State v. Rivera

               THE UTAH COURT OF APPEALS

                        STATE OF UTAH,
                           Appellee,
                              v.
                     OYAH TONGSON RIVERA,
                          Appellant.

                             Opinion
                         No. 20180546-CA
                     Filed November 21, 2019

           Third District Court, Salt Lake Department
             The Honorable Todd M. Shaughnessy
                          No. 161908011

        Teresa L. Welch, Maren E. Larson, and Heidi Buchi,
                     Attorneys for Appellant
         Sean D. Reyes and Thomas B. Brunker, Attorneys
                          for Appellee

  JUDGE DAVID N. MORTENSEN authored this Opinion, in which
     JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.

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.
                          State v. Rivera


                        BACKGROUND 1

¶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.


1. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.”
State v. Maese, 

, ¶ 2 n.2, 

.

2. These were the ages of the children when they reported the
abuse in 2016.




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                          State v. Rivera


¶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.



3. Photographs of the children entered into evidence verify the
extent of their injuries. In reviewing these photographs, one
might mistakenly conclude that the children had been peppered
with a shotgun blast based on the density of the scarring to their
bodies.




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                           State v. Rivera


¶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




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                           State v. Rivera


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



4. About this same time, K.S. told his ecclesiastical leader that the
children had pinched each other and had made up the story
about Rivera inflicting the abuse.




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                          State v. Rivera


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




5. Regarding the last two counts, the Information stated that
(1) the children had observed Rivera beat Father and (2) Father
                                                  (continued…)


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                          State v. Rivera


closed its case-in-chief, Rivera moved for a directed verdict
based on insufficiency of the evidence on all counts. Citing State
v. Robbins, 

, 

, 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 because they were “reaching out” to her and
because she believed they were being “tortured.” She testified
that she agreed to marry Father because he said he could help
her get a U.S. visa.

¶17 Father also testified at trial. He acknowledged that he had
cheated on Rivera, but he denied ever hitting, biting, or using
fingernails or pliers to pinch the children. Rivera’s son testified
that he had seen Father discipline the children in Bahrain by
slapping their faces and lifting them by their shirts. Rivera’s
sister testified that she saw Father drop H.S. on a couch and
“bit[e] her butt.”

¶18 The jury convicted Rivera of three counts of child abuse.
Rivera appeals.




(…continued)
revealed that Rivera beat him and threatened to have him
deported if he reported her abuse of the children.




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                          State v. Rivera


             ISSUE AND STANDARD OF REVIEW

¶19 The sole issue on appeal is whether there was sufficient
evidence to convict Rivera of child abuse where the three
children testified at trial that Rivera had not pinched them,
contradicting some of their pretrial statements, in which they
stated that she had. Rivera argues that this lack of consistency
between trial testimony and pretrial statements creates a
situation in which the accusations against her are “too inherently
improbable to support the verdict.” “When a jury verdict is
challenged on the ground that the evidence is insufficient, we
review the evidence and all inferences which may reasonably be
drawn from it in the light most favorable to the verdict.” State v.
Hirschi, 

, 

 (cleaned up). “And
we will not reverse a jury verdict if we conclude that some
evidence exists from which a reasonable jury could find that the
elements of the crime had been proven beyond a reasonable
doubt.” State v. Maestas, 

, 

 (cleaned
up). Thus, “we may reverse a verdict only when the evidence, so
viewed, is sufficiently inconclusive or inherently improbable that
reasonable minds must have entertained a reasonable doubt that
the defendant committed the crime of which he or she was
convicted.” State v. Graves, 

, 

(cleaned up).


                           ANALYSIS

¶20 Rivera contends that there was insufficient evidence to
support her convictions for child abuse. Specifically, she argues
that (1) the children testified at trial that Rivera did not abuse
them, (2) her admission that she used her nails to pinch K.S. on
one occasion does not constitute child abuse but is reasonable
parental discipline, and (3) trial evidence supports the
conclusion that Father more likely caused the scars on the
children. In support of this claim, Rivera argues that the
children’s pretrial allegations that she pinched them with pliers



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                          State v. Rivera


are “too inherently improbable to support the verdict.” In effect,
Rivera urges us to determine that the children’s pretrial
statements were inherently improbable and to rely only on the
trial testimony. Thus, we first address whether the children’s
statements were inherently improbable. Then, having
determined that they were not, we consider whether there was
sufficient evidence to support Rivera’s convictions for child
abuse.

               I. Inherent Improbability Exception

¶21 An appellate court is “not normally in the business of
reassessing or reweighing evidence” and resolves “conflicts in
the evidence in favor of the jury verdict.” State v. Prater, 

, 

 (cleaned up). Indeed, “there is perhaps no
more axiomatic statement when reviewing jury verdicts than
this: The choice between conflicting testimony is within the
province of the jury.” State v. Cady, 

, 

 (cleaned up). But “in some unusual circumstances we
will conclude that the testimony presented to the jury was so
unreliable that it cannot form the basis of a conviction.” Prater,

 (cleaned up). Such a rare circumstance exists
when “the evidence is so inconclusive or inherently improbable
that it could not support a finding of guilt beyond a reasonable
doubt.” State v. Workman, 

 (Utah 1993).

¶22 In State v. Robbins, our supreme court articulated “the
scope of the inherent improbability” exception. 

, 

. A court can “reevaluate the jury’s
credibility determinations only in those instances where (1) there
are material inconsistencies in the testimony and (2) there is no
other circumstantial or direct evidence of the defendant’s guilt.
The existence of any additional evidence supporting the verdict
prevents the judge from reconsidering the witness’s credibility.”
Id. ¶ 19. In Prater, the court clarified the Robbins formulation of
the inherent improbability exception by stating that it is
“inconsistencies in the [witness’s] testimony plus the patently



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                           State v. Rivera


false statements the [witness makes] plus the lack of any
corroboration that [allows a] court to conclude that insufficient
evidence [supports a defendant’s] conviction.” 

.

¶23 This “narrow” formulation of the exception found in
Robbins and Prater presents “a significant barrier in succeeding
on claims of inherent improbability.” Cady, 

,
¶¶ 17–18. Thus, “[i]t is difficult to successfully establish such a
claim on appeal.” Id. ¶ 18; see also State v. Doyle, 

, 

 (stating that “the inherent improbability
[exception] has very limited applicability and comes into play
only in those instances” that satisfy the approach adopted in
Robbins and Prater (cleaned up)); State v. Ray, 

, 

 (“‘Inherent improbability’ . . . does not apply
more generally to cases involving a victim’s incredibility—not
even significant incredibility.”), cert. granted on other grounds, 

. 6

¶24 Just as the court in Robbins plainly stated that any
additional evidence supporting the verdict would preclude a
judge from reconsidering a witness’s credibility, Robbins, 

, under Prater, if an appellant fails to show all three
elements—material inconsistencies plus patent falsity plus lack of
corroboration—a judge is likewise precluded from reconsidering
witness credibility, 

 (stating that a court may
find witnesses’ testimony inherently improbable only when “no
other circumstantial or direct evidence support[s] the


6. Undue micro-focus on the elements of the inherent
improbability exception often leads to legal myopia where the
ultimate question—whether a reasonable jury could find a
defendant guilty beyond a reasonable doubt—is lost in the
details. A case which actually falls within the Robbins–Prater
rubric is exceedingly rare. In fact, we have not found a single
Utah decision examined under that rubric that has reversed a
verdict since Robbins.




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                           State v. Rivera


defendant’s guilt” (cleaned up)); see also State v. Crespo, 

, 

 (stating that under the inherent
improbability exception, the credibility of a witness’s testimony
may be reassessed only when such testimony “is the sole
evidence that a crime was even committed and there is a
complete lack of circumstantial evidence” (cleaned up)). On
appellate review, because all three elements of the inherent
improbability exception must be met under Prater, where we
identify that any one of them is missing, the claim of inherent
improbability fails.

¶25 Rivera’s claim of inherent improbability fails because the
children’s pretrial statements were corroborated. Rivera argues
that the children’s statements lack corroboration because (1) no
testimony was presented at trial of anyone—other than the
children—seeing Rivera inflict the injuries, (2) Rivera’s pretrial
admissions of using force against the children constituted
reasonable parental discipline, and (3) physical evidence was
lacking since the pliers were never tested for Rivera’s
fingerprints. But in making this claim, Rivera ignores other
evidence that supports the verdict.

¶26 The children uniformly reported the abuse—and
identified Rivera as having inflicted it—to Father, to Detective
during the CJC interviews, and to Doctor. See Prater, 

 (noting the consistent testimony among the three
witnesses). In addition, the details in the children’s statements
about the abuse corroborated each other. Each child told of
Rivera using pliers to pinch them, and the children all recounted
the incident of Rivera telling the brothers to beat their sister. And
insofar as physical evidence is concerned, the photographs taken
during the physical examinations reveal numerous scars
consistent with having been pinched by pliers on multiple
occasions. Indeed, Doctor, after examining the extensive scarring
on the children’s bodies, described the abuse they suffered as
“akin to torture.” And Rivera downplays her pretrial admissions
of abusing the children. She admitted to pinching H.S. with



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                          State v. Rivera


pliers and pinching K.S. with her nails. When confronted about
the scars and marks on the children, Rivera justified herself by
saying that “she wasn’t the only one that did this to the
children.” Finally, she admitted that she told the brothers to
discipline H.S. for not reading the dictionary loud enough.

¶27 In sum, the children’s pretrial statements, made during
the investigation, were corroborated. Therefore, they cannot be
characterized as inherently improbable.

                  II. Sufficiency of the Evidence

¶28 “In considering an insufficiency-of-evidence claim,” an
appellate court will not reverse a jury verdict provided it can
“conclude that some evidence exists from which a reasonable
jury could find that the elements of the crime had been proven
beyond a reasonable doubt.” State v. Maestas, 

,

 (cleaned up). We conclude that such evidence exists
to support the jury’s verdict.

¶29 Resting her argument on the foundation that the
children’s statements made during the primary investigation
were inherently improbable, Rivera asserts that she was
convicted on insufficient evidence. She asserts insufficiency in
three different ways. We address each in turn.

¶30 Rivera first argues that the children’s trial testimony—
because it was made under oath—should be afforded greater
weight than their pretrial statements. And based on the
children’s trial testimony alone, Rivera contends that there was
insufficient evidence for the jury, without relying on
“speculation and conjecture,” to convict her. But, as
demonstrated above, Rivera’s assertion that the children’s
pretrial statements were inherently improbable fails. The
children’s statements were properly accepted and weighed by
the jury. And when evidence is disputed, as it was in this case, it
is not for the court to resolve the conflict by excluding certain
evidence from consideration. Rather, it is the jury’s job to sort


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                          State v. Rivera


through conflicting evidence and to assess the credibility of the
witnesses. See State v. Cady, 

, 

.
Far from showing insufficiency, Rivera has simply identified a
conflict in the evidence that requires resolution through
deliberation of a factfinder, which is a function the jury has
carried out here.

¶31 Second, Rivera claims that her pretrial admissions about
disciplining the children were insufficient to support a finding
that she caused “serious physical injury” to them under the Utah
Code. See 

(1)(f)(ii)(E) (LexisNexis
Supp. 2016) (stating that “any combination of two or more
physical injuries inflicted by the same person, either at the same
time or on different occasions” constitutes “serious physical
injury”). But Rivera’s argument is misplaced. It does not matter
whether her pretrial admissions, standing alone, demonstrated
child abuse. Rather, the factfinder considers the evidence taken
as a whole. Indeed, discrete evidence in many trials would be
insufficient to support a conviction if viewed in a vacuum, apart
from other evidence. But we do not consider evidence in such a
piecemeal and isolated fashion. Instead, we analyze whether
there is sufficient evidence to support a verdict “in light of the
totality of the evidence.” State v. Ashcraft, 

, 

.

¶32 Furthermore,         Rivera’s    pretrial  statements—when
considered with all the other evidence—support her conviction.
She admitted to hurting the children. She admitted to using
pliers to discipline H.S. She admitted to pinching the children
with her nails. She admitted to having K.S. and F.S. punch H.S.
All three children’s statements to investigators corroborate these
same events. Furthermore, as described above, the abusive
nature of Rivera’s admitted methods of discipline are
corroborated by the physical-examination photographs and by
Doctor’s testimony.




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                          State v. Rivera


¶33 Third, Rivera argues that the testimony about Father
reveals that he most likely injured the children. Citing State v.
Cristobal, 

, 

, Rivera asserts that
because there is evidence that Father may have abused the
children, the jury’s verdict convicting her was based on
“speculation and conjecture” and unreasonable inferences. But
Rivera’s argument employs an overly broad understanding of
“speculation.” Rivera would have us conclude that by
presenting an alternate explanation for the children’s injuries,
she has established that her conviction was based on speculation.
This is incorrect. “A jury draws a reasonable inference if there is
an evidentiary foundation to draw and support the conclusion.
In the case of speculation, however, there is no underlying
evidence to support the conclusion.” Salt Lake City v. Carrera,

, 

. As explained above, there is
certainly an evidentiary foundation from which to draw and
support the conclusion that Rivera pinched the children with
pliers and otherwise abused them.

¶34 Rivera’s insufficiency-of-the-evidence argument is
unpersuasive because the “existence of a conflict in the evidence
does not render the totality of the evidence insufficient. It is the
role of the factfinder to examine and resolve such conflicts.” State
v. Black, 

, 

. And that is precisely
what the jury did in this case. It considered the conflicting
evidence and served “as the exclusive judge of both the
credibility of witnesses and the weight to be given to particular
evidence” in convicting Rivera of child abuse. 

 (cleaned up).


                         CONCLUSION

¶35 Rivera’s claim that the children’s pretrial statements were
inherently improbable fails because the statements were
corroborated. And Rivera’s claim that she was convicted on
insufficient evidence fails because there was ample evidence to
support the verdict rendered by the jury. We therefore affirm.




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