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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, Robert H., appeals from

his conviction on one of two charges of risk of injury

to, or impairing morals of a child in violation of General

Statutes § 53-21 (a) (1),1 of which he was found guilty

after a jury trial. The defendant claims that there was

insufficient evidence to support the jury’s guilty verdict

on the second of those two charges. Following the jury

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 of risk of injury of which the defendant was convicted were based upon separate acts of

masturbation in the presence of a minor child, 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

charge ofrisk of injury because, underthe corpus delicti

rule, also referred to as the corroboration rule, there

was not substantial independent evidence tending to

establish the trustworthiness of his confession to a second 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, and the defendant never challenged the 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, it is not necessary for us to decide whether

there was substantial independent evidence tending to

establish the trustworthiness of the defendant’s confession, and we will consider his unobjected-to statements

in the light most favorable to the state in evaluating his

current claim of evidentiary insufficiency. 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

both counts ofrisk of injury of which he was convicted.

The following facts are relevant to this appeal. On

September 3, 2013, the defendant was charged in a longform information with the following offenses:(1) sexual

assault in the first degree in violation of General Statutes § 53a-70 (a) (2);2

(2) sexual assault in the first

degree in violation of § 53a-70 (a) (1);3(3) injury or risk
of 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’s jury 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

defendant penetrated her either vaginally or anally with

his penis while he and she were in the kitchen. Although

S.W. testified that something ‘‘unusual’’ had occurred

between her and the defendant on more than one occasion, she also testified that the defendant had only masturbated in her room on one occasion5 and that the 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 of the 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 her bedroom ‘‘at least twice.’’ He averred, more

particularly, as follows: ‘‘I was lying in [S.W.’s mother’s]

bed and could see [S.W.] in her bedroom, lying in her

bed with her hands inside her pants. She was masturbating. 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

masturbate myself. She seemed like she was happy with

me doing that. I ejaculated in her general direction but

not on top of her. I don’t know if she came or not. This

same thing happened at least twice, where I masturbated in front of her in her room and this [is] probably

how my semen got on her bed or clothes. I never penetrated 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 of my

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 of the prosecution’s case-in-chief, at the
close of all the evidence, and again at his sentencing.

He claimed on each occasion that there was no evidence

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 of such a nature

that it was likely to impair the health or morals of a

minor. The court denied each of the defendant’s

motions for judgment of acquittal, ruling that there was

sufficient evidence for the jury 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, and that the charge of risk of injury alleged

in count three was based upon that same alleged incident. The state further explained that the risk of injury

charges set forth in counts four and five were based

upon the two incidents in which the defendant allegedly

had masturbated in the presence of S.W. The state specifically noted that the defendant had confessed to masturbating 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

assault in the kitchen, and guilty on counts four and five,

relating to the two alleged incidents of masturbation in

S.W.’s bedroom.

While the jury was deliberating, the court heard additional evidence on the charge of violation of probation

under § 53a-32. On October 29, 2013, after the jury

returned its guilty verdict on two counts ofrisk of injury,

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 of injury sentences, for a total 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 of violation of probation.
The defendant claims that there was insufficient evidence to support a guilty verdict on two counts of

risk of injury because the only evidence to support the

finding that he had masturbated in the presence of S.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 of risk of injury 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. If the 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 whether upon the facts so construed and the

inferences reasonably drawn therefrom the [finder of

fact] reasonably could have concluded that the 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 the jury’s verdict. . . . [W]e do not

sit as the seventh juror when we review the sufficiency

of the evidence . . . rather, we must determine, in the

light most favorable to sustaining the verdict, whether

the totality of the evidence, including reasonable inferences therefrom, supports the jury’s verdict of guilt

beyond a reasonable doubt.’’ (Citation omitted; internal

quotation marks omitted.) State v. 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.

State v. Arnold, 201 Conn. 276, 287, 514 A.2d 330 (1986).

An early version of Connecticut’s corroboration rule

was extensively discussed in State v. Doucette, 147

Conn. 95, 98–100, 157 A.2d 487 (1959), overruled in part

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 of itself to prove the former,
and, without evidence [from another source] of facts

also tending to prove the corpus delicti, it is 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. . . .

Properly this [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; internal quotation marks omitted.) State v. Leniart,

supra, 166 Conn. App. 152–53.

The current version of the rule, set forth in Opper v.

United States, 348 U.S. 84, 93, 75 S. Ct. 158, 99 L. Ed.

101 (1954), and followed by our Supreme Court in State

v. Harris, 215 Conn. 189, 192–97, 575 A.2d 223 (1990),

and State 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), states that ‘‘the corroborative evidence need not

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

of admissibility to be decided by the court. A defendant

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 of constitutional 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 of his confessions violated the corrobora-
tion rule. Accordingly, we must consider his 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

sufficient evidence to support his conviction of a second

count of risk of injury. 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 over the testimony of S.W., who testified

that she remembered him masturbating in her presence

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’’ of a child

in violation of § 53-21 (a) (1). We thus conclude that

the jury reasonably could have concluded that the

defendant was guilty beyond a reasonable doubt of two

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 of protecting the privacy interests of the

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 of sexual assault in the first degree when such person . . . (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 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 . . . .’’

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, now you said multiple things happened between

[the defendant] and you. Could you tell the ladies and gentleman of the jury

what happened between [the defendant] and you?

‘‘[S.W.]: Let me understand, like both of them, or just 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 he just

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 incidents that you recall specifically. In the time that [the defendant] had contact

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 of the defendant masturbating in her presence,

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 of his guilt on a second charge of risk of injury based upon a second

alleged instance of masturbation 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 of injury to, or

impairing morals of a child—is not a crime resulting in injury or loss. State

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

injury to . . . the . . . morals of the victim is irrelevant . . . actual injury

is not an element of the offense. . . . [T]he creation of a prohibited 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.’’(Internal quotation marks omitted.) State v. Leniart, supra, 166 Conn.

App. 229 (Flynn, J., dissenting in part, concurring in part, and concurring in

the result). Hence, the absence of such directly corroborative evidence of

a second act of masturbation by the defendant in the presence of S.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 of such 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 of its trustworthiness. People do not lightly admit a crime
and 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 of masturbation 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

and its essential descriptive details, surely lends credibility to the defendant’s

admission that he committed a similar act a second time, in the same

location, in the same general manner and forthe same illicit purpose. Thirdly,

the defendant’s admitted conduct in S.W.’s presence on at least one 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 at trial under the 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 in her bedroom, such partial corroboration of his 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.