Victor M. Rivera v. State of Indiana (mem. dec.)
02A04-1611-CR-2625
| Ind. Ct. App. | May 5, 2017Background
- In 2015 Victor M. Rivera lived with his girlfriend Jennifer Born and her three children (including an infant “Baby,” and two older children Daughter and G.B.); the home was dirty and infested with lice/bedbugs and the children had hygiene and attendance problems.
- Rivera engaged in verbal and physical abuse of the older children and Born; DCS had been called multiple times.
- On October 18, 2015, Rivera shook the infant and inflicted multiple injuries (acute femur spiral fracture, skull fracture, healed humerus fracture, retinal hemorrhages).
- The State charged two counts: Count 1 (level 3 neglect resulting in serious bodily injury) and Count 2 (level 6 neglect of a dependent, naming A.B. or G.B.); Rivera was acquitted of Count 1 and convicted on Count 2.
- At sentencing the court found no mitigating factors, treated Rivera’s juvenile/adult record as aggravating, and imposed the maximum level 6 sentence of 2.5 years (executed).
- Rivera appealed, arguing insufficient evidence for Count 2, sentencing abuse (failure to find mitigating factors), and that the sentence was inappropriate under Ind. Appellate Rule 7(B).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for level 6 neglect (Count 2) | The State: evidence shows Rivera had care of G.B., knew of filthy/neglectful conditions, physical/verbal abuse, and thereby knowingly placed the child in danger | Rivera: argued evidence was insufficient (he assumed Count 2 related to the infant), and contested that proof did not support guilt beyond a reasonable doubt | Court: affirmed—substantial evidence supported that Rivera, acting as caregiver to G.B., knowingly placed him in a situation endangering life or health |
| Sentencing abuse for failure to find mitigating factors | State: sentencing discretion and trial court may decline proposed mitigators given Rivera’s criminal history | Rivera: court should have found youth (20) and first adult felony as mitigating | Court: affirmed—no abuse; given Rivera’s extensive juvenile/limited adult record, trial court permissibly declined to find those significant mitigators |
| Appropriateness of sentence under Ind. App. R. 7(B) | State: maximum within range justified by neglectful environment and injuries to children; trial court discretion should be afforded | Rivera: sentence inappropriate given his age, cooperation, and advisory term lower than imposed maximum | Court: affirmed—Rivera failed to carry burden to show sentence inappropriate in light of offense nature and character |
Key Cases Cited
- Bailey v. State, 907 N.E.2d 1003 (Ind. 2009) (standard for sufficiency of evidence review)
- Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007) (sentencing review and treatment of mitigating/aggravating factors)
- Cardwell v. State, 895 N.E.2d 1219 (Ind. 2008) (appellate role under Rule 7(B))
- Stephenson v. State, 29 N.E.3d 111 (Ind. 2015) (deference to trial court in sentencing; burden to show compelling evidence)
- Pierce v. State, 949 N.E.2d 349 (Ind. 2011) (advisory sentence as legislative starting point)