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
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.
and Procedural History
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
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."
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
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.
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.
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,
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.
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.
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
Q Okay. I'm going to stop you right there um because that
will get into some hearsay and [N.M.'s] here ...