RIVERS v. STATE (2023)

MEMORANDUM DECISION

Case Summary

[1] Following a jury trial, Michael M. Rivers was convicted of Level 3 felony rape.¹ The trial court sentenced Rivers to ten years in the Indiana Department of Correction (“DOC”), with eight years executed and two years suspended to probation. Rivers appeals, arguing the sentence is inappropriate. We affirm.

Facts and Procedural History

[2] On December 10, 2020, Rivers shared a home with his child and girlfriend. Late that evening, a neighbor-friend—C.P.—was at the home. As the child played, Rivers, his girlfriend, and C.P. began watching a movie and drinking alcohol. At some point, C.P. fell asleep on the couch, not far from where the child slept. C.P. later awoke to feeling Rivers’ “fingers basically up the side of [her] shorts and trying to, or basically entering the inside of [her] vagina[.]” Tr. Vol. 2 at 39. As C.P. recounted, “he kept going like harder and harder ․ and if I didn't move ․ it seemed like he just wouldn't stop[.]” Id. at 41. She recalled, “[t]he more I didn't do anything ․ the harder, like the deeper he went in” and “that started to cause pain[.]” Id. at 50. C.P. “made a slight noise,” at which point it seemed as though Rivers started “to back off a little bit.” Id. at 41. Rivers said: “[S]hake your head yes if you would like my cock or shake your head no[.]” Id. C.P. “laid there frozen” and “didn't know what [she] should do.” Id. Rivers started to move on top of C.P. At that point, C.P. asked Rivers what he was doing. Rivers “looked frightened” and “shocked,” id. at 42—he replied, “oh, nothing,” before he “disappeared into his bedroom,” id. at 41. C.P. was “scared” and “shaking[.]” Id. at 43. Once C.P. believed Rivers was not coming back out, she contacted her sister for a ride home. C.P. and her sister went back to C.P.’s house and called 9-1-1. C.P. then underwent a sexual-assault examination at a local hospital, where a nurse noted C.P. had abrasions on her vagina in areas C.P. reported having pain.

[3] The State charged Rivers with Level 3 felony rape and Level 6 felony sexual battery. Rivers was brought to trial in May 2022, and a jury found him guilty as charged. The trial court later entered judgment of conviction on only the Level 3 felony, determining the Level 6 felony merged into the lead count.

[4] At an ensuing sentencing hearing, Rivers expressed remorse and said he was “sorry for all the nightmares” and “all the pain [he] caused.” Tr. Vol. 2 at 147. C.P., who attended the hearing, provided a written victim-impact statement. In that statement, C.P. described how she cannot speak about the night Rivers raped her “without crying” and how she “didn't want to close [her] eyes” because, when she did, she would “remember the weight of [Rivers] on top, hear his words again, the feeling of his fingers, and the feeling of being the most scared [she had] ever been in [her] entire life.” App. Vol. 2 at 107. C.P. explained how, two years after the rape, she will “still sit here and cry.” Id. C.P. also shared how she struggles with trusting others because Rivers—a “man that [she] trusted, and thought kindly of”—“took all of that [a]way[.]” Id.

[5] Before pronouncing a sentence, the trial court addressed Rivers: “[W]hat strikes me the most about this case is that this was a young girl invited into your home where she felt safe and had a reason to feel safe being with you and your ․ girlfriend[.]” Tr. Vol. 2 at 151. The trial court told Rivers: “You totally took advantage of that, of this vulnerable young woman who was sleeping over that evening at your house, and you brutally attacked her[,] in my view[,] while she was sleeping.” Id. at 151–52. The court characterized Rivers’ victimization of C.P. as “kind of an act of coward[ice] ․ because she's asleep and she's unaware of what was happening and you did it all to satisfy ․ your own sexual desires without once considering how she must feel and the long[-]term impact this may have upon her[.]” Id. at 152. The trial court said it found Rivers’ conduct “even more disturbing” because Rivers raped C.P. when his girlfriend and child were present, noting C.P. could have woken up at any point “screaming” or “yelling”—putting Rivers’ girlfriend “in terror” or “waking up that little child, wondering what was going on.” Id. The court stated: “[T]o consider committing this type [of] an offense when your own child is sleeping in your home is just ․ beyond me.” Id.

[6] As to aggravating circumstances, the trial court determined it was “a significant aggravator” that C.P. was friends with Rivers, and Rivers’ child was present at the time of the offense. Id. The court also referred to C.P.’s victim-impact statement, noting C.P. is “struggling certainly,” and Rivers’ criminal conduct “unfortunately ․ may have a long[-]term impact upon her.” Id. at 153. The court determined that the “significant impact” on C.P. was an aggravator. Id.

[7] As to “the mitigating side,” the trial court noted Rivers had no criminal history and Rivers’ good employment history spoke well of his character. Id. The trial court also said it would give some mitigating weight to Rivers’ expression of regret. The court added that although it would be “fair ․ to probably find as a mitigator that long[-]term imprisonment would cause a hardship upon [Rivers’] dependent,” that mitigator was “diminished somewhat by the fact that the dependent was in the house, present at the time all this happened[.]” Id. at 154. Similarly, although the trial court noted Rivers had issues with substance abuse, the court determined this mitigator was “diminished by [Rivers] not taking advantage of treatment in the past[.]” App. Vol. 2 at 116.

[8] All in all, the court determined the aggravating circumstances outweighed the mitigating circumstances. The court imposed a ten-year sentence in the DOC, ordering eight years executed and two years suspended to supervised probation.

[9] Rivers appeals.

Discussion and Decision

[10] Under Appellate Rule 7(B), this 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.” Because Appellate Rule 7(B) requires “due consideration of the trial court's decision,” the rule “places central focus on the role of the trial judge, while reserving for the appellate court the chance to review the matter in a climate more distant from local clamor.” Brown v. State, 10 N.E.3d 1, 4 (Ind. 2014) (quoting Serino v. State, 798 N.E.2d 852, 856–57 (Ind. 2003)). Thus, “[w]hen we review a sentence under Appellate Rule 7(B), we show the trial court ‘considerable deference.’ ” Oberhansley v. State, No. 20S-LW-620, 2023 WL 3490928, at *3 (Ind. May 17, 2023) (quoting Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008)). And that “ ‘deference should prevail unless overcome by compelling evidence portraying in a positive light the nature of the offense’ and ‘the defendant's character.’ ” Id. (quoting Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015)).

[11] Ultimately, “whether we regard a sentence as appropriate ․ turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Cardwell, 895 N.E.2d at 1224. But “[i]ndividual judgments as to the proper balance to be struck among these considerations will necessarily vary from person to person”—and “judges, whether they sit on trial or appellate benches, are no exception.” Id. (observing “[t]here is ․ no right answer as to the proper sentence in any given case”). At bottom, the “principal role” of our review “should be to attempt to leaven the outliers,” but “not to achieve a perceived ‘correct’ result in each case.” Id. at 1225. Indeed, the question “is not whether another sentence is more appropriate; rather, the question is whether the sentence imposed is inappropriate.” Helsley v. State, 43 N.E.3d 225, 228 (Ind. 2015) (quoting King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008)) (emphasis omitted). And the defendant bears the burden of persuading us the sentence is inappropriate. Hall v. State, 177 N.E.3d 1183, 1197 (Ind. 2021).

[12] Here, Rivers was convicted of Level 3 felony rape. This felony has a sentencing range of three years to sixteen years, with an advisory sentence of nine years. See I.C. § 35-50-2-5(b). In imposing an aggregate sentence of ten years, the trial court found the aggravators outweighed the mitigators, and it selected a somewhat aggravated sentence—i.e., one year beyond the advisory sentence. Moreover, in sentencing Rivers, we note the trial court entered a detailed sentencing statement—one that strikes us as particularly thoughtful and reflects effort to carefully tailor a sentence to the circumstances. Ultimately, with deference to the trial court in mind, we turn to Rivers’ contention that the sentence is inappropriate in light of the nature of the offense and his character.

[13] As to the nature of the offense, Rivers asserts that “[o]ne factor used in ‘determining the appropriateness of a deviation from the advisory sentence is whether there is anything more or less egregious about the offense committed by the defendant that makes it different from the “typical” offense accounted for by the legislature when it set the advisory sentence.’ ” Appellant's Br. at 8 (quoting Johnson v. State, 986 N.E.2d 852, 856 (Ind. Ct. App. 2013)). Rivers claims his rape of C.P. was “less egregious than the ‘typical’ rape offense contemplated by the legislature” because: (1) “Rivers did not use any physical force”; (2) “The victim did not suffer any serious injuries”; (3) “No weapon was used to commit the offense”; (4) “The sexual contact did not result in unwanted pregnancy or transmission of disease”; (5) “There was no oral sex or sexual intercourse”; (6) “The only sexual contact that occurred was digital penetration, which Rivers immediately ceased as soon as C.P. indicated the touching was unwelcome”; and (7) “Rivers did not confine the victim or otherwise hold her against her will at any time.” Id. at 8–9. According to Rivers, his sentence is inappropriate because these circumstances “do not warrant an aggravated prison sentence above the advisory” sentence of nine years. Id. at 9.

[14] But we cannot say Rivers has identified compelling evidence regarding the nature of the offense. Here, Rivers raped his friend while she slept, abrading C.P.’s vagina, causing her physical pain, and causing C.P. to experience significant emotional trauma she was still working through by the time of trial. Furthermore, Rivers betrayed C.P.’s trust. He victimized a houseguest—doing so while his small child slept nearby, and his girlfriend was in another room. Moreover, Rivers has not persuaded us the offense is materially different from the “typical” rape contemplated by our legislature. For example, digital penetration falls squarely within the conduct criminalized by Indiana Code Section 35-42-4-1(a). See, e.g., Boggs v. State, 104 N.E.3d 1287, 1288–89 (Ind. 2018) (determining the term “other sexual conduct,” as defined in Indiana Code Section 35-31.5-2-221.5, includes digital penetration of the female sex organ). And it is unsurprising a rape committed while a person was sleeping did not involve a weapon, physical confinement, or other additional force.

[15] As to the character of the offender, Rivers emphasizes he had no criminal history and was young—twenty-four years old—when he committed this offense. Rivers also notes he “made clear statements of remorse at sentencing,” and his “employment history and willingness to work” amount to “evidence of good character that supports sentence revision.” Id. Rivers points out that, although the probation department “recommend[ed] a similar 10-year sentence,” the probation department sought a “less onerous prison sentence,” id. at 10, in that the department recommended six years in the DOC “as opposed to the eight years that the trial court imposed,” id. at 11. Rivers also points out his score from the Indiana Risk Assessment System placed him in the “low risk” category to reoffend, suggesting “an aggravated prison sentence is unnecessary for rehabilitation and inappropriately harsh.” Id.

[16] According to Rivers, “if the circumstances of this case warrant a 10-year sentence with eight years in prison, it is difficult to say what Level 3 felony rape offense would qualify for the three-year [minimum] sentence contemplated by our General Assembly.” Id. at 11–12. Claiming he “deserves a sentence no more than the advisory nine years and a less onerous prison sentence,” id. at 8, Rivers asks us to “revise [his] sentence to a term of six (6) years,” id. at 12.

[17] Again, we disagree that Rivers has identified circumstances supporting sentence revision. Indeed, although Rivers focuses on favorable evidence regarding his character, Rivers revealed his poor character by preying on a friend while she was particularly vulnerable. Rivers also revealed his poor character when C.P. woke up and confronted him; rather than own up to any wrongdoing, Rivers lied to C.P. and retreated to his bedroom, leaving C.P. to cope with the trauma and find a way home. Moreover, Rivers showed no regard for the wellbeing of his child or girlfriend, both of whom were in the home when Rivers raped C.P.

[18] All in all, Rivers has identified a range of evidence the trial court could have balanced differently—evidence that, within a court's broad discretion, might have persuaded a different judge to impose a somewhat more lenient sentence. But we do not find the evidence compelling under the circumstances of this case. In short, the sentence is not an outlier to be leavened.

Conclusion

[19] The sentence is not inappropriate.

[20] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-4-1(a)(2) (2020).

Kenworthy, Judge.

Robb, J., and Crone, J., concur.