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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

             EMMANUEL LEONARD CASTILLO, Appellant.

                             No. 1 CA-CR 16-0866
                               FILED 3-1-2018


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-003622-001
               The Honorable Michael D. Gordon, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General's Office, Phoenix
By Michael T. O'Toole
Counsel for Appellee

Bain & Lauritano, PLC, Glendale
By Sheri M. Lauritano
Counsel for Appellant
                            STATE v. CASTILLO
                            Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge Jennifer M. Perkins joined.


J O H N S E N, Judge:

¶1           Emmanuel Leonard Castillo challenges his convictions of
kidnapping, unlawful flight, attempt to commit first-degree murder,
conspiracy to commit murder, and two counts of aggravated assault. He
argues the superior court erred by failing to sever his trial from that of his
co-defendant, his brother Nazario Castillo. For the reasons that follow, we
affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            Castillo and his co-defendant encountered the victim when
she was walking to her home in South Phoenix and offered to drive her
there.1 Rather than taking her home, however, they drove her to the co-
defendant's apartment in Mesa and, once there, held her hostage at
gunpoint. They repeatedly assaulted her – punching her several times,
bludgeoning her in the back of the head with a sawed-off shotgun, stabbing
her in the cheek and burning her with a knife blade heated on the stove.
Castillo apparently knew the victim, and during the assault he repeatedly
asked her, "Who set me up?" Castillo and his co-defendant then forced the
victim into a car and drove her to a remote location along a canal, where
the co-defendant shot her in the midsection with the shotgun. The victim
survived and was able to describe to police the car Castillo and his co-
defendant were driving.

¶3            Police later spotted the car, and the co-defendants led police
on a high-speed chase, eventually abandoning the car and fleeing on foot
in separate directions. Castillo surrendered peacefully soon thereafter; the
co-defendant hid under a truck and shot and wounded two of the officers
before being subdued.



1      We view the facts in the light most favorable to sustaining the jury's
verdicts and resolve all inferences against the defendant. State v. Fontes, 195
Ariz. 229, 230, ¶ 2 (App. 1998).


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                             Decision of the Court

¶4            A grand jury indicted Castillo and his co-defendant on
charges of conspiracy to commit first-degree murder, a Class 1 dangerous
felony; kidnapping, a Class 2 dangerous felony; two counts of aggravated
assault, one a Class 3 dangerous felony and the other a Class 6 felony; and
attempted first-degree murder, a Class 2 dangerous felony. Castillo also
was charged with unlawful flight from a law enforcement vehicle, a Class
5 felony; his co-defendant was charged with several additional counts of
aggravated assault on police officers stemming from the shoot-out after the
car chase.

¶5            Before trial, Castillo joined his co-defendant's motion to sever
the counts involving the co-defendant's alleged assaults on police officers.
The court denied the motion. During trial, Castillo unsuccessfully moved
on several occasions to sever his trial from that of his co-defendant.

¶6           After a 29-day trial, the jury found Castillo guilty of all
charges. On all of the convictions except unlawful flight, the court
sentenced Castillo to concurrent sentences, the longest of which was life in
prison with no possibility of release for 25 years. On the flight conviction,
the court imposed an additional consecutive six-year sentence.

¶7            Castillo timely appealed. We have jurisdiction pursuant to
Article 6, Section 9 of the Arizona Constitution, and Arizona Revised
Statutes ("A.R.S.") sections 12-120.21(A)(1) (2018), 13-4031 (2018) and
-4033(A)(1) (2018).2

                                DISCUSSION

¶8             Castillo argues the superior court erred in denying the
motions to sever. We review a superior court's ruling on a motion to sever
for abuse of discretion. State v. Grannis, 183 Ariz. 52, 58 (1995) disapproved
of on other grounds by State v. King, 225 Ariz. 87, 90, ¶ 12 (2010). To prevail
on appeal, the defendant "must demonstrate compelling prejudice against
which the trial court was unable to protect." Id. (quoting State v. Cruz, 137
Ariz. 541, 544 (1983)).

A.     General Principles.

¶9            In general, separate charged offenses may be joined in an
indictment if they "are of the same or similar character," "are based on the
same conduct or are otherwise connected together in their commission," or

2      Absent material revision of a statute or rule of procedure after the
date of an alleged offense, we cite the current version.


                                      3
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                            Decision of the Court

"are alleged to have been a part of a common scheme or plan." Ariz. R.
Crim. P. 13.3(a). Defendants may be joined in an indictment "if each
defendant is charged with each alleged offense, or if the alleged offenses
are part of an alleged common conspiracy, scheme, or plan, or are otherwise
so closely connected that it would be difficult to separate proof of one from
proof of the others." Ariz. R. Crim. P. 13.3(b).

¶10            When offenses are joined on the basis that they "are of the
same or similar character," Ariz. R. Crim. P. 13.3(a)(1), a defendant has a
right to sever those offenses "unless evidence of the other offense or offenses
would be admissible if the offenses were tried separately." Ariz. R. Crim.
P. 13.4(b). Otherwise, a court must sever offenses or defendants only "if
necessary to promote a fair determination of any defendant's guilt or
innocence of any offense." Ariz. R. Crim. P. 13.4(a). "[A] trial court
possesses broad discretion in the area of joinder and severance," State v.
Roper, 140 Ariz. 459, 461 (App. 1984), and, in considering the issue, must
balance the risk of prejudice to a defendant against the need for judicial
economy, Cruz, 137 Ariz. at 544. Severance generally is required, however,
when: (1) "evidence admitted against one defendant is facially
incriminating to the other defendant"; (2) "evidence admitted against one
defendant has a harmful 'rub-off effect' on the other defendant"; (3) "there
is a significant disparity in the amount of evidence introduced against each
of the two defendants"; or (4) "co-defendants present defenses that are so
antagonistic that they are mutually exclusive, or the conduct of one
defendant's defense harms the other defendant." Grannis, 183 Ariz. at 58
(citations omitted).

B.     Waiver.

¶11            Although Castillo moved before trial to sever his co-
defendant's separate charges, he did not file a pretrial motion to sever his
trial from the co-defendant's. The State argues that Castillo failed to timely
move to sever his trial under Arizona Rule of Criminal Procedure 13.4(c)
and thereby waived all but fundamental error with respect to the superior
court's decision not to sever his trial.

¶12            Generally, "[a] defendant must move to sever at least 20 days
before trial . . . ." Ariz. R. Crim. P. 13.4(c). A defendant may move for
severance for the first time at trial, however, "[i]f a ground for severance
previously unknown . . . arises during trial." Ariz. R. Crim. P. 13.4(c).

¶13          Here, when Castillo's counsel moved for severance at trial on
the ground of inconsistent defenses, he indicated that he had not expected



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                            STATE v. CASTILLO
                            Decision of the Court

the line of questioning that prompted his motion. Castillo's counsel
suggested the defense also was surprised by the State's use of letters the co-
defendant wrote. On this record, we decline to conclude that Castillo
forfeited all but fundamental error review, and will review his claims of
error for abuse of discretion.

C.      Inconsistent Defenses.

¶14           Castillo argues severance of his trial from that of his co-
defendant was required because he and his co-defendant raised
inconsistent defenses as to who actually shot the victim by the canal. As
evidence of the inconsistent defenses, Castillo cites a question by his co-
defendant's counsel to an officer: "Did you write that the person who shot
the victim was Emmanuel Castillo?" Castillo argues that question, which
was never answered, pointed the finger at him as the shooter.

¶15            Severance is required when co-defendants present defenses
that are inconsistent with each other to the extent that "the jury, in order to
believe the core of the evidence offered on behalf of one defendant, must
disbelieve the core of the evidence offered on behalf of the co-defendant."
Cruz, 137 Ariz. at 544-45. In Cruz, two people were killed and a third
seriously wounded in a home-invasion robbery. Id. at 543. The defendant
was tried for first-degree murder together with an associate whom he was
accused of hiring to commit the act. Id. at 542-43. At trial, each of the two
men denied any involvement in the killings. Id. at 545. The defendant
attacked the prosecution's theory of his motive and the credibility of the key
witness against him, and argued the killings were the result of a robbery by
the co-defendant. Id. The co-defendant attacked the surviving victim's
identification of him and the credibility of the prosecution's key witness. Id.
The co-defendant also argued that the evidence showed robbery was not
the motive for the crime and suggested instead that the killings were
executions ordered by someone else, possibly the defendant. Id.

¶16           Even though the co-defendant in Cruz argued that the
defendant was involved in ordering the killings, the supreme court held
severance was not required. Id. The court reasoned that the cores of the co-
defendants' separate defenses – each argued he was not involved in the
killings – were not mutually exclusive. Id. In other words, the jury could
have acquitted either of the two defendants without convicting the other.
The court explained:

       It is natural that defendants accused of the same crime and
       tried together will attempt to escape conviction by pointing



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                             STATE v. CASTILLO
                             Decision of the Court

       the finger at each other. Whenever this occurs the co-
       defendants are, to some extent, forced to defend against their
       co-defendant as well as the government. This situation
       results in the sort of compelling prejudice requiring reversal,
       however, only when the competing defenses are so
       antagonistic at their cores that both cannot be believed.
       Consequently, we hold that a defendant seeking severance
       based on antagonistic defenses must demonstrate that his or
       her defense is so antagonistic to the co-defendants that the
       defenses are mutually exclusive. Moreover, defenses are
       mutually exclusive within the meaning of this rule if the jury,
       in order to believe the core of the evidence offered on behalf
       of one defendant, must disbelieve the core of the evidence
       offered on behalf of the co-defendant.

Id. at 544-45.

¶17               Here, unlike in Cruz, the co-defendant's core defense did not
implicate the defendant. In fact, the co-defendant admitted at trial that he
was holding the gun when the victim was shot. As the co-defendant
explained it, the shooting was accidental and occurred because the victim
grabbed for his gun and a struggle ensued. The co-defendant's counsel
promoted this defense in closing, arguing that what the co-defendant "ha[d]
said . . . all along" was that "there was a struggle with regards to this firearm.
That it went off." If anything, the nature of the co-defendant's core defense
– that the co-defendant shot the victim accidentally – supported Castillo's
defense that he was not involved in the shooting.

¶18            "Even in a case where the nature of the defenses do not
compel a severance," however, "a defendant may be prejudiced by the
actual conduct of his or her co-defendant's defense." Id. at 545. The Cruz
court reversed the conviction at issue there because the superior court had
not adequately protected the defendant from highly prejudicial testimony
elicited by the co-defendant that would not have been admissible if the
defendant had been tried alone – including that the defendant was involved
in organized crime and had ordered someone's legs broken on another
occasion. Id. at 545-46. The supreme court found that the highly prejudicial
nature of that testimony, combined with insufficient protective measures,
deprived the defendant of a fair determination of his guilt or innocence. Id.
at 546.

¶19          Here, in light of the co-defendant's admission that he and not
Castillo was holding the gun when the victim was shot, any risk of


                                        6
                            STATE v. CASTILLO
                            Decision of the Court

prejudice from the single unanswered question of which Castillo complains
was minimal. Moreover, the superior court gave a limiting instruction that
the jury should not consider the officer's testimony for any purpose other
than to understand why the officer investigated. In this situation, the
limiting instruction adequately protected Castillo from any concern that the
question, in his counsel's words, "mudd[ied] the water" about the identity
of the shooter.

D.     Rub-Off Effect.

¶20            Castillo additionally argues the superior court erred in failing
to sever his trial from that of his co-defendant because the prejudicial effect
of evidence admitted only against his co-defendant "rub[bed] off" on him.
A defendant's motion to sever must be granted if he can show substantial
prejudice from the "rub-off" effect of evidence when "the jury's unfavorable
impression of [a co-defendant] against whom the evidence is properly
admitted influence[s] the way the jurors view [the defendant]." State v.
Lawson, 144 Ariz. 547, 555 (1985).

¶21             Castillo asserts the court erroneously denied his motion to
sever after the State introduced several letters written by his co-defendant,
including a letter addressed, "Hey little bro." Castillo claims that the letters
would not have been admissible against him and impermissibly connected
him, as his co-defendant's "little bro," to admissions the co-defendant made
in the letters.

¶22             The record, however, shows that the letters themselves were
not admitted as evidence. Instead, the State used the letters for
impeachment during its cross-examination of the co-defendant, and
Castillo fails to cite, and we cannot find, any reference to "little bro" during
that cross-examination. Therefore, the asserted "rub-off" effect apparently
never materialized. At any rate, the court gave an appropriate limiting
instruction to the jury, directing it to consider the testimony about the
letters only in assessing the co-defendant's credibility. For these reasons,
the superior court did not err by denying Castillo's motion to sever based
on the letters.

¶23            Castillo also argues the superior court erred in denying his
motion to sever the several charges against his co-defendant based on the
co-defendant's shoot-out with police. Castillo points out that he was not
involved in the shoot-out and claims that evidence that his co-defendant
fired at police officers unfairly rubbed off on him because the accounts of
the shooting were "highly emotional."



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                            STATE v. CASTILLO
                            Decision of the Court

¶24            "[M]ere introduction of evidence concerning one defendant's
conduct that does not involve the other defendant generally does not
constitute sufficient grounds for severance." State v. Van Winkle, 186 Ariz.
336, 339 (1996); see also, e.g., State v. Tucker, 231 Ariz. 125, 142, ¶ 43 (App.
2012) (no abuse of discretion when State presented events of conspiracy
committed by co-defendants that did not involve the defendant); see
generally Ariz. R. Crim. P. 13.3(a) (allowing joinder when offenses are
"connected together in their commission"). Severance is favored, however,
when "it is difficult to segregate the evidence" against the co-defendants.
State v. Kinkade, 140 Ariz. 91, 93 (1984) (quoting McDaniel v. State, 648 S.W.2d
57, 60 (Ark. 1983)). The issue is whether the jury can "keep separate the
evidence that is relevant to each defendant and render a fair and impartial
verdict as to him." Lawson, 144 Ariz. at 555-56 (quoting United States v.
Lippner, 676 F.2d 456, 464-65 (11th Cir. 1982)).

¶25           Here, jurors would have had little difficulty segregating the
evidence of Castillo's offenses from the separate offenses his co-defendant
committed after Castillo surrendered. The co-defendant's assaults on the
officers were separated from Castillo's crimes by a discrete event – the co-
defendants' abandonment of their car and flight on foot in separate
directions after the car chase ended. Undisputed testimony showed that
after abandoning the car, Castillo was caught nearly immediately and
surrendered peacefully.

¶26           On this record, Castillo has failed to show any particular
danger of a "rub-off" effect caused by events at his trial. Compare Van
Winkle, 186 Ariz. at 339-40 (compelling danger of prejudice established
when prosecutor "invited guilt by association" by repeatedly referring to
defendants collectively in talking about acts of sexual abuse charged only
to co-defendant) with Tucker, 231 Ariz. at 142, ¶ 43 (jury could separate
properly presented evidence against various defendants). Moreover, to
protect against any risk of prejudice to Castillo, the court appropriately
instructed the jury to "consider the charges against each defendant
separately" and that each defendant was entitled to a verdict on each crime
"based upon that defendant's own conduct and from the evidence which
applies to that defendant as if the defendant were being tried alone." See
Tucker, 231 Ariz. at 142, ¶ 43 (similar instruction "cured any potential
prejudice due to rub-off" of properly presented evidence against co-
defendants).

¶27         Nor was Castillo faced with a trial where "evidence against
one defendant is so drastically disproportionate that the jury is unable to
compartmentalize the evidence as it relates to separate defendants."


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                             STATE v. CASTILLO
                             Decision of the Court

Lawson, 144 Ariz. at 556 (citing United States v. Singer, 732 F.2d 631, 635 (8th
Cir. 1984)). While armed assaults on police officers are serious offenses that
may stir emotions, the emotional effect of the evidence here of the co-
defendant's separate crimes was not drastically disproportionate to the
evidence against Castillo relating to the various horrific acts he committed
against the victim.

¶28         For these reasons, the court did not abuse its discretion in
denying Castillo's motion to sever the separate charges against his co-
defendant.

                                CONCLUSION

¶29          Because the superior court did not abuse its discretion in
denying the motions to sever, we affirm Castillo's convictions and resulting
sentences.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




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