MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                FILED
regarded as precedent or cited before any                       May 05 2017, 6:45 am
court except for the purpose of establishing
the defense of res judicata, collateral                              CLERK
                                                                 Indiana Supreme Court
                                                                    Court of Appeals
estoppel, or the law of the case.                                     and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Mark A. Thoma                                           Curtis T. Hill, Jr.
Deputy Public Defender                                  Attorney General of Indiana
Leonard, Hammond, Thoma & Terrill
Fort Wayne, Indiana                                     Michael Gene Worden
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Victor M. Rivera,                                       May 5, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        02A04-1611-CR-2625
        v.                                              Appeal from the Allen Superior
                                                        Court
State of Indiana,                                       The Honorable Frances C. Gull,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        02D05-1602-F3-10



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A04-1611-CR-2625| May 5, 2017        Page 1 of 11
                                            Case Summary
[1]   Victor M. Rivera appeals his conviction and sentence for level 6 felony neglect

      of a dependent. Rivera claims that the evidence is insufficient to support his

      conviction. He also asserts that the trial court abused its discretion in

      sentencing him by failing to recognize mitigating factors and that his two-and-

      one-half-year sentence is inappropriate in light of the nature of the offense and

      his character. We conclude that the evidence is sufficient, the trial court did not

      abuse its discretion in sentencing him, and Rivera has failed to carry his burden

      to show that his sentence is inappropriate. Therefore, we affirm.


                                 Facts and Procedural History
[2]   The evidence most favorable to the conviction shows that in 2015, Rivera lived

      with his pregnant girlfriend, Jennifer Born, in her apartment. They also lived

      with Born’s two elementary-school-aged children, Al.B. (“Daughter”) and G.B.

      In July 2015, Jennifer gave birth to Ax.B. (“Baby”).


[3]   The apartment harbored bedbugs and lice that infected the children. Tr. Vol. 3

      at 11, 31, 63-64. Daughter and G.B. had issues with hygiene, like bathing. Id.

      at 11. G.B. was often “filthy,” developed “skin issues,” and did not brush his

      teeth regularly. Id. at 11, 63. Daughter and G.B. had poor school attendance.

      Id. at 11, 63. Rivera often called Daughter and G.B. names. Id. at 12. He

      physically disciplined them. G.B. complained that Rivera hit him and hurt

      him. Id. at 62. Rivera threw G.B. across the room onto the couch and held his

      face into the cushions so that G.B. could not breathe. Id. at 62-63. Rivera


      Court of Appeals of Indiana | Memorandum Decision 02A04-1611-CR-2625| May 5, 2017   Page 2 of 11
      verbally abused Born in front of the children. Id. at 18. During one of their

      arguments, Daughter witnessed Rivera putting Born in a choke hold. Id. at 13;

      Tr. Vol. 2 at 220. The Indiana Department of Child Services was called more

      than once while Born was with Rivera.


[4]   On the morning of October 18, 2015, Baby appeared normal when he woke up.

      Born fed him and made pancakes for Daughter, G.B., and their two cousins

      who had spent the night. Rivera woke up around noon and was angry. He

      picked up Baby and shook him. He also held Baby upside down by his arms

      and legs. Baby vomited on Rivera, and he shook Baby harder. Rivera changed

      his clothes, and he and Born began getting the children ready to go to the park.

      During this time, Rivera was angry and cussing at Born. Rivera was holding

      Baby when he went to Daughter’s bedroom to get the baby stroller. A baby

      swing was on top of the stroller. Rivera picked up the baby swing and threw it

      out of the room, and it hit Daughter in the nose.


[5]   Rivera pointed out to Born and the children that Baby had a bump on his head.

      Rivera called 911 and reported that Baby was injured and needed medical

      attention. The police and paramedics responded, and Baby was taken to the

      hospital. He suffered multiple injuries that appeared to have been inflicted on

      different dates. He had an acute spiral fracture to his femur, a partially healed

      fracture to his left humerus, a skull fracture from a blow to the head, head

      trauma from being shaken, and retinal hemorrhages. Baby’s injuries were the

      result of “non-accidental trauma or inflicted trauma on the child.” Tr. Vol. 2 at

      99-100.

      Court of Appeals of Indiana | Memorandum Decision 02A04-1611-CR-2625| May 5, 2017   Page 3 of 11
[6]   Police investigators found that the apartment “smelled dirty,” that “you could

      smell [] trash, old food, [] bathroom trash.” Id. at 168. In addition, “there

      [were] a lot of trash bags in the apartment[,] almost in every single room [were]

      items that were bagged up or were trash and there was a lot of clutter,” and

      “[t]here were things piled on top of other things on top of other things in almost

      every single room.” Id.


[7]   The State filed two counts against Rivera. Count 1 charged that between July

      24 and October 18, 2015, Rivera committed level 3 felony neglect of a

      dependent resulting in serious bodily injury; the charging information named

      “A.B.” as the victim. Appellant’s App. Vol. 2. at 15. Count 2 charged that

      between July 24 and October 18, 2015, Rivera committed level 6 felony neglect

      of a dependent; the charging information named “A.B. or G.B.” as victims. Id.

      at 16. The dates of birth for the victims were redacted on both counts.


[8]   A jury found Rivera not guilty of Count 1 and guilty of Count 2. At sentencing,

      the trial court found no mitigating circumstances and that Rivera’s criminal

      history, consisting of eight juvenile adjudications and two adult misdemeanor

      convictions, and associated failed efforts at rehabilitation was an aggravating

      factor. The trial court sentenced Rivera to an executed sentence of two and

      one-half years. This appeal ensued.




      Court of Appeals of Indiana | Memorandum Decision 02A04-1611-CR-2625| May 5, 2017   Page 4 of 11
                                      Discussion and Decision

         Section 1 - Sufficient evidence supports Rivera’s conviction.
[9]    Rivera first challenges the sufficiency of the evidence supporting his conviction.

       In reviewing a claim of insufficient evidence, we do not reweigh the evidence or

       judge the credibility of witnesses, and we consider only the evidence that

       supports the judgment and the reasonable inferences arising therefrom. Bailey v.

       State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We will affirm if there is substantial

       evidence of probative value such that a reasonable trier of fact could have

       concluded the defendant was guilty beyond a reasonable doubt.” Id.


[10]   To convict Rivera of level 6 felony neglect of a dependent, the State was

       required to prove beyond a reasonable doubt that he, while having the care of

       “A.B. or G.B.,” whether assumed voluntarily or because of a legal obligation,

       knowingly or intentionally placed “A.B. or G.B.” in a situation that endangered

       the dependent’s life or health. Ind. Code § 35-46-1-4(a); Appellant’s App. Vol.

       2 at 16. We observe that A.B. could refer to either Baby or Daughter because

       they have the same first and last initials. Count 1 also named “A.B.” as the

       victim. Appellant’s App. Vol. 2 at 15. The birthdates have been redacted.

       There is no question that the “A.B.” in Count 1 referred to Baby, but the jury

       acquitted Rivera of that count. While we recognize the importance of

       protecting the identity of certain individuals in public documents, the State’s

       use of only the first and last initial of the victim in the charging information

       caused significant confusion in this appeal. Rivera’s sufficiency argument



       Court of Appeals of Indiana | Memorandum Decision 02A04-1611-CR-2625| May 5, 2017   Page 5 of 11
       assumes that the “A.B.” named in Count 2 is Baby, whereas the State contends

       that the “A.B.” named in Count 2 is Daughter.


[11]   In an attempt to positively identify Count 2’s “A.B.,” we have searched the

       entire record, including the probable cause affidavit, protection orders, State’s

       notice of intent to use statements of protected persons, jury instructions, and

       opening and closing arguments. We found little help. Although the

       prosecutor’s closing argument refers to Daughter, the prosecutor did not link

       Count 2 to her in such a way that we can conclude with complete confidence

       that she is Count 2’s “A.B.”1 The presentence investigation report contains

       restitution response forms naming the victims as the Baby and G.B.

       Appellant’s App. Vol. 3 at 15-16. Although the identity of Count 2’s A.B. is

       uncertain, the charging information also names G.B. as a victim and his



       1
         To support its assertion that Count 2 was directed to Daughter and not Baby, the State cites the following
       portions of the prosecutor’s closing argument:
              Why do bad things keep happening to [Baby]? Now, we know that [Daughter] and [G.B.] are
              older and they’re stronger and they’re quicker and they can maybe get out of the house with just
              a bruised cheek or a broken nose with [Daughter’s] case or [G.B.’s] case a spanked bottom or an
              abscess on his behind; but a three-month old isn’t so lucky. For that reason, he doesn’t get to
              escape the violence in that household. We know [Rivera] is aware of the problems, we know
              DCS was called [on] multiple occasions. ….
              But we know what took place, we know that routinely there was violence in that house and that
              the children were all exposed to it. …. We know that [Daughter] was struck in the face hard
              enough to be noticed weeks later. She talked about her bruise that she had from getting hit in
              the face by this heavy item. This house had it all. It had vulgar language directed towards the
              kids, cussing at children under the age of ten, calling them little bitches and they’re [sic] little
              fucking asses needed beat. Arguing in front of the children about the fact that they should be
              beaten. …. We have lice, … bedbugs. Hygiene. Does [Rivera] get opted out of all these things?
              …. The whole environment was neglectful, that’s what was going on. ….
              He neglected those kids the whole time he stayed with them in that house. You don’t get a free
              pass. If you’re gonna live and act like you’re a parent, you’re gonna be a parent to the kids,
              you’re gonna live in their house, you’re gonna be in that environment, then damn it, stand up
              and do it. And he didn’t. Instead, he shook that [B]aby.
       Tr. Vol. 3 at 92-93, 95, 112, 114.

       Court of Appeals of Indiana | Memorandum Decision 02A04-1611-CR-2625| May 5, 2017                   Page 6 of 11
       identity is not in question. Therefore, we will address the sufficiency of the

       evidence regarding G.B.2


[12]   The evidence shows that Rivera was Born’s boyfriend, lived with G.B., acted as

       a father figure to him, and had the care of G.B. as a dependent. During that

       time, G.B. was not kept clean and developed skin problems, his home was dirty

       and infested with lice and bedbugs, he had poor school attendance, and Rivera

       was aware of these problems. The evidence also shows that Rivera verbally and

       physically abused G.B. and that G.B. was aware that Rivera verbally abused

       Born. G.B.’s physical and mental health were certainly at risk in this

       environment. We conclude that the evidence was sufficient to show that Rivera

       knowingly or intentionally placed G.B. in a situation that endangered his life or

       health. Accordingly, we affirm Rivera’s conviction.


             Section 2 - The trial court did not abuse its discretion in
                                sentencing Rivera.
[13]   Rivera asserts that the trial court abused its discretion when it sentenced him.

       Sentencing decisions are within the sound discretion of the trial court.

       Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d

       218. An abuse of discretion occurs when the trial court’s decision is contrary to

       “the logic and effect of the facts and circumstances before the court or the



       2
         Rivera does not argue that the charging information was improper for naming two victims in the
       alternative. Cf., e.g., Lainhart v. State, 916 N.E.2d 924, 942 (Ind. Ct. App. 2009) (concluding that by charging
       alternate victims in a single count, the State improperly joined several alternative crimes, and therefore trial
       court erred in failing to instruct jury that they must reach unanimous decision as to which crime, if any,
       defendant committed).

       Court of Appeals of Indiana | Memorandum Decision 02A04-1611-CR-2625| May 5, 2017                   Page 7 of 11
       reasonable, probable, and actual deductions to be drawn therefrom.” Williams v.

       State, 997 N.E.2d 1154, 1163 (Ind. Ct. App. 2013). A trial court abuses its

       discretion by entering a sentencing statement that omits mitigating factors that

       are clearly supported by the record and advanced for consideration. Anglemyer,

       868 N.E.2d at 490-91. Although an appellate court may review the trial court’s

       reasons and omissions of reasons for imposing sentence, the relative weight

       assigned by the trial court to aggravating and mitigating factors is not subject to

       appellate review. Id. at 491.


[14]   Specifically, Rivera contends that the trial court abused its discretion by failing

       to find as mitigating factors that (1) he was only twenty years old at the time of

       the offense and (2) this was his first felony conviction as an adult. The trial

       court is not obligated to accept the defendant’s arguments as to what constitutes

       a mitigating factor and is not required to give the same weight to proffered

       mitigating factors as the defendant does. Healey v. State, 969 N.E.2d 607, 616

       (Ind. Ct. App. 2012). A trial court does not abuse its discretion by failing to

       identify a mitigating factor unless the mitigating evidence is both significant and

       clearly supported by the record. Id.


[15]   Although Rivera was only twenty at the time of the offense and had no prior

       felony convictions, he had had numerous contacts with the criminal justice

       system. Rivera has eight prior juvenile adjudications. Four of his adjudications

       would have been felonies if committed by an adult, namely, two counts of class

       D felony battery, class D felony receiving stolen property, and class D felony

       escape. His adult criminal history includes misdemeanors for battery resulting

       Court of Appeals of Indiana | Memorandum Decision 02A04-1611-CR-2625| May 5, 2017   Page 8 of 11
       in bodily injury and operating while intoxicated. In light of Rivera’s criminal

       history, we cannot say that the trial court abused its discretion in declining to

       find that his age and absence of adult felony convictions are significant

       mitigating factors.


        Section 3 - Rivera has failed to carry his burden to show that
                        his sentence is inappropriate.
[16]   Finally, Rivera asks us to reduce his sentence pursuant to Indiana Appellate

       Rule 7(B), which states, “The Court may revise a sentence authorized by statute

       if, after due consideration of the trial court’s decision, the Court finds that the

       sentence is inappropriate in light of the nature of the offense and the character

       of the offender.” When reviewing a sentence, our principal role is to leaven the

       outliers rather than necessarily achieve what is perceived as the correct result.

       Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). “We do not look to

       determine if the sentence was appropriate; instead we look to make sure the

       sentence was not inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind.

       2012). “In assessing the nature of the offense and character of the offender, we

       may look to any factors appearing in the record.” Boling v. State, 982 N.E.2d

       1055, 1060 (Ind. Ct. App. 2013). “[S]entencing is principally a discretionary

       function in which the trial court’s judgment should receive considerable

       deference.” Cardwell, 895 N.E.2d at 1222. “Such deference should prevail

       unless overcome by compelling evidence portraying in a positive light the

       nature of the offense (such as accompanied by restraint, regard, and lack of

       brutality) and the defendant’s character (such as substantial virtuous traits or

       Court of Appeals of Indiana | Memorandum Decision 02A04-1611-CR-2625| May 5, 2017   Page 9 of 11
       persistent examples of good character).” Stephenson v. State, 29 N.E.3d 111, 122

       (Ind. 2015). Rivera has the burden to show that his sentence is inappropriate.

       Anglemyer, 868 N.E.2d at 494.


[17]   Turning first to the nature of the offense, we observe that “the advisory sentence

       is the starting point the Legislature selected as appropriate for the crime

       committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). The sentencing

       range for a level 6 felony is six months to two and one-half years, with an

       advisory sentence of one year. Ind. Code § 35-50-2-7(b). Rivera received the

       maximum sentence. “Although the maximum possible sentences are generally

       most appropriate for the worst offenders, this rule is not an invitation to

       determine whether a worse offender could be imagined, as it is always possible

       to identify or hypothesize a significantly more despicable scenario.” Kovats v.

       State, 982 N.E.2d 409, 416 (Ind. Ct. App. 2013). “By stating that maximum

       sentences are ordinarily appropriate for the worst offenders, we refer generally

       to the class of offenses and offenders that warrant the maximum punishment.

       But this encompasses a considerable variety of offenses and offenders.”

       Simmons v. State, 962 N.E.2d 86, 92-93 (Ind. Ct. App. 2011) (citation omitted).

       Here, as previously discussed, G.B.’s physical, mental, and emotional needs

       were completely neglected. He, his siblings, and his mother were all verbally

       abused by Rivera. Rivera has failed to show compelling evidence portraying

       the nature of the offense in a positive light.


[18]   As for Rivera’s character, he claims that he has been polite, respectful, and

       cooperative with officials during the investigation and judicial proceedings,

       Court of Appeals of Indiana | Memorandum Decision 02A04-1611-CR-2625| May 5, 2017   Page 10 of 11
       which shows that he is “not the most culpable offender.” Appellant’s Br. at 25.

       However, rather than a history revealing substantial virtuous traits or persistent

       examples of good character, the relatively young Rivera has a long history of

       breaking the law (including crimes of violence), and previous attempts at

       rehabilitation were apparently unsuccessful. We conclude that Rivera has

       failed to carry his burden to show that his sentence is inappropriate based on

       the nature of the offense and his character. Accordingly, we affirm his

       sentence.


[19]   Affirmed.


       Baker, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A04-1611-CR-2625| May 5, 2017   Page 11 of 11
