Rivet v. State, 1D15-4430

• Court: Court of Appeal of Florida (US)
• Writing for the Court: PER CURIAM.
• Citation: 307 So.3d 801
• Parties: Nicholas RIVET, Appellant, v. STATE of Florida, Appellee.
• Docket Number: No. 1D15-4430,1D15-4430
• Decision Date: 25 July 2018

307 So.3d 801

Nicholas RIVET, Appellant,
v.
STATE of Florida, Appellee.

No. 1D15-4430

District Court of Appeal of Florida, First District.

July 25, 2018

Christopher E. Cosden, Fort Myers, for Appellant.

Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Appellee.

Per Curiam.

Eddie Robb had just turned two when he was beaten to death. The police investigation immediately focused on the two adults home at the time of beating: Brandi Robb (the child's mother) and Nicholas Rivet (Brandi Robb's boyfriend). The three—mother, child, and Rivet—had lived together near Naval Station Mayport at the time of the beating.

Suspicious of the mother, police asked Rivet to meet with her while wearing a wire and later to call her on a recorded line. Suspicious of Rivet, police also asked the mother to call Rivet on a recorded line. For a while, the investigation turned up no obvious answers. Indeed, more than three years passed with no arrest.

The State eventually charged Rivet with second-degree murder. At his trial, the mother testified against Rivet, and Rivet's defense pointed back to the mother. Lawyers for both sides acknowledged that the death was a homicide and that it had to be either Rivet or the mother. The jury decided it was Rivet, convicting him as charged, and the court imposed a life sentence. Rivet now appeals.

I.

Many of the pertinent facts were essentially undisputed. Brandi Robb had two children, Eddie and Logan. After Robb separated from her husband, she and the children struggled financially, frequently staying with Robb's mother or others. For several weeks before Eddie's death, Robb and her children stayed with Rivet. Rivet, too, had recently separated from his spouse, and he needed help looking after his two children. Robb was not working, so she was able to watch all the children while Rivet, on active duty with the United States Navy, worked in port on the U.S.S. Simpson . Robb's car had been repossessed, so she drove Rivet's car to run errands and take Rivet to and from work.

Rivet and Robb became romantically involved, but they kept it a secret. They were both going through divorces and dealing with child custody issues, and knowledge of their relationship could have complicated things. Plus, Rivet could have faced discipline from the Navy, which forbade adultery. So although they lived together as boyfriend and girlfriend, they told others the relationship was more like a single dad and a live-in babysitter.

On January 25, 2010, Robb drove with the children to pick Rivet up from work. They returned home around 8:00 p.m., and Robb put Eddie to bed around 8:30. Robb and Rivet were together downstairs until after 9:00, when Rivet went upstairs to make sure the children were sleeping. When Rivet did not come down right away, Robb went upstairs as well. From outside Eddie's room, Robb heard Rivet telling Eddie to go to sleep. When Rivet left the room, he and Robb went back downstairs. After watching television for a while, the two decided to go to bed. Robb went to their bedroom while Rivet went to check on the children again.

307 So.3d 804

When Rivet reentered the children's room, it looked to him like Eddie was having a seizure. He immediately called for Robb, who called 911. Paramedics came, and Eddie was life-flighted to a pediatric trauma center. He died there days later.

According to experts who testified at trial, Eddie suffered numerous injuries to his head and eyes, including a serious, fatal head injury. The overall injuries were so severe, the experts agreed, that they were certainly not caused by an accidental fall or anything similar. There was also expert testimony that immediately after the fatal trauma, it would have been obvious to anyone that Eddie was symptomatic, as he would have had an immediate altered level of consciousness and been unable to communicate normally. As one expert stated, "this is not the kind of brain injury that lets you walk around and smile and talk and play and then collapse later."

The State also presented evidence that Rivet lied to investigators when first questioned. At the very least, he lied about the nature of his relationship with Robb. Rivet also provided inconsistent statements regarding his last check on Eddie. Jurors heard that Rivet admitted on a recorded call that Eddie had been awake and crying when he was in the room—evidence that would undercut any theory that the fatal trauma preceded Rivet's final visit to the children's room. Jurors also heard evidence about a loud "thud" heard while Rivet was inside the room. And jurors heard Robb testify that when she saw Rivet leave the children's room, he sat at the top of the stairs, put his head in his hand, and said he "couldn't do this anymore"—all while sweating and appearing overwhelmed. (Robb did not think much of that episode at the time: "I took it as he couldn't help with Eddie and laying him down or looking in on him.")

But there was evidence the jury did not hear, evidence Rivet contends would point towards Robb. Rivet proffered testimony from several witnesses that Robb had a history of acting inappropriately—even violently—with her own children. One witness testified that Robb would yell and curse at children, and at least once forcefully yanked Eddie up from the ground. Another witness saw Robb lose her temper and spank her children in a violent, abusive fashion, using either her hand or a hair brush. A third witness saw Robb slap the back of her other son's head with such force that the child almost fell over. That witness said Robb showed no reaction while she watched the child cry. The trial court excluded this evidence as irrelevant, finding Robb's prior acts insufficiently similar to those that killed Eddie. ¹

After considering all the evidence before it, and after considering arguments from the State that Rivet did it and arguments from Rivet that Robb did it, the jury convicted.

II.

Rivet's first argument on appeal is that the trial court should have granted his motion for judgment of acquittal. At the close of the State's case, Rivet argued the evidence was entirely circumstantial and that "[a] reasonable hypothesis of innocence exists" because Robb was in the home and—according to her own testimony—had been frustrated with Eddie all day. The court denied the motion.

We review de novo an order denying a judgment of acquittal.

307 So.3d 805

Pagan v. State , 830 So.2d 792, 803 (Fla. 2002). "A criminal defendant is entitled to a judgment of acquittal if there is no direct evidence of guilt and if the circumstantial evidence does not exclude every reasonable hypothesis of innocence." State v. Sims , 110 So.3d 113, 115 (Fla. 1st DCA 2013) (citing State v. Law , 559 So.2d 187, 188-89 (Fla. 1989) ).

Rivet's theory of events—both below and on appeal—is that Robb committed the crime. ² Indeed, his position all along was that there were only two people who could have killed Eddie, and his counsel argued throughout trial that it must have been Robb. So the question is whether the...