State of Arizona v. Angelino Paolo Buccheri-Bianca

312 P.3d 123, 233 Ariz. 324, 672 Ariz. Adv. Rep. 6, 2013 WL 5833365, 2013 Ariz. App. LEXIS 225
CourtCourt of Appeals of Arizona
DecidedOctober 30, 2013
Docket2 CA-CR 2012-0315
StatusPublished
Cited by71 cases

This text of 312 P.3d 123 (State of Arizona v. Angelino Paolo Buccheri-Bianca) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State of Arizona v. Angelino Paolo Buccheri-Bianca, 312 P.3d 123, 233 Ariz. 324, 672 Ariz. Adv. Rep. 6, 2013 WL 5833365, 2013 Ariz. App. LEXIS 225 (Ark. Ct. App. 2013).

Opinion

OPINION

ESPINOSA, Judge.

¶ 1 After a jury trial, Angelino Bueeheri-Bianea 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, Bue-cheri-Bianea challenges the sufficiency of the *327 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, Buecheri-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. Buecheri-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 Buecheri-Bianea’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 Buceheri-Bianca’s apartment with his sisters Maya and Celina, and Buc-cheri-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-Bianea never did this while Kendall’s siblings were present, and after the incidents threatened Kendall that if he told anyone about the touching, Buccheri-Bianea would kill his whole family.

¶ 4 Maya testified she would sometimes go with her sister Celina to Buceheri-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 Buc-eheri-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-Bianea 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-Bianea told her and Celina that if they told on him, he was going to kill their family.

¶ 5 Celina too testified that Buceheri-Bian-ca would touch her and Maya together. Celina described two incidents in which Buc-cheri-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-Bianea 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. See 8 U.S.C. §§ 1101(a)(15)(U), *328 1184(p); 8 C.F.R. § 214.14(a)(9), (b). 3 Buc-cheri-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. Canez, 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.

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Bluebook (online)
312 P.3d 123, 233 Ariz. 324, 672 Ariz. Adv. Rep. 6, 2013 WL 5833365, 2013 Ariz. App. LEXIS 225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-of-arizona-v-angelino-paolo-buccheri-bianca-arizctapp-2013.