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Rivera v. State10/30/1992
testimony relating to DNA profiling was properly admitted.
II. Whether a clinical psychologist, a school counselor and a hospital social worker gave their opinions on the Appellant's guilt.
III. Whether the Appellant should have been tried for first degree sexual assault and taking indecent liberties with a child.
IV. Whether evidence of earlier assaults by the Appellant was properly introduced under Rule 404(b), W.R.E.
V. Whether there was cumulative error.
VI. Whether Appellant should have been given credit on concurrent sentences for pretrial incarceration.
The investigation of Rivera was instituted because of a complaint by BJL that she had been sexually assaulted in August, 1989. BJL had been drinking beer at a party that night, and she testified that she was intoxicated. Earlier in the evening, after an argument with her boyfriend, she had broken up with him. She was discussing this with Rivera and his wife, and Rivera invited her to stay at their home for the night. Rivera's wife had gone to bed in the bedroom; Rivera was in the living room on the couch; and the victim was in the living room on the floor while they talked. BJL then dozed off, but was awakened because Rivera and his wife were arguing about the light being on in the bedroom. Her sleep was interrupted more than once by that argument which apparently terminated when Rivera removed the light bulb.
BJL fell asleep, again, but awakened later to discover that Rivera had pulled down her jeans and panties past her knees. He was on top of her and had achieved penetration of her vagina with his penis. BJL told Rivera to get off of her and, after a while, he complied and went into the bathroom. BJL got up and went to her boyfriend's apartment which was nearby. She told her boyfriend what had happened and spent the rest of the night at his apartment. Although BJL testified that she slept in the same bed with her boyfriend, she said they did not engage in sexual intercourse. The following morning, the boyfriend took BJL to the police station where she made her complaint against Rivera. The police officers then took her to the hospital where a medical examination, including the utilization of a rape kit, was performed. Charges of sexual assault and indecent liberties with a minor were filed against Rivera.
The police officer investigating the accusation by BJL learned that MB might have information that was material. The officer and the prosecutor sought out MB as a witness. Their investigation revealed MB contacted her school counselor; told the counselor that she had been raped by Rivera; and sought the counselor's advice with respect to whether she should tell the investigator and the prosecutor. The counselor advised she should tell them about this event.
MB disclosed these facts to the police officer and the prosecutor. In March of 1988, MB and her father were living with relatives (MB's aunt and her husband), who also were Rivera's future in-laws, in a dwelling in Thermopolis. Rivera was a member of that household. MB and Rivera were alone in the house when MB went to Rivera's fiancee's bedroom to obtain a typewriter with which to do her homework. At that time, Rivera asked her to rub his back. While she was administering the back rub, Rivera grabbed her hand and shoved it down his pants, making contact with his penis. MB protested, and Rivera then threw her on the bed and, despite her insistence that he should stop and leave her alone, he accomplished sexual intercourse with penetration. When he was finished, he left the room, after telling her not to tell anyone.
MB immediately took a shower because s
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