Man sentenced in death of girlfriend’s 3-year-old son

By Cara McCoy (contact)

Published Thursday, Nov. 19, 2009 | 12:44 p.m.

Updated Thursday, Nov. 19, 2009 | 2:23 p.m.

Tears dotted the eyes of an emotional Jose Rubio as he stood before a judge on Thursday, awaiting a certain prison term in the death of his former girlfriend’s 3-year-old son.

Joseph Rivera died on June 13, 2005, after emergency surgery at Sunrise Hospital. He was taken there for treatment of serious injuries – injuries prosecutors said Rubio, exhausted from working a graveyard shift at Mandalay Bay, inflicted on the boy.

Rivera’s attorneys had previously said the boy had injured himself pretending to be Spiderman, jumping off a bunk bed and crashing into a bedpost.

Regardless of how the boy was injured, Rubio, now 27, admitted that he didn’t take the right course of action after finding the boy collapsed on the bathroom floor. Instead of calling 911 or taking the boy to the hospital, he called the boy’s mother, put the child in the car and drove to Mandalay Bay.

Too emotional to address the court, he asked his lawyer, Dayvid Figler, to read a letter on his behalf before he was sentenced.

“His death will absolutely haunt me forever. I understand I panicked; I didn’t provide him with the medical assistance that he required. At the time, I believed I made the right decision to contact his mother but now I know that was absolutely the wrong decision,” Figler read.

“I know this action may very well have been the cause of the death of my beautiful boy and no matter how many years I’m sentenced to today, I will always carry this tragedy, this absolute tragedy, not only in my mind but also in my heart and also in my soul.

“I can only ask for forgiveness from God and from the family of my Joseph for any pain I’ve caused them.”

In August, as his trial was scheduled to begin, Rubio pleaded guilty to murder by child neglect, which is second-degree murder.

Prosecutor Vicki Monroe argued that Rubio should be given a life sentence. He was initially charged with first-degree murder, and she contended she would have been able to prove that had the case gone to trial.

Judge Abbi Silver instead opted to sentence him to 25 years, with parole eligibility after 10. She said she considered the entire situation of the crime as well as Rubio’s lack of criminal history.

“No matter what the court does, it won’t bring back the child’s life,” she said before handing down the sentence.

Rubio has been free on a $75,000 bond since 2005. In the time since his arrest, he has married another woman and had three children. In his letter, he pleaded with the judge not to sentence him to life to allow him to see his wife and children again.

He said he still loved Rivera’s children as if they were his own.

“I am very, very sorry and would like to extend apologies to anyone I have hurt with my mistakes or my actions, specifically to Noelia Rivera and her three beautiful daughters,” the letter read. “I love you all as much as I did then before this horrible tragedy.”

Rivera wasn’t in court for the sentencing. Monroe said Rivera was still struggling with her son’s death.

In her argument to the judge, Monroe criticized Rubio’s actions on the day Joseph died. She said it would have been closer to drive him to a hospital than to drive about 30 minutes to Mandalay Bay.

“It’s a guilty conscience of someone who gets on the freeway and starts doing CPR holding a child because they want to drive the child to the mother and not to the hospital,” she said.

Court records indicate that at about 9:35 a.m. on June 13, 2005, Rubio was found administering CPR to the boy in the Mandalay Bay parking garage. Paramedics responded and transported the child to Sunrise Hospital, where he underwent emergency surgery.

He was pronounced dead that afternoon from a lacerated pancreas and a torn superior mesentery artery, injuries caused by blunt force trauma to the abdomen.

A Clark County medical examiner had ruled the death a homicide but during a preliminary hearing in Rubio’s criminal case, wouldn’t rule out that the injuries could have been caused by an accident.

Doctors from Sunrise Hospital told authorities they believed Joseph was the victim of a non-accidental trauma. His injuries, they said, weren’t consistent with a potential fall from a bunk bed; they were instead likely caused by a “kick, punch, or blow” of significant force.

Rubio and Rivera both worked at Mandalay Bay – she worked the day shift and he worked graveyard. They shared a vehicle and a home together near Washington Avenue and Jones Boulevard.

Joseph was one of Rivera’s four children. Rubio cared for them while she was at work.

On the day Joseph died, one of Rivera’s daughters told police that Rubio had told her brother to put away a towel in the bathroom. He followed her brother in there, she said.

Rubio told police he found Joseph lying on the bathroom floor. He said he tried to stand the boy up, but he collapsed. He said he began to perform CPR and called his girlfriend at work.

Rivera told police Rubio had called her and said the baby was “really sick.” She later testified that she "got scared" after the call and told Rubio to bring her son to the hotel and they would take him to the hospital.

Rubio told police that at that point, Joseph’s lips were turning purple, his arms were stiffening and his eyes were rolling back in his head. He said the child was unresponsive and couldn’t stand up on his own.

Rivera told police that Rubio had been known to exaggerate, so she didn’t think to tell him to call 911. Rubio told police he didn’t offer all the details about the boy’s condition to Rivera when he called her.

Rivera also told police that her son often pretended to be Spiderman. She said he liked to jump off the top bunk bed and it was possible he might have fallen.

Her daughters told authorities that Rubio had never hurt them. They described him as “nice” and “kind.” Reports indicate that investigators didn’t find evidence of abuse with any of the other children and there was no evidence of long-term abuse of Joseph.

In previous court proceedings, Rivera testified that Rubio didn’t believe in physical discipline of children and that she didn’t believe he could have hurt her children.

After the phone call to Rivera, Rubio put Joseph and her 5-year-old daughter into the van and drove to Mandalay Bay. Rubio told police he performed chest compressions on Joseph with one hand as he drove.

“It’s just beyond the pale that he thought the best thing to do was to take the child to the mother. The mother’s not a doctor, for heaven’s sakes; the child obviously needed medical attention,” Silver said before sentencing him.

Figler told Silver that Rubio, a Seventh-day Adventist, took his religion very seriously and accepted, from the onset, responsibility for what he had done.

“He’s here today prepared for the sentence of the court and he has fully, unlike so many other people, accepted responsibility from the onset and pled to exactly what he did,” Figler said. “This isn’t a plea bargain, your honor, this is a straight up plea to what he did.”

After sentencing, Rubio was remanded to custody in the Clark County Detention Center.

“Joseph, may he please rest in peace and rest his soul, was my little boy, who I loved and cherished with all my heart and soul,” he wrote.