State v. Rivera

455 P.3d 112

STATE of Utah, Appellee,

v.Oyah Tongson RIVERA, Appellant.

No. 20180546-CA

Court of Appeals of Utah.

Filed November 21, 2019

Teresa L. Welch, Salt Lake City, Maren E. Larson, and Heidi Buchi, Attorneys for Appellant

Sean D. Reyes and Thomas B. Brunker, Salt Lake City, Attorneys for Appellee

Judge David N. Mortensen authored this Opinion, in which Judges Jill M. Pohlman and Diana Hagen concurred.

Opinion

MORTENSEN, Judge:

¶1 A jury convicted Oyah Tongson Rivera on three counts of child abuse. The abuse involved Rivera repeatedly using pliers to pinch her three stepchildren. Physical examinations revealed scarring and cuts all over the children's bodies. All three children told doctors, investigators, and others that Rivera inflicted the injuries. In later statements before and at trial, the children recanted. The jury nevertheless found Rivera guilty. We affirm.

BACKGROUND¹

¶2 In June 2016, three siblings—K.S., a boy age 12; F.S., a boy age 10; and H.S., a girl age 8—told their father (Father) that Rivera, their stepmother, had been abusing them.² The children told Father that when Rivera got angry with them, she would call them into her room, pull a pair of pliers out of a drawer, and pinch them repeatedly all over their bodies. After seeing the marks and learning that Rivera had forced K.S. and F.S. to beat H.S. the day before, Father consulted his attorney, who took the family to a YWCA. The YWCA called the police.

The Investigation

¶3 Police officers performed a welfare check at the house where the children were being cared for by their seventy-year-old, ill grandfather. The officers could see that the children had marks, scars, and cuts—some readily visible and some under their clothing—all over their bodies. The officers also saw large bruises on the sides of H.S.'s face. They then contacted Father and brought him to his house. Rivera was arrested that night.

¶4 The next morning, Father brought the children to meet with Child Protective Services (CPS) for initial interviews. CPS determined that the grandfather was not healthy enough to have caused the injuries. CPS also investigated Father by interviewing him on multiple occasions and repeatedly checking in on the children outside Father's presence to verify their safety.

¶5 A few days later, a child abuse pediatrician (Doctor) conducted a physical examination of each child. As part of the exams, Doctor took a medical history. Each child separately told Doctor that Rivera had inflicted the marks on their bodies by using pliers to pinch them on multiple occasions. Specifically, K.S. told Doctor that the pinching occurred "once or twice a week" over the previous eight months. K.S. explained that when "something bad would go on inside [Rivera's] head," she would pinch them with the pliers. Doctor also observed scarring and cuts all over the children's bodies, including on their arms, hands, chest, stomach, back, legs, and genitalia.³

¶6 In summarizing her conclusions of the physical exams, Doctor stated,

These three children gave a history of abusive behavior by their [step]mother, plier marks and scratches. They had multiple marks consistent with this. And I concluded that the marks were abusive in nature. I felt that was physical abuse and psychological abuse because this was repeated over time, both according to the history. And on physical [examination], we can say that there was more than one episode of abuse. I think that that's psychologically bad because ... these actions are akin to torture. And they would anticipate that it might happen again. I also feel that the boys being forced to hit [their sister], according to the history, is psychologically damaging.

¶7 A few days later, the children were each interviewed individually by a detective (Detective) at the Children's Justice Center (CJC). K.S. told Detective that Rivera scratched, kicked, punched, and slapped the children, stating, "She does the same thing every time she gets angry. She slaps us, kicks us, [and] pinches us with pliers." He also described other punishments: being hit in the head with a can of food; being beaten with a wooden ladle; having a water mug broken on his head; and being forced to kneel on uncooked rice, peas, and peppercorns while holding books in his outstretched arms. Finally, K.S. described an incident where Rivera ordered him and F.S. to punch H.S. for not reading the dictionary loudly enough.

¶8 F.S. recounted many of the same details at his separate CJC interview. He said Rivera pinched him with pliers or her fingernails when he did "the same mistake all over again and again" or when he did not "take responsibility when she's not ... around." F.S. also revealed that Rivera ordered him and K.S. to punch H.S. in the face and torso.

¶9 In her CJC interview, H.S. revealed that Rivera pinched her with pliers all over her body, including her legs, her stomach, her arms, her torso, and her shoulders. When asked why Rivera pinched her with pliers, H.S. stated, "[B]ecause I never learn and I never talk to her and I never ask her, I never told her the things that I am doing .... I only say I will learn, I will learn, I will ask, I will ask, I will talk to her. And then I never do it. I forget." H.S. also recounted the incident when Rivera ordered K.S. and F.S. to punch and slap her for failing to read the dictionary loudly enough.

¶10 When interviewed by CPS, Rivera admitted to "pinching [H.S.] with the pliers one time" and pinching K.S. "with her acrylic nails" as disciplinary punishment. Rivera complained that she was frustrated because Father was cheating on her, Father forced her to have sex, and she had to take care of the children—including homeschooling them—even though she was just their stepmother.

¶11 Later, when asked by Detective about the marks and bruises on the children, Rivera stated that "she wasn't the only one that did this to the children." She told Detective that she had "used force, like hurt [the children] physically, just so they obey me." But she also expressed remorse, saying, "I know this is bad because I hurt them, but it's not like I'm doing it for fun .... I don't want to abuse the children." However, Rivera refused to answer Detective's questions about whether she ever used pliers to pinch the children. Regarding the dictionary incident, Rivera told an officer that K.S. is "the big brother. I don't have to hurt [H.S.]—don't have to hurt them. Let [K.S.] do it." Finally, Rivera told Detective, "The incident that happened with [H.S.] ... I was ready to surrender .... This is the worst thing I've ever [done]."

¶12 About two years later in April 2018, Doctor reevaluated the children shortly before the trial. Many of the marks had cleared; and although some remained, there was no indication of new injury from abuse. However, the children offered a different explanation to Doctor for the marks on their bodies from what they had told her two years earlier. H.S. told Doctor that Rivera was going to leave, so the children inflicted the injuries on each other "to make her feel sorry for them so she wouldn't leave." K.S. told Doctor the same thing: "We made up that [Rivera] did it, but really she was going to leave and we did it to ourselves so that she would feel sad for us and she would stay."⁴ F.S. told Doctor substantially the same story about the source of the injuries. When Doctor confronted him about the disparity, F.S. replied, "I never said that." In her trial testimony, Doctor confirmed that it is not uncommon for children to recant allegations of abuse.

The Trial

¶13 At trial, the children repeated that they had caused the injuries to themselves. They explained that because Rivera and Father were constantly fighting, they feared Rivera was going to leave and reasoned that once she saw their injuries, she would feel sorry for them and stay. But much of the children's testimony at trial conflicted. For example, K.S. said they came up with the plan to blame Rivera for the injuries when the police arrived, but he was unable to explain how they communicated their plan to each other on such short notice. F.S. said that the three children sat down and talked over the plan before the police arrived. With regard to coming up with the plan to pinch themselves, K.S. testified that he and H.S. formulated the idea in their bedroom and later told F.S. about it. F.S. testified that the three hatched the plan together in the living room. H.S. said K.S. made up the plan and told her and F.S. about it.

¶14 The children's trial testimony was also significantly inconsistent with regard to how they received the injuries. Among these pervasive inconsistencies, K.S. testified that he alone pinched his own arms and stomach, but earlier he said F.S. had caused some of his pinch marks. F.S. testified that he didn't want to pinch himself because he knew it would hurt, so he asked his brother to do it for him. But he later said that he pinched himself.

¶15 Rivera faced three counts of child abuse, one count of witness tampering, and one count of assault.⁵ After the State closed its case-in-chief, Rivera moved for a directed verdict based on insufficiency of the evidence on all counts. Citing State v. Robbins , 2009 UT 23, 210 P.3d 288, Rivera argued that the "prosecution can't be said to have proven their case beyond a reasonable doubt, because there [was] so much variance and differing between the testimony of all of [the witnesses] regarding what happened and who actually did what they did." The district court granted the motion with respect to the counts for witness tampering and assault but denied it for the counts of child abuse.

¶16 Rivera then testified, denying that she ever pinched the children with pliers, forced them to hit each other, or made them kneel on objects. She also said that she first saw injuries on the children via Skype when she lived in the Philippines and they lived in Bahrain with Father. She said she went to Bahrain to be with the children...