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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 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.

DAVID MICHAEL BUSTAMANTE, Appellant.

No. 1 CA-CR 14-0509 

Appeal from the Superior Court in Maricopa County 

No. CR2013-418744-001 SE 

The Honorable John R. Ditsworth, Judge 

The Honorable Colleen L. French, Judge Pro Tempore

AFFIRMED 

COUNSEL 

Arizona Attorney General’s Office, Phoenix 

By Myles A. Braccio 

Counsel for Appellee 

Maricopa County Public Defender’s Office, Phoenix 

By Carlos Daniel Carrion 

Counsel for Appellant
STATE v. BUSTAMANTE 

Decision of the Court 

2

MEMORANDUM DECISION 

Judge Lawrence F. Winthrop delivered the decision of the Court, in which 

Presiding Judge Peter B. Swann and Judge Donn Kessler joined. 

W I N T H R O P, Judge: 

¶1 David Michael Bustamante (“Appellant”) appeals his 

convictions and sentences for resisting arrest by passive resistance, 

possession or use of dangerous drugs, and possession or use of marijuana. 

He argues the trial court erred in precluding him from attempting to 

impeach testifying detectives with a pending civil lawsuit in an unrelated 

case. For the following reasons, we affirm. 

FACTS AND PROCEDURAL HISTORY1

¶2 In the afternoon of April 27, 2013, three police detectives and 

a Department of Corrections investigator conducted a traffic stop of 

Appellant’s moped. The investigator attempted to pat Appellant down for 

weapons, but Appellant broke away and ran down an alley, with the 

officers in pursuit. Appellant ignored police commands to stop, and as he 

ran, he reached into his pocket and tossed a baggie containing usable 

quantities of marijuana and methamphetamine into a back yard. Appellant 

was eventually caught, attempted to break free, and was forcibly wrestled 

to the ground, handcuffed, and arrested.2

 

1 We view the facts in the light most favorable to sustaining the verdict 

and resolve all reasonable inferences against Appellant. See State v. Kiper, 

181 Ariz. 62, 64, 887 P.2d 592, 594 (App. 1994). 

2 At the scene, Appellant acknowledged he “may have resisted” 

arrest, but he denied possessing “any dope.” He later claimed one of the 

arresting officers (Detective Ekren) had used excessive or improper force 

during the incident. During the investigation of Appellant’s claim, 

Appellant admitted he “threw something when the police were chasing 

after him, and . . . they found what he had thrown.” At the conclusion of 

the investigation, the police department’s chain of command determined 

that the detective’s use of force fell within departmental policy. 
STATE v. BUSTAMANTE 

Decision of the Court 

3

¶3 The State charged Appellant by indictment with Count I, 

resisting arrest, a class six felony; Count II, possession or use of dangerous 

drugs, a class four felony; and Count III, possession or use of marijuana, a 

class six felony. Appellant chose not to attend his trial, and at the trial’s 

conclusion, the jury found him guilty as charged of Counts II and III; as to 

Count I, the jury found him guilty of the lesser-included offense of resisting 

arrest by passive resistance, a misdemeanor. After finding Appellant had 

seven prior felony convictions, the court sentenced him to concurrent terms, 

with the longest being ten years’ incarceration in the Arizona Department 

of Corrections. 

¶4 We have jurisdiction over Appellant’s timely appeal pursuant 

to the Arizona Constitution, Article 6, Section 9, and Arizona Revised 

Statutes sections 12–120.21(A)(1) (2003), 13–4031 (2010), and 13–4033(A) 

(2010). 

ANALYSIS 

¶5 Appellant argues the trial court erred in precluding him from 

impeaching the arresting detectives with a pending civil lawsuit in federal 

court in a completely unrelated case. The court precluded evidence about 

the pending lawsuit after determining it was “irrelevant.” We find no error. 

¶6 In general, we review a trial court’s evidentiary rulings for an 

abuse of discretion. State v. Ellison, 213 Ariz. 116, 129, ¶ 42, 140 P.3d 899, 

912 (2006); State v. Ayala, 178 Ariz. 385, 387, 873 P.2d 1307, 1309 (App. 1994). 

We review de novo, however, evidentiary rulings that implicate the 

Confrontation Clause. Ellison, 213 Ariz. at 129, ¶ 42, 140 P.3d at 912; State 

v. Bronson, 204 Ariz. 321, 324, ¶ 14, 63 P.3d 1058, 1061 (App. 2003). We will 

not reverse a conviction for evidentiary error unless a reasonable 

probability exists that the verdict would have been different had the ruling 

been otherwise. See State v. Van Adams, 194 Ariz. 408, 416, ¶ 23, 984 P.2d 16, 

24 (1999); State v. Lacy, 187 Ariz. 340, 349, 929 P.2d 1288, 1297 (1996). 

¶7 A defendant has the right under the Confrontation Clause to 

cross-examine witnesses about their bias, motive, prejudice, and issues that 

directly bear on credibility. See generally Davis v. Alaska, 415 U.S. 308, 315–

18 (1974); State v. Gertz, 186 Ariz. 38, 42, 918 P.2d 1056, 1060 (App. 1995). 

However, the Confrontation Clause does not prevent a trial judge from 

imposing any limits on inquiry into the potential bias of a prosecution 

witness; to the contrary, trial judges retain wide latitude to impose 

reasonable limits on such cross-examination based on concerns about 

harassment, prejudice, confusion of the issues, the witness’s safety, or 
STATE v. BUSTAMANTE 

Decision of the Court 

4

interrogation that is repetitive or only marginally relevant. Delaware v. Van 

Arsdall, 475 U.S. 673, 679 (1986). To determine whether a defendant was 

denied the opportunity to present evidence relevant to issues in the case or 

a witness’s credibility, we review cross-examination restrictions on a caseby-case basis. State v. Cañez, 202 Ariz. 133, 153, ¶ 62, 42 P.3d 564, 584 (2002); 

see also State v. Riggs, 189 Ariz. 327, 333, 942 P.2d 1159, 1165 (1997) (“A 

defendant’s fundamental right to confront and cross-examine adverse 

witnesses is ‘limited to the presentation of matters admissible under 

ordinary evidentiary rules, including relevance.’” (quoting State v. Dickens, 

187 Ariz. 1, 14, 926 P.2d 468, 481 (1996))). 

¶8 After a thorough review of the record, we conclude the trial 

court did not err in precluding evidence of the pending civil lawsuit against 

Detectives Ekren, Ulibarri, and Dobson because the lawsuit did not bear on 

the credibility of any witness and was irrelevant to the issues at trial. See

Ariz. R. Evid. 401. As the trial court recognized, the pending lawsuit was 

simply an allegation against the detectives by some other person the 

detectives had arrested at an earlier time. The allegation was not evidence, 

and there had been no adjudication that the detectives had committed any 

misconduct. 

¶9 Further, the cases relied upon by Appellant, including Gertz, 

are distinguishable because the pending civil lawsuit did not involve 

Appellant or his arrest by the detectives.3 The lawsuit was not originated 

by the detectives, was not against Appellant, and did not arise from the 

same transaction that was the subject of the prosecution. See Gertz, 186 Ariz. 

at 42, 918 P.2d at 1060. Instead, the lawsuit involved the detectives’ prior 

arrest of another person based upon an outstanding warrant. 

¶10 Appellant speculates that evidence of the pending lawsuit 

could have shown the detectives had motivation to fabricate against him 

because of ulterior concerns they had regarding the lawsuit; however, 

Appellant’s attempted impeachment would not have demonstrated any 

bias from the detectives against him, because the pending civil lawsuit had 

no bearing on, or relationship to, Appellant or his arrest. See People v. Ayers, 

556 N.Y.S.2d 659, 659 (N.Y. App. Div. 1990) (holding that a trial court “did 

 

3 In Gertz, this court held that “evidence of a civil action by a 

complaining witness against the defendant, arising from the same transaction that 

is the subject of the prosecution, has ‘a direct bearing on the credibility of the 

witness to show bias and prejudice, as well as the witness’ relationship to 

the case.’” 186 Ariz. at 42, 918 P.2d at 1060 (emphasis added) (quoting State 

v. Burris, 131 Ariz. 563, 567, 643 P.2d 8, 12 (App. 1982)). 
STATE v. BUSTAMANTE 

Decision of the Court 

5

not improvidently exercise its broad discretion to limit cross-examination 

by precluding the defendant from questioning the detective with regard to 

[a] wholly unrelated pending civil lawsuit” filed by a defense witness 

because the lawsuit “would not suggest the existence of any hostile feelings 

toward the defendant or provide a motive for the detective to fabricate” 

about the homicide with which the defendant was charged (internal citation 

omitted)). On this record, the trial court did not abuse its broad discretion 

in precluding Appellant from impeaching the detectives with an irrelevant 

pending civil lawsuit, previously filed against them by a different 

defendant resulting from a different arrest. See Riggs, 189 Ariz. at 333, 942 

P.2d at 1165.4

CONCLUSION 

¶11 Appellant’s convictions and sentences are affirmed.

 

4 Moreover, any possible error was, on this record, harmless “because 

it did not contribute to or affect the verdict.” State v. Almaguer, 232 Ariz. 

190, 198, ¶ 25, 303 P.3d 84, 92 (App. 2013) (citing Gertz, 186 Ariz. at 42, 918 

P.2d at 1060; Van Arsdall, 475 U.S. at 682). Appellant “was faced with 

strong, if not overwhelming, evidence of guilt,” id. at ¶ 26, the other 

witnesses testified “consistently about the incident,” id., and the jury had 

substantial information from which to judge Detective Ekren’s credibility. 

See generally Burris, 131 Ariz. at 567, 643 P.2d at 12 (finding no reversible 

error in the court’s decision to preclude impeachment of a witness with a 

civil lawsuit where “[t]he motive and interest of [the witness] in the 

criminal prosecution [was] quite clear without the rejected testimony”).