- April 18, 2024
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The trial isn't over yet, but the jury looks like it's on the prosecution's side in the case of a man accused of raping his 13-year-old stepdaughter — so much so that the judge in the case advised the defendant to consider another strategy.
"I’m telling you now, it’s not going well," Judge Matthew Foxman told defendant Waldemar Rivera after the jury filed out of the courtroom for a break March 22. "I'm not so sure that you don’t want to talk to (defense attorney Regina Nunnally) for a minute. ... Just telling you, in my reading of how they reacted to her, and the evidence thus far, I would not view as favorable to you." At least one juror cried during the girl's testimony.
Rivera's option at that point, Foxman confirmed, would have been to enter an open plea — meaning that he wouldn't continue to contest the charges, but also would not have any agreement with the prosecution on sentencing. No plea was entered March 22, and the trial continued.
Rivera, now 38, is charged with raping his then-13-year-old stepdaughter two years ago, after giving her beer, cigarettes and marijuana. The charges are sexual battery on a person under 18, and sexual assault by a person of custodial authority.
"Waldemar Rivera had raised her since she was 3 years old," Assistant State Attorney Christina Opsahl told the jury of four men and four women during her opening statement. "Her biological father was in jail at the time. He was her dad. And Waldemar Rivera, her dad, her protector, the person that should make her feel the safest in the world, violated that trust, in her 13-year-old body, on May 11, 2014."
Nunnally, the defense attorney, tried to sow doubt in the prosecution's case.
"This case is about two questions," Nunnally told the jury. "The first question: Was a crime committed? The second question: If so, did Waldemar Rivera commit the crime?"
If the prosecution couldn't prove that a crime had been committed, she said, there was no need to move on to the second question.
Nunnally tried to undermine the girl's credibility. "What you have to remember as a jury is that the accusation is coming from a 13 year old young lady," she said. "Not a typical 13 year old girl. You’re going find out that her life is not the typical life of a 13 year old." But Foxman limited questioning about the girl's background.
Nunnally also challenged the girl on details of her story when the girl, now 15, took the stand — pressing the teen on why, after Rivera had passed out drunk after the alleged assault, she called her best friend 51 times in a row rather than giving up on that number after the first few tries and calling someone else, or why, when she ran away from the house to get help, she didn't flag down any of the police cars she saw.
But none of that revealed any holes in the girl's story, and some of it backfired on the defense — only highlighting the girl's fear of her stepfather, a man who'd attacked her mother violently in the past, and who, when the girl was 10, caller her a "trouble maker" who would "grow up to be a whore."
The girl said she'd called her friend repeatedly after the rape because that's all she could think to do at the time, and that she didn't approach the police herself because she was afraid Rivera would kill her or her family if he found out.
"If I were to call the police, and he were to find out that I called the police and I opened my mouth — I was so scared for my life and my family’s," she said. "I didn’t want to take that risk."
The mother of the friend she'd called called the police, as did the mother of another friend whose doorstep the girl showed up on, barefoot, hysterical and begging to use a phone to call her mom.
The crime happened on a Sunday, May 11, 2014, according to the prosecution. Rivera had separated from the girl's mother at that point, but remained a part of her life. The girl's mother was spending the day at Daytona Lagoon with her boyfriend, who was also Rivera's brother. The girl spent the afternoon at the Flagler Beach pier with her friends, then called Rivera to pick her up.
He bought her cigarettes and beer and stopped at a gas station to buy pot. Then he took her out to Houligan's before taking her to his home on Peppercorn Drive and offering her a marijuana blunt. She'd also already had two beers. She tried the blunt but only took two hits, she said, because it tasted strange, like it might have been laced with other chemicals.
The girl turned the TV on and was watching "Law & Order" when Rivera, she said, came in and asked her, "Do you want to feel something you've never felt before?"
She assumed he was referring to some other drug, and asked him what he meant. He told her to pull her shorts down. She froze, then said no, and he apologized.
But about five minutes later, she said, he blocked her against the sofa she was sitting on, pulled her pants and underwear down and raped her.
Opsahl had the girl tell the jury the details of what he'd done and where he'd touched her with what part of his body.
The teen did so, stopping several times to sob uncontrollably into a pink sweater she clutched protectively against her chest. When Rivera began raping her, the girl said, at first she froze. But then she pushed past him, grabbed a cigarette and went outside.
"I just — I thought myself, I needed to calm down, and I needed to collect my thoughts together," she told the jury, "because I just knew if I lost it, if I freaked out, I would end up dead."
Rivera followed her outside, saying she "must hate" him now and telling her to hit him. She told him she didn't, and then tried to get him talking about something else, asking him if he'd ever wanted to be a bird, and saying she sometimes wished she were "because they have no care in the world whatsoever."
She didn't run at the time, she told the jury, because she thought he'd just come after her and catch her. But he was drunk, and she thought that if she waited, he'd fall asleep in front of the TV.
He did, and she took his cell phone, ran up the street and called her best friend — 51 times — and got through, begging the friend to come pick her up. The friend spoke to the friend's mother, who didn't want to get involved but said she'd call the police, which she did.
The girl then put the phone in Rivera's car, trying to quietly close the door so it wouldn't wake him, and apparently not closing it all the way — when police later arrived at the house, they found the phone inside the car and the dome light on— and ran about a mile and a half, barefoot, to her grandmother's house.
No one was home.
So the girl ran to the home of another friend who lived nearby. That friend was home, along with his mother, Stacy Simpson.
Simpson, who testified at the trial, asked the girl what was wrong. The girl didn't want to say, beyond that it had something to do with her stepfather. Simpson asked if he'd hit her. The girl said no. Simpson asked if they'd had an argument. The girl said no. Then Simpson asked if he'd touched her, "And I just broke and started crying in front of her, and she told me she was going to call the cops," the girl told the jury.
By that time, local deputies had responded to an initial call from the girl's best friend's mother, and were at Rivera's house. They'd knocked on the front and back door and gotten no answer, though there were lights and a TV on inside.
Then, as a deputy walked back toward his cruiser, he noticed a light on in the house that hadn't been on when he'd arrived. He went into the open garage and knocked on the inside garage door, and Rivera came to the door.
The deputies asked where Rivera's stepdaughter was, and he said she was inside. She wasn't. Deputies asked Rivera why he hadn't come to the door when they'd nocked. He said he'd been in the shower, but when a deputy checked it, it was dry. Rivera revised his story: He'd been about to get into the shower, he said.
The deputies were filling out missing person paperwork on the girl when Simpson called police. Deputies officers came and picked up the girl, who was taken for a sexual assault examination where a sexual assault nurse examiner collected DNA evidence.
That evidence, a senior FDLE crime laboratory analyst told the jury, showed the presence of Rivera's DNA type — it technically could have been his, or a male relative's such as his brother's, something Nunnally was careful to ensure the jury understood — on the girl's underwear.
The trial continues at 9 a.m. March 23 in courtroom 401. The jury is expected to begin its deliberations by the afternoon.
