State of Arizona v. Angelino Paolo Buccheri-Bianca , 233 Ariz. 324 ( 2013 )

FILED BY CLERK
OCT 30 2013
COURT OF APPEALS
IN THE COURT OF APPEALS DIVISION TWO
STATE OF ARIZONA
DIVISION TWO
THE STATE OF ARIZONA, )
) 2 CA-CR 2012-0315
Appellee, ) DEPARTMENT B
)
v. ) OPINION
)
ANGELINO PAOLO BUCCHERI- )
BIANCA, )
)
Appellant. )
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR20111911001
Honorable Deborah Bernini, Judge
AFFIRMED IN PART; VACATED IN PART
Thomas C. Horne, Arizona Attorney General
By Joseph T. Maziarz and Jonathan Bass Tucson
Attorneys for Appellee
Harriette P. Levitt Tucson
Attorney for Appellant
E S P I N O S A, 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
1
In accordance with judicial policy for protecting the identities of minors and
victims of crimes, the children’s names are pseudonyms.
2
Kyle told a forensic interviewer that Buccheri-Bianca had touched his penis on
multiple occasions, but at trial he testified he could not remember having been touched.
The jury acquitted Buccheri-Bianca of the counts of the indictment relating to Kyle.
2
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
3
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), 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).
3
Parents and siblings of the victim are also eligible to obtain U-Visas under the
victim’s application. § 1101(a)(15)(U)(ii)(I). Although the U-Visa provides only a
temporary authorization, the Secretary of Homeland Security may confer permanent-
resident status on an alien who has held a U-Visa for three years. 8 U.S.C. § 1255(m)(1);
see also Catholic Charities CYO v. Chertoff, 622 F. Supp. 2d 865, 871 (N.D. Cal. 2008).
4
¶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)(i), 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
4
On November 4, 2011, a deputy county attorney signed Supplement B to Maya’s
I-918 application for the U-Visa.
5
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. See Ariz. 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 generally U.S. Const. amend. VI; Crawford v. Washington, 541 U.S. 36
(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
6
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 properly excluded evidence of Maya’s
U-Visa application after finding that the possibility of immigration relief did not motivate
the accusations in this case. Thus, when the prosecutor pointed out there was no
7
evidence of a motive to fabricate or exaggerate the accusations, he was merely arguing a
reasonable inference drawn from the evidence presented to the jury. Counsel may
“comment on the evidence and argue all reasonable inferences therefrom.” State v.
Hill, 174 Ariz. 313, 322, 848 P.2d 1375, 1384 (1993). We accordingly find no
fundamental error.
Amendment of Indictment During Trial
¶16 Buccheri-Bianca next argues the trial court erred in allowing the state to
amend the counts of the indictment that related to the molestation of Celina, after she had
testified, to conform to her testimony. We review for an abuse of discretion a court’s
decision to permit the amendment of an indictment. State v. Johnson, 198 Ariz. 245, ¶ 4,
8 P.3d 1159, 1161 (App. 2000).
¶17 Rule 13.5(b), Ariz. R. Crim. P., permits an indictment to be “amended only
to correct mistakes of fact or remedy formal or technical defects, unless the defendant
consents to the amendment.” An indictment is deemed to be automatically amended “to
conform to the evidence adduced at any court proceeding.” Id. A defect is formal or
technical when its amendment does not change the nature of the offense or otherwise
prejudice the defendant. State v. Bruce, 125 Ariz. 421, 423, 610 P.2d 55, 57 (1980). An
amendment that alters the elements of the charged offense, however, is not authorized
under Rule 13.5(b). State v. Freeny, 223 Ariz. 110, ¶¶ 17, 20, 219 P.3d 1039, 1042
(2009).
¶18 Count One of the original indictment alleged that Buccheri-Bianca had
committed child molestation by “intentionally or knowingly engaging in sexual contact
8
with [Celina], a child under fifteen years of age, involving the genitals, to wit: touching
genitals skin to skin in the kitchen.” Count Two alleged the same offense involving the
same conduct and victim, but alleged that the conduct had occurred “in the bedroom.” At
trial, however, Celina did not testify as to any conduct that had occurred in the kitchen or
the bedroom, but, as the trial court noted, “made it sound like it was all in the living
room.” In fact, Celina denied that any sexual contact had taken place in the bedroom.
After Celina’s testimony, the state moved to amend the indictment to delete the locations
listed in Counts One and Two. The court granted the motion and amended Count One to
allege child molestation “on one occasion” and Count Two to allege the same offense “on
a second occasion.”5 The court noted additionally, however, that but for its permitting
the amendments, it “would probably have granted” Buccheri-Bianca’s eventual motion
for a judgment of acquittal pursuant to Rule 20, Ariz. R. Crim. P.
¶19 We agree with the state that the amendment did not change the nature of the
offense. Because the offense of child molestation does not include an element of
location, see A.R.S. § 13-1410(A), changing the location where the conduct was alleged
to have occurred did not change the elements necessary to prove the crime and therefore
did not change the nature of the offense. See Bruce, 125 Ariz. at 423, 610 P.2d at 57.
Instead, under Rule 13.5(b), Ariz. R. Crim. P., both counts were “deemed amended” to
5
More specifically, Count One as amended alleged that Buccheri-Bianca had
committed molestation of a child by “touching genitals skin to skin on one occasion,” and
amended Count Two alleged he had committed the same offense against the same victim
by “touching genitals skin to skin on a second occasion.”
9
conform to Celina’s testimony about the precise room in which the molestation had taken
place.
¶20 Buccheri-Bianca contends he was prejudiced by the amendment because he
had based his defense on the inconsistencies and vagueness of the victims’ testimony, and
amending the indictment deprived him of an opportunity to point out the inconsistency
between Celina’s original statement, which had formed the basis of the indictment, and
her testimony at trial. Buccheri-Bianca also points to the trial court’s statement that it
would have granted his acquittal motion had the indictment not been amended, as
demonstrating prejudice.
¶21 We conclude the amendments did not prejudice Buccheri-Bianca. First,
after Celina testified that all of the instances in which Buccheri-Bianca had touched her
occurred in the living room, contrary to the indictment’s allegation they had occurred in
the bedroom and the kitchen, Buccheri-Bianca’s counsel had the opportunity to cross-
examine her about what she originally had told investigators. Counsel pointed out areas
where Celina’s memory of events was weak, as well as various inconsistencies between
her trial testimony and her earlier forensic interview. He also asked whether the incidents
had occurred “in the room with the TV.” Although counsel did not ask Celina whether
she had reported earlier that the molestation incidents had occurred in the bedroom and
kitchen, rather than the living room as she testified at trial, he had ample opportunity to
do so.
¶22 Furthermore, during closing arguments, Buccheri-Bianca’s counsel argued
the state had failed to meet its burden of proof. When discussing “all of the
10
inconsistencies in the [victims’] stories, both big and small,” he called the jury’s attention
to the amendments to the indictment and argued that the purpose of the amendments was
“to fit with what the story is this time” and to cover “a giant hole . . . that things were
going to fall through.” Because Buccheri-Bianca was not deprived of an opportunity to
present the inconsistencies between Celina’s trial testimony and her reported statements
underlying the charges in the indictment, and because he was permitted to point out the
amendment to the jury and to argue that it demonstrated a major change in Celina’s story,
we find no prejudice arising from the amendment.
¶23 Nor do we find the trial court’s comment that it probably would have
granted a Rule 20 motion absent the amendment demonstrative of prejudice because we
disagree that Buccheri-Bianca would have been entitled to a judgment of acquittal.
Based on our review of the record, we find no basis to grant a Rule 20 motion. See State
v. West, 226 Ariz. 559, ¶¶ 14-15, 250 P.3d 1188, 1191 (2011).
¶24 In evaluating a trial court’s ruling on a Rule 20 motion, “‘the relevant
question is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.’” Id. ¶ 16, quoting State v. Mathers, 165 Ariz. 64, 66, 796
P.2d 866, 868 (1990). To survive such a motion with respect to Counts One and Two,
the state was required to present evidence that Buccheri-Bianca “intentionally or
knowingly engag[ed] in or caus[ed] a person to engage in sexual contact . . . with a child
who is under fifteen years of age.” § 13-1410(A). Importantly, as noted earlier, the
elements of the offense do not include the location of the acts. Celina testified that a man
11
named “Pablo” had touched her vagina on two occasions, which satisfies the element of
sexual contact. See A.R.S. § 13-1401(2) (“‘Sexual contact’ means any direct or indirect
touching . . . of any part of the genitals . . . .”). She also testified that he “sat us down”
and then “got his hand and then he put it inside . . . [m]y pants,” which is sufficient
evidence of intent or knowledge. Celina testified additionally that she had been under the
age of fifteen when the touching had occurred. Finally, although Celina did not
personally identify Buccheri-Bianca as the person who molested her, she testified that
these instances of contact had always occurred in the presence of her sister, Maya, and
Maya identified Buccheri-Bianca as Pablo.
¶25 This evidence was sufficient to survive a Rule 20 motion. Although the
discrepancy about the location of the incidents justified Buccheri-Bianca’s argument
about reasonable doubt, it does not warrant a finding of insufficient evidence.
Accordingly, even had the trial court erroneously granted Buccheri-Bianca’s Rule 20
motion, the state could have obtained relief on appeal from that ruling, see A.R.S.
§ 13-4032(7), for the reasons described above. We therefore find no prejudice and
conclude that the court properly permitted the amendment.
Denial of Motion to Preclude State’s Expert
¶26 Buccheri-Bianca next argues the trial court erroneously denied his motion
to preclude testimony from the state’s expert witness, Wendy Dutton. He asserts
Dutton’s testimony was inadmissible because the basis of her expertise was rooted in
“novel scientific theor[ies]” and therefore was unreliable, the testimony was not helpful
to the trier of fact, and it impermissibly bolstered the credibility of the victims. We
12
review a trial court’s rulings on the admission of expert testimony for an abuse of
discretion. State v. Wright, 214 Ariz. 540, ¶ 5, 155 P.3d 1064, 1066 (App. 2007).
¶27 The admissibility of expert testimony is governed by Rule 702, Ariz. R.
Evid., which provides:
A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in the
form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to understand
the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles
and methods; and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Rule 702 incorporates the admissibility standards announced in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), and is identical to its federal counterpart.
See Ariz. R. Evid. 702 cmt.; see also Fed. R. Evid. 702. As we we noted in State v.
Salazar-Mercado, 232 Ariz. 256, ¶ 14, n.5, 304 P.3d 543, 548, n.5 (App. 2013), the
amended rule does not prohibit generalized expert testimony simply on the basis that it is
not rooted in the facts of the case, and thus does not effect a “sea change” in Arizona’s
well-established framework for evaluating the admissibility of generalized expert
testimony. See Ariz. R. Evid. 702 cmt. (amendment “not intended to supplant traditional
jury determinations of credibility” or “preclude the testimony of experience-based
experts”); see also State v. Moran, 151 Ariz. 378, 385, 728 P.2d 248, 255 (1986)
13
(permitting generalized expert testimony about behavioral characteristics of sex-abuse
victims); State v. Lindsey, 149 Ariz. 472, 474-75, 720 P.2d 73, 75-76 (1986) (generalized
expert testimony about behavioral patterns common among child victims allowed so long
as not commenting on accuracy, reliability, or credibility of particular witness); State v.
Chapple, 135 Ariz. 281, 292-93, 660 P.2d 1208, 1219-20 (1983) (trial court erroneously
precluded generalized expert testimony about factors that affect reliability of eyewitness
identification). Although generalized testimony still may be precluded if it otherwise
fails to satisfy Rule 702 or the other applicable rules of evidence, we disagree with
Buccheri-Bianca that the trial court abused its discretion in admitting Dutton’s testimony
in this case.
¶28 Buccheri-Bianca suggests that Dutton’s testimony was unreliable because
her methods were nonscientific. He contends “there are no scientific methods to
determine whether a child who alleges abuse is lying or telling the truth, and there is no
scientific data regarding the presence or absence of symptoms which indicate abuse has
occurred.” He maintains, therefore, that Dutton’s opinion could not “be verified and
reproduced by other similarly situated experts in the field.” We rejected this argument,
however, in Salazar-Mercado, concluding that Rule 702 is “‘not intended to prevent
expert testimony based on experience.’” 663 Ariz. Adv. Rep. 4, ¶ 18, quoting McMurtry
v. Weatherford Hotel, Inc., 231 Ariz. 244, ¶ 17, 293 P.3d 520, 527 (App. 2013). We
observed that Daubert, which announced the standards that formed the basis of Rule 702,
“does not require a court to evaluate all expert testimony for ‘known or potential rate[s]
of error’” but that “factor should be relied upon only to the extent it is relevant.” Id.,
14
quoting Daubert, 509 U.S. at 594 (alteration in Salazar-Mercado); see also Shuck v. CNH
Am., LLC, 498 F.3d 868, 874 (8th Cir. 2007) (rate of error “need not be considered in
every case”). Accordingly, because Dutton’s testimony was based on her experience, it
was not inadmissible simply because it was not accompanied by a determination of the
rate of error.
¶29 Next, relying on several decisions of federal appellate courts, Buccheri-
Bianca asserts that Dutton’s testimony could not assist the jury because “the subject
matter is already within the understanding of the average lay juror.” To be admissible,
expert testimony must “help the trier of fact to understand the evidence or to determine a
fact in issue.” Ariz. R. Evid. 702(a). Our supreme court has held that courts “cannot
assume that the average juror is familiar with the behavioral characteristics of victims of
child molesting.” Lindsey, 149 Ariz. at 473-74, 720 P.2d at 74-75. The court also
recognized that “[k]nowledge of such characteristics may well aid the jury in weighing
the testimony of the alleged child victim.” Id. at 474, 720 P.2d at 75. Thus, we have held
that experts may testify about the general characteristics and behavior of victims of child
molestation as long as “the proffered testimony assists the jury ‘by providing it with
relevant information, necessary to a reasoned decision of the case.’” Salazar-Mercado,
663 Ariz. Adv. Rep. 4, ¶ 14 & n.5, quoting Magistrini v. One Hour Martinizing Dry
Cleaning, 180 F. Supp. 2d 584, 595 (D.N.J. 2002). Dutton testified about various reasons
victims may delay disclosing molestation and different manners in which they may make
the disclosure. This testimony reasonably could enable jurors to avoid mistaking benign
behavior, which “may [have been] merely the result of immaturity, psychological stress,
15
societal pressures or similar factors,” for inaccurate reporting or prevarication. Lindsey,
149 Ariz. at 473-74, 720 P.2d at 74-75. We therefore agree with the trial court that
because the evidence was helpful to the jury, it was not inadmissible on this basis.
¶30 Finally, Buccheri-Bianca argues Dutton’s testimony was “problematic”
because it “basically offered a premise that children do not lie about child molestation, or
if they do, it happens [o]n rare occasions and in limited circumstances not present in this
case.” Although Buccheri-Bianca is correct that an expert witness cannot be used to
usurp the jury’s fact finding function, see Lindsey, 149 Ariz. at 474, 720 P.2d at 75,
Dutton’s testimony in this case was sufficiently general to avoid running afoul of our
supreme court’s holding in Lindsey. Dutton testified that in her experience, “malicious
false allegations” typically are made by “younger children whose parents are involved in
a high-conflict divorce or custody dispute” or “teenage girls” who may use the allegation
to seek some secondary gain. She did not state that any of the victims in this case should
be believed or disbelieved; rather, she testified generally about factors that may prompt a
child to falsely report molestation. Accordingly, Buccheri-Bianca has not established
that the trial court abused its discretion in admitting Dutton’s testimony.
Recorded Jail Conversations
¶31 Buccheri-Bianca next challenges the trial court’s ruling on the admissibility
of statements he had made in a recorded conversation with a social worker while
incarcerated before trial. Although he professed his innocence throughout the
conversation, at one point he stated, “I’m guilty,” twice in succession. Buccheri-Bianca
moved to exclude the statements or, alternatively, to admit the entire conversation. The
16
court admitted the inculpatory statements but also allowed Buccheri-Bianca to introduce
several other statements during the interview in which he expressly denied his guilt. It
did not admit the entire conversation. On appeal, Buccheri-Bianca argues the court erred
in admitting the inculpatory statements, or, in the alternative, erred by not admitting the
entire conversation. We review evidentiary rulings for an abuse of discretion. State v.
Amaya-Ruiz, 166 Ariz. 152, 167, 800 P.2d 1260, 1275 (1990).
Admissibility of Inculpatory Statements
¶32 Buccheri-Bianca contends that his statements during the course of the entire
interview are “indicative of mental incompetence,” and therefore his repeated statement,
“I’m guilty,” lacks relevance under Rule 401, Ariz. R. Evid. He suggests that even if the
statement had some probative value in isolation, that value was substantially outweighed
by the statement’s prejudicial effect. See Ariz. R. Evid. 403. Although Buccheri-Bianca
objected to the admission of the statements, he did not make this argument below; we
therefore review for fundamental error. See Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d at
607.
¶33 Buccheri-Bianca’s declaration, “I’m guilty,” was made in response to the
statement “you’re innocent until proven guilty” and, though made while Buccheri-Bianca
may have been in a confused state, we cannot say the trial court could not reasonably find
the declaration relevant to the charges at issue, as required by Rules 401 and 402, Ariz. R.
Evid. And we find no abuse of discretion in the trial court’s implicit determination that
the probative value of such a facially significant admission was not outweighed by the
danger of unfair prejudice, see Ariz. R. Evid. 403. For these reasons, and because the
17
state offered Buccheri-Bianca’s own statement against him, the declaration was properly
admitted as a statement by a party opponent. See Ariz. R. Evid. 801(d)(2). Accordingly,
we find no fundamental error.
Admissibility of Entire Conversation under Rule of Completeness
¶34 Buccheri-Bianca argues, in the alternative, that if the trial court did not err
in admitting the statements “I’m guilty,” then it erred by failing to admit the entire
conversation under Rule 106, Ariz. R. Evid., because “it would have shown the jury how
confused [he] was” at the time he made the inculpatory statement. Under Rule 106, “[i]f
a party introduces all or part of a writing or recorded statement, an adverse party may
require the introduction, at that time, of any other part—or any other writing or recorded
statement—that in fairness ought to be considered at the same time.” But the rule does
not necessarily require the admission of the entire account; instead “only the portion of a
statement ‘necessary to qualify, explain or place into context the portion already
introduced’ need be admitted.” State v. Cruz, 218 Ariz. 149, ¶ 58, 181 P.3d 196, 209
(2008), quoting State v. Prasertphong, 210 Ariz. 496, ¶ 15, 114 P.3d 828, 831 (2005).
¶35 The trial court did not err by declining to admit Buccheri-Bianca’s entire
prison interview into evidence. The court permitted him to introduce multiple
exculpatory statements from the same dialogue. And many of his statements that were
not admitted involved inflammatory remarks about the victims’ and their family’s
immigration status, a topic about which the court properly excluded other evidence as
discussed above. Because the exculpatory portions of Buccheri-Bianca’s statements were
admitted and because other portions of the interview contained pejorative remarks that
18
were unnecessary to provide context, we find no abuse of discretion in the trial court’s
refusal to admit the entire conversation.
Sufficiency of Evidence
¶36 Finally, Buccheri-Bianca argues that the evidence was insufficient to
sustain his convictions. “This question of sufficiency of the evidence is one of law,
subject to de novo review on appeal.” West, 226 Ariz. 559, ¶ 15, 250 P.3d at 1191.
“‘[T]he relevant question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’” Id. ¶ 16, quoting Mathers, 165 Ariz.
at 66, 796 P.2d at 868. Thus, “[w]hen reasonable minds may differ on inferences drawn
from the facts, the case must be submitted to the jury, and the trial judge has no discretion
to enter a judgment of acquittal.” State v. Lee, 189 Ariz. 590, 603, 944 P.2d 1204, 1217
(1997).
¶37 To sustain Buccheri-Bianca’s conviction for molestation of a child, the
record must reflect, with respect to each of the victims, substantial evidence that he
“intentionally or knowingly engag[ed] in or caus[ed] a person to engage in sexual
contact, except sexual contact with the female breast, with a child who is under fifteen
years of age.” § 13-1410(A). For purposes of the child-molestation statute, sexual
contact includes “any direct or indirect touching, fondling or manipulating of any part of
the genitals [or] anus . . . by any part of the body or by any object.” § 13-1401(2).
¶38 Buccheri-Bianca does not argue the state failed to present evidence of the
elements listed above but rather contends the victims’ testimony was “grossly
19
inconsistent and grossly vague,” suggesting the jury should not have believed them. But
“‘[n]o rule is better established than that the credibility of the witnesses and the weight
and value to be given to their testimony are questions exclusively for the jury.’” State v.
Cox, 217 Ariz. 353, ¶ 27, 174 P.3d 265, 269 (2007), quoting State v. Clemons, 110 Ariz.
555, 556-57, 521 P.2d 987, 988-89 (1974). It is not the province of an appellate court to
reweigh evidence or reassess the witnesses’ credibility. Lee, 189 Ariz. at 603, 944 P.2d
at 1217; State v. Cid, 181 Ariz. 496, 500, 892 P.2d 216, 220 (App. 1995). Rather, we
view the facts in the light most favorable to upholding the determination of the jury.
State v. Miranda-Cabrera, 209 Ariz. 220, 221-22, 99 P.3d 35, 36-37 (App. 2004).
¶39 Buccheri-Bianca points out various inconsistencies in the children’s
testimony and the physical evidence collected at the scene. For example, he notes that
Maya testified he had produced gifts for her and Celina from a blue gift bag in his closet
but police found only a green and white bag in his closet. Buccheri-Bianca also points
out that Maya and Kendall claimed Buccheri-Bianca would don gloves before touching
them, yet police found no gloves in his apartment. He also highlights Kendall’s
testimony that Buccheri-Bianca had tied him up with either thin, brown string or thick,
brown rope, yet police found only white kitchen twine in the apartment. These
inconsistencies, however, were matters for the jury’s consideration in making its
credibility determinations and weighing the evidence. See Cox, 217 Ariz. 353, ¶ 27, 174
P.3d at 269.
¶40 We conclude that the evidence presented was sufficient to survive a
Rule 20 motion. All of the victims explained how Buccheri-Bianca had used his hands to
20
touch or rub their genitals while they were in his apartment. All three children testified
consistently that Buccheri-Bianca had given them candy and other gifts, had separated
them by gender when he molested them, and had threatened to kill their family if they
reported him.6 Additionally, two forensic interviewers testified they had observed no
evidence of “source monitoring,” that is, no indication that the children’s accusations
were coached by someone else. We conclude the state presented substantial evidence of
Buccheri-Bianca’s guilt and the case was presented properly to the jury. The trial court
therefore did not err in denying Buccheri-Bianca’s motion for a judgment of acquittal.
Criminal Restitution Order
Although Buccheri-Bianca has not raised the issue on appeal, we find the CRO entered at
sentencing constitutes fundamental error because it reduces “all fines, fees, assessments
and/or restitution” to a CRO “with no interest, penalties or collection fees to accrue while
the defendant is in the Department of Corrections.” Entry of such a CRO before a
defendant’s sentence has expired was not authorized by A.R.S. § 13-805, and
“‘constitutes an illegal sentence, which is necessarily fundamental, reversible error.’”7
State v. Lopez, 231 Ariz. 561, ¶ 2, 298 P.3d 909, 910 (App. 2013), quoting State v.
Lewandowski, 220 Ariz. 531, ¶ 15, 207 P.3d 784, 789 (App. 2009).
6
Although Buccheri-Bianca testified he was innocent, it was within the jury’s
purview whether to believe his testimony. Clemons, 110 Ariz. at 557, 521 P.2d at 989.
7
A.R.S. § 13-805 has since been amended. See 2012 Ariz. Sess. Law, ch. 269, § 1.
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Disposition
¶41 For the foregoing reasons, the CRO is vacated; Buccheri-Bianca’s
convictions and sentences are otherwise affirmed.
/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge
CONCURRING:
/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Presiding Judge
/s/ Peter J. Eckerstrom
PETER J. ECKERSTROM, Judge
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