State v. Robert H.

233 A.3d 1248

STATE of Connecticut

v.ROBERT H.^*

AC 36742, (AC 37544)

Appellate Court of Connecticut.

Argued February 20, 2020

Officially released June 23, 2020

Naomi T. Fetterman, for the appellant (defendant).

Bruce R. Lockwood, supervisory assistant state's attorney, with whom, on the brief, were Lisa Herskowitz, 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).

Lavine, Devlin and Sheldon, Js.

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 defendant, 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 decision 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 judgments of conviction should be affirmed.

The following procedural history provides the context 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 defendant and the minor victim in the kitchen of the victim's home (kitchen incident). Robert I , supra, 168 Conn. App. at 422–23, 146 A.3d 995. 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 defendant masturbated in the presence of the victim.² The charges were tried to the jury, which found the defendant not guilty of the three charges related to the kitchen incident. The jury, however, found the defendant 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., at 426, 146 A.3d 995. 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., at 421, 146 A.3d 995.

The defendant appealed to this court, claiming that there was insufficient evidence to support a guilty verdict on a second charge of risk of injury for masturbating in the presence of the victim. Id., at 421, 146 A.3d 995. 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 statements 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 second act of masturbation in the [victim's presence]." Id., at 421–22, 146 A.3d 995. In response, the state argued that "the defendant's [corpus delicti] claim [was] 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 [to the police] at trial." Id., at 422, 146 A.3d 995.

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 unpreserved [corpus delicti] claim as part of his claim of insufficient evidence." (Footnote added.) Robert I , supra, 168 Conn. App. at 422, 146 A.3d 995. The majority, therefore, concluded that it was not necessary "to decide whether there was substantial independent evidence tending to establish the trustworthiness of the defendant's confession." 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 convicted"; id. ; and affirmed the defendant's conviction.⁵ Id., at 432, 146 A.3d 995.

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 establish every essential element of the charged crime beyond a reasonable doubt, and, therefore, even unpreserved corpus delicti claims are reviewable on appeal. See State v. Leniart , supra, 333 Conn. at 110, 215 A.3d 1104." Robert II , supra, 333 Conn. at 175, 214 A.3d 343. The Supreme Court, therefore, reversed this court's judgment in Robert I and "remand[ed] the case to [this] court for full consideration 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 supplemental briefs, addressing the impact of State v. Leniart , supra, 333 Conn. 88, 215 A.3d 1104, on the defendant's appeal. In his supplemental brief, the defendant claims that "the evidence 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 substantial, 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 convince 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 sufficiency of the evidence claim, we 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 [fact finder] 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 [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, 229 A.3d 472 (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, 215 A.3d 1104. 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., at 97, 215 A.3d 1104. 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 convicted solely on the basis of a naked, uncorroborated confession." Id., at 110, 215 A.3d 1104. The rule "not only governs the admission of confession evidence but also sets the conditions for obtaining a conviction." Id., at 101, 215 A.3d 1104.

"[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., at 111, 215 A.3d 1104 ; 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. La Louche , 116 Conn. 691,...