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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JUAN CASTILLO, Appellant.
No. 1 CA-CR 19-0224
FILED 9-3-2020
Appeal from the Superior Court in Maricopa County
No. CR2015-005445-001
The Honorable George H. Foster, Jr., Judge, Retired
AFFIRMED IN PART, VACATED IN PART,
REVERSED IN PART AND REMANDED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Jillian B. Francis
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Nicholaus Podsiadlik
Counsel for Appellant
STATE v. CASTILLO
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in
which Judge David B. Gass and Judge Michael J. Brown joined.
P E R K I N S, Judge:
¶1 Juan Castillo appeals his convictions and sentences for seven
counts of sexual conduct with a minor and one count of molestation of a
child. For the following reasons, we vacate Castillo’s conviction and
sentence on Count 8, reverse Counts 2 and 3, and remand for further
proceedings. We affirm the remaining convictions and sentences.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Castillo and his wife, Melanie, lived together with Melanie’s
daughter, M.C., who is the victim in this case. Castillo began dating
Melanie when M.C. was three or four years old, and the two married about
four years later in 2008. Melanie and Castillo’s relationship began to sour
during the following years, and Melanie began considering divorce.
¶3 Castillo was in charge of monitoring M.C.’s social media
activity. In 2014, Castillo and Melanie became concerned about M.C.’s
indications on social media that she was engaging in self-harm. Melanie
also noticed physical indications that M.C. had been cutting herself and
immediately began considering counseling for M.C., though Castillo
expressed reservations about doing so. M.C. began attending counseling
but did not like the counselor she was seeing.
¶4 Melanie and Castillo also had concerns about M.C.’s
“attitude” and suspected it had something to do with her friends at school.
They began considering putting M.C. in a prep school, though M.C. wanted
to stay with her friends in public school. M.C. was scheduled to take an
admissions test for the prep school on January 10, 2015, but never did so.
¶5 On January 9, 2015, the day before the scheduled admissions
test, M.C. revealed to a friend that Castillo had been sexually abusing her,
and this was why she had been cutting herself. M.C.’s friend and her
mother immediately visited Melanie and M.C. to discuss the conversation,
and together they promptly contacted the police. Police arrived shortly after
and began investigating the case.
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Decision of the Court
¶6 M.C. disclosed some incidents in her initial interview with a
detective and later disclosed additional acts to a forensic interviewer with
Phoenix Children’s Hospital. After her interview with police, M.C. agreed
to a confrontation call with Castillo. During the call, M.C. told Castillo that
she had “accidentally” told her friend “what’s been . . . happening between
you and me.” Castillo responded, “I’m going to jail huh?” He told M.C. to
“say it’s a lie” and that “it didn’t happen.” Neither Castillo nor M.C. spoke
about the specific allegations.
¶7 A grand jury indicted Castillo on seven counts of sexual
conduct with a minor, class 2 felonies (Counts 1, 2, 4, 5, 6, 7, and 8), and one
count of molestation of a child, a class 2 felony (Count 3). After a six-day
jury trial, the jury convicted Castillo as charged. The trial court sentenced
Castillo to the presumptive term of 20 years on each of the seven sexual
conduct counts, each to run consecutively, and 17 years for Count 3, to run
consecutively at the end of the other counts. Castillo timely appealed. This
court has jurisdiction under Article 6, Section 9 of the Arizona Constitution,
and A.R.S. §§ 12-120.21.A.1, 13-4031, and 13-4033.A.1.
DISCUSSION
¶8 Castillo raises two issues on appeal. He argues: (1) no trial
evidence supported a third act of oral sex as alleged in Count 8, and (2) the
trial court erred by allowing inadmissible hearsay testimony through a
detective relating to the allegations supporting Counts 2 and 3.
I. Sufficiency of Evidence
¶9 When reviewing the sufficiency of evidence to support a
conviction, we must consider “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.” State
v. West, 226 Ariz. 559, 562, ¶ 16 (2011).
¶10 The State agrees with Castillo that no evidence supported the
act alleged in Count 8 and concedes error. Our review of the record further
confirms that there was no evidence presented at trial to support a third act
of oral sex as alleged in Count 8. We therefore vacate Castillo’s conviction
and sentence on Count 8. See State v. Garfield, 208 Ariz. 275, 277, ¶ 5 n.1
(App. 2004).
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Decision of the Court
II. Hearsay
¶11 Castillo argues the trial court erred in allowing inadmissible
hearsay in portions of a detective’s trial testimony about M.C.’s recollection
of the timeframes for Counts 2 and 3.
¶12 At trial, M.C. could not recall the exact dates the acts
underlying Counts 2 and 3 occurred. She testified that the act underlying
Count 2 happened “in the middle of the year,” when “it was starting to get
hot but not really hot yet[.]” She did not specify what year she was referring
to. Regarding Count 3, M.C. initially testified that she thought the
underlying act occurred sometime in the Fall of her 8th-grade year,
meaning October or November 2014. She then testified, however, that it
happened sometime “before the Fall.”
¶13 A detective spoke with M.C. in January 2015. At trial, the
detective initially testified that he could not remember the timeframe M.C.
gave him for the act underlying Count 2. But after refreshing his recollection
with his police report, he testified—over Castillo’s hearsay objection—that
M.C. told him it happened in the middle of 2014, when it was “beginning
to get hot outside.”
¶14 As to Count 3, the State again asked the detective what
timeframe M.C. gave him for the underlying incident. Castillo again
objected on hearsay grounds, which the trial court overruled. Without
referring to his police report, the detective testified that M.C. told him the
act underlying Count 3 occurred in October or November of 2014.
¶15 Hearsay is an out-of-court statement offered to prove the
truth of the matter asserted and is generally inadmissible unless it falls
within a recognized exception to the rule against hearsay. Ariz. R. Evid.
801(c), 802–804. The State contends the statements were admissible under
the recorded recollection exception to the hearsay rule, or alternatively as
prior consistent statements, which are not hearsay. The State also argues
that any error was harmless. We review a ruling on the admissibility of
hearsay evidence for an abuse of discretion. State v. Giannotta, 248 Ariz. 82,
83, ¶ 8 (App. 2019). Erroneous admission of hearsay evidence may be
harmless. See State v. Granados, 235 Ariz. 321, 328, ¶ 30 (App. 2014).
a. Recorded Recollections
¶16 The State argues the statements were admissible as recorded
recollections. We disagree. A recorded recollection is “[a] record that: (A) is
on a matter that the witness once knew about but now cannot recall well
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STATE v. CASTILLO
Decision of the Court
enough to testify fully and accurately; (B) was made or adopted by the
witness when the matter was fresh in the witness’s memory; and (C)
accurately reflects the witness’s knowledge.” Ariz. R. Evid. 803(5).
¶17 The State points us to our recent holding that “a jointly
constructed recorded recollection—e.g., one person makes an oral
statement, another writes it down—may be admitted under this exception
if each person involved in creating the record testified to performing his or
her role accurately.” Giannotta, 248 Ariz. at 83, ¶ 1. That case involved a
stolen firearm. See id. at ¶ 4. The victim owner of the firearm testified that
he could not remember its serial number at the time of trial, but that he had
previously read it to a police officer who then wrote it down. Id. at 84, ¶ 12.
The officer then testified that after the victim read him the serial number,
he wrote it down; he then read the number into evidence from his written
report. Id. at ¶ 13. We reasoned that “the requisite foundation for a jointly
constructed recorded recollection . . . can be established by hearing from
both (or all) individuals who participated in its creation, with each
affirming the accuracy of his or her contribution.” Id. at 85, ¶ 16.
¶18 But the holding in Giannotta is inapplicable to this case for one
simple reason: the detective here never actually read any portion of his
report into evidence. There was therefore no “record” admitted into
evidence as allowed by the rule—only the detective’s bare hearsay
testimony as aided by his report.
¶19 The State conflates the fact that the detective used his police
report to refresh his recollection—which has no bearing on the admissibility
of hearsay evidence—with a proper use of the recorded recollection
exception. A witness may be permitted to use a writing to refresh his or her
recollection while testifying. See Ariz. R. Evid. 612; State v. Ortega, 220 Ariz.
320, 330, ¶ 33 (App. 2008). But when a writing is used for this purpose, it is
the witness’s testimony, not the writing itself, that is admitted in evidence.
Conversely, under the recorded recollection exception, a portion of the
writing itself may be read into evidence. See Ariz. R. Evid. 803(5); Ortega,
220 Ariz. at 330, ¶ 33; Giannotta, 248 Ariz. at 84, ¶ 13. Thus, Rule 803(5) did
not apply to the detective’s use of his police report to refresh his recollection
because he did not read the report aloud while testifying.
b. Prior Consistent Statements
¶20 The State argues in the alternative that the statements were
admissible as prior consistent statements. A prior consistent statement is
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STATE v. CASTILLO
Decision of the Court
not hearsay if the declarant testifies and is subject to cross-examination, and
the statement is offered:
(i) To rebut an express or implied charge that the
declarant recently fabricated it or acted from a recent
improper influence or motive in so testifying; or
(ii) To rehabilitate the declarant’s credibility as a witness
when attacked on another ground;
...
Ariz. R. Evid. 801(d)(1)(B). Inexplicably, the State cites subsection (ii) of the
rule on appeal, which addresses attacks on credibility other than charges of
fabrication described in subsection (i), but immediately thereafter notes that
“Castillo had attacked [M.C.’s] credibility by claiming she fabricated the
abuse and suggested that her lack of memory about the events and when
they occurred demonstrated they were fabricated.” And the record reflects
the defense’s trial strategy was indeed to imply that M.C. had fabricated the
timeframes due to an ulterior motive. Thus, the State apparently concedes
the statements would have only been admissible to rebut Castillo’s charge
that M.C. had “recently fabricated” the timeframes for Counts 1 and 2. See
Ariz. R. Evid. 801(d)(1)(B)(i).
¶21 To rebut a charge of recent fabrication or improper motive,
the statement must have been made “before the existence of facts that
indicate a bias arises.” State v. Martin, 135 Ariz. 552, 554 (1983). The trial
court therefore needed to make a finding as to when the motive to fabricate
began. Id. at 555. It made no such finding, nor did the court state clearly on
the record which rule it applied in allowing the testimony. Any motive to
fabricate would have presumably begun sometime before M.C.’s interview
with police in January 2015, which is when the hearsay statements
occurred. Therefore, the detective’s testimony relaying the timeframes M.C.
gave him for Counts 1 and 2 in his January 2015 interview were not
admissible as prior consistent statements.
c. Harmless Error
¶22 Finally, the State contends that any error in allowing the
hearsay testimony was harmless. Again, we disagree.
¶23 An error is harmless if it appears beyond a reasonable doubt
that the error did not contribute to the verdict obtained. State v. Morris, 215
Ariz. 324, 335, ¶ 44 (2007). Here, Castillo argued that M.C. fabricated the
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STATE v. CASTILLO
Decision of the Court
allegations. While it is true that the State was not required to prove the exact
dates of the offenses, a key part of the defense’s strategy was to cast doubt
as to M.C.’s recollection of the incidents, including the relevant timeframes.
As we previously noted, the State concedes on appeal that “Castillo had
attacked [M.C.]’s credibility by claiming she fabricated the abuse and
suggested that her lack of memory about the events when they occurred
demonstrated they were fabricated.”
¶24 The State did not offer substantial corroborating evidence in
this case. See State. v. Thompson, 167 Ariz. 230, 235 (App. 1990). The State
points us to M.C.’s confrontation call with Castillo. But Castillo’s statements
during the call were not a direct confession to the crimes charged because
neither M.C. nor Castillo discussed the specific allegations. M.C.’s
credibility as to whether she fabricated the claims was therefore a central
issue. We cannot say, beyond a reasonable doubt, that the detective’s
testimony corroborating M.C.’s knowledge of the relevant timeframes did
not contribute to the verdict.
CONCLUSION
¶25 We vacate Castillo’s conviction and sentence as to Count 8.
We reverse his convictions and sentences on Counts 2 and 3 and remand
for further proceedings. We affirm the remaining convictions and
sentences.
AMY M. WOOD • Clerk of the Court
FILED: AA
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