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

• Court: Indiana Court of Appeals
• Decided: May 5, 2017
• Docket: 02A04-1611-CR-2625
• Status: Published

Opinion

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.

Court of Appeals of Indiana | Memorandum Decision 02A04-1611-CR-2625| May 5, 2017 Page 1 of 11 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

Court of Appeals of Indiana | Memorandum Decision 02A04-1611-CR-2625| May 5, 2017 Page 2 of 11 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.

Court of Appeals of Indiana | Memorandum Decision 02A04-1611-CR-2625| May 5, 2017 Page 3 of 11 [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.

Court of Appeals of Indiana | Memorandum Decision 02A04-1611-CR-2625| May 5, 2017 Page 4 of 11 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

Court of Appeals of Indiana | Memorandum Decision 02A04-1611-CR-2625| May 5, 2017 Page 5 of 11 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.

Court of Appeals of Indiana | Memorandum Decision 02A04-1611-CR-2625| May 5, 2017 Page 6 of 11 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).

Court of Appeals of Indiana | Memorandum Decision 02A04-1611-CR-2625| May 5, 2017 Page 7 of 11 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

Court of Appeals of Indiana | Memorandum Decision 02A04-1611-CR-2625| May 5, 2017 Page 8 of 11 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

Court of Appeals of Indiana | Memorandum Decision 02A04-1611-CR-2625| May 5, 2017 Page 9 of 11 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,

Court of Appeals of Indiana | Memorandum Decision 02A04-1611-CR-2625| May 5, 2017 Page 10 of 11 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.

Court of Appeals of Indiana | Memorandum Decision 02A04-1611-CR-2625| May 5, 2017 Page 11 of 11