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Rivera v. State

Court of Appeals of Indiana

July 24, 2019

Jonathan Rivera, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.

          Appeal from the Hancock Circuit Court The Honorable Cody B. Coombs, Court Commissioner The Honorable Scott Sirk, Judge Trial Court Cause No. 30C01-1712-F4-2635

          Attorney for Appellant Jon A. Keyes Allen Wellman McNew Harvey, LLP Greenfield, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana

          Brown, Judge.

         [¶1] Jonathan Rivera appeals his conviction and sentence for attempted child molesting as a level 4 felony. Rivera raises two issues which we revise and restate as:

I. Whether the admission of certain testimony resulted in fundamental error; and
II.Whether his sentence is inappropriate in light of the nature of the offense and the character of the offender.

         We affirm.

         Facts and Procedural History

         [¶2] In July 2016, Rivera met Na.M. online. At some point, Rivera and Na.M. "really wanted to be in each other's lives" and he planned to visit her for three weeks. Transcript Volume II at 14. In September 2016, he flew from New Jersey and stayed in her two-bedroom apartment in Beech Grove, Indiana, where she resided with her son, S.M., and twin daughters, N.M. and E.M., who were around eight years old.[1]

         [¶3] Rivera gained the trust of N.M. and E.M., talked to and played with them at the playground or outside, and "rough housed a little bit like wrestling" which, because N.M. and E.M. loved wrestling, they thought "was always a cool thing." Id. at 15. During this trip, he stayed with Na.M. in the bedroom she shared with the girls, and the girls slept on the bed in the living room. Upon returning to New Jersey, he spent more time talking to the girls and spoke with them over the telephone "just about every day" in October and November 2016, "always mak[ing] sure he talked to them before bed." Id. at 17. In saying goodnight, Rivera would state "go to sleep love you guys." Id.

         [¶4] By mutual agreement of Rivera and Na.M., he returned to Beech Grove on December 5, 2016, for an open-ended stay. In January, Rivera became "a totally different person" according to Na.M., and their sex life became nonexistent. Id. at 19. During the time he pulled away from Na.M., Rivera spent more time interacting with N.M. and E.M. and played and watched movies with them. At some point, he had a discussion with the girls and, without Na.M., they made the decision that he should return to New Jersey at the end of February.

         [¶5] A couple of weeks before he left, Na.M. approached Rivera and attempted to break up with him. He "kind of flipped it on [Na.M.] like [she] was in the wrong," walked away, and then later that day acted like nothing had happened. Id. They continued to speak when he returned to New Jersey and decided at some point he would return to Indiana permanently. When they found out that Rivera was going to move in with them permanently, N.M. and E.M. were happy. In June 2017, Na.M. and the girls traveled to New Jersey and stayed for two days to attend the wedding of Rivera's mother, and Rivera returned to Indiana with them.

         [¶6] During that summer, shortly after he moved to Indiana, Rivera and Na.M., along with S.M., N.M., and E.M., attended family gatherings at the house of Na.M.'s brother in McCordsville, where they barbequed and drank alcoholic beverages. N.M. slept with E.M. and two male cousins in the loft and, because the affection "was just about gone" between Na.M. and Rivera and there was "no point in going to a bedroom together," they slept on different parts of a sectional couch. Id. at 26.

         [¶7] On one such visit, N.M. lay down on the small couch in the loft and went to sleep wearing her regular clothes. She woke to Rivera sleeping with her. He had somehow positioned himself underneath her with her back on his stomach, and his hands were underneath her pants. Rivera placed "his hand closer and closer" and reached "[l]ike half way" to where her "legs . . . attach[ed] to kind of [her] stomach torso area." Id. at 55. She pulled his hand out, moved around, told him to stop, and said "no, no, and no." Id. at 52. He "[j]ust kept trying," kept asking "please, please," and at some point stopped. Id. at 52, 55.

         [¶8] Sometime in August or September, Na.M. and Rivera's relationship failed, he returned home in September because his father was not doing very well and "his Mom had some issues going on and he had to hurry up and go back," and Na.M. stuck a letter in his luggage explaining that "things were not working out." Id. at 28-29. After some time had passed, she let him know she and the children had moved and that they had found a few of his things, and he responded by telling her to throw them away. At some point, he told her that he hoped she found somebody that "was going to mistreat [her] and [her] kids." Id. at 29. Two weeks after he left, Na.M. became concerned after a mutual friend of her and Rivera's received a text from him, she asked N.M. if Rivera had ever touched her, and N.M. said yes. Na.M. contacted the police, who investigated the allegation.

         [¶9] On December 21, 2017, the State charged Rivera with one count of attempted child molesting as a level 4 felony. On June 28, 2018, Rivera waived his right to a jury trial and, on July 9, 2018, the court held a bench trial. When asked how many times she spoke to Rivera over Whatsapp after meeting him, Na.M. responded that they spoke to each other almost every single day. She testified that he knew she had two daughters and their ages, and when asked if he said anything about her having two young girls, she responded, "Just that usually whoever he dates usually has daughters." Transcript Volume II at 14. She responded affirmatively when asked if Rivera assumed a father-figure role while in the house with her, the girls, and S.M. She indicated that, when Rivera moved in after his mother's wedding, she and he shared a bed and the girls had bunkbeds in the room as well.

         [¶10] When asked to describe the loft area and furniture at the McCordsville house, Na.M. stated that there was a "large couch and a smaller couch uh the coffee table right here." Id. at 27. After indicating that she had a concern and that she asked N.M. if Rivera ever touched her, the following exchange occurred:

Q And what then did you ask your daughter?
A I after I saw that um I asked [N.M.] to come and sit by me and I she's like what's up Mom and then I asked her if Jonathan ever touched her and she bowed her head and said yes.
Q Okay. I'm going to stop you right there um because that will get into some hearsay and [N.M.'s] here ...

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