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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 PAUL ANTHONY CASTILLO, Appellant.

                             No. 1 CA-CR 18-0436
                              FILED 4-25-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR2016-120583-001
                  The Honorable Ronda R. Fisk, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

The Stavris Law Firm, PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant
                             STATE v. CASTILLO
                             Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Jennifer B. Campbell joined.


M c M U R D I E, Judge:

¶1             Paul Anthony Castillo appeals his convictions and sentences
for three counts of aggravated assault and one count for leaving the scene
of a serious injury accident, all felonies. Castillo argues: (1) the superior
court abused its discretion by denying his motion for a mistrial during the
victim’s testimony; and (2) the superior court committed fundamental error
when the court did not declare a mistrial sua sponte following the victim’s
testimony. For the following reasons, we affirm.

             FACTS AND PROCEDURAL BACKGROUND 1

¶2            On May 1, 2016, two of Castillo’s sisters met with Rosemary
(Castillo’s ex-girlfriend) and Kevin (Rosemary’s brother). After a brief,
amicable discussion, Castillo arrived at the meeting. Kevin and Castillo
began arguing, and Rosemary attempted to hit Castillo. Rosemary’s mother
Patricia and her husband then arrived. Patricia attempted to hit Castillo
with a metal object as he tried to get back into his car. Eventually, Castillo
got into the car and drove away as Patricia and Rosemary chased after
Castillo on foot.

¶3             Castillo abruptly turned around and headed toward Patricia
and Rosemary. As he approached the women, he sped up and intentionally
swerved into them. After the collision, Castillo left the scene with his sister
following him in her car. Castillo eventually stopped and got into his
sister’s car. She drove Castillo to a nearby Circle K where she called the
police.

¶4           When paramedics reached Patricia and Rosemary, Patricia
could only remember her name; she did not know where she was, what had

1      We view the facts in the light most favorable to upholding the
verdicts and resolve all reasonable inferences against Castillo. State v. Harm,
236 Ariz. 402, 404, ¶ 2, n.2 (App. 2015) (citing State v. Valencia, 186 Ariz. 493,
495 (App. 1996)).



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                            Decision of the Court

happened, or what day it was. The paramedics observed a fracture that
penetrated through the skin on Patricia’s right ankle, instability in her right
femur, and bruising to the right side of her abdomen. They also noted that
Rosemary sustained injuries to her arms and hands.

¶5             The State charged Castillo with three counts of aggravated
assault relating to Patricia (counts 1, 2, and 3), one count of aggravated
assault relating to Rosemary (count 4), one count of leaving the scene of an
accident resulting in serious injury concerning Patricia (count 5), and one
count of leaving the scene of an accident resulting in injury relating to
Rosemary (count 6). Before the trial, Castillo and the State agreed that the
State would not introduce evidence of Castillo’s heroin use. The parties
agreed that the State could elicit testimony regarding Castillo’s demeanor
that day, but unless the officer had “some specialized training or
experience,” he would not opine on whether Castillo was under the
influence of heroin.

¶6             During the State’s case-in-chief, the State called numerous
witnesses, including eye-witnesses, police officers, medical professionals,
and Patricia. Patricia testified that she was married and had six children,
but that one child had recently passed away. Patricia further testified that
Rosemary was absent because she had recently lost a child during
pregnancy. Patricia also testified regarding the extent of her injuries,
indicating: she must use a “potty thing, because [she] can’t sit on a normal
toilet;” she has screws in her knees that were “popping out;” and she was
unable to walk for “[a]bout six months” following the incident. During
Patricia’s testimony, the following exchange occurred:

              [State:] Do you remember much of that day?

              [Patricia:] I just remember us going to church.

              [State:] Okay.

              [Patricia:] Then we went to the store, me and my
              husband. We were really happy. And I bought
              him some shoes because the dress shoes that he
              wears he has a bunion that he has to get surgery
              and he hasn’t gone and got it, and I bought him
              some really nice shoes and I put them on. We
              were happy. And then we came back to the
              neighborhood home, and all’s I remember is
              parking in front of the store and seeing my
              daughters. And I seen girls, but I don't know


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                           Decision of the Court

             who those people were, and I was just yelling at
             them, “What’s going on? What’s going on?”
             And they just kept walking. And I got up, and I
             went after them, “What’s going on? What’s
             going on?” And somebody yells, “It’s [Castillo].
             He’s acting stupid.” And I said, “Oh, my god,
             he’s on heroin again,” and I got frustrated—

¶7             Castillo objected and moved for a mistrial at a bench
conference. The court excused the jury and heard argument on the mistrial
motion. Castillo argued that the witness’s non-responsive and “highly
prejudicial” statement regarding heroin use required a mistrial. The court
denied the motion but struck the statement and instructed the jury to
disregard it. The court additionally directed Patricia to respond only to the
questions asked, and the defense agreed to allow the State to ask leading
questions. Finally, before deliberating, the court instructed the jury that
they could “not be influenced by sympathy or prejudice” and “[a]ny
testimony stricken from the court record must not be considered.”

¶8            The jurors found Castillo guilty of aggravated assault (counts
1, 2, and 3) and leaving the scene of a serious injury accident (count 5)
regarding Patricia. They found Castillo not guilty on the remaining two
counts relating to Rosemary. Following an aggravation phase, the jury
found aggravating factors on counts 1, 2, and 3. The court found Castillo
had a historical prior felony conviction and sentenced him to 6.5 years on
count 1 and to 4.5 years each on counts 2 and 3 to be served concurrently.
Additionally, the court sentenced Castillo to 3.25 years relating to count 5
to be served consecutively to counts 1, 2, and 3. Castillo timely appealed.
We have jurisdiction under Article 6, Section 9 of the Arizona Constitution
and Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), -4031, and
-4033(A)(1).

                              DISCUSSION

A.    The Superior Court Did Not Abuse Its Discretion by Denying
      Castillo’s Motion for a Mistrial Following the Testimony of the
      Victim.

¶9           Castillo argues that the superior court erred by denying his
motion for a mistrial following Patricia’s testimony about his potential
heroin use. We review the court’s decision to grant or deny a mistrial for an
abuse of discretion. State v. Adamson, 136 Ariz. 250, 263 (1983). “[A]
declaration of a mistrial is the most dramatic remedy for trial error,” and



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should only be granted “when it appears that justice will be thwarted.” Id.
at 262. If a witness unexpectedly volunteers inadmissible evidence, “the
trial court must decide whether a remedy short of mistrial will cure the
error.” State v. Jones, 197 Ariz. 290, 304, ¶ 32 (2000). The superior court is
afforded broad discretion because it “is in the best position to determine
whether the evidence will actually affect the outcome of the trial.” Id.

¶10           The State did not elicit Patricia’s statement; instead, she
spontaneously volunteered it. Immediately following the statement, the
court heard argument whether a mistrial was necessary. The court
considered remedies short of a mistrial and concluded that a curative
instruction was appropriate. See Jones, 197 Ariz. at 304, ¶ 32 (the superior
court may consider remedies short of a mistrial). The court gave the
curative instruction immediately upon the jury’s return to the courtroom.
Also, before jury deliberation, the court instructed the jury to disregard any
stricken testimony. We presume the jurors followed these instructions. See
State v. Goudeau, 239 Ariz. 421, 450, ¶ 95 (2016). Neither Castillo’s arguments
nor our review of the record reveals any reason that the presumption was
overcome here. Accordingly, the superior court did not abuse its discretion.

B.     The Superior Court did not Commit Err by Failing to Declare a
       Mistrial Sua Sponte Following the Victim’s Testimony.

¶11            Castillo further alleges Patricia’s testimony about her son’s
death, the extent of her injuries, and the reason Rosemary was not present
for the trial was irrelevant and created undue prejudice that warranted a
mistrial. We disagree.

¶12           Castillo failed to request a mistrial on these grounds;
therefore, we review only for fundamental error. State v. Henderson, 210
Ariz. 561, 567, ¶¶ 19–20 (2005). Our supreme court has recently described a
defendant’s burden on fundamental error review as follows:

       A defendant establishes fundamental error by showing that
       (1) the error went to the foundation of the case, (2) the error
       took from the defendant a right essential to his defense, or (3)
       the error was so egregious that he could not possibly have
       received a fair trial. If the defendant establishes fundamental
       error under prongs one or two, he must make a separate
       showing of prejudice, which also “involves a fact-intensive
       inquiry.”

State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018) (quoting Henderson, 210
Ariz. at 568, ¶ 26). Because mistrials raise issues of double jeopardy, a party


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                            STATE v. CASTILLO
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must ordinarily ask for a mistrial, State v. Laird, 186 Ariz. 203, 207 (1996),
and the superior court must find a “manifest necessity” to declare one, State
v. Dickinson, 242 Ariz. 120, 124, ¶¶ 16–17 (App. 2017).

¶13           Castillo argues that the now-complained-of testimony was
irrelevant and unfairly prejudicial under Arizona Rule of Evidence 403,
which required the superior court to declare a mistrial sua sponte. The
superior court has broad discretion in deciding the admissibility of
evidence. State v. Harrison, 195 Ariz. 28, 33. ¶ 21 (App. 1998). Further, the
court should use restraint before interjecting into witness’ testimony
because the defense “may have had tactical reasons” for moving forward
and not objecting. Dickinson, 242 Ariz. at 126, ¶ 23.

¶14             Here, the court did not err by failing to declare a mistrial sua
sponte because the statements were arguably admissible. First, the death of
Patricia’s son was not elicited by the prosecution; however, it did provide
background about the witness and helped explain her emotional state while
testifying. Next, the State may elicit testimony why a victim is not present
if the testifying witness has personal knowledge of those reasons. See Ariz.
R. Evid. 602 (requiring personal knowledge to testify). And finally, the
extent of the victim’s injuries is relevant and needed to establish aggravated
assault under A.R.S. § 13-1204(A)(3). See State v. Pena, 235 Ariz. 277, 280,
¶ 11 (2014) (jury must decide, based on the evidence presented, whether
injuries sustained qualify under A.R.S. § 13-1204(A)(3)).

¶15            Castillo argues these unresponsive statements improperly
made Patricia seem more sympathetic. However, as the State posits, her
comments might also paint her as a “loose cannon.” The defense could have
had tactical reasons for not requesting a mistrial. See Dickinson, 242 Ariz. at
126, ¶ 23. Additionally, the court instructed the jurors not to be “influenced
by sympathy or prejudice.” We presume they followed this instruction
concerning all witnesses. See Goudeau, 239 Ariz. at 450, ¶ 95. Therefore, the
superior court did not err. And because there was no error, we decline to
address Castillo’s argument of unfair prejudice. See Escalante, 245 Ariz. at
142, ¶ 21 (to obtain relief on appeal for fundamental error, a defendant must
first prove error).




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                         STATE v. CASTILLO
                         Decision of the Court

                            CONCLUSION

¶16          For the foregoing reasons, we affirm Castillo’s convictions
and sentences.




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




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