NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
CARMEN DIFILIPPANTONIO, Appellant.
No. 1 CA-CR 22-0186
FILED 8-15-2023
Appeal from the Superior Court in Yavapai County
No. P1300CR202000657
The Honorable Krista M. Carman, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee
Zickerman Law Office, Flagstaff
By Adam Zickerman
Counsel for Appellant
Carmen Difilippantonio, Florence
Appellant
STATE v. DIFILIPPANTONIO
Decision of the Court
MEMORANDUM DECISION
Judge Brian Y. Furuya delivered the decision of the Court, in which Chief
Judge David B. Gass and Judge Andrew M. Jacobs joined.
F U R U Y A, Judge:
¶1 Carmen Difilippantonio (“Defendant”) appeals, under Anders
v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), from
his convictions and sentences for two counts of child molestation and two
counts of sexual conduct with a minor. Defendant’s counsel identifies no
issues for appeal. Counsel asks this court to search the record for arguable
issues. See Penson v. Ohio, 488 U.S. 75 (1988); State v. Clark, 196 Ariz. 530, 537
¶ 30 (App. 1999). Defendant raises several arguments in his supplemental
pro per brief.1 We have reviewed Defendant’s arguments and the entire
record and have identified no arguable issues. See Smith v. Robbins, 528 U.S.
259 (2000); Anders, 386 U.S. 738; Clark, 196 Ariz. at 537 ¶ 30. We affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Defendant was charged, as relevant here, with one count of
child molestation and one count of sexual conduct with a minor pertaining
to victim G.D. (Counts 1 and 2), and one count of child molestation and one
count of sexual conduct with a minor pertaining to victim J.Y. (Counts 3
and 4). Defendant pled not guilty. Before trial, the State successfully moved
for the admission of other-acts evidence showing Defendant had engaged
in identical conduct with the victims on other occasions.
¶3 At trial, the State presented evidence of the following facts to
a jury. Defendant is G.D.’s grandfather and J.Y.’s step-grandfather. While
under fifteen years of age, G.D. and J.Y. occasionally visited Defendant’s
house, sometimes without their parents and sometimes staying overnight.
G.D. testified that during some of the visits, Defendant touched her beneath
her clothes. On each of the multiple occasions, G.D. and her brother F.D.
were watching television with Defendant, with G.D. sharing Defendant’s
chair and F.D. sitting on a nearby couch. Each time, Defendant would place
1 Defendant separately moves us to deem the appeal submitted on the
defense briefs and record because the State opted not to file an answering
brief. We have done so. See Ariz. R. Crim. P. 31.13(a)(1)–(2).
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STATE v. DIFILIPPANTONIO
Decision of the Court
one hand beneath G.D.’s clothes, rub the outside of her vagina with his
fingers, and insert at least one finger inside her vagina. J.Y. similarly
testified that while watching television with Defendant and F.D., she sat on
Defendant’s lap in the chair at least twice—the last time after Defendant
offered the children candy in exchange for her doing so. J.Y. testified that
on each of the two occasions, Defendant put his hand beneath her clothes,
rubbed the outside of her genitals, and inserted a finger inside her vagina.
¶4 When she was a young child, G.D. disclosed to her half-sister,
S.V., that she did not like going to Defendant’s house because he would
touch her. G.D. demonstrated by rubbing her upper thigh, and she asked
S.V. not to tell anyone. S.V. complied. Years later, both G.D. and J.Y. began
voicing reluctance to visit Defendant’s house but they did not disclose any
inappropriate behavior by Defendant.
¶5 Around December 2019, G.D. and J.Y. visited Defendant’s
house with family members. J.Y. complained of an upset stomach on both
the day before and the day of the visit, and she expressed reluctance to enter
Defendant’s house. After the visit, J.Y. spontaneously disclosed to her
mother that she did not like to go to Defendant’s house because he had
touched her vagina and inserted his finger in her vagina multiple times.
J.Y.’s mother immediately told G.D. about J.Y.’s disclosure and asked
whether she also had been touched. G.D. initially said that she did not think
so, but the next day admitted that Defendant had touched her on her vagina
more than once. The same day, J.Y. told a school counselor that Defendant
had sexually touched her. The counselor contacted police, J.Y. and G.D.
were forensically interviewed, and Defendant was charged. The State
presented expert testimony that sexually abused children commonly delay
disclosure and form script memory of the abuse.
¶6 At the close of the State’s case, Defendant unsuccessfully
moved for a judgment of acquittal under Arizona Rule of Criminal
Procedure 20. Defendant then presented expert testimony that mistaken or
lying children may delay disclosure, and that children’s memories may be
contaminated by other people or books. Defendant also testified on his own
behalf and denied any wrongdoing.
¶7 The jury found Defendant guilty of Counts 1, 2, 3, and 4. The
court entered judgment on the verdicts and sentenced Defendant to
mitigated consecutive prison terms totaling 46 years, with credit for 41 days
of presentence incarceration.
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STATE v. DIFILIPPANTONIO
Decision of the Court
DISCUSSION
¶8 We find no reversible error. The record reflects Defendant,
who was represented at all stages, was afforded all constitutional and
statutory rights and that the proceedings were conducted in accordance
with the applicable procedural rules.
¶9 The evidence was sufficient to support the verdicts. A person
commits child molestation when he intentionally or knowingly engages in
sexual contact with a child under the age of fifteen years, and he commits
sexual conduct with a minor when he intentionally or knowingly engages
in sexual intercourse with a child under the age of eighteen years. Arizona
Revised Statutes (“A.R.S.”) §§ 13-1410(A), -1405(A). Sexual contact includes
“any direct or indirect touching, fondling or manipulating of any part of the
genitals . . . by any part of the body,” and sexual intercourse includes
“penetration into the . . . vulva . . . by any part of the body.” A.R.S. § 13-
1401(A)(3)–(4). Evidence established that when G.D. and J.Y. were less than
fifteen years old, Defendant used his fingers to first rub the exterior of and
then penetrate their vaginas. The court imposed legal sentences under
A.R.S. §§ 13-1405(B), -1410(B), and -705(E), (F), and (P).
¶10 Defendant raises a number of contentions in his supplemental
brief, all of which we reject as meritless. Defendant first argues the jury was
wrongly instructed that the absence of sexual motivation was a defense. He
contends sexual interest is an element of the offense. But the statute
defining the offense does not so provide. See A.R.S. § 13-1410. Further, the
jury instruction was consistent with the definitional and defense statutes in
effect at the time of Defendant’s conduct. See A.R.S. §§ 13-1401 (2015), -
1407(E) (2008); see also State v. Holle, 240 Ariz. 300, 301 ¶ 1 (2016).
Additionally, contrary to Defendant’s contention, even if current A.R.S. §
13-1401(A)(3)(b) applied, instruction under it would be unfounded. Section
13-1401(A)(3)(b) now specifies that sexual contact excludes touching
“during caretaking responsibilities or interactions with a minor . . . that an
objective, reasonable person would recognize as normal and reasonable
under the circumstances.” But here, no evidence or argument was
presented that could support application of that exception.
¶11 Defendant next argues the charges were overly vague and
exposed him to multiple convictions for the same conduct. He contends he
could not be convicted of both child molestation and sexual conduct with a
minor arising from the same interaction because the first offense is a lesser-
included offense of the second. We disagree. Evidence showed Defendant’s
touching of the victims’ external genitals (as required for child molestation)
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STATE v. DIFILIPPANTONIO
Decision of the Court
was not only incidental to his penetration of their genitals (as required for
sexual conduct with a minor), but was also a separate act. See State v.
Arnoldi, 176 Ariz. 236, 240 (App. 1993). The victims’ testimony established
that Defendant deliberately rubbed their external genitals before
penetrating them with his finger. On this record, charges for both offenses
were appropriate.
¶12 Finally, Defendant challenges the admission of other-acts
evidence and the jury instructions pertaining thereto. Typically, “evidence
of other crimes, wrongs, or acts is not admissible to prove the character of
a person in order to show action in conformity therewith,” but may “be
admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.”
Ariz. R. Evid. 404(b)(1)–(2). Moreover, “[i]n a criminal case in which a
defendant is charged with having committed a sexual offense, . . . evidence
of other crimes, wrongs, or acts may be admitted by the court if relevant to
show that the defendant had a character trait giving rise to an aberrant
sexual propensity to commit the offense charged.” Ariz. R. Evid. 404(c).
Under the exception to the general rule, the superior court did not err by
permitting the State to present evidence that Defendant engaged in the
charged conduct on multiple occasions. Perhaps the jury instructions could
have been presented with more clarity. The instruction on Rule 404
evidence first recited the general prohibition and then recited the exception,
but did not call it such. Nevertheless, on this record, we find no reversible
error because there is no reasonable, non-speculative basis establishing that
the jury was misled or confused. See State v. Gallegos, 178 Ariz. 1, 10–11
(1994).
¶13 Lastly, the court imposed sentences within the ranges
provided by statute and accorded Defendant the correct credit for his
presentence incarceration.
CONCLUSION
¶14 We affirm Defendant’s convictions and sentences.
¶15 Defense counsel’s obligations pertaining to this appeal have
come to an end. See State v. Shattuck, 140 Ariz. 582, 584–85 (1984). Unless,
upon review, counsel discovers an issue appropriate for petition for review
to the Arizona Supreme Court, counsel must only inform Defendant of the
status of this appeal and his future options. Id. Defendant has 30 days from
the date of this decision to file a petition for review in propria persona. See
Ariz. R. Crim. P. 31.21(b)(2)(A). Upon the court’s own motion, Defendant
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STATE v. DIFILIPPANTONIO
Decision of the Court
has 30 days from the date of this decision in which to file a motion for
reconsideration. See Ariz. R. Crim. P. 31.20(c). A timely motion for
reconsideration will extend the deadline to file a petition for review. See
Ariz. R. Crim. P. 31.21(b)(2)(A).
AMY M. WOOD • Clerk of the Court
FILED: AA
6