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        STATE OF CONNECTICUT v. ROBERT H.—DISSENT

   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 con-
victed 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 indepen-
dent 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., 231–32. I dissented in part because I did
not agree that the corpus delicti rule was merely eviden-
tiary 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 evi-
dence of the death of the victim, a necessary element
of the crime of murder. Id., 232. My second reason for
dissenting was that requiring such independent circum-
stantial 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., 234–35. 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 trust-
worthiness 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] defen-
dant’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 eviden-
tiary 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 fol-
lowed 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, 276 n.3.
  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 mat-
ter. 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; State v. Adams, supra, 225 Conn.
270. 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 per-
formance of an act of risking injury to the victim and,
therefore, corroborated only one such offense, the evi-
dence 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 suffi-
ciency 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 blame-
less. . . . Under our system of criminal justice even a
thief is entitled to complain that he has been unconstitu-
tionally convicted and imprisoned as a burglar.’’ (Cita-
tion omitted.) Jackson v. Virginia, supra, 443 U.S.
323–24. Furthermore, it is essential ‘‘of the due process
guaranteed by the Fourteenth Amendment that no per-
son 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., 316. 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 deter-
mine 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 prosecu-
tion, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable
doubt.’’ (Citation omitted; emphasis in original.) Id.,
318–19.
  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 defen-
dant’s extrajudicial confession. Nothing in the record
supports the trustworthiness of that confession’s admis-
sion 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’’ occa-
sion. The victim’s response of ‘‘more than one’’ followed
the query of whether ‘‘anything unusual’’ had happened
between her and the defendant; however, the prosecu-
tor never specified what ‘‘unusual’’ conduct to which
he was referring. Additionally, when the victim later
was asked what happened between her and the defen-
dant, 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 occa-
sion when the defendant masturbated in front of her.
The victim was then asked whether ‘‘anything similar
to that happened’’ and although she responded by say-
ing 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 pres-
ence. A confession to be reliable cannot be self-corrobo-
rating. 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 sec-
ond count of risk of injury for the reason that the evi-
dence 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 follow-
ing 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).
