132 N.E.3d 5
Ind. Ct. App.2019Background
- Rivera met Na.M. online, moved in with her family, and assumed a father-figure role to her children, including N.M. (about 8–10 years old).
- While at a family gathering in McCordsville, N.M. woke to Rivera positioned under her with his hand inside her pants; she pulled his hand away, told him to stop, and he eventually ceased. Other children were present in the loft.
- Na.M. later asked N.M. and E.M. whether Rivera had touched them; both allegedly disclosed similar conduct, prompting a police investigation.
- Rivera was charged with one count of attempted child molesting (level 4 felony), waived a jury, and was found guilty in a bench trial.
- At sentencing the court imposed an eight-year sentence (six executed, two suspended) with sex-offender-specific probation. Rivera appealed, challenging certain testimony as hearsay/confrontation and arguing his sentence was inappropriate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of testimony about E.M.’s and N.M.’s disclosures (hearsay/confrontation; drumbeat) | State relied on Na.M.’s testimony describing that both daughters disclosed touching and that N.M. confirmed the incident at the brother’s house; evidence was probative of occurrence and location. | Rivera argued the testimony was inadmissible hearsay, violated confrontation, amounted to prejudicial drumbeat/propensity evidence, and that cross about disability was irrelevant impeachment. | No fundamental error. Rivera failed to contemporaneously object to most testimony; bench trial context and lack of substantial unfair prejudice meant no due-process violation; disability cross-exam was proper impeachment. |
| Appropriateness of sentence under App. R. 7(B) | State argued sentence within statutory range and supported by facts: victim’s age, trust relationship, presence of other children, and defendant’s conduct. | Rivera contended offense was less serious (single incident, no substantial force or physical injury), no prior criminal history, mental illness history, and troubled childhood merit lesser sentence. | Sentence affirmed. Court found offense serious (attempted fondling of young child in trust relationship) and defendant’s history (mental health, substance use) did not establish a nexus mitigating sentence; defendant failed to carry burden to show inappropriateness. |
Key Cases Cited
- Whatley v. State, 908 N.E.2d 276 (Ind. Ct. App. 2009) (standard for reviewing unpreserved errors for fundamental error)
- Maul v. State, 731 N.E.2d 438 (Ind. 2000) (definition and elements of fundamental error)
- Boatright v. State, 759 N.E.2d 1038 (Ind. 2001) (fair-trial standard for fundamental error review)
- Kyle v. State, 54 N.E.3d 439 (Ind. Ct. App. 2016) (analysis for admissibility of other-act evidence under Evid. R. 404(b))
- Anderson v. State, 681 N.E.2d 703 (Ind. 1997) (presumption of correctness for trial court evidentiary rulings)
- Camm v. State, 908 N.E.2d 215 (Ind. 2009) (unfair prejudice inquiry and improper bases for jury decisions)
- Washington v. State, 940 N.E.2d 1220 (Ind. Ct. App. 2011) (App. R. 7(B) review and weight of mental illness in character analysis)
- Childress v. State, 848 N.E.2d 1073 (Ind. 2006) (defendant’s burden on appellate review of sentence under App. R. 7(B))