                                                                                FILED
                                                                            Jul 24 2019, 8:26 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Jon A. Keyes                                                Curtis T. Hill, Jr.
Allen Wellman McNew Harvey, LLP                             Attorney General of Indiana
Greenfield, Indiana
                                                            Evan Matthew Comer
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Jonathan Rivera,                                            July 24, 2019
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            18A-CR-3108
        v.                                                  Appeal from the Hancock Circuit
                                                            Court
State of Indiana,                                           The Honorable Cody B. Coombs,
Appellee-Plaintiff.                                         Court Commissioner
                                                            The Honorable Scott Sirk, Judge
                                                            Trial Court Cause No.
                                                            30C01-1712-F4-2635



Brown, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-3108 | July 24, 2019                               Page 1 of 16
[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




      1
          At trial in July 2018, Na.M. testified that N.M. and E.M. were ten years old.


      Court of Appeals of Indiana | Opinion 18A-CR-3108 | July 24, 2019                   Page 2 of 16
      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.




      Court of Appeals of Indiana | Opinion 18A-CR-3108 | July 24, 2019         Page 3 of 16
[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.”

      Court of Appeals of Indiana | Opinion 18A-CR-3108 | July 24, 2019        Page 4 of 16
       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?




       Court of Appeals of Indiana | Opinion 18A-CR-3108 | July 24, 2019        Page 5 of 16
        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 to testify but . . .

                                               *****

        Q [A]nd so uh when the disclosure was made to you that
        something had happened what did you do?

        A Um of course I asked her detail I wanted to know what had
        happened after that I had called [E.M.] and I asked her the exact
        same thing her reaction was the exact same way um and then she
        told me what happened. After I talked to them I asked them
        both, what they wanted me to do, do you want to make a police
        report or do you want me to let it go? I can let it go and act like it
        never happened and we’ll be fine or let’s press charges and hope
        that he never gets to do this to somebody else.

        Q And um so I think you said you ask [N.M.] first?

        A [Y]es.

        Q And then you asked [E.M.] correct?

        A Yes.

        Q And [N.M.] disclosed something, did [E.M.] disclose
        anything?

        A Yes.

        Q Okay. Um with what [E.M.] disclosed was this the same type
        of touching or did something different?

Id. at 32-33. Rivera’s counsel objected on the grounds that “this is indirectly

testimony of a child” who was not on the witness list and not alleged to be a

Court of Appeals of Indiana | Opinion 18A-CR-3108 | July 24, 2019           Page 6 of 16
       victim, and the State withdrew its question. Id. at 33. When later asked if

       when N.M. “disclosed it did you do you know where it occurred at,” Na.M.

       stated “[s]he told me it occurred at my brother’s house.” Id. at 34.


[11]   N.M. testified that she remembered telling Na.M. that something had happened

       up in the loft. She stated that it had happened at her uncle’s house and, in

       sharing what she told her mother, indicated that she told Na.M. about Rivera

       touching her when they moved from Beech Grove into a trailer park and that

       they were talking alone and “she asked me has [Rivera] ever touched me and I

       told her yes. And I told her the story.” Id. at 52. In describing the incident, she

       stated that she was going to bed, “we were watching a movie,” and that “then

       [she] woke up” and found Rivera’s hand down her pants. Id. She indicated she

       was scared when asked what she did after he left the room and that there were

       other children sleeping in the loft area when the incident happened. She

       answered affirmatively when asked if she recalled whether she had panties on

       and stated “[y]es” when asked if Rivera was “going underneath [her] panties or

       just [her] pants” and “[k]ind of” when asked if he was touching her bare skin.

       Id. at 53. When asked where she would describe that Rivera was touching her,

       she answered “[o]n top of my private part. Um he didn’t fully touch me but

       like he half way did.” Id. She stated that she “pulled his hand out, moved

       around, told him to stop, said no.” Id. at 55. She said that “[h]e would kiss me

       like a big girl” and “[w]hen he would kiss me around when my Mom like was

       around me and like when she’d put me in bed then he would give me like a

       sweetheart kiss it was like maybe on the forehead or a cheek but then when


       Court of Appeals of Indiana | Opinion 18A-CR-3108 | July 24, 2019        Page 7 of 16
       she’s not around he would kiss me like a big girl.” Id. at 60. In describing the

       “big girl kiss,” she stated, “Not like a kids kiss like if you’re like someone you

       loved them so much that’s how like he would kiss me” and answered

       affirmatively when asked if it was “a lip to lip type kiss.” Id.


[12]   Rivera testified that he wanted to be a father figure to the girls and that he

       thought a father figure was “supposed to . . . give attention to not only . . . the

       partner but also to the kids.” Id. at 84. He indicated he was not aware at first

       about Na.M.’s letter and explained “I was busy working doing landscaping”

       and “doing what I had to do to make ends meet” so that he could pay his

       “backed up bills” in New Jersey. Id. at 82. During cross-examination, he

       stated that “if there was kissing on the lips [Na.M.] allowed them to kiss me on

       the lips,” and when asked if he did in fact kiss the girls, that “[i]t would be a yes

       and a no. Yes there was some kissing on the lips but no it was not like a big girl

       as she described.” Id. at 84. After indicating that he decided to move to

       Indiana because of a promise of work by Na.M., the State asked “[t]hat’s rather

       interested, [sic] aren’t you on disability,” and he stated “[y]es but I could still

       work.” Id. at 86-87. The following exhange occurred:


               Q [Y]ou’re not supposed to be working correct?

               A No, no.

               Q Did you report your earnings from all of your landscaping work
               that you were doing in New Jersey?

               A Well I was really just helping out my brother cause he don’t
               speak English so I was basically translating for him and doing
               contracts for him for the jobs.
       Court of Appeals of Indiana | Opinion 18A-CR-3108 | July 24, 2019           Page 8 of 16
        Q But you just stated earlier when counsel asked you that you
        were trying to work all your business up it was really busy trying
        to close it down before uh the holidays, before you came back?

        A Yeah because my brother was trying to do all the things by
        himself. Like I said he don’t speak any English I had to translate
        everything for him, write down all the contracts, so yes that made
        it pretty busy for me as well because I was helping I’m helping him
        translate everything from English to Spanish so he could do what
        he got to do plus taking him to the addresses and helping him with
        the English speaking clients that he had.

        Q And so you came here to work?

        A Yes.

        Q Landscaping away from your brother while you are collecting a
        disability check correct?

        A Yes.

        Q Isn’t that somehow dishonest?

        A Well I got to make I’ve got to do something to keep myself busy.
        I can’t sit around waiting for a disability check all month long,
        because I only get in New Jersey . . . $785.00 which is basically my
        rent my bills plus my phone bill plus pay any dues . . . .


Id. at 87-88. The court found Rivera guilty as charged. Na.M. testified at the

sentencing hearing that it has “been a tough road because [N.M.] doesn’t

understand why he did this in the first place or why he chose her,” that N.M.

was very angry about the whole situation, and that she was seeking services for

N.M. as a result of Rivera’s actions and counseling for herself. Id. at 107. The

court sentenced him to eight years with six years executed and two years

suspended to sex offender specific probation.

Court of Appeals of Indiana | Opinion 18A-CR-3108 | July 24, 2019            Page 9 of 16
                                                      Discussion

                                                            I.


[13]   The first issue is whether the admission of certain testimony resulted in

       fundamental error. We note that Rivera did not object at trial to the testimony

       he challenges on appeal and, to the extent that he challenges it now, we review

       it for fundamental error.2 See Whatley v. State, 908 N.E.2d 276, 280 (Ind. Ct.

       App. 2009), trans. denied. To rise to the level of fundamental error, an error

       “must constitute a blatant violation of basic principles, the harm or potential for

       harm must be substantial, and the resulting error must deny the defendant

       fundamental due process.” Id. (citing Maul v. State, 731 N.E.2d 438, 440 (Ind.

       2000)). “The standard for fundamental error is whether the error was so

       prejudicial to the rights of the defendant that a fair trial was impossible.” Id.

       (citing Boatright v. State, 759 N.E.2d 1038, 1042 (Ind. 2001)).


[14]   Rivera contends that the admission of testimony by Na.M. that E.M. had also

       made allegations against him constituted inadmissible hearsay evidence and

       violated his right to confrontation and that E.M.’s allegations destroyed his

       credibility, were not relevant, and that the danger of undue prejudice

       outweighed their probative value. He contends the admission of testimony by

       Na.M. regarding N.M.’s allegations constituted forbidden drumbeat testimony




       2
        We obseve that Rivera did not object to the testimony he challenges except for the State’s withdrawn
       question of “with what [E.M.] disclosed was this the same type of touching or did something different.”
       Transcript Volume II at 33.

       Court of Appeals of Indiana | Opinion 18A-CR-3108 | July 24, 2019                              Page 10 of 16
       because Na.M. was allowed to repeat portions of N.M.’s allegations before she

       testified. He asserts that in such “a He Said/She Said case” which “turns solely

       on a single witness like N.M., forbidden drumbeat testimony is particulary

       prejudicial.” Appellant’s Brief at 16. He further argues that the State’s entire

       line of questioning regarding his disability and income reporting was irrelevant

       and its sole purpose “was to elicit testimony about uncharged supposed wrongs

       to make [him] appear dishonest.” Id. at 18.


[15]   The State contends that the challenged evidence “amounted only to”:


               (1) testimony of a non-descript uncharged disclosure made by
               [Na.M.’s] second daughter[, E.M.]; (2) testimony that N.M.
               confirmed to [Na.M.] that she had been “touched” by Rivera and
               that the touching happened at the home of [Na.M.’s] brother;
               and (3) impeachment testimony about whether Rivera’s work as
               a landscaper was “dishonest.”


       Appellee’s Brief at 17.


[16]   Ind. Code § 35-42-4-3(b) provides that a person who, with a child under

       fourteen years of age, performs or submits to any fondling or touching, of either

       the child or the older person, with intent to arouse or to satisfy the sexual

       desires of either the child or the older person, commits child molesting, a level 4

       felony.


[17]   Hearsay is a statement, other than one made by the declarant while testifying at

       trial, offered in evidence to prove the truth of the matter asserted. Ind.



       Court of Appeals of Indiana | Opinion 18A-CR-3108 | July 24, 2019         Page 11 of 16
       Evidence Rule 801(c). Ind. Evidence Rule 802 provides that hearsay is

       “inadmissible unless admitted pursuant to a recognized exception.”


[18]   Ind. Evidence Rule 401 provides that evidence is relevant if it has any tendency

       to make a fact more or less probable than it would be without the evidence and

       the fact is of consequence in determining the action. Ind. Evidence Rule 402

       provides that “[i]rrelevant evidence is not admissible.” Ind. Evidence Rule 403

       permits the court to “exclude relevant evidence if its probative value is

       substantially outweighed by a danger of one or more of the following: unfair

       prejudice, confusing the issues, misleading the jury, undue delay, or needlessly

       presenting cumulative evidence.” Ind. Evidence Rule 404(b) provides in part:


               Evidence of a crime, wrongs, or other act is not admissible to
               prove a person’s character in order to show that on a particular
               occasion the person acted in accordance with the character. . . .
               This evidence may be admissible for another purpose, such as
               proving motive, opportunity, intent, preparation, plan,
               knowledge, identity, absence of mistake, or lack of accident.


       In assessing the admissibility of evidence under Ind. Evidence Rule 404(b), the

       trial court must: (1) determine whether the evidence of other crimes, wrongs, or

       acts is relevant to a matter at issue other than the defendant’s propensity to

       commit the charged act; and (2) balance the probative value of the evidence

       against its prejudicial effect pursuant to Ind. Evidence Rule 403. See Kyle v.

       State, 54 N.E.3d 439, 444 (Ind. Ct. App. 2016) (citing Ware v. State, 816 N.E.2d

       1167, 1175 (Ind. Ct. App. 2004)). A trial court’s evidentiary rulings are

       presumptively correct, and the “defendant bears the burden on appeal of

       Court of Appeals of Indiana | Opinion 18A-CR-3108 | July 24, 2019           Page 12 of 16
       persuading us that the court erred in weighing prejudice and probative value

       under Evid. R. 403.” Anderson v. State, 681 N.E.2d 703, 706 (Ind. 1997). The

       determination of whether there is a risk of unfair prejudice depends on “the

       capacity of the evidence to persuade by illegitimate means, or the tendency of

       the evidence to suggest decision on an improper basis.” Camm v. State, 908

       N.E.2d 215, 224 (Ind. 2009) (quoting Ingram v. State, 715 N.E.2d 405, 407 (Ind.

       1999)).


[19]   The record reveals that Rivera did not object when Na.M. testified that, after a

       disclosure that something had happened, she asked N.M. for details and after

       that “called [E.M.] and . . . asked her the exact same thing her reaction was the

       exact same way um and then she told me what happened.” Transcript Volume

       II at 32. He did not object when she answered affirmatively to questions of

       whether she had asked N.M. first and “then . . . asked [E.M.] correct” and

       whether N.M. “disclosed something, did [E.M.] disclose anything.” Id. at 33.

       When Rivera did object to an inquiry about E.M.’s disclosure, the State

       withdrew the question. With respect to the testimony about N.M.’s allegations,

       Rivera did not object when Na.M. indicated that N.M. answered affirmatively

       when she asked if Rivera ever touched her and that N.M. shared that the

       touching occurred at the house of Na.M.’s brother. We note that this was a

       bench trial and cannot say that any error in the admission of Na.M.’s

       statements denied Rivera of fundamental due process.


[20]   With respect to Rivera’s testimony about disability, we note that he testified

       during direct examination that he worked and landscaped to pay bills. The

       Court of Appeals of Indiana | Opinion 18A-CR-3108 | July 24, 2019       Page 13 of 16
       cross examination that occurred explored the dishonesty associated with

       working while receiving disability checks and was proper impeachment

       evidence and not a violation of Ind. Evidence Rules 403 and 404(b).


[21]   Rivera has not established that the challenged testimony resulted in a risk of

       unfair prejudice. Accordingly, the trial court did not commit fundamental error

       and reversal is not warranted.


                                                           II.


[22]   The next issue is whether Rivera’s sentence is inappropriate in light of the

       nature of the offense and his character. Ind. Appellate Rule 7(B) provides that

       we “may revise a sentence authorized by statute if, after due consideration of

       the trial court’s decision, [we find] that the sentence is inappropriate in light of

       the nature of the offense and the character of the offender.” In reviewing a

       sentence, we give due consideration to the trial court’s decision and its more

       direct knowledge of the offense and the offender. Washington v. State, 940

       N.E.2d 1220, 1222 (Ind. App. Ct. 2011) (citing Wilkes v. State, 917 N.E.2d 675,

       693 (Ind. 2009)), trans. denied. The burden is on the defendant to persuade the

       appellate court that his or her sentence is inappropriate. Childress v. State, 848

       N.E.2d 1073, 1080 (Ind. 2006).


[23]   Rivera argues that a sentence above the advisory is inappropriate. He asserts

       that the offense is “much closer to the least serious offense,” there was only a

       single incident, he was convicted of only attempted child molesting, he did not

       use substantial force, and that there was no physical harm. Appellant’s Brief at

       Court of Appeals of Indiana | Opinion 18A-CR-3108 | July 24, 2019          Page 14 of 16
       23. Regarding his character, he argues that he had no prior juvenile or criminal

       arrests, had a history of mental illness, and experienced a troubled childhood.


[24]   Our review of the nature of the offense reveals that Rivera attempted to fondle

       or touch N.M., a child around the age of eight for whom he assumed a father-

       figure role and lived with at the time, with the intent to arouse or satisfy his

       own sexual desires. During her testimony, N.M. described Rivera’s actions

       while other children were present and her efforts to stop him.


[25]   Our review of the character of the offender reveals that, according to the

       presentence investigation report (“PSI”), Rivera was placed at Mt. Sinai

       Hospital at age twelve for approximately one month for mental health

       intervention and he stated he had previously been diagnosed with depression,

       anger management issues, and anxiety. It also indicates that he stopped taking

       prescribed medications, that he first used marijuana at age seventeen and

       quickly began using it daily, “a habit that continued through 1-8-18,” that over

       time he has come to believe “marijuana is really the only substance of benefit,”

       that he “went into great detail about how marijuana addresses his mental health

       and physical health needs,” and that he “finds this substance to be the most

       appropriate response to any problem in his life.” Appellant’s Appendix Volume

       II at 80-81. Further, Rivera has not otherwise established any nexus linking his

       history of mental health issues or his childhood trauma to the instant offense.

       See Washington, 940 N.E.2d at 1223-1224 (finding no apparent nexus between the

       defendant’s mental illness and the crime and holding thus that the mental illness

       bears little weight on analysis of his character).

       Court of Appeals of Indiana | Opinion 18A-CR-3108 | July 24, 2019         Page 15 of 16
[26]   After due consideration, we conclude that Rivera has not sustained his burden

       of establishing that his sentence is inappropriate in light of the nature of the

       offense and his character.


[27]   For the foregoing reasons, we affirm Rivera’s conviction and sentence.


[28]   Affirmed.


       May, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-3108 | July 24, 2019         Page 16 of 16
