence which would tend to establish the trustworthiness of the [defendant’s] statement.’’ (Emphasis omitted; internal quotation marks omitted.) State v. Harris, supra, 193–94.
In State v. Leniart, supra, 166 Conn. App. 142, this court considered whether the corroboration rule is a ‘‘substantive rule of criminal law, i.e., an implicit element of the state’s case for which there must be sufficient evidence’’; id., 158; or ‘‘an evidentiary rule that must be raised by objecting to the admission of the defendant’s confessions at trial

. . . .’’ Id. After conducting a thorough review of the history of the rule’s evolution in Connecticut, the court in Leniart concluded ‘‘that Connecticut’s corroboration rule is a rule ofadmissibilityto be decidedbythe court. Adefendant who fails to challenge the admissibility of the defendant’s confession at trial is not entitled to raise the corroboration rule on appeal because (1) the evidentiary claim is not ofconstitutional magnitude and, thus, cannot meet Golding’s9 second prong; see State v. Uretek, Inc. [207 Conn. 706, 713, 543 A.2d 709 (1988)]; and (2) the rule does not implicate the sufficiency of the state’s evidence.’’ State v. Leniart, supra, 168.
In the present case, the defendant never claimed at trial, and does not claim on appeal, that the admission into evidence ofhis confessionsviolatedthe corrobora-tionrule. Accordingly, we must considerhis statements
as probative evidence of the facts admitted therein in evaluating his sufficiency of the evidence claim.10 See id., 168–69. When we consider the defendant’s statements in the light most favorable to upholding his challenged conviction, we conclude that there was sufficientevidencetosupporthisconvictionofasecond count ofrisk ofinjury. The defendant admitted that he masturbated in the presence of S.W. on at least two occasions. Moreover, his admission included the facts that S.W. watched him masturbating, and even touched his penis on one occasion. The jury was free to credit this testimony overthe testimony ofS.W., who testified thatshe rememberedhim masturbatinginherpresence
on only one occasion. The defendant’s statements, therefore, provided sufficient evidence for the jury to conclude that, on two separate occasions, he masturbated in the presence of S.W., and thereby engaged in
an act ‘‘likely to impair the health or morals’’ ofa child in violation of § 53-21 (a) (1). We thus conclude that the jury reasonably could have concluded that the defendantwas guiltybeyond areasonable doubt oftwo counts of risk of injury in violation of § 53-21 (a) (1). See State v. Miles, supra, 97 Conn. App. 240.
The judgment is affirmed.
In this opinion LAVINE, J. concurred.

* In accordance with our policy ofprotecting the privacy interests ofthe victims of 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) provides in relevant part: ‘‘Any person who (1) 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 or morals of any such child

. . . shall be guilty of

. . . a class C felony

. . . .’’

2 General Statutes § 53a-70 (a) provides in relevant part: ‘‘A person is guilty ofsexual assaultinthe first degree when suchperson

. . . (2) engages in sexual intercourse 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

. . . .’’

3 General Statutes § 53a-70 (a) provides in relevant part: ‘‘A person is guilty of sexual assault in the first degree when such person (1) 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 ofuse offorce 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

. . . .’’

4 General Statutes § 53-21 (a) provides in relevant part: ‘‘Any person who

. . . (2) 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

. . . a class B felony

. . . .’’
5 S.W. testified as follows: ‘‘[The Prosecutor]: Okay, nowyou saidmultiple things happenedbetween [the defendant] and you. Could you tell the ladies and gentleman ofthejury what happened between [the defendant] and you? ‘‘[S.W.]: Let me understand, like both of them, orjust one? ‘‘[The Prosecutor]: Well, let’s start with one. Do you remember when exactly that happened? ‘‘[S.W.]: Not exactly, but I know like what happened. ‘‘[The Prosecutor]: Okay, could you tell the ladies and gentleman of the jury?‘‘[S.W.]: Once I was in my room, you know those—I was watching TV or something, and then my mom—I forgot where she was at, and then hejust

came over and just—just—it was nasty. ‘‘[The Prosecutor]: What did he do? ‘‘[S.W.]: In—he took the penis out, and just started masturbating. ‘‘[The Prosecutor]: Okay, now at the time when you were ten or eleven in fifth grade, did you know what he was doing? ‘‘[S.W.]: No, not at all. ‘‘[The Prosecutor]: Did something happen while he was masturbating? ‘‘[S.W.]: Yes. ‘‘[The Prosecutor]: What happened? ‘‘[S.W.]: He comed on my bed. ‘‘[The Prosecutor]: Okay, and did any hit you? ‘‘[S.W.]: Uh-uh.

. . . ‘‘[The Prosecutor]: Did there come a point where anything similar to that happened? ‘‘[S.W.]: Yes.

. . . ‘‘[The Prosecutor]: Okay, did there come a point where anything similar to that happened— ‘‘[S.W.]: Yes. ‘‘[The Prosecutor]: —where he did in your room another time? ‘‘[S.W.]: No.’’
6 S.W. also testified as follows: ‘‘[The Prosecutor]: All right now you’ve talked about two separate incidentsthatyourecallspecifically. Inthetimethat [the defendant] hadcontact with you, or that you knew him, did any other things like that ever happen? ‘‘[S.W.]: No. ‘‘[The Prosecutor]: Okay, those were the only two things you recall? ‘‘[S.W.]: Yes.’’

7 Prior to trial, the court denied the defendant’s August 5, 2013 motion to suppress all of his statements on the ground that the police had failed to inform him of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). On appeal, the defendant does not claim that the court improperly denied his motion to suppress.
8 The only time that the corroboration rule was mentioned at trial was by the state. It argued, in responding to the defendant’s claims that S.W. had testified to only one act ofthe defendant masturbating in herpresence, that DNA extracted from semen found on S.W.’s bedspread, which was consistent with the defendant’s DNA sample, corroborated at least one act of masturbatory conduct, and thus satisfied the corpus delicti rule.

9 See State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989).

10 We respectfully disagree with the dissent that it was necessary for the state to present ‘‘corroborative evidence of injury to the victim’’ in order to introduce and rely upon the defendant’s confession as substantive evidence ofhis guilt on a second charge ofrisk ofinjury based upon a second alleged instance ofmasturbation in S.W.’s presence. First, evidence tending to prove such an injury, if an injury is required for the crime charged, is evidence of the corpus delicti, which the Hafford and Leniart cases hold to be unnecessary. Here, moreover, the crime at issue—risk ofinjury to, or impairing morals of a child—is not a crime resulting in injury or loss. State

v. Eastwood, 83 Conn. App. 452, 476, 850A.2d 234 (2004) (‘‘Lack ofan actual injury to

. . . the

. . . morals of the victim is irrelevant

. . . actual injury is not an element ofthe offense.

. . . [T]he creation ofaprohibited situation is sufficient.’’). Accordingly, this case does not raise the same concerns as
our dissenting colleague noted in Leniart, in which he cited the following footnote in Hafford: ‘‘We note, however, that proving the trustworthiness of a defendant’s confession to a crime resulting in injury or loss often will require evidence of that injury or loss. For example, a confession to a homicide likely would not be trustworthy without evidence of the victim’s death.’’ (Internalquotationmarksomitted.)Statev.Leniart, supra, 166Conn. App. 229 (

Flynn, J., dissenting inpart, concurring in part, and concurring in the result). Hence, the absence of such directly corroborative evidence of

asecondact ofmasturbationbythe defendantinthepresence ofS.W. would not require exclusion of his confession as evidence that he committed that act. Here, in fact, there is substantial evidence tending to corroborate the trustworthiness of the defendant’s statements admitting to having masturbated in S.W.’s presence at least twice. First, the admission ofsuch conduct

was sworn to before a police officer, who also videotaped his statement with his knowledge and consent. Such a statement could not have been

more obviously against the defendant’s penal interest, which is a wellrecognized index ofits trustworthiness. People do not lightly admit a crimeand place critical evidence in the hands of the police in the form of their

own admissions. United States v. Harris, 403 U.S. 573, 583, 91 S. Ct. 2075, 29 L. Ed. 2d 723 (1971) (‘‘[a]dmissions of crime, like admissions against proprietary interests, carry their own indicia of credibility—sufficient at least to support a finding of probable cause to search’’). Secondly, critical portions of the defendant’s statements—particularly those concerning one alleged incident ofmasturbation in S.W.’s presence that she recalled—were fully corroborated by her detailed trial testimony. Corroboration of the defendant’s admission as to one act, detailing its time frame, its location anditsessentialdescriptivedetails, surelylendscredibilitytothedefendant’s admission that he committed a similar act a second time, in the same location, inthesamegeneralmannerandforthesameillicitpurpose. Thirdly, the defendant’sadmittedconductin S.W.’spresence onatleastone occasion

was strongly corroborated by physical evidence establishing the presence of the defendant’s DNA in a semen sample removed for forensic analysis from S.W.’s stained bedspread. See footnote 8 of this opinion. Against this background, had the admissibility of the confession been challenged attrialunderthe corroboration rule, that challenge would surely have failed. Even if S.W.’s trial testimony and the state’s forensic evidence only furnished direct corroboration of the corpus delicti of one crime of risk of injury based upon the defendant’s admitted masturbation in S.W.’s presence inherbedroom, suchpartial corroboration ofhis entire statement, under circumstances where he was clearly acting against his own penal interest, undoubtedly tended to produce a confidence in the truth of the other part of the confession.