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State v. Rivera

Court of Appeals of Utah

November 21, 2019

State of Utah, Appellee,
v.
Oyah Tongson Rivera, Appellant.

          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.

         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.

         ¶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 ...


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