Victor M. Rivera v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any May 05 2017, 6:45 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark A. Thoma Curtis T. Hill, Jr.
Deputy Public Defender Attorney General of Indiana
Leonard, Hammond, Thoma & Terrill
Fort Wayne, Indiana Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Victor M. Rivera, May 5, 2017
Appellant-Defendant, Court of Appeals Case No.
02A04-1611-CR-2625
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff Judge
Trial Court Cause No.
02D05-1602-F3-10
Crone, Judge.
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Case Summary
[1] Victor M. Rivera appeals his conviction and sentence for level 6 felony neglect
of a dependent. Rivera claims that the evidence is insufficient to support his
conviction. He also asserts that the trial court abused its discretion in
sentencing him by failing to recognize mitigating factors and that his two-and-
one-half-year sentence is inappropriate in light of the nature of the offense and
his character. We conclude that the evidence is sufficient, the trial court did not
abuse its discretion in sentencing him, and Rivera has failed to carry his burden
to show that his sentence is inappropriate. Therefore, we affirm.
Facts and Procedural History
[2] The evidence most favorable to the conviction shows that in 2015, Rivera lived
with his pregnant girlfriend, Jennifer Born, in her apartment. They also lived
with Born’s two elementary-school-aged children, Al.B. (“Daughter”) and G.B.
In July 2015, Jennifer gave birth to Ax.B. (“Baby”).
[3] The apartment harbored bedbugs and lice that infected the children. Tr. Vol. 3
at 11, 31, 63-64. Daughter and G.B. had issues with hygiene, like bathing. Id.
at 11. G.B. was often “filthy,” developed “skin issues,” and did not brush his
teeth regularly. Id. at 11, 63. Daughter and G.B. had poor school attendance.
Id. at 11, 63. Rivera often called Daughter and G.B. names. Id. at 12. He
physically disciplined them. G.B. complained that Rivera hit him and hurt
him. Id. at 62. Rivera threw G.B. across the room onto the couch and held his
face into the cushions so that G.B. could not breathe. Id. at 62-63. Rivera
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verbally abused Born in front of the children. Id. at 18. During one of their
arguments, Daughter witnessed Rivera putting Born in a choke hold. Id. at 13;
Tr. Vol. 2 at 220. The Indiana Department of Child Services was called more
than once while Born was with Rivera.
[4] On the morning of October 18, 2015, Baby appeared normal when he woke up.
Born fed him and made pancakes for Daughter, G.B., and their two cousins
who had spent the night. Rivera woke up around noon and was angry. He
picked up Baby and shook him. He also held Baby upside down by his arms
and legs. Baby vomited on Rivera, and he shook Baby harder. Rivera changed
his clothes, and he and Born began getting the children ready to go to the park.
During this time, Rivera was angry and cussing at Born. Rivera was holding
Baby when he went to Daughter’s bedroom to get the baby stroller. A baby
swing was on top of the stroller. Rivera picked up the baby swing and threw it
out of the room, and it hit Daughter in the nose.
[5] Rivera pointed out to Born and the children that Baby had a bump on his head.
Rivera called 911 and reported that Baby was injured and needed medical
attention. The police and paramedics responded, and Baby was taken to the
hospital. He suffered multiple injuries that appeared to have been inflicted on
different dates. He had an acute spiral fracture to his femur, a partially healed
fracture to his left humerus, a skull fracture from a blow to the head, head
trauma from being shaken, and retinal hemorrhages. Baby’s injuries were the
result of “non-accidental trauma or inflicted trauma on the child.” Tr. Vol. 2 at
99-100.
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[6] Police investigators found that the apartment “smelled dirty,” that “you could
smell [] trash, old food, [] bathroom trash.” Id. at 168. In addition, “there
[were] a lot of trash bags in the apartment[,] almost in every single room [were]
items that were bagged up or were trash and there was a lot of clutter,” and
“[t]here were things piled on top of other things on top of other things in almost
every single room.” Id.
[7] The State filed two counts against Rivera. Count 1 charged that between July
24 and October 18, 2015, Rivera committed level 3 felony neglect of a
dependent resulting in serious bodily injury; the charging information named
“A.B.” as the victim. Appellant’s App. Vol. 2. at 15. Count 2 charged that
between July 24 and October 18, 2015, Rivera committed level 6 felony neglect
of a dependent; the charging information named “A.B. or G.B.” as victims. Id.
at 16. The dates of birth for the victims were redacted on both counts.
[8] A jury found Rivera not guilty of Count 1 and guilty of Count 2. At sentencing,
the trial court found no mitigating circumstances and that Rivera’s criminal
history, consisting of eight juvenile adjudications and two adult misdemeanor
convictions, and associated failed efforts at rehabilitation was an aggravating
factor. The trial court sentenced Rivera to an executed sentence of two and
one-half years. This appeal ensued.
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Discussion and Decision
Section 1 - Sufficient evidence supports Rivera’s conviction.
[9] Rivera first challenges the sufficiency of the evidence supporting his conviction.
In reviewing a claim of insufficient evidence, we do not reweigh the evidence or
judge the credibility of witnesses, and we consider only the evidence that
supports the judgment and the reasonable inferences arising therefrom. Bailey v.
State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We will affirm if there is substantial
evidence of probative value such that a reasonable trier of fact could have
concluded the defendant was guilty beyond a reasonable doubt.” Id.[10] To convict Rivera of level 6 felony neglect of a dependent, the State was
required to prove beyond a reasonable doubt that he, while having the care of
“A.B. or G.B.,” whether assumed voluntarily or because of a legal obligation,
knowingly or intentionally placed “A.B. or G.B.” in a situation that endangered
the dependent’s life or health. Ind. Code § 35-46-1-4(a); Appellant’s App. Vol.
2 at 16. We observe that A.B. could refer to either Baby or Daughter because
they have the same first and last initials. Count 1 also named “A.B.” as the
victim. Appellant’s App. Vol. 2 at 15. The birthdates have been redacted.
There is no question that the “A.B.” in Count 1 referred to Baby, but the jury
acquitted Rivera of that count. While we recognize the importance of
protecting the identity of certain individuals in public documents, the State’s
use of only the first and last initial of the victim in the charging information
caused significant confusion in this appeal. Rivera’s sufficiency argument
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assumes that the “A.B.” named in Count 2 is Baby, whereas the State contends
that the “A.B.” named in Count 2 is Daughter.
[11] In an attempt to positively identify Count 2’s “A.B.,” we have searched the
entire record, including the probable cause affidavit, protection orders, State’s
notice of intent to use statements of protected persons, jury instructions, and
opening and closing arguments. We found little help. Although the
prosecutor’s closing argument refers to Daughter, the prosecutor did not link
Count 2 to her in such a way that we can conclude with complete confidence
that she is Count 2’s “A.B.”1 The presentence investigation report contains
restitution response forms naming the victims as the Baby and G.B.
Appellant’s App. Vol. 3 at 15-16. Although the identity of Count 2’s A.B. is
uncertain, the charging information also names G.B. as a victim and his
1
To support its assertion that Count 2 was directed to Daughter and not Baby, the State cites the following
portions of the prosecutor’s closing argument:
Why do bad things keep happening to [Baby]? Now, we know that [Daughter] and [G.B.] are
older and they’re stronger and they’re quicker and they can maybe get out of the house with just
a bruised cheek or a broken nose with [Daughter’s] case or [G.B.’s] case a spanked bottom or an
abscess on his behind; but a three-month old isn’t so lucky. For that reason, he doesn’t get to
escape the violence in that household. We know [Rivera] is aware of the problems, we know
DCS was called [on] multiple occasions. ….
But we know what took place, we know that routinely there was violence in that house and that
the children were all exposed to it. …. We know that [Daughter] was struck in the face hard
enough to be noticed weeks later. She talked about her bruise that she had from getting hit in
the face by this heavy item. This house had it all. It had vulgar language directed towards the
kids, cussing at children under the age of ten, calling them little bitches and they’re [sic] little
fucking asses needed beat. Arguing in front of the children about the fact that they should be
beaten. …. We have lice, … bedbugs. Hygiene. Does [Rivera] get opted out of all these things?
…. The whole environment was neglectful, that’s what was going on. ….
He neglected those kids the whole time he stayed with them in that house. You don’t get a free
pass. If you’re gonna live and act like you’re a parent, you’re gonna be a parent to the kids,
you’re gonna live in their house, you’re gonna be in that environment, then damn it, stand up
and do it. And he didn’t. Instead, he shook that [B]aby.
Tr. Vol. 3 at 92-93, 95, 112, 114.
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identity is not in question. Therefore, we will address the sufficiency of the
evidence regarding G.B.2
[12] The evidence shows that Rivera was Born’s boyfriend, lived with G.B., acted as
a father figure to him, and had the care of G.B. as a dependent. During that
time, G.B. was not kept clean and developed skin problems, his home was dirty
and infested with lice and bedbugs, he had poor school attendance, and Rivera
was aware of these problems. The evidence also shows that Rivera verbally and
physically abused G.B. and that G.B. was aware that Rivera verbally abused
Born. G.B.’s physical and mental health were certainly at risk in this
environment. We conclude that the evidence was sufficient to show that Rivera
knowingly or intentionally placed G.B. in a situation that endangered his life or
health. Accordingly, we affirm Rivera’s conviction.
Section 2 - The trial court did not abuse its discretion in
sentencing Rivera.
[13] Rivera asserts that the trial court abused its discretion when it sentenced him.
Sentencing decisions are within the sound discretion of the trial court.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218. An abuse of discretion occurs when the trial court’s decision is contrary to
“the logic and effect of the facts and circumstances before the court or the
2
Rivera does not argue that the charging information was improper for naming two victims in the
alternative. Cf., e.g., Lainhart v. State, 916 N.E.2d 924, 942 (Ind. Ct. App. 2009) (concluding that by charging
alternate victims in a single count, the State improperly joined several alternative crimes, and therefore trial
court erred in failing to instruct jury that they must reach unanimous decision as to which crime, if any,
defendant committed).
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reasonable, probable, and actual deductions to be drawn therefrom.” Williams v.
State, 997 N.E.2d 1154, 1163 (Ind. Ct. App. 2013). A trial court abuses its
discretion by entering a sentencing statement that omits mitigating factors that
are clearly supported by the record and advanced for consideration. Anglemyer,
868 N.E.2d at 490-91. Although an appellate court may review the trial court’s
reasons and omissions of reasons for imposing sentence, the relative weight
assigned by the trial court to aggravating and mitigating factors is not subject to
appellate review. Id. at 491.
[14] Specifically, Rivera contends that the trial court abused its discretion by failing
to find as mitigating factors that (1) he was only twenty years old at the time of
the offense and (2) this was his first felony conviction as an adult. The trial
court is not obligated to accept the defendant’s arguments as to what constitutes
a mitigating factor and is not required to give the same weight to proffered
mitigating factors as the defendant does. Healey v. State, 969 N.E.2d 607, 616
(Ind. Ct. App. 2012). A trial court does not abuse its discretion by failing to
identify a mitigating factor unless the mitigating evidence is both significant and
clearly supported by the record. Id.[15] Although Rivera was only twenty at the time of the offense and had no prior
felony convictions, he had had numerous contacts with the criminal justice
system. Rivera has eight prior juvenile adjudications. Four of his adjudications
would have been felonies if committed by an adult, namely, two counts of class
D felony battery, class D felony receiving stolen property, and class D felony
escape. His adult criminal history includes misdemeanors for battery resulting
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in bodily injury and operating while intoxicated. In light of Rivera’s criminal
history, we cannot say that the trial court abused its discretion in declining to
find that his age and absence of adult felony convictions are significant
mitigating factors.
Section 3 - Rivera has failed to carry his burden to show that
his sentence is inappropriate.
[16] Finally, Rivera asks us to reduce his sentence pursuant to Indiana Appellate
Rule 7(B), which states, “The Court may revise a sentence authorized by statute
if, after due consideration of the trial court’s decision, the Court finds that the
sentence is inappropriate in light of the nature of the offense and the character
of the offender.” When reviewing a sentence, our principal role is to leaven the
outliers rather than necessarily achieve what is perceived as the correct result.
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). “We do not look to
determine if the sentence was appropriate; instead we look to make sure the
sentence was not inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind.
2012). “In assessing the nature of the offense and character of the offender, we
may look to any factors appearing in the record.” Boling v. State, 982 N.E.2d
1055, 1060 (Ind. Ct. App. 2013). “[S]entencing is principally a discretionary
function in which the trial court’s judgment should receive considerable
deference.” Cardwell, 895 N.E.2d at 1222. “Such deference should prevail
unless overcome by compelling evidence portraying in a positive light the
nature of the offense (such as accompanied by restraint, regard, and lack of
brutality) and the defendant’s character (such as substantial virtuous traits or
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persistent examples of good character).” Stephenson v. State, 29 N.E.3d 111, 122
(Ind. 2015). Rivera has the burden to show that his sentence is inappropriate.
Anglemyer, 868 N.E.2d at 494.
[17] Turning first to the nature of the offense, we observe that “the advisory sentence
is the starting point the Legislature selected as appropriate for the crime
committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). The sentencing
range for a level 6 felony is six months to two and one-half years, with an
advisory sentence of one year. Ind. Code § 35-50-2-7(b). Rivera received the
maximum sentence. “Although the maximum possible sentences are generally
most appropriate for the worst offenders, this rule is not an invitation to
determine whether a worse offender could be imagined, as it is always possible
to identify or hypothesize a significantly more despicable scenario.” Kovats v.
State, 982 N.E.2d 409, 416 (Ind. Ct. App. 2013). “By stating that maximum
sentences are ordinarily appropriate for the worst offenders, we refer generally
to the class of offenses and offenders that warrant the maximum punishment.
But this encompasses a considerable variety of offenses and offenders.”
Simmons v. State, 962 N.E.2d 86, 92-93 (Ind. Ct. App. 2011) (citation omitted).
Here, as previously discussed, G.B.’s physical, mental, and emotional needs
were completely neglected. He, his siblings, and his mother were all verbally
abused by Rivera. Rivera has failed to show compelling evidence portraying
the nature of the offense in a positive light.
[18] As for Rivera’s character, he claims that he has been polite, respectful, and
cooperative with officials during the investigation and judicial proceedings,
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which shows that he is “not the most culpable offender.” Appellant’s Br. at 25.
However, rather than a history revealing substantial virtuous traits or persistent
examples of good character, the relatively young Rivera has a long history of
breaking the law (including crimes of violence), and previous attempts at
rehabilitation were apparently unsuccessful. We conclude that Rivera has
failed to carry his burden to show that his sentence is inappropriate based on
the nature of the offense and his character. Accordingly, we affirm his
sentence.
[19] Affirmed.
Baker, J., and Barnes, J., concur.
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