State v. Robert H., 146 A.3d 995, 168 Conn. App. 419 (2016)

Sept. 20, 2016 · Connecticut Appellate Court · AC 36742, (AC 37544)

146 A.3d 995, 168 Conn. App. 419

State of Connecticut
v.
Robert H.^*

AC 36742, (AC 37544)

Appellate Court of Connecticut.

Argued November 17, 2015
Officially released September 20, 2016

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).

Lavine, Sheldon and Flynn, Js.

* 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.

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 of risk of injury because, under the 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 of risk 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 long-form 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 one-half 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 of risk 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. La Louche , [116 Conn. 691, 695, 166 A. 252 (1933) ].... State v. Doucette , supra, 147 Conn. at 98-100, 157 A.2d 487." (Emphasis in original; internal quotation marks omitted.) State v. Leniart , supra, 166 Conn. App. at 152-53, 140 A.3d 1026.

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, at 193-94, 575 A.2d 223.

In State v. Leniart , supra, 166 Conn.App. at 142, 140 A.3d 1026, 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.; 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, at 168, 140 A.3d 1026.

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 corroboration 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. at 168-69, 140 A.3d 1026. 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. at 240, 903 A.2d 675.

The judgment is affirmed.

In this opinion LAVINE, J. concurred.

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. at 229, 140 A.3d 1026 (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 well-recognized 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 for the 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.

FLYNN, J., dissenting.

After a jury trial, the defendant was found not guilty of two counts of sexual assault in the first degree, in violation of General Statutes § 53a-70(a)(2) and (a)(1), respectively, and not guilty as to one count of injury or risk of injury to, or impairing morals of a child, in violation of General Statutes § 53-21(a)(2), which the information charged had resulted from contact with the intimate parts of a child. The defendant was convicted of two additional charges of risk of injury, in violation of § 53-21(a)(1), alleging in each that "the defendant did an act likely to impair the health or morals of a child under sixteen," for which the charging documents did not allege specific facts identifying the acts constituting the violation.

Despite the generality of both the information and the judge's charge as to the conduct constituting risk of injury, it is clear from the prosecutor's summation to the jury that the state claimed that the defendant had violated § 53-21(a)(1) by two separate acts of masturbation in front of the victim.

The issue to be decided on appeal is whether the defendant, Robert H., upon the evidence, could be convicted of one count of the crime of risk of injury to a child in violation of § 53-21(a)(1),¹ which he does not contest on appeal, or two such counts based solely on his extrajudicial confession.

The defendant's brief framed the issue as follows: "Was there sufficient evidence for the defendant to be convicted of and sentenced for a second count of risk of injury, and to be sentenced for violation of probation based on two such counts?"² He specifically states that there was no independent evidence of commission of a second offense of risk of injury in violation of § 53-21(a)(1), apart from his confession.³

While I respect the opinion of the majority in this matter, I dissent for some of the same reasons I gave in State v. Leniart , 166 Conn.App. 142, 228, 140 A.3d 1026 (2016) (Flynn, J. , dissenting in part, concurring in part, and concurring in the result). I concurred in part in Leniart because I agreed with the result reached and with the majority that there was sufficient independent evidence that the defendant intentionally caused the death of the victim, corroborating the extrajudicial confessions of the defendant, and thus by sufficient evidence establishing the necessary elements of the crime of murder in violation of General Statutes § 53a-54a(a). Id. at 231-32, 140 A.3d 1026. I dissented in part because I did not agree that the corpus delicti rule was merely evidentiary in that murder case. I dissented, first, because that holding "was unnecessary" in a case where both the majority and I agreed that there was independent evidence of the death of the victim, a necessary element of the crime of murder. Id.. My second reason for dissenting was that requiring such independent circumstantial evidence was sound where there was a scintilla of evidence, from people who knew the victim, that she had been seen alive after her disappearance. Id. Additionally, I noted that the Leniart majority seemed to give no weight to our Supreme Court's opinion in State v. Hafford , 252 Conn. 274, 317 n.23, 746 A.2d 150 (2000), 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,⁴ and that conviction for a homicide would require some evidence of death. Id. at 234-35, 140 A.3d 1026. Finally, I expressed the opinion that where the corpus delicti rule was invoked in a challenge to evidentiary sufficiency, it is not simply a rule of evidence, but of a hybrid nature. It is a hybrid where independent corroboration establishing its trustworthiness is lacking because the due process clause of our federal constitution requires that all necessary elements of the crime charged be proved beyond a reasonable doubt. As such, it is like other evidentiary rules, in that it interplays with constitutional requirements.⁵

At least one commentator has observed that "[t]here is insufficient justification for treating the [corpus delicti] rule as one related to admissibility of [a] defendant's admissions. The requirement should be only one of evidence sufficiency ... [T]he rule should be one to be applied by ... appellate courts ...." 1 C. McCormick, Evidence (7th Ed. 2013) § 148, p. 817.

Thus, in Leniart, I disagreed that a claim of evidentiary insufficiency of a conviction based on a confession made outside of court is not reviewable on appeal unless a defendant preserves the issue by objecting to the admission of his confession. I continue to hold the view that such a claim is reviewable based on our Supreme Court's decision in State v. Adams , 225 Conn. 270, 623 A.2d 42 (1993). There, our Supreme Court followed the ruling of the United States Supreme Court in Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in holding that "any defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right" and is entitled to review as it does with "any properly preserved claim." State v. Adams , supra, at 276 n. 3, 623 A.2d 42.

The majority here seems to premise its conclusion on the idea that if evidence is admitted without objection, there can be no challenge as to its sufficiency. I disagree. The failure to object to evidence does not end the matter. There can be a case, such as this, where there is no objection to evidence of an extrajudicial confession, but the defendant moves for acquittal as the defendant did, and when it is denied, appeals on the basis that no rational jury could have found the second count proved beyond a reasonable doubt.⁶ See Jackson v. Virginia , supra, 443 U.S. 307, 99 S.Ct. 2781 ; State v. Adams , supra, 225 Conn. 270, 623 A.2d 42. Practice Book § 42-40 expressly provides that a defendant may do so as it states in relevant part: "After the close of the prosecution's case in chief or at the close of all the evidence, upon motion of the defendant or upon its own motion, the judicial authority shall order the entry of a judgment of acquittal as to any principal offense charged and as to any lesser included offense for which the evidence would not reasonably permit a finding of guilty." The question then is whether all of the evidence, whether objected to or not, given the most favorable inference that the law requires to sustain the verdict, permits a rational jury to find all of the elements proved beyond a reasonable doubt.

I, thus, conclude that the defendant's claims are reviewable, and that because the victim testified to the occurrence of but one incident of the defendant's performance of an act of risking injury to the victim and, therefore, corroborated only one such offense, the evidence was insufficient to permit a jury to reasonably and rationally convict the defendant of a second such offense.

The defendant's conduct in the commission of the one count of commission of an act of masturbation in the presence of the victim, which he does not contest on appeal, is reprehensible. However, that should not foreclose his ability to contest the evidentiary sufficiency of a second count of that crime. The United States Supreme Court has held that: "The constitutional necessity of proof beyond a reasonable doubt is not confined to those defendants who are morally blameless. ... Under our system of criminal justice even a thief is entitled to complain that he has been unconstitutionally convicted and imprisoned as a burglar." (Citation omitted.) Jackson v. Virginia , supra, 443 U.S. at 323-24, 99 S.Ct. 2781. Furthermore, it is essential "of the due process guaranteed by the Fourteenth Amendment that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof-defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense." Id.. Moreover, "the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.... [T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Citation omitted; emphasis in original.) Id. at 318-19, 99 S.Ct. 2781.

Here, the record is devoid of any evidence of the occurrence of a second incident, where the defendant masturbated in front of the victim, other than the defendant's extrajudicial confession. Nothing in the record supports the trustworthiness of that confession's admission to a second incident. I therefore disagree with the majority that "there is substantial evidence tending to corroborate the trustworthiness of [that] statement ...." The majority notes that "critical portions of the defendant's statements ... were fully corroborated by [the victim's] detailed trial testimony."

Respectfully, I not only disagree that the defendant's extrajudicial confession to a second offense was fully corroborated; I disagree that it was corroborated at all. The victim did not expressly testify to another instance of the defendant masturbating in front of her. The victim was asked if she recalled "anything unusual happening" between her and the defendant, to which she testified that she did. She was then asked whether "it happen[ed] on one occasion or more than one occasion," and she responded that it happened on "[m]ore than one" occasion. The victim's response of "more than one" followed the query of whether "anything unusual" had happened between her and the defendant; however, the prosecutor never specified what "unusual" conduct to which he was referring. Additionally, when the victim later was asked what happened between her and the defendant, she responded by asking: "Let me understand, like both of them, or just one?" When she was then prompted to "start with one," she testified to an occasion when the defendant masturbated in front of her. The victim was then asked whether "anything similar to that happened" and although she responded by saying yes, she responded "no" to the follow up question "where he did in your room another time?" The victim went on to testify about other facts relating to the charges of sexual assault for which the jury found the defendant not guilty,⁷ but did not testify to a second occurrence of the defendant masturbating in her presence. A confession to be reliable cannot be self-corroborating. When the state charged the defendant in each separate count of violation of § 53-21(a)(1) that the defendant "did an act," it took on the burden of proving beyond a reasonable doubt that two such "acts" of self-abuse in the child's presence had occurred, not just one. I would hold that an extrajudicial confession to a second incident of indecent conduct toward a minor, unsupported by any corroborative evidence of injury, or risk of injury, to the victim, and where the minor victim in the case testifies only to the happening of one such incident, is not sufficient to permit a rational fact finder to find a second conviction for the same criminal offense of risk of injury beyond a reasonable doubt.⁸ I would reverse the defendant's conviction as to the second count of risk of injury for the reason that the evidence would not reasonably permit a finding of guilty, and remand with direction to grant the defendant's motion for acquittal as to that count.

Accordingly, I respectfully dissent.

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 On appeal, the defendant does not challenge the admissibility of his confession, but only whether it could suffice to be the only evidentiary basis on which his conviction rested.

3 The defendant's confession was made without an attorney present following a four hour long interrogation. Moreover, the police indicated to the defendant that they had certain physical evidence, which they did not in fact have. That was a deception.

4 The majority reads Hafford's terms "injury or loss" more narrowly than I. The loss is the conduct that the statute proscribes. In this case it is "[doing] any act likely to impair the health or morals of any ... child [under sixteen] ...." General Statutes § 53-21(a)(1). This is consistent with our Supreme Court's reasoning in State v. Arnold , 201 Conn. 276, 287, 514 A.2d 330 (1986), that the purpose of prohibiting convictions based on a defendant's uncorroborated confession is "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."

5 See, for example, the sixth amendment to the United States constitution, which provides the right of confrontation and the right to cross examine. U.S. Const., Amend. VI ("[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him"). That constitutional requirement informs the law of evidence with respect to the rule regarding admission of hearsay and its exceptions.

6 I did not in Leniart, nor do I in this appeal, opine that admissibility of the confession can be contested for the first time on appeal. The defendant does not do so either.

7 The defendant was also found not guilty on a third count of risk of injury regarding "the defendant [having] contact with the intimate parts of a child under sixteen years of age ... in a sexual and indecent manner likely to impair the health and morals of such child."

8 The victim, a child aged ten or eleven when this second alleged incident occurred, was able to personally testify in court, at thirteen years old, in the presence of the accused and did not need to offer videotaped testimony outside the defendant's presence as permitted by State v. Jarzbek , 210 Conn. 396, 554 A.2d 1094 (1989).