Thursday, July 21, 2005 | 8:33 a.m.
A jury will determine whether a 3-year-old boy was murdered by his mother's live-in boyfriend or instead sustained the fatal injuries after accidentally falling off a bunk bed and crashing into a bed post while pretending to be Spiderman.
Las Vegas Justice of the Peace William Jansen said "I don't know what happened" as he ruled Jose Luis Rubio would stand trial for first-degree murder by child abuse in the June 13 death of Joseph Rivera.
Rubio is scheduled for arraignment before District Judge Donald Mosley on Aug. 3.
Deputy District Attorney Lisa Luzaich Rego alleges Rubio snapped while he was babysitting Joseph and either punched, kicked or used an object to strike the 3-year-old in the abdomen.
Dr. Lary Simms, a Clark County medical examiner, testified that the force was so strong that the boy's pancreas was split in two. He said the injuries included areas of bruising on the left side of the boy's mouth and hemorrhages on the surface of the left eye.
Simms said the cause of death was blunt abdominal trauma and the manner was homicide, but he would not rule out that the injuries could have been caused by an accident at the home.
He did clarify the statement, however, saying the number of bruises and their locations would have required the boy to fall down three separate times for the accidental falling theory to pass muster.
Rubio contends he was baby-sitting Noelia 'Nellie' Rivera's son and 5-year-old daughter when he found Joseph collapsed on the bathroom floor.
Rivera testified that Rubio called her while she was working at Mandalay Bay and said Joseph was "very ill." She said she "got scared" and told Rubio to bring her son to the hotel and they would take him to the hospital.
When Rubio arrived with her son, she was shocked to see that Joseph was unresponsive and they quickly began driving away to a hospital. But she feared they were too far from a hospital, and she had Rubio drive back to the hotel where they called an ambulance.
The child died after emergency surgery.
Rivera looked fondly at the man she said she still loves. She said she didn't believe Rubio killed her son because Rubio "didn't believe in disciplining kids physically." She said Rubio got mad at her when she would on occasion spank her children.
She said Joseph and her 11-year-old, 9-year-old and 5-year-old daughters all "loved him very much and he loves them as if they are his own."
Rubio's attorneys contend the fatal injury was the accidental result of Joseph playing as his favorite superhero, Spiderman, and accidentally falling off the top bunk of his bunk bed and crashing into the knob shaped end of a bed post.
Deputy Public Defender Scott Coffee argues that the boy could have sustained the injury and entered a state of shock, which momentarily masked the pain and allowed the boy to make it to the bathroom down the hall before collapsing.
Rivera said her son's nickname is Spiderman and he would wear a Spiderman mask and "jump all over." She said she had to take away the mask because he started to really believe he was the superhero and had "powers."
On one occasion, Rivera said, Joseph climbed on top of her entertainment center and caused it to crash while he was pretending to be Spiderman.
Earlier in the day, Rivera's 11-year-old daughter said her little brother would pretend to "draw webs like Spiderman and would run around." She said he loved to climb when he played, which had prompter her mother to take the ladder off the bunk beds.
She smiled at Rubio from the witness stand as she said, "He's nice and kind." She said Rubio never hit her or her brother and sisters.
Doctors and police have found no evidence of physical abuse present in either the boy or Rivera's three daughters.
Rubio, who has no criminal history, is in custody pending $75,000 bail.
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