- April 19, 2024
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A man accused of raping his 13-year-old stepdaughter has been found guilty.
The Flagler County jury of four women and two men deliberated for less than 20 minutes March 23 before issuing its verdict and finding the defendant, Waldemar Rivera, guilty of sexual battery by a person of custodial authority. He faces up to 30 years in prison.
The verdict was not unexpected: During the first day of the trial March 22, the judge warned Rivera that the jury appeared to be on the prosecution’s side.
"I’m telling you now, it’s not going well," Judge Matthew Foxman told Rivera after the jury filed out of the courtroom for a break March 22, on the first day of the two-day trial. "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 there would be no agreement with the prosecution on sentencing. No plea was entered, and the trial continued.
The case continued March 23.
In closing arguments before the jury, the prosecution and the defense painted different pictures of the young victim’s character: The prosecution depicted an innocent girl violated by a man she called ‘dad’ — a girl who then ran a mile and half, barefoot, seeking help.
The defense suggested the girl was lying in order to frame Rivera, a man who’d violently attacked her mother in the past and who’d called the girl a “whore” when she was 10 years old.
“If you believe (the girl), then there is no doubt that Waldemar Rivera is guilty,” Assistant State Attorney Christina Opsahl told the jury. “f you believe her, then there is no doubt that the defendant is guilty. So what you need to weigh is; Do you believe her?”
The defense pointed to the fact that crime lab technician’s found two different male DNA profile’s on the girl’s underwear — one of which would be consistent with Rivera’s or anyone in his patrimonial line — to suggest that the teen was lying: The girl testified that she hadn’t had sexual relations with anyone else in the 72 hours before the alleged rape. That was inconsistent with the evidence, defense attorney Regina Nunnally said. But DNA evidence can remain on clothes for years, through repeated washing, something a lab technician testified to during the trial but which Nunnally did not mention in her closing argument.
“Her credibility is in question, therefore you should have reason to doubt anything she tells you,” Nunnally said.
Rivera, now 38, was charged with raping his then-13-year-old stepdaughter two years ago, after giving her beer, cigarettes and marijuana. The primary charge was sexual battery on a person under 18 — a charge that carries a sentence of up to 30 years in prison.
"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. "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 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.
The girl's reply only highlighted her fear of her stepfather: She 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.
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. 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.
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.
When he did, she ran. Deputies came and picked up the girl at a friend's house, and she 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 on the girl's underwear.
