State v. Celso M. Deleon-Yuja

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
May 11, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP2059-CR Cir. Ct. No. 2016CF3715

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

CELSO M. DELEON-YUJA,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: JEFFREY A. WAGNER, Judge. Affirmed.

Before Brash, P.J., Donald and White, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Celso M. Deleon-Yuja appeals the circuit court
order denying postconviction relief as well as the underlying judgment of
No. 2019AP2059-CR

conviction for two counts of first-degree child sexual assault—sexual contact with
a child under age thirteen. Deleon-Yuja argues that his Sixth Amendment
Confrontation Clause rights were violated when the circuit court did not permit
him to cross-examine the victims or their parents about the U-Visa immigration
program. We conclude that the circuit court did not improperly limit cross-
examination such that Deleon-Yuja’s confrontation rights were violated, and thus
did not erroneously deny his motion for postconviction relief. Accordingly, we
affirm.

BACKGROUND

¶2 The following facts are taken from testimony at pretrial hearings and
the trial and from other documents in the record. After Deleon-Yuja came home
from work on August 17, 2016, a family he and his wife knew through church
brought over their two daughters for his wife to babysit. Deleon-Yuja’s wife had
watched the girls, K.A.I., age seven, and F.A.I., age nine, several times that
summer, although typically while Deleon-Yuja was at work. The Deleon-Yuja’s
had an infant daughter who was approximately two-and-a-half months old.
Deleon-Yuja took the baby into the bedroom. Deleon-Yuja’s wife, in her trial
testimony, explained that

I left the girls in the living room watching TV, and
[Deleon-Yuja] was in the room, and I went to the kitchen to
make food. I get out of the kitchen because the food was
ready, and I see that [K.A.I.] wasn’t in the living room
anymore, and when I go into the [bed]room, I see both of
them on the bed, and I just see his hand on her waist.

She “couldn’t believe” what she was seeing and she was “really mad” when she
saw Deleon-Yuja touching K.A.I. She asked him to go to the kitchen with her
because she “didn’t want to be fighting in front of the girl.” She was so upset she

2
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threw away the food she had just made in the garbage, and then Deleon-Yuja left
the house.

¶3 Deleon-Yuja’s wife took the girls to her upstairs neighbor, whom
she knew through church and whom she trusted. She explained what happened to
the neighbor, who then did not feel comfortable with Deleon-Yuja’s wife
continuing to watch the girls, so the neighbor took the girls to church with her.
The neighbor then returned from church with the girls and took them back to her
house; the girls’ parents arrived at the neighbor’s house around 9:00 p.m. When
the parents picked up the girls, Deleon-Yuja’s wife went outside to explain to
them what happened and said she was embarrassed by her husband.

¶4 The girls’ father, in his trial testimony, stated that he and his wife
received a call from the Deleon-Yuja’s upstairs neighbor saying that they had to
come and pick up his daughters because “[s]omething’s happened to the girls.”
When they arrived at the house, the neighbor came out and brought the girls to
their parents. Then Deleon-Yuja’s wife came out, crying and asking for
forgiveness. She explained to the parents that she saw Deleon-Yuja’s hand on
K.A.I. and demonstrated using her hand moving on her body. The girls’ father
talked to K.A.I. on the night of August 17, 2016, and asked her where Deleon-
Yuja had touched her. K.A.I. told him Deleon-Yuja touched her genitals, both
vaginal and anal areas, and that he put his hands under her clothes.

¶5 The girls’ mother spoke to the girls as well on August 17, 2016,
according to her trial testimony. She described taking a crying K.A.I. into her
arms and asking where Deleon-Yuja had touched her. K.A.I. told her that he
touched her breast area and in the vaginal and anal areas.

3
No. 2019AP2059-CR

¶6 After the parents spoke to K.A.I., the Milwaukee Police Department
was contacted and an investigation began the next day. A detective in the
Sensitive Crimes Division interviewed the girls and their parents about the
allegations against Deleon-Yuja. The detective arranged for forensic interviews of
K.A.I. on August 18, 2016, and F.A.I. on August 19, 2016. As a result of those
interviews, allegations that Deleon-Yuja also touched F.A.I. arose. Deleon-Yuja
was arrested; the criminal complaint was filed on August 22, 2016, charging
Deleon-Yuja with two counts of first-degree sexual assault of K.A.I. and F.A.I.

¶7 On January 11, 2017, trial counsel emailed the prosecutor and
requested a copy of the “Victim certification,” referring to the U-Visa program
procedure, and asked if the State would agree to allow the defense to cross-
examine the girls’ parents about the U-Visa certification.1 At the January 17, 2017
pretrial hearing, the defense informed the circuit court2 that it would like to ask the
girls’ father a few questions during cross-examination about applying for a new
visa. That same day, the State emailed a response to trial counsel objecting to
questions about the U-Visa because it was not relevant to the proceedings.

¶8 During the pretrial proceedings before Deleon-Yuja’s scheduled jury
trial in February 2017, the circuit court heard arguments on Deleon-Yuja’s request

1
A U-Visa is “a nonimmigrant visa that allows a victim of a violent crime who provides
assistance to law enforcement to remain in the United States for four years.” Guerra Rocha v.
Barr, 951 F.3d 848, 850 (7th Cir. 2020).
2
The Honorable David Swanson presided over the initial jury trial proceedings and
made the evidentiary ruling at issue. The Honorable Jeffrey A. Wagner presided over some
pretrial proceedings, the completed trial, and Deleon-Yuja’s postconviction motion. Because the
case transferred multiple times, we refer to either judge as the circuit court.

4
No. 2019AP2059-CR

to cross-examine the girls’ parents about any U-Visa applications and the State’s
opposition to those questions.

¶9 First, Deleon-Yuja stated his position on the relevance of the U-Visa
application to the circuit court, contending that he should be allowed to question
the girls’ parents on their U-Visa application for impeachment purposes. Trial
counsel argued that his client’s wife did not report that she saw Deleon-Yuja
sexually assault K.A.I., but instead she reported she saw her husband touching
K.A.I.’s waist area. He asserted that it was only after the girls’ parents spoke to
K.A.I. that anyone mentioned vaginal and buttocks touching. Trial counsel stated,
“[t]hey are from Mexico. They are illegally here in the United States .… We
know that if not [for] this case they probably might be on the way out or they
might be even deported by now due to current administration policies.” Trial
counsel continued, “this is the … only hope for them to stay here in United States.
Otherwise they might be deported. They might be separated from their two
daughters, two girls who are citizens of [the] United States.” Trial counsel argued
that the U-Visa program may have given the parents a motive “to falsify these
charges[.]” He contended that he and the State could make their arguments and let
the jury decide. Trial counsel proposed that during cross-examination, he would
ask the girls’ father if it was true that he applied for a U-Visa or applied “to be
certified as a victim due to this case[.]”

¶10 In response, the State argued that the circuit court should bar trial
counsel from questioning any of the family on the U-Visa application, because it
was a “slippery slope” toward questions about immigration law. The State
asserted:

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No. 2019AP2059-CR

I don’t know what a U-Visa is. I don’t know what
it means. I’m certain that our jurors have even less of an
idea than I do.

So the only way that this all becomes relevant to
them is if they are given context. Well, a U-Visa means
that it’s a federal program that basically allows people who
are otherwise undocumented or illegal to gain the benefit
of, I guess, a Green Card. I’m not even clear.

….

So we are left with really a bare accusation that
these people are illegal. That’s what he’s doing. He’s
saying the mom, the dad are illegal and their kids illegal
and they are not supposed to be here. And the prejudice
that’s created by that really outweighs any minimal benefit
to what that testimony or status could give this case.

¶11 The State continued its argument to the circuit court, asserting that
the timeline made it clear that the sexual assaults were brought to the police’s
attention well before any actions were taken on immigration.

When you talk about how this case came forward,
and I made a little effort yesterday, the defendant’s wife …
was baby sitting the two children.

She walked in on the defendant doing something
she thought was inappropriate. How do we know she
thought it was inappropriate? Because of her actions. She
yelled at the defendant. Screamed at him. Got the kids out
of there, sent the kids to the upstairs neighbor ….

So whatever she’s going to say today about what
she actually saw we know from her actions what she
thought about it.

We also know that she told everyone that she asked
[K.A.I.] that little girl what was going on before anyone
else was involved, and [K.A.I.] told her that the defendant
was touching her chest.

The very next night [K.A.I. was] are being
interviewed by the police. I think that’s, again, clearly
before any chance or thought of a U-Visa would have
entered into anyone’s head.

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No. 2019AP2059-CR

And [K.A.I.] gives a detailed disclosure about the
defendant inserting his finger into the various orifices of
her.

So the allegation is all out there long before there’s
any real chance or taint of this idea that the family is doing
this to get a U-Visa which means that the relevance of this
if there is any relevance is very minimal.

I think that prejudice I talked about really outweighs
that. So I’m worried that these questions would distract the
jury. I’m worried they’d confuse the jury with questions
about people’s status.

¶12 After hearing arguments from both parties, the circuit court assessed
the situation and concluded:

I agree with the [S]tate here that bringing the
family’s illegal status before the jury could be highly
prejudicial to … how their testimony is viewed by the jury.

And I also agree with the [S]tate that it could be
confusing to the jury to lead them to believe that it’s
somehow relevant. Because the family’s status,
immigration status, really is not relevant to this case at all.

So I am—I do believe that there just is extremely
limited relevance here. It would be very, again, highly
prejudicial to how the testimony of the girls and their
parents would be viewed by the jury.

However, I do think there is—There’s some limited
probative value of the general avenue of questioning that
[trial counsel] is asking to proceed on.

As I understand what [trial counsel] wants to
inquire into is whether the girls were coached or not, and I
think that is a relevant avenue of inquiry here.

So, [trial counsel], I am going to bar you from
asking specific questions about the family’s immigration
status or whether they applied for this type of Visa and
when they applied for any type of Visa.

However, since both girls I understand will be
testifying and the parents as well I believe it … would be
fair for the defense to be permitted to ask the girls if they
had been coached and also to ask the parents if the parents

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No. 2019AP2059-CR

had engaged in any coaching of the girls to report these
crimes, these alleged crimes.

¶13 Deleon-Yuja’s trial was adjourned in February 2017 because the
State needed time to produce transcripts of the forensic interview videos. Deleon-
Yuja’s trial resumed in May 2017, with a new jury panel sworn in on May 8,
2017, and an amended information filed May 9, 2017.3

¶14 Although some of the trial testimony was recited above; here, we
review relevant testimony from the trial not previously stated. The State called the
the Milwaukee Police Department detective who investigated the allegations
against Deleon-Yuja and who testified about the investigation.

¶15 The State called the officer in the Milwaukee Police Department
Sensitive Crimes Division who conducted the forensic interview of K.A.I. The
video was played for the jury, and after, the officer testified about the interview.
K.A.I. identified Deleon-Yuja in a photo. She stated Deleon-Yuja “took off her
pants and grabbed her hands and she said no.” K.A.I. demonstrated what she
alleged Deleon-Yuja did to her using an anatomically correct female doll: she put
her pinkie finger inside the vagina and inside the anus. She stated that she told
him to stop and he still did it. She also demonstrated that Deleon-Yuja lifted her
shirt and pinched her nipples. She also described having Deleon-Yuja kiss her
neck. On cross-examination, the officer confirmed that in the interview, K.A.I.
did not accurately state her zip code or the color of the walls in the room when

3
The State tried Deleon-Yuja on an amended information for one count of first-degree
child sexual assault—sexual contact with a child under age thirteen based on Deleon-Yuja’s
alleged contact with K.A.I. on August 17, 2016; and one count of first-degree child sexual
assault—sexual contact with a child under age thirteen based on Deleon-Yuja’s alleged contact
with F.A.I. between approximately March 1, 2015, and August 17, 2016.

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No. 2019AP2059-CR

asked, and that she said she did not know the difference between the words “truth”
and “lie.”

¶16 The State called K.A.I. The prosecutor asked simple questions to
demonstrate whether K.A.I. understood the difference between the truth and a lie;
she correctly identified her own name as the truth and calling her by her sister’s
name as a lie. K.A.I. testified that she used to go to Deleon-Yuja’s house,
identified Deleon-Yuja’s wife and made an in-court identification of Deleon-Yuja.
On direct examination, K.A.I. testified that Deleon-Yuja touched her “on the
private part” and identified where he touched her using an anatomical diagram that
was entered into evidence. On redirect, K.A.I. was unable to state where on her
private parts Deleon-Yuja touched her. She testified that she was in the bedroom
with Deleon-Yuja and Deleon-Yuja’s infant daughter while Deleon-Yuja’s wife
was cooking in the kitchen during the incident. She testified that it made her feel
bad when Deleon-Yuja touched her under her clothes.

¶17 The State then called the detective in the Milwaukee Police
Department Sensitive Crimes Division who conducted the forensic interview of
F.A.I., which was recorded. The video was played for the jury.4 During the video,
F.A.I. told the officer that Deleon-Yuja rubbed her private part over her clothes
with his hand. She told him to stop. The detective clarified on direct examination
that F.A.I. used a body diagram and anatomically correct doll to show that by
“private part” she meant her vagina. On cross-examination, the detective testified

4
In response to the defendant’s motion in limine, the circuit court ruled that a selection
of the video of F.A.I.’s forensic interview was inadmissible. The parties agreed which selection
would be shown to the jury.

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No. 2019AP2059-CR

that while F.A.I. stated she was eight years old in the interview, she was actually
nine years old.

¶18 The State called F.A.I., who testified that she understood the
difference between a truth and a lie and promised to tell the truth. F.A.I. testified
that Deleon-Yuja’s wife watched her and her sister at her apartment. F.A.I.
testified that the last day that Deleon-Yuja’s wife watched her and her sister, she
was watching television, Deleon-Yuja’s wife was in the bathroom, and K.A.I.
went into the bedroom with Deleon-Yuja and the baby. F.A.I. testified that she
told her “sister not to get in the room, but she did.” Then, when Deleon-Yuja’s
wife left the bathroom, she saw what Deleon-Yuja was doing and told the girls
they were going to her upstairs neighbor’s house. She testified that Deleon-Yuja’s
wife was crying.

¶19 F.A.I. also testified about her own incidents with Deleon-Yuja that
were discussed on the video shown to the jury. During one of the days that
Deleon-Yuja’s wife watched her and her sister, F.A.I. recalled that K.A.I. and the
baby were playing in the kitchen, Deleon-Yuja’s wife was in the kitchen or the
bathroom, and F.A.I. was watching television in the living room when Deleon-
Yuja sat down next to her. She testified that Deleon-Yuja touched her private part
over her clothing. She told him to stop and he did, but she was in shock and she
did not tell anyone what happened at the time.

¶20 F.A.I. also recalled a time she was at church and she went to look for
her older brother, but instead she found Deleon-Yuja and he hugged her “weirdly.”
She explained that, “[t]hat when you give a normal hug, you just hug and then
leave it go, but he still did it. And I was telling him to stop, but he didn’t want to
stop.” She also stated that he was “moving his hands” on her arms and sides.

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No. 2019AP2059-CR

After F.A.I. told Deleon-Yuja to stop a second time he did and she tried to go
downstairs as fast as she could, then Deleon-Yuja grabbed her by the foot, she
again told him to stop, but “he didn’t want to stop.” F.A.I. testified that when he
let go, she went to her mother and told her.

¶21 The State then called Deleon-Yuja’s wife. In her testimony, she
confirmed that they moved to the house where the incident with K.A.I. occurred in
late March or early April 2016, before her baby was born in May 2016. She never
watched the girls at her old residence; all of the babysitting occurred at her current
residence. She testified that she started watching the girls in mid July and stopped
on August 17, 2016.

¶22 In addition to her testimony about the incident on August 17, 2016,
Deleon-Yuja’s wife testified that when she started taking care of the girls, she was
very clear that it was her job to babysit the girls. In her words:

I talked with both of them to—I told him to not be around
the girls as much or to not even touch them or anything,
and I talked to the girls, and I told them to not play around
with [Deleon-Yuja] or to be involved with him; if, you
know, you see [Deleon-Yuja] in one room, to go to the
other one.

¶23 The State called the girls’ father, who testified that he and his wife
left the girls with Deleon-Yuja’s wife and went to work at the church they
attended as did Deleon-Yuja’s family. He explained that he was studying
theology, he participated in music ministry, and he served as an elder in their
church. He met Deleon-Yuja four or five years ago through the church they both
attended. He stated that he and Deleon-Yuja had “a very nice relationship” and he
has “a lot of regard for him and also for [Deleon-Yuja’s wife].” He explained they

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No. 2019AP2059-CR

“spent a lot of time together ... have them over for dinner … spend time in our
home socially.”

¶24 The girls’ father testified that when he picked up the girls from the
Deleon-Yujas’ neighbor on the night of the incident, Deleon-Yuja’s wife came out
to ask the parents to forgive her because she said she did not take good care of
their daughters. The girls’ father testified that Deleon-Yuja’s wife explained that
she saw Deleon-Yuja touching his daughter while he was lying on the bed. She
gestured to show him where Deleon-Yuja touched K.A.I., over her side and arms.
It was unclear to the girls’ father if the touching included the chest. Because
Deleon-Yuja’s wife was so upset, the girls’ father did not want to ask more
questions about exactly where K.A.I. was touched, and he testified, “I would be
sinning if I told you that I knew for sure what areas.” The State asked him
whether Deleon-Yuja’s wife had told him that she had seen Deleon-Yuja
“touching the girls a different time and that [Deleon-Yuja] had told her not to
exaggerate and he was just playing with the girls?” The girls’ father responded,
“She did tell us about another occasion … I don’t remember exactly what it was as
far as the details, but … she had basically … warned him as far as, like, not
touching the girls, make sure you don’t touch them, or be careful with them.”

¶25 The girls’ father testified that he also spoke to, F.A.I.—his older
daughter—after the incident with K.A.I. He discussed an incident with F.A.I. that
she first reported to her mother. Sometime between March and June of 2016,
F.A.I. complained that Deleon-Yuja gave her an unwanted and unusual hug in a
stairwell at their church and she was uncomfortable.5 In hindsight, the father
5
The girls’ mother also testified that F.A.I. told her about a hug from Deleon-Yuja in the
stairway at church in about March 2016, about five months before the incident with K.A.I.

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No. 2019AP2059-CR

viewed F.A.I.’s report differently than he received it when he heard about it earlier
in the year.

¶26 Deleon-Yuja chose to testify in his own defense. On August 17,
2016, his wife was cooking in the kitchen; the girls were watching a show in the
living room, where his wife told them to stay; and Deleon-Yuja took the baby into
the bedroom to lie down. Because the baby was fussy, Deleon-Yuja started to
change the baby’s diaper and K.A.I. opened the door to the bedroom. As Deleon-
Yuja cleaned up the baby, K.A.I. asked him why he was touching the baby, and
the baby peed all over her clothing, to which K.A.I. said “eew.” Deleon-Yuja
could hear his wife calling for K.A.I. to return to the living room. Deleon-Yuja
told K.A.I. to return to the living room, but K.A.I. said it was okay and stayed in
the bedroom and then climbed on the bed. Then K.A.I. started acting up and said
she had a stomachache. He rubbed her stomach. His wife came in and asked him
what he was doing.6 He denied touching K.A.I. or F.A.I. inappropriately. He did
not remember the incident at the church to which F.A.I. testified.

¶27 The jury returned a verdict of guilty on both counts of first-degree
sexual assault of a child under age 13; one count for the assault of K.A.I. on
August 17, 2016, and the other for an assault of F.A.I. between March 1, 2015,
and August 17, 2016. The circuit court entered judgments of conviction for both
charges. The court imposed twelve years on each count, to be served

6
We note that on cross-examination, K.A.I. testified that she did not remember either the
diaper change or having a stomachache. Deleon-Yuja’s wife testified that she did not remember
seeing a used diaper or clothing in the bedroom and that she did not hear the baby crying or
fussing. Further, she did not remember K.A.I. complaining of a stomachache.

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No. 2019AP2059-CR

consecutively, with seven years of initial confinement and five years of extended
supervision on each count.

¶28 Deleon-Yuja filed a postconviction motion seeking a new trial
arguing that he was denied his right under the Confrontation Clause to conduct a
meaningful cross-examination of the state’s witnesses on the issue of a U-Visa
application or certification. In May 2019, the circuit court denied Deleon-Yuja’s
motion without a hearing.7 The circuit court explained:

There is nothing in the record that the victims or their
family knew about a U-[V]isa when the sexual assault
disclosures were made. The initial disclosure was made by
the defendant’s wife to a neighbor, before the parents had
any knowledge that something bad had happened.
Moreover, there was no evidence that the victims or their
parents had an illegal immigration status.

¶29 The circuit court criticized trial counsel for making allegations about
the family’s immigration status, first stating they were from Guatemala, then
Mexico, and later admitting the girls were United States citizens. The circuit court
concluded that in this case, “evidence that the parents applied for a U-[V]isa based

7
Deleon-Yuja relied on two out-of-state cases to support the admissibility of testimony
about the U-Visa program for impeachment purposes: State v. Valle, 298 P.3d 1237 (Or. Ct.
App. 2013) and Romero-Perez v. Commonwealth, 492 S.W.3d 902 (Ky. Ct. App. 2016). The
circuit court distinguished that in these cases, a practical connection existed between the victim’s
report of criminal activity and the application for a U-Visa. Here, there was no evidence that the
girls’ parents were aware of the U-Visa program before the sexual assault allegations were first
reported. Furthermore, although the State acknowledged that the family had applied for a U-
Visa, there was no showing that their success in obtaining a U-Visa was dependent on their status
as a victim of alleged sexual assaults. The circuit court concluded this case was more like State v.
Buccheri-Bianca, 312 P.3d 123 (Ariz. Ct. App. 2013), in which there was nothing in the record
that the victims or their family knew about the U-Visa program when the child disclosed abuse
and there was no evidence that the victim or any other member of the family had an unauthorized
status. Therefore, the Buccheri-Bianca court concluded that evidence of the U-Visa program
was not relevant and it was within the circuit court’s discretion to exclude testimony or evidence
about it.

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No. 2019AP2059-CR

upon the sexual assault disclosures made by their children might have been
relevant to impeach the parents assuming an illegal status,” however, such
evidence would not “impeach the child victims’ statements” unless there was “a
showing that such evidence was relevant to discredit their testimony.” The circuit
court succinctly addressed the issue with trial counsel’s attempt to suggest that
parents coached the girls to falsify their statements in order to secure a U-Visa,
stating:

The problem with that strategy is that the initial disclosure
that the defendant had done anything wrong came from the
defendant’s wife who reported it to an upstairs neighbor
and then to the victims’ parents. The parents went to their
pastor who told them to contact law enforcement.
Evidence that sexual assault allegations were being
reported before the victims’ parents knew anything about
them belies a “practical connection between the evidence
sought to be introduced and the alleged implication of
bias.”8

¶30 The circuit court found that it had ruled correctly before the trial that
the U-Visa program evidence was of “extremely limited relevance” to this case.
Even if it had ruled erroneously, the circuit court concluded it was clearly
harmless error, stating:

Given the prompt reporting by the young victims, the
consistencies in their statements, the corroborating physical
and non-physical evidence, the defendant’s awkward and
self-serving testimony, and a chain of disclosure that belied
a motivation to falsify the allegations of abuse or to coach
the victims, the court finds that there is no reasonable
probability that questioning the victims’ parents about a U-
[V]isa or their immigration status would have altered the
outcome of the trial.

8
We note that the circuit court decision appears to quote Romero-Perez v.
Commonwealth, 492 S.W.3d 902, 907 (Ky. Ct. App. 2016) (quoting Holt v. Commonwealth, 250
S.W.3d 647, 653 (Ky. 2008)).

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No. 2019AP2059-CR

¶31 This appeal follows.

DISCUSSION

¶32 Deleon-Yuja argues that the circuit court violated his Sixth
Amendment Confrontation Clause rights by prohibiting him from questioning the
girls or their parents about their U-Visa application or certification. He argues this
evidence is relevant. He asserts that the existence of the U-Visa application
establishes a relationship between the State and the victims and witnesses and that
is evidence of bias; therefore the court employed an incorrect legal standard when
it required him to show evidence of favorable treatment to establish bias. He
argues that the court erred when it concluded that mentioning the victims’ family’s
immigration status would be highly prejudicial. Each of Deleon-Yuja’s arguments
fail.

¶33 “The Confrontation Clause of the Sixth Amendment guarantees the
right of an accused in a criminal prosecution ‘to be confronted with the witnesses
against him.’” Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986).
“Confrontation means more than being allowed to confront the witness
physically”; the “primary interest” the confrontation clause secures “‘is the right
of cross-examination.’” Davis v. Alaska, 415 U.S. 308, 315 (1974) (citation
omitted). The Confrontation Clause does not bar a circuit court from imposing
“reasonable limits on such cross-examination based on concerns about, among
other things, harassment, prejudice, confusion of the issues, the witness’ safety, or
interrogation that is repetitive or only marginally relevant.” Van Arsdall, 475 U.S.
at 679.

¶34 “The extent and scope of cross-examination allowed for
impeachment purposes is a matter within the sound discretion of the circuit court.”

16
No. 2019AP2059-CR

State v. McCall, 202 Wis. 2d 29, 35, 549 N.W.2d 418 (1996).9 “The circuit court
has broad discretion in determining the relevance and admissibility of evidence
and its decision will not be reversed absent an erroneous exercise of discretion.”
State v. Weed, 2003 WI 85, ¶9, 263 Wis. 2d 434, 666 N.W.2d 485. In reviewing a
discretionary determination, we consider “whether the circuit court ‘reviewed the
relevant facts; applied a proper standard of law; and using a rational process,
reached a reasonable conclusion.’” State v. Rhodes, 2011 WI 73, ¶22, 336
Wis. 2d 64, 799 N.W.2d 850 (citations omitted).

¶35 Deleon-Yuja argued that the circuit court erred by refusing to admit
relevant evidence when it prohibited him from cross-examining the victims or
their family about U-Visa immigration. The record reflects that the circuit court
reviewed the timeline from when Deleon-Yuja’s wife saw Deleon-Yuja touching
K.A.I., then she took the girls out of the apartment, she told the girls’ parents what
happened, and then the police were called to investigate within a day. Our
examination of the record shows that Deleon-Yuja was arrested the next day and
the criminal complaint was filed within days. When the circuit court considered
whether the parents were motivated to falsify the abuse in an effort to secure
immigration status, it concluded that the U-Visa application was of “very limited
relevance.” It also concluded that questions about immigration would be “highly
prejudicial to how the testimony of the girls and their parents would be viewed by

9
We note there is no Wisconsin law specifically addressing a separate standard of
review for the admission of impeachment evidence based on the U-Visa program. We review it
as any other question of cross-examination evidence for impeachment purposes, which is
admitted at the circuit court’s discretion. The only Wisconsin decision addressing the U-Visa
program is a State v. Viveros, No. 2016AP1043-CR, unpublished slip op. (WI App Dec. 12,
2017), which is per curiam. Under WIS. STAT. § 809.23(3)(b) (2019-20), per curiam opinions
may not be cited for persuasive value. All references to the Wisconsin Statutes are to the 2019-20
version unless otherwise noted.

17
No. 2019AP2059-CR

the jury.” The circuit court then weighed the relevance and risk of prejudice and
concluded there was “some limited probative value[.]” The circuit court decided
to allow Deleon-Yuja to question the girls’ father about any coaching of the girls’
testimony, but barred trial counsel from asking about the family’s immigration
status. In other words, the circuit court considered the relevant facts, applied the
proper legal standard, and employed rational decision-making to reach a
reasonable conclusion. See id. We conclude that the circuit court appropriately
exercised its discretion when it limited cross-examination on immigration.

¶36 Deleon-Yuja argues that we must consider the circuit court’s ruling
to improperly limited cross-examination in violation of his Sixth Amendment
rights to confrontation. We again conclude that even viewed as a constitutional
question, the circuit court appropriately exercised its discretion. “[T]he
fundamental inquiry in deciding whether the right of confrontation was violated is
whether the defendant had the opportunity for effective cross-examination.” State
v. Hoover, 2003 WI App 117, ¶21, 265 Wis. 2d 607, 666 N.W.2d 74. Here, the
circuit court balanced the relevancy of the issue and allowed Deleon-Yuja to
question the girls’ parents on whether they coached the girls. This effectively
reached the relevant question of whether the girls or their parents’ testimony was
falsified in any way,10 while avoiding any potential distraction of the jury relating
to immigration law and policy. The circuit court imposed a reasonable limit and
allowed Deleon-Yuja to exercise his rights of confrontation. We conclude there
was no constitutional violation.

10
We note that trial counsel did not cross-examine the girls’ father about false testimony
or any coaching of the girls.

18
No. 2019AP2059-CR

¶37 Deleon-Yuja further argues that the circuit court applied the wrong
standard to the admissibility determination because the court did not state that the
prejudice of the U-Visa “substantially outweighed” the relevance. By the rules of
evidence, relevant evidence “may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of time,
or needless presentation of cumulative evidence.” WIS. STAT. § 904.03. The
circuit court stated the U-Visa program evidence was of “extremely limited
relevance” and that it would be “highly prejudicial to how the testimony of the
girls and their parents would be viewed by the jury.” It acknowledged that there is
“some limited probative value of the general avenue of questioning that [trial
counsel] is asking to proceed on.” Although it is clear that the circuit court
performed the required weighing to determine admissibility, it did not use the
exact statutory terms. However, as the State points out, there are no “magic
words” required for the circuit court to make this determination. See State v. Gary
M.B., 2004 WI 33, ¶26, 270 Wis. 2d 62, 676 N.W.2d 475. 11 We conclude that this
argument lack merits because the circuit court’s reasoning and its conclusions on
the prejudicial effect of questions on immigration were clear in the record.

¶38 Deleon-Yuja argues that the circuit court erred when it required him
to present specific instances of bias in order to question the family on immigration.
He argues that bias is established by the relationship between the State and the

11
Even when a circuit court “did not expressly state the name of [WIS. STAT. § ]904.03
… or use the words ‘weighing’ or ‘balancing’ or some similar word or words to describe its
analysis, [that] does not mean that the court failed to exercise its discretion. We do not recognize
such a ‘magic words’ argument.” State v. Gary M.B., 2004 WI 33, ¶26, 270 Wis. 2d 62, 676
N.W.2d 475 (citation omitted).

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No. 2019AP2059-CR

victim through the U-Visa certification process. Deleon-Yuja relies on Wisconsin
law that allows a defendant to cross-examine a witness regarding motivation to
testify for the state. See State v. Barreau, 2002 WI App 198, ¶55, 257 Wis. 2d
203, 651 N.W.2d 12. “It is generally recognized that evidence of pending charges
against a witness, even absent promises of leniency, may reveal ‘a prototypical
form of bias.’” Id. (citation omitted). First, we distinguish Barreau because there
were no pending charges against the girls or any family members and the State’s
position in certifying a federal U-Visa application has far less control over the
outcome than when the prosecutor determines what plea offer would be made in
exchange for testimony. Second, as the circuit court concluded, the record reflects
no favorable treatment of the victims or their family in relation to the U-Visa
program or any favorable treatment in exchange for their testimony. Third, the
sexual assaults were reported by Deleon-Yuja’s wife to her neighbor before the
girls’ parents knew about it. The timeline of disclosures make it highly
speculative that the girls’ parents were motivated to falsify these allegations or to
coach the girls to further an immigration process. See McCall, 202 Wis. 2d at 42.
Ultimately, Deleon-Yuja’s speculation does not establish bias on the part of the
girls’ parents, bias from a U-Visa certification, or any error in the circuit court
ruling.

¶39 Deleon-Yuja argues that the risk of unfair prejudice was low if the
girls or their parents were questioned about possible bias in their testimony due to
the U-Visa program. “Although a defendant is entitled to significant latitude” to
examine witness bias, the circuit court has the duty to limit cross-examination
when it would “divert the trial to extraneous matters or confuse the jury by placing
undue emphasis on collateral issues” or inquire into issues distracting or
speculative. Id. at 41-42. He argues there is nothing unfairly prejudicial about the

20
No. 2019AP2059-CR

jury finding out that the family is undocumented immigrants. We note that
Deleon-Yuja takes contrary positions on the importance of the family’s
immigration status. In pretrial, trial counsel argued the U-Visa program was “the
only hope, the only hope for them to stay here in United States. Otherwise they
might be deported. They might be separated from their two daughters, two girls
who are citizens of [the] United States.” In this appeal, Deleon-Yuja argues that
the risk of unfair prejudice is low and that “the jury may see their willingness to
testify in spite of their undocumented status as proof of their truthfulness.”
Deleon-Yuja’s arguments are highly speculative in multiple ways. Furthermore,
we agree with the circuit court’s assessment that evidence about the parents’ U-
Visa application would not impeach the girls’ testimony. We conclude the court
appropriately exercised its discretion when it prohibited questions that divert the
trial into collateral or speculative concerns about immigration.12

CONCLUSION

¶40 We conclude that Deleon-Yuja’s Sixth Amendment Confrontation
Clause rights were not violated when the circuit court limited cross-examination
about the U-Visa program. The circuit court weighed the potential relevance of
questions about immigration with the probative value of that evidence and

12
Further, Deleon-Yuja argues that if the court was concerned that questions about the
U-Visa program would be confusing and could lead the jury to believe the U-Visa application or
immigration status was relevant, the court could have imposed a curative jury instruction.
Curative instructions are considered for admitted evidence. If the court had admitted this line of
cross-examination, the burden would be on Deleon-Yuja to request a curative instruction. See
State v. Payano, 2009 WI 86, ¶100, 320 Wis. 2d 348, 768 N.W.2d 832 (explaining that
cautionary or curative jury instructions are “not required unless requested.”). We note that trial
counsel did not propose such an instruction when it argued for cross-examination on the U-Visa
program. Moreover, Deleon-Yuja’s argument does not undermine our conclusion that there was
no error in the circuit court’s exercise of discretion to exclude this line of questioning.

21
No. 2019AP2059-CR

concluded that the potential unfair prejudice to the victims outweighed the value
of this argument in Deleon-Yuja’s defense strategy. Accordingly, the circuit
court’s decision to limit cross-examination was an appropriate exercise of
discretion. Therefore, we affirm the circuit court’s denial of Deleon-Yuja’s
motion for postconviction relief and his judgment of conviction.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

22