dissenting in part. Although I agree with the remainder of the opinion, I disagree with the view of the majority expressed in the second portion of part IV of the opinion that the evidence in this case was sufficient to sustain the defendant’s conviction for both attempted murder and first degree sexual assault.
The failure of the defendant seasonably to raise his claim of insufficiency does not preclude review pursuant to State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), because we have held that such a claim involves a fundamental constitutional right and, therefore, falls within the exception. State v. Maselli, 182 Conn. 66, 70, 437 A.2d 836 (1980), cert. denied, 449 U.S. 1083, 101 S. Ct. 868, 66 L. Ed. 2d 807 (1981).
On the merits of the claim, I continue to adhere to the belief that a defendant who uses force upon a victim for the purpose of murdering her, as required for attempted murder, cannot concurrently intend to use such force in order to compel the victim to have sexual intercourse with him as required for first degree sexual assault. “A person who renders his victim uncon*664scious and then has sexual intercourse with her in that condition commits sexual assault in the first degree, provided that he had such a purpose in mind at the time he was using force on the victim. He would have then compelled ‘another person to engage in sexual intercourse by the use of force against such other person’ in violation of General Statutes § 53a-70. If the use of force was with the intention of killing the victim, however, as required for a conviction of attempted murder under General Statutes §§ 53a-49 and 53a-54a, the actor could not simultaneously have harbored the purpose of having intercourse with a living victim, as is essential for first degree sexual assault. The concurrent intention he might have entertained could have been only to have sexual contact with a dead body, involving the crime of sexual assault in the fourth degree. General Statutes § 53a-73a (a) (3). In this case, therefore, the jury could not reasonably have found that the defendant, while he was using force, intended both to kill the victim and to have intercourse with her while she was alive, given the sequence that the sexual assault followed the attempt to murder, as the evidence unquestionably established.” State v. Rodgers, 198 Conn. 53, 67-68, 502 A.2d 360 (1985) (Shea, J., dissenting).
State v. Usry, 205 Conn. 298, 533 A.2d 212 (1987), upon which the majority opinion relies, is distinguishable because there the defendant was convicted of capital felony by virtue of “murder committed in the course of the commission of sexual assault in the first degree” in violation of General Statutes § 53a-54b (7), felony murder “when . . . he committed] . . . sexual assault in the first degree . . . and, in the course of and in furtherance of such crime or of flight therefrom, he . . . cause[d] the death of a person” in violation of General Statutes § 53a-54c, and murder “when, with intent to cause the death of another person, he cause[d] the *665death of such person” in violation of General Statutes § 53a-54a. With respect to the defendant’s claim in that case that the jury should have been instructed that, if the victim was dead before sexual intercourse occurred, the predicate offense of sexual assault in the first degree would not have been committed, this court held that the trial court properly refused such an instruction. I agree with that holding because “[a] person who renders his victim unconscious for dead] and then has sexual intercourse with her in that condition commits sexual assault in the first degree, provided that he had such a purpose in mind at the time he was using force on the victim. ” (Emphasis added.) State v. Rodgers, supra, 67. The request in Usry was properly refused, therefore, because it did not relate to the intention of the defendant in using force upon the victim but only to the sequence of the sexual assault and her death.
In the present case the evidence that the defendant choked the victim until she became unconscious with the intention of murdering her, as the jury found, is consistent only with an intention to have intercourse with her dead body, constituting the crime of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (3).
Accordingly, I dissent from the portion of the judgment convicting the defendant of sexual assault in the first degree.