State v. Buccheri-Bianca

• Decision Date: 30 October 2013
• Docket Number: No. 2 CA–CR 2012–0315.,2 CA–CR 2012–0315.
• Citation: 672 Ariz. Adv. Rep. 6,233 Ariz. 324,312 P.3d 123
• Parties: The STATE of Arizona, Appellee, v. Angelino Paolo BUCCHERI–BIANCA, Appellant.
• Court: Arizona Court of Appeals

233 Ariz. 324

312 P.3d 123

672 Ariz. Adv. Rep. 6

The STATE of Arizona, Appellee,

v.Angelino Paolo BUCCHERI–BIANCA, Appellant.

No. 2 CA–CR 2012–0315.

Court of Appeals of Arizona,

Division 2, Department B.

Oct. 30, 2013.

Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz and Jonathan Bass, Tucson, Attorneys for Appellee.

Harriette P. Levitt, Tucson, Attorney for Appellant.

OPINION

ESPINOSA, Judge.

¶ 1 After a jury trial, Angelino Buccheri–Bianca was convicted of five counts of child molestation. The trial court imposed a combination of concurrent and consecutive sentences totaling fifty-one years' imprisonment, and a criminal restitution order (CRO) pursuant to A.R.S. § 13–805. On appeal, Buccheri–Bianca challenges the sufficiency of the evidence underlying his convictions and raises a number of other issues. For the following reasons, we affirm the convictions and sentences but vacate the restitution order.

Factual Background and Procedural History

¶ 2 We state the facts in a light most favorable to sustaining the verdicts. See State v. Bible, 175 Ariz. 549, 595, 858 P.2d 1152, 1198 (1993). In 2009, Buccheri–Bianca lived in the same apartment building as a family with five minor children, Alicia, Maya, Celina, Kendall, and Kyle.¹ He was in his late eighties and recently had broken his leg. The neighbor family occasionally helped him with errands, such as driving him to pick up groceries and prescriptions, and cleaning his apartment. Buccheri–Bianca sometimes asked the children to come to his apartment to pick up boxes of food, and he would give them candy and small gifts. Although the children's mother denied they ever had gone inside Buccheri–Bianca's residence, three of the children testified they had been in his apartment without other adults present and he had molested them.²

¶ 3 At trial, Kendall testified that occasionally he went to Buccheri–Bianca's apartment with his sisters Maya and Celina, and Buccheri–Bianca would tell the sisters to leave, after which he would touch Kendall's “private parts.” When Kendall protested, Buccheri–Bianca would use a “thick, brown rope” to tie his hands. Buccheri–Bianca never did this while Kendall's siblings were present, and after the incidents threatened Kendall that if he told anyone about the touching, Buccheri–Bianca would kill his whole family.

¶ 4 Maya testified she would sometimes go with her sister Celina to Buccheri–Bianca's apartment in order to pick up food that he would give to the family, and he would invite them inside. Maya told the jury about an occasion on which the two girls went to Buccheri–Bianca's apartment to get cooking oil, and he touched her vagina, over her clothes, in the kitchen. She stated he had touched her on multiple occasions in the kitchen. Maya also described a separate instance in which Buccheri–Bianca had pulled down Celina's pants and touched her vagina in the bedroom of the apartment. Maya noted that she had seen him touch Celina on at least one other occasion as well. Finally, Maya testified that Buccheri–Bianca told her and Celina that if they told on him, he was going to kill their family.

¶ 5 Celina too testified that Buccheri–Bianca would touch her and Maya together. Celina described two incidents in which Buccheri–Bianca partially removed her pants and touched her vagina in the living room of his apartment but denied he had ever touched her in his bedroom. Celina further stated she had observed Buccheri–Bianca do the same thing to Maya and he had threatened to kill the girls' brother if they told anyone.

¶ 6 In November or December 2010, Maya reported the molestation to a counselor at her school. Buccheri–Bianca subsequently was indicted on nine counts of child molestation involving Maya, Celina, Kendall, and Kyle. He was convicted of five counts involving Maya, Celina, and Kendall, and was sentenced as described above. We have jurisdiction over his appeal pursuant to A.R.S. §§ 12–120.21(A)(1), 13–4031, and 13–4033(A)(1).

Discussion

Evidence of Victims' Immigration Status

¶ 7 Buccheri–Bianca first argues the trial court erred in granting the state's motion to preclude evidence that Maya had applied for a “U–Visa,” a type of visa providing temporary authorization—that is, admission to the United States with nonimmigrant status—for a noncitizen who is a victim of, and assists in the prosecution of, certain crimes. See8 U.S.C. §§ 1101(a)(15)(U), 1184(p); 8 C.F.R. § 214.14(a)(9), (b). ³ Buccheri–Bianca contends that evidence of the visa application was important to his defense because the possibility of obtaining authorized status would give Maya and her family, if unauthorized, “a substantial motive to fabricate or exaggerate any allegations.” The trial court disagreed and precluded “any mention ... of the immigration status of the alleged victim, her siblings, [or] her parents [as] simply not relevant.” We review a trial court's ruling on the admissibility of evidence for an abuse of discretion. State v. McGill, 213 Ariz. 147, ¶ 30, 140 P.3d 930, 937 (2006).

¶ 8 Trial courts retain wide latitude to impose reasonable limits on cross-examination to prevent confusion of the issues or interrogation that is only marginally relevant. State v. Cañez, 202 Ariz. 133, ¶ 62, 42 P.3d 564, 584 (2002); see also State v. Fleming, 117 Ariz. 122, 125, 571 P.2d 268, 271 (1977) (“The right to cross-examination must be kept within ‘reasonable’ bounds and the trial court has discretion to curtail its scope.”). This latitude includes the discretion to preclude evidence of immigration status if it is “collateral to the issues at trial and would potentially confuse the jury.” State v. Abdi, 226 Ariz. 361, ¶ 23, 248 P.3d 209, 215 (App.2011).

¶ 9 The trial court did not abuse its discretion in excluding evidence of the victims' immigration status. As the state points out, nothing in the record shows that Maya or her family members “knew about U–Visas” when Maya reported the molestation to her teacher. And Maya did not obtain support from the state for her visa application until November 2011—nearly a year after she made her initial allegations in late 2010.⁴ Although an alien cannot be eligible for a U–Visa unless the underlying crime has first been reported, § 214.14(c)(2)(f), the great length of time between when Maya first reported the molestation and the time she filed her application supports the court's conclusion that the possibility of obtaining a U–Visa was not relevant to her accusation.

¶ 10 Furthermore, the record does not contain evidence that Maya or any member of her family had unauthorized status. Although a U–Visa may provide relief from removal for an unauthorized alien, §§ 1101(a)(15)(U) and 1184(p) do not require that an alien be unauthorized in order to apply. And, even if the victims in this case were unauthorized and such evidence did have some probative value, the trial court could implicitly conclude, as argued by the state, that any probative value would have been outweighed by the risk of unfair prejudice and confusion of the issues stemming from a collateral mini-trial on the victims' immigration status. SeeAriz. R. Evid. 403. We find no abuse of discretion.

¶ 11 We also disagree with Buccheri–Bianca's claim that the limitation on cross-examination violated his constitutional right to confrontation and to present a theory of defense. See generallyU.S. Const. amend. VI; Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Because he did not make these constitutional arguments in the trial court, we review them for fundamental error. See State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005). The rights asserted are “limited to evidence which is relevant and not unduly prejudicial,” State v. Oliver, 158 Ariz. 22, 30, 760 P.2d 1071, 1079 (1988), and, as discussed above, evidence of the victims' immigration status was properly excluded. Buccheri–Bianca's constitutional rights therefore were not violated. See State v. Davis, 205 Ariz. 174, ¶ 33, 68 P.3d 127, 132 (App.2002).

Prosecutorial Misconduct

¶ 12 Buccheri–Bianca next argues the prosecutor committed misconduct during his closing argument by asserting repeatedly that the victims lacked a motive to lie. He maintains the victims did have a motive to lie—namely the immigration relief the family supposedly stood to gain by assisting law-enforcement officials in his prosecution—and that the prosecutor unfairly took advantage of the exclusion of that evidence in order to argue the victims lacked any motive to falsify. Because Buccheri–Bianca did not raise this issue below, we review for fundamental error. Under that standard the burden is on an appellant to prove that error exists and that it is fundamental and prejudicial. See Henderson, 210 Ariz. 561, ¶¶ 19–20, 115 P.3d at 607.

¶ 13 To prevail on a claim of prosecutorial misconduct, a defendant must establish that “ ‘(1) misconduct is indeed present[,] and (2) a reasonable likelihood exists that the misconduct could have affected the jury's verdict, thereby denying defendant a fair trial.’ ” State v. Anderson, 210 Ariz. 327, ¶ 45, 111 P.3d 369, 382–83 (2005), quoting State v. Atwood, 171 Ariz. 576, 606, 832 P.2d 593, 623 (1992).

¶ 14 In his closing argument, the prosecutor asked the jury,

Now, ladies and gentlemen, I also want to talk to you about motive, because really that's one of the absolute keys in this case, motives.

When it comes down to it there is none for these kids. Think about the experiences these children are relating to you. What motive would they have to make them up against this man?

The prosecutor also asked, “What do these kids have to gain or lose by telling this story?” and stated, “They have no motive to make this up.” In his rebuttal, the prosecutor continued along the same lines, telling the jury that “if there was a plain motive for these kids to make [the allegations] up you'd have heard about it.”

¶ 15 As discussed above, the trial court...