State v. Robert H. ( 2020 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
STATE OF CONNECTICUT v. ROBERT H.*
(AC 36742)
(AC 37544)
Lavine, Devlin and Sheldon, Js.
Syllabus
Convicted of two counts of the crime of risk of injury to a child arising out
of two separate acts of masturbation in the presence of the minor victim,
and judgment revoking his probation, the defendant appealed. The defen-
dant claimed that the evidence was insufficient to support his conviction
as to one of the counts of risk of injury because the only evidence of
the second incident was two statements that he made to the police,
which were admitted without objection at trial. The victim had testified
at trial concerning only one such incident. The defendant claimed that
the common-law corpus delicti rule, or corroboration rule, precluded
his confession from being used as the only evidence of the second
incident because there was no substantial independent evidence tending
to establish the trustworthiness of that confession. This court affirmed
the conviction. The defendant, on the granting of certification, appealed
to our Supreme Court, which reversed the judgment of this court and
remanded the case to this court with direction to consider fully the
merits of the defendant’s corpus delicti claim in light of its decision in
State v. Leniart (333 Conn. 88). Held that the defendant could not prevail
on his corpus delicti claim that his confession constituted insufficient
evidence for the jury to conclude that he had masturbated in the presence
of the victim on more than one occasion, as there was substantial
evidence to corroborate the defendant’s written statement, which was
against his penal interest, that he had masturbated at least twice in the
presence of the victim, including that the defendant voluntarily went to
the police and agreed in writing to a videotaped interview with officers
and to waive his constitutional rights when he gave a signed, written
statement to the police, the defendant’s statement closely paralleled
the victim’s testimony regarding the defendant’s masturbation in her
bedroom, there were seven stains containing the defendant’s DNA on
the bottom of the victim’s bedspread and testimony was presented at
trial that semen is water soluble and the defendant tried to wipe the
semen with a wet cloth and the bedspread had been laundered two or
three weeks before the police seized it.
Argued February 20—officially released June 23, 2020
Procedural History
Substitute information, in the first case, charging the
defendant with three counts of the crime of risk of
injury to a child and two counts of the crime of sexual
assault in the first degree, and information, in the sec-
ond case, charging the defendant with violation of pro-
bation, brought to the Superior Court in the judicial
district of Hartford, where the first case was tried to
the jury before Suarez, J.; verdict of guilty of two counts
of risk of injury to a child; thereafter, the defendant
was presented to the court in the second case on a plea
of guilty; judgment of guilty in accordance with the
verdict and judgment revoking probation, from which
the defendant filed separate appeals to this court, Lav-
ine and Sheldon, Js., with Flynn, J., dissenting, which
affirmed the trial court’s judgments, and the defendant,
on the granting of certification, appealed to our
Supreme Court, which reversed the judgment of this
court and remanded the case to this court for further
proceedings. Affirmed.
Naomi T. Fetterman, for the appellant (defendant).
Bruce R. Lockwood, supervisory assistant state’s
attorney, with whom, on the brief, were Lisa Herskow-
itz, former senior assistant state’s attorney, Gail P.
Hardy, state’s attorney, and John F. Fahey, supervisory
assistant state’s attorney, for the appellee (state).
Opinion
LAVINE, J. This risk of injury case returns to this
court on remand from our Supreme Court; see State v.
Robert H., 333 Conn. 172, 175, 214 A.3d 343 (2019)
(Robert II); directing this court to consider fully the
merits of the ‘‘corpus delicti claim’’ raised by the defen-
dant, Robert H., in his direct appeal. See State v. Robert
H., 168 Conn. App. 419, 422–23, 146 A.3d 995 (2016)
(Robert I), rev’d, 333 Conn. 172, 214 A.3d 343 (2019).
Our Supreme Court further directed this court to review
the defendant’s corpus delicti claim pursuant to its deci-
sion in State v. Leniart, 333 Conn. 88, 97, 215 A.3d
1104 (2019). We have considered the defendant’s corpus
delicti claim as directed and conclude that the judg-
ments of conviction should be affirmed.
The following procedural history provides the con-
text for this opinion. In 2013, the defendant was charged
in a long form information with two counts of sexual
assault in the first degree and one count of risk of injury
to, or impairing the morals of, a child for a sexual
encounter that allegedly took place between the defen-
dant and the minor victim in the kitchen of the victim’s
home (kitchen incident). Robert I, supra, 168 Conn.
App. 422–23. He also was charged in counts four and
five of the long form information with risk of injury to,
or impairing the morals of, a child (risk of injury) in
violation of General Statutes § 53-21 (a) (1).1 Counts
four and five alleged two instances in which the defen-
dant masturbated in the presence of the victim.2 The
charges were tried to the jury, which found the defen-
dant not guilty of the three charges related to the
kitchen incident. The jury, however, found the defen-
dant guilty of the two risk of injury charges in violation
of § 53-21 (a) (1), arising from the defendant’s having
masturbated twice in the presence of the victim.3 Id.,
426. After the jury found the defendant guilty, he
pleaded guilty to a charge of violation of probation that
had been alleged in a separate file. The court sentenced
the defendant on all three charges to a total effective
sentence of twenty years of incarceration. Id., 421.
The defendant appealed to this court, claiming that
there was insufficient evidence to support a guilty ver-
dict on a second charge of risk of injury for masturbat-
ing in the presence of the victim. Id., 421. He argued
that ‘‘the only evidence presented at trial to support the
jury’s finding that he had masturbated in [the victim’s]
presence on more than one occasion were two state-
ments he made to [the] police, which were admitted
into evidence against him without objection at trial.
The defendant [continued] 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 [victim’s presence].’’ Id.,
421–22. In response, the state argued that ‘‘the defen-
dant’s [corpus delicti] claim [was] 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 [to the police] at trial.’’ Id., 422.
In deciding whether to review the defendant’s claim
in Robert I, the majority stated that this court recently
had held, ‘‘in State v. Leniart, 166 Conn. App. 142,
152–53, 140 A.3d 1026 (2016) [rev’d in part, 333 Conn.
88, 215 A.3d 1104 (2019)],4 that the corroboration rule
is solely a rule of admissibility [and] agree[d] with the
state that the defendant [could not] raise his unpre-
served [corpus delicti] claim as part of his claim of
insufficient evidence.’’ (Footnote added.) Robert I,
supra, 168 Conn. App. 422. The majority, therefore, con-
cluded that it was not necessary ‘‘to decide whether
there was substantial independent evidence tending to
establish the trustworthiness of the defendant’s confes-
sion.’’ Id. The majority considered the defendant’s
‘‘unobjected-to statements in the light most favorable
to the state in evaluating his . . . claim of evidentiary
insufficiency.’’ Id. The majority ultimately concluded
that the ‘‘defendant’s statements that he masturbated
in the [victim’s presence] ‘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 con-
victed’’; id.; and affirmed the defendant’s conviction.5
Id., 432.
Our Supreme Court granted the defendant’s petition
for certification to appeal limited to the question of
whether ‘‘the Appellate Court properly conclude[d] that
the corpus delicti rule is merely a rule of admissibility,
in determining that there was sufficient evidence to
sustain the defendant’s second conviction of risk of
injury to a child . . . .’’ State v. Robert H., 323 Conn.
940, 151 A.3d 845 (2016). After the appeal was argued,
our Supreme Court issued a per curiam decision,
answering the question by stating that ‘‘our corpus
delicti rule is a hybrid evidentiary-substantive rule that
implicates a defendant’s fundamental right not to be
convicted in the absence of evidence sufficient to estab-
lish every essential element of the charged crime
beyond a reasonable doubt, and, therefore, even unpre-
served corpus delicti claims are reviewable on appeal.
See State v. Leniart, supra, 333 Conn. 110.’’ Robert II,
supra, 333 Conn. 175. The Supreme Court, therefore,
reversed this court’s judgment in Robert I and
‘‘remand[ed] the case to [this] court for full consider-
ation of the merits of the defendant’s corpus delicti
claim.’’ Id.On November 19, 2019, this court issued an order
stating that the parties may file simultaneous supple-
mental briefs, addressing the impact of State v. Leniart,
supra, 323 Conn. 88, on the defendant’s appeal. In his
supplemental brief, the defendant claims that ‘‘the evi-
dence was insufficient to sustain a conviction on a
second charge of risk of injury since, under the corpus
delicti rule, there was not any evidence, much less sub-
stantial, independent evidence, tending to establish the
trustworthiness of his confession to a second act of
masturbation in the presence of [the victim].’’
Before considering the evidence before the jury, we
set forth the applicable principles of law. A criminal
defendant has a constitutional right not to be convicted
of a crime ‘‘except upon sufficient proof . . . to con-
vince a trier of fact beyond a reasonable doubt of the
existence of every element of the offense.’’ (Internal
quotation marks omitted.) State v. Adams, 225 Conn.
270, 275 n.3, 623 A.2d 42 (1993). ‘‘In reviewing a suffi-
ciency of the evidence claim, we apply a two part test.
First we construe the evidence in the light most favor-
able to sustaining the verdict. Second we determine
whether upon the facts so construed and the inferences
reasonably drawn therefrom the [fact finder] reason-
ably could have concluded that the cumulative force
of the evidence established guilt beyond a reasonable
doubt . . . . This court cannot substitute its own judg-
ment for that of the [fact finder] if there is sufficient
evidence to support the [fact finder’s] verdict . . . .
We ask . . . whether there is a reasonable view of the
evidence that supports the [fact finder’s] verdict of
guilty.’’ (Internal quotation marks omitted.) State v.
Watson, 195 Conn. App. 441, 445, 225 A.3d 686, cert.
denied, 335 Conn. 912, A.3d (2020).
‘‘[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.’’ (Internal
quotation marks omitted.) State v. Miles, 97 Conn. App.
236, 240, 903 A.2d 675 (2006).
We now turn to State v. Leniart, supra, 333 Conn. 88.
The corpus delicti rule ‘‘generally prohibits a prosecutor
from proving the [fact of a transgression] based solely
on a defendant’s extrajudicial statements.’’ (Internal
quotation marks omitted.) Id., 97. Our Supreme Court
now has concluded that ‘‘the corpus delicti rule is a
hybrid rule that not only governs the admissibility of
confession evidence but also imposes a substantive
requirement that a criminal defendant may not be con-
victed solely on the basis of a naked, uncorroborated
confession.’’ Id., 110. The rule ‘‘not only governs the
admission of confession evidence but also sets the con-
ditions for obtaining a conviction.’’ Id., 101.
‘‘[T]he general rule is that the corpus delicti cannot
be established by the [extrajudicial] confession of the
defendant unsupported by corroborative evidence.
. . . There are cases which hold in effect that it must be
established by evidence independent of the defendant’s
confession and that without such proof evidence of the
confession is inadmissible.’’ (Internal quotation marks
omitted.) Id., 111; see 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); State
v. LaLouche, 116 Conn. 691, 693, 166 A. 252 (1933),
overruled in part by State v. Tillman, 152 Conn. 15, 20,
202 A.2d 494 (1964).
In keeping with the modern trend, our Supreme Court
previously reduced the burden the corpus delicti rule
imposes on the state in prosecuting crimes. See State
v. Leniart, supra, 333 Conn. 112. In State v. Tillman,
152 Conn. 15, 20, 202 A.2d 494 (1964), the court
‘‘departed from the traditional rule that the state must
establish, by independent evidence, both that an injury
or loss occurred and that the loss was feloniously
caused. . . . [T]he corpus delicti that must be estab-
lished by independent evidence encompasses only the
former element, namely, the specific kind of loss or
injury embraced in the crime charged.’’ (Footnotes
omitted.) State v. Leniart, supra, 112. The court again,
in State v. Harris, 215 Conn. 189, 193–94, 575 A.2d 223(1990), modified the rule as it applies to ‘‘crimes, such
as driving under the influence, that proscribe certain
undesirable conduct but do not necessarily entail any
particular injury or loss.’’ State v. Leniart, supra, 113.
‘‘[F]or crimes of that sort, the state need not establish
the corpus delicti of the crime through extrinsic evi-
dence . . . [it] need only introduce substantial inde-
pendent evidence [that] would tend to establish the
trustworthiness of the [defendant’s] statement.’’ (Inter-
nal quotation marks omitted.) Id. In State v. Hafford,
252 Conn. 274, 317, 746 A.2d 150, cert. denied, 531 U.S.
855, 121 S. Ct. 136, 148 L. Ed. 2d 89 (2000), our Supreme
Court ‘‘held that this trustworthiness rule set forth in
Harris, also known as the corroboration rule, now
applies to all types of crimes, not only those offenses
that prohibit conduct and do not result in a specific loss
or injury. In other words, post-Hafford, a confession is
now sufficient to establish the corpus delicti of any
crime, without independent extrinsic evidence that a
crime was committed, as long as there is sufficient
reason to conclude that the confession is reliable.’’
(Internal quotation marks omitted.) State v. Leniart,
supra, 113.
To determine whether there was substantial, inde-
pendent evidence to corroborate the defendant’s con-
fession that he twice masturbated in the presence of
the victim requires us to examine all of the evidence
presented at trial.6 At the time of the alleged sexual
abuse, the victim was a ten or eleven year old, intermedi-
ate school student. She was thirteen years old when
she testified at trial. She lived with her older brother
and her mother, who was romantically involved with
the defendant, who spent time in the victim’s home.
The victim’s bedroom was adjacent to her mother’s
bedroom and was connected to it by a doorway.
During her testimony, the victim was able to recall
two specific incidents of a sexual nature that transpired
between her and the defendant. During one incident,
the victim was lying on her bed watching television
when the defendant entered her bedroom, took out his
penis, masturbated, and ejaculated onto her bed. After
the defendant ejaculated, he wet a cloth and ‘‘tried to
rub [the semen] off.’’ The second incident took place
after the first and occurred in the kitchen. During the
kitchen incident, the victim, dressed in her pajamas,
was bending over when the defendant approached her
from behind and pulled down her pajama bottom. He
placed his penis in her ‘‘butt’’ and penetrated her vagi-
nally or anally. The victim did not tell her mother about
the incidents that occurred between her and the defen-
dant because she was scared. Although the victim testi-
fied that something unusual had occurred between her
and the defendant on more than one occasion, at trial
she could recall only the two events just described.
The kitchen incident took place approximately three
weeks before the victim disclosed the defendant’s abuse
to a school friend, K, in March, 2011. K wrote a note
about the victim’s disclosure to one of their teachers,
Gail Jordan, who reported the alleged abuse to a school
counselor. The next day, the victim’s counselor, Karen
Goldman, spoke with the victim, who shared with her
the defendant’s sexual abuse. Because she is a man-
dated reporter,7 Goldman reported the alleged abuse to
the Department of Children and Families (department).
On the day the department received the complaint, Nina
Bentham, a department investigator, reported the com-
plaint to Detective Beth Leger of the Bloomfield Police
Department, with whom the department had a working
relationship. That evening, Bentham and Leger together
went to the victim’s home, where the defendant was
present. Leger spoke to the victim’s mother privately
and secured her permission to seize a fitted bedsheet
and bedspread from the victim’s bed.
Subsequently, the victim was examined at Connecti-
cut Children’s Medical Center on March 10, 2011. On
March 14, 2011, the victim also was examined by Audrey
Courtney, a pediatric nurse practitioner at the Chil-
dren’s Advocacy Center at St. Francis Hospital and Med-
ical Center (children’s center). Courtney made a written
report of her examination, which was placed into evi-
dence. Richard Cousins, an inspector in the state divi-
sion of criminal justice, obtained a buccal swab from
inside the victim’s cheek for DNA testing. Erin Byrne,
a forensic interviewer at the children’s center, also
authored a report that was put into evidence. Byrne’s
interview of the victim was videotaped and shown to
the jury.
Leger telephoned the defendant to arrange a meeting
at the Bloomfield police station. At that meeting on
April 7, 2011, the defendant signed a consent to search
form giving the police permission to take a buccal swab
from the inside of his cheek for DNA testing. Leger also
asked the defendant to submit to another interview.
The bedclothes Leger collected from the victim’s bed
were transferred to the state forensic laboratory by
Madison W. Bolden, Jr., a Bloomfield police officer.
Jane Codraro, a forensic biologist at the state forensic
laboratory, testified about her examination of the blue
fitted bedsheet and the bedspread Leger removed from
the victim’s bed. Codraro found stains on both the sheet
and bedspread. She used a screening test known as
acid phosphatase to detect the presence of semen on
both the sheet and bedspread. She found no evidence
of semen on the bedsheet, but there were approximately
seven stains containing semen in a one and one-half
feet square area on the bedspread at the foot of the
bed. Codraro was able to extract cellular material from
one of the bedspread stains that indicated the presence
of spermatozoa. Codraro sent the cellular material to
the DNA section of the laboratory for further testing.
The defendant’s DNA was found in the cellular material.
Codraro also testified that semen is water soluble and
could be removed by washing.
On May 17, 2011, the defendant voluntarily went to
the West Hartford police station where he was inter-
viewed by Leger and Frank Fallon, then a sergeant in
the West Hartford Police Department.8 Fallon presented
the defendant with a waiver of rights form that the
defendant read and signed. Fallon and Leger spent
approximately four hours interviewing the defendant
in a room approximately eight feet by eight feet,9 but
they did not spend the entire time discussing the vic-
tim’s allegations.10 Both Fallon and Leger testified that
a discussion of the victim’s allegations did not begin
until the defendant spoke the word ‘‘enticement.’’ Leger
testified that the defendant stated that he had been
enticed by the victim when he was lying on her mother’s
bed from where he could see the victim lying on her
bed masturbating. The defendant began masturbating
and at some point ended up near the victim’s bed mas-
turbating until he ejaculated. He also stated that it was
possible that the victim had touched his penis. The
defendant steadfastly denied that he ever penetrated
the victim. He, however, admitted that he masturbated
twice near the victim’s bed while she was in it. The
defendant became emotional, stating that he knew what
he had done was wrong, and that, as an adult, he knew
that it should not have happened.
During the interview, Leger represented to the defen-
dant that the police had certain evidence, namely the
victim’s underwear containing his semen, which actu-
ally they did not have. Leger explained that that inter-
view technique is used by police officers to elicit a
truthful response. The police may get a very clear objec-
tion to the evidence because the suspect knows that it
does not exist, or the technique may help the suspect
to be truthful.
At no time during the interview did the defendant
invoke his right to remain silent, state that he wanted
an attorney or otherwise invoke his constitutional
rights. He appeared to Leger to be coherent, and not
under the influence of alcohol, drugs, or medicines. At
the conclusion of the interview, the defendant agreed
to give Leger a written statement summarizing what he
had stated during the interview. He dictated his state-
ment to Leger, read it, swore to its truthfulness, and
signed it. After he signed the statement, the defendant
left the West Hartford police station. He was not
under arrest.
The final forty or so minutes of the defendant’s
recorded interview was played for the jury. His written
statement was read to the jury and placed into evidence.
The defendant’s confession, which is the basis of his
corpus delicti claim, states as follows: ‘‘I . . . do
hereby make the following statement of my own free
will, without fear, threats or promises of any kind, and
knowing that the same may be used in court against
me, and that false statements are punishable by law.
‘‘Either late January or February, 2011, I was visiting
my girlfriend . . . at her apartment . . . . I was in
[her] bedroom. [She] was in the living room and had
smoked weed. I was lying in [her] bed and could see
[the victim] 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 to [the victim’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 mastur-
bate 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 it’s proba-
bly 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.
‘‘I’ve had a problem with resisting temptation like this
for quite a while. I have been attending group therapy
sessions, but don’t think that program is working for
me. I believe I need more help than that, because I don’t
want to continue doing these things.
‘‘I’ve read the above statement consisting of one page
and it is true and correct. . . .’’ (Emphasis added.)
At the conclusion of evidence, the state argued to
the jury that the sexual assaults alleged in counts one
and two and risk of injury alleged in count three related
to the kitchen incident. The risk of injury counts alleged
in counts four and five were predicated on the two
incidents during which the defendant masturbated in
the victim’s presence. Robert I, supra, 168 Conn. App.
426. The state specifically argued that the defendant
had confessed to having masturbated in the victim’s
presence on two occasions. Id. In his closing argument,
defense counsel argued that the victim’s story changed
each time she told it. Id.On appeal, the defendant claims that there was no
substantial independent evidence to establish the trust-
worthiness of his confession that he twice masturbated
in the presence of the victim. Under the corroboration
rule, the state need only ‘‘introduce substantial indepen-
dent evidence [that] tend[s] to establish the trustworthi-
ness of the [defendant’s] statement[s].’’ (Internal quota-
tion marks omitted.) State v. Leniart, supra, 333 Conn.
119. The substantial evidence standard is met if the
record provides a ‘‘substantial basis of fact from which
the fact in issue can be reasonably inferred.’’ (Internal
quotation marks omitted.) Adriani v. Commission on
Human Rights & Opportunities, 220 Conn. 307, 315,
596 A.2d 426 (1991).
On the basis of our review of the record, we conclude
that it contains substantial independent evidence to
corroborate the trustworthiness of the defendant’s con-
fession. The defendant’s sworn written statement that
he masturbated ‘‘at least twice’’ in the presence of the
victim is a statement against his penal interest, which
has been recognized as indicative of trustworthiness
by the United States Supreme Court. See United States
v. Harris, 403 U.S. 573, 583, 91 S. Ct. 2075, 29 L. Ed. 2d
723 (1971) (admission of crime, like admission against
proprietary interests, carries indicia of credibility). Our
appellate courts and code of evidence reflect this rule
of trustworthiness.
In addressing the admissibility of a coconspirator’s
confession to his postconviction cellmate, this court
has looked to § 8-6 of the Connecticut Code of Evidence,
which concerns hearsay. See State v. Collins, 147 Conn.
App. 584, 590, 82 A.3d 1208 (confession not against
penal interest), cert. denied, 311 Conn. 929, 86 A.3d 1057(2014). See Conn. Code Evid. § 8-6 (4) (‘‘A trustworthy
statement against penal interest that, at the time of its
making, so far tended to subject the declarant to crimi-
nal liability that a reasonable person in the declarant’s
position would not have made the statement unless
the person believed it to be true. In determining the
trustworthiness of a statement against penal interest,
the court shall consider (A) the time the statement was
made and the person to whom the statement was made,
(B) the existence of corroborating evidence in the case,
and (C) the extent to which the statement was against
the declarant’s penal interest.’’).
‘‘The against [penal] interest exception is not limited
to a defendant’s direct confession of guilt. . . . It
applies as well as to statements that tend to subject
the speaker to criminal liability. . . . The rule encom-
passes disserving statements by a declarant that would
have probative value in a trial against the declarant.’’
(Citations omitted; internal quotation marks omitted.)
State v. Bryant, 202 Conn. 676, 695, 523 A.2d 451 (1987).
In the present case, the evidence demonstrates that
the defendant voluntarily went to the West Hartford
Police Department, agreed in writing to a videotaped
interview with two police officers, and again agreed in
writing to waive his constitutional rights when he gave
a signed, written statement to Leger, the detective
investigating the report of the defendant’s abuse. The
defendant attested to the truthfulness of his statement
that he masturbated at least twice in the victim’s pres-
ence. His statement closely parallels the victim’s testi-
mony during which she described the defendant’s mas-
turbating in her bedroom. The victim’s testimony lends
credibility to the defendant’s statement that he mastur-
bated at least twice in her presence. Seven stains were
found on the bedspread that covered the bottom portion
of the bed. Laboratory analysis detected the presence
of the defendant’s DNA on the bedspread, confirming
that the defendant had ejaculated on to the victim’s
bed. Codraro testified that semen is water soluble. The
victim testified that the defendant tried to wipe the
semen from her bedspread with a wet cloth and that
the bedspread had been laundered two or three weeks
before Leger seized it. This evidence strongly corrobo-
rates the defendant’s statement that he had masturbated
in the victim’s presence at least twice.
For the foregoing reasons, we conclude that there
was substantial evidence to corroborate the defendant’s
written statement that he had masturbated at least twice
in the presence of the victim. The defendant’s corpus
delicti claim, therefore, fails.
The judgments are affirmed.
In this opinion the other judges 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
Counts four and five of the long form information are identical and allege
in relevant part: ‘‘The said Senior Assistant State’s Attorney further accuses
Robert [H.] of the crime of INJURY OR RISK OF INJURY TO, OR
IMPAIRING MORALS OF A CHILD, in violation of . . . General Statutes
§ 53-21 (a) (1) and alleges that on unspecified dates between September,
2009 and March 5, 2011, at or near [the victim’s address] . . . the defendant
did an act likely to impair the health or morals of a child under the age of
sixteen, identified as the person listed in State’s Exhibit 1.’’ (Emphasis in
original.) Exhibit 1 states the name of the victim, her date of birth, and
town of residence.
3
The defendant moved for a judgment of acquittal at the close of the
state’s case-in-chief, at the close of evidence, and again at sentencing. The
defendant argued that there was no evidence to support a finding that he
masturbated in the victim’s presence a second time, as the victim had
testified to only one such incident. He further argued that the state, therefore,
could not establish that she was harmed or affected by the alleged second
incident if she was not aware of it. Robert I, supra, 168 Conn. App. 425. The
state responded by arguing that risk of injury does not require that the child
be aware of the defendant’s acts, only that the defendant’s conduct was of
a nature that it was likely to impair the health or morals of a child. Id.,425–26. The court denied each of the defendant’s motions for judgment of
acquittal, stating that there was sufficient evidence by which the jury could
find that the defendant had masturbated in the victim’s presence on more
than one occasion. Id., 426.
4
Judge Flynn dissented in part in State v. Leniart, supra, 166 Conn. App.
228. He agreed ‘‘with the majority that there was sufficient independent
evidence that the defendant intentionally caused the death of the victim,
corroborating the extrajudicial confession of the defendant, and thus by
sufficient evidence establishing the necessary elements of the crime of
murder . . . . [He] dissented in part because [he] did not agree that the
corpus delicti rule was merely evidentiary in that murder case.’’ (Citation
omitted.) Robert I, supra, 168 Conn. App. 433.
5
Judge Flynn wrote a dissenting opinion in Robert I as he did in Leniart.
See footnote 4 of this opinion. In Robert I, he opined that corpus delicti
claims implicate a defendant’s substantive due process rights and, therefore,
are reviewable on appeal even if not preserved at trial, and that the evidence
at trial was not sufficient to corroborate the reliability of the defendant’s
confession as to a second incident of sexual misconduct. See Robert I,
supra, 168 Conn. App. 435–38.
6
We undertake a more extensive review of the evidence than was done
in Robert I.
7
Teachers and school counselors, among others, are mandated reporters
of suspected child abuse. See General Statutes § 17a-101 (b).
8
Fallon testified that it is common practice for police departments in the
Greater Hartford area to assist one another in investigations.
9
The defendant’s entire interview was video recorded.
10
Fallon testified about the training police officers undergo to investigate
and speak with suspects in crimes of sexual abuse of young children. The
police seek to create a comfortable environment for an individual to speak
about sensitive allegations.