State v. Robert H. ( 2016 )

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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 defen-
dant 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 mastur-
bated 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 sec-
ond 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 state-
ments, and the defendant never challenged the admissi-
bility 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 confes-
sion, 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 suffi-
cient evidentiary basis for the jury reasonably to con-
clude 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 Stat-
utes § 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 boy-
friend, 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 occa-
sion, she also testified that the defendant had only mas-
turbated 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 inter-
viewed 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 masturbat-
ing. 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 mastur-
bated in front of her in her room and this [is] probably
how my semen got on her bed or clothes. I never pene-
trated 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 inci-
dent. 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 spe-
cifically noted that the defendant had confessed to mas-
turbating in the presence of S.W. at least twice. In the
defendant’s closing argument, defense counsel sug-
gested 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 addi-
tional 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 evi-
dence 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 cumula-
tive 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 infer-
ences 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 con-
fession 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 origi-
nal; 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 estab-
lish 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 ele-
ment of the state’s case for which there must be suffi-
cient 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 con-
ducting a thorough review of the history of the rule’s
evolution in Connecticut, the court in Leniart con-
cluded ‘‘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 defen-
dant’s confession at trial is not entitled to raise the
corroboration rule on appeal because (1) the eviden-
tiary claim is not of constitutional magnitude and, thus,
cannot meet Golding’s9 second prong; see State v. Ure-
tek, 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 state-
ments in the light most favorable to upholding his chal-
lenged 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 mastur-
bated 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 inci-
dents 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 evi-
dence 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 mastur-
bated 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.