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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA, Appellee
,

v.

JUAN CASTILLO
, Appellant

.
No. 1 CA

- CR 19

- 0224

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 D efender’s Office
, Phoenix By Nicholaus Podsiadlik C ounsel for Appellant FILED 9-3-2020STATE v. CASTILLO Decision of the Court

2 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 wif e, 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 s he was engaging in self

- harm. Melanie also noticed physical indications th at 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 h er 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 sche duled 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 inve stigating the case.STATE v. CASTILLO Decision of the Court

3 ¶6 M.C. disclosed some incidents in her initial interview with a detective a nd later disclosed additional acts to a forensic interviewer with Phoenix Children’s Hospital. After her interview with police, M.C. agreed to a confrontation cal l with Castillo. During the call, M.C. told Castillo that sh e had “accidentally” told her friend “what’s been

. . . happening between you and me.” Castillo r esponded, “I’m going to jail hu h?” He told M.C. to “say it’s a lie” and that “it didn’t happen.” Ne ither 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 senten ced 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 und er 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) t he trial court erred by allowing inadmissible hearsay testimony through a detective relating to the allegations supporting C ounts 2 and 3

.

I. Sufficiency of Evidence

¶9 When reviewing the sufficiency of evidence to support a conviction, we must consider “whethe r, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found t he 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 va cate Castillo’s conviction and sentence on Count 8. See State v. Garfield , 208 Ariz. 275, 277, ¶ 5 n.1 (App. 2004).STATE v. CASTILLO Decision of the Court

4 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 r ecollection of the timeframes for Counts 2 and 3.

¶12 At trial, M.C. could not recall th e 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
, ” wh en “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 afte r 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 Octo ber 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

. T he State contends the statements were admissible under the recorded recollection exception to the hearsay rule, or alternatively as prior consistent statement s , which are not hearsay . The State also argues that any error was harmless. We review a ruling on th e 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 Recollecti on s
¶16 The State argues the statements were admissible as recorded recollection s . We disagree. A recorded recollection is “[a] record that: (A) is on a matter that the witness once knew about but now cannot recall wellSTATE v. CASTILLO Decision of the Court

5 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.” Gia nnotta , 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 t estified 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 join tly
construc ted 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 inapp licable to this case for one simple reason: the detective here never actually read any portion of his

re port into evidence. There was therefore no “record” admitted into

ev idence as allowed by the rule

— only the detective’s b are 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 ma y 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 re collection 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 pol ice 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 p rior consistent statement isSTATE v. CASTILLO Decision of the Court

6 not hearsay if the declarant testifies and is subject to cross

- examination, and the statement is offered:
(i) To rebut an ex press 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 attac k ed 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 o ther 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 ind eed to imply that M.C. had fabricated the timeframes due to an ulterior mo tive. Thus, the State app a rently concedes the statements would have only been admissible to rebut Castillo’s charge that M.C. had “recently fabricated ” the timeframes for Counts 1 an d 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. A ny motive to fabricate would have presumably beg u n sometime befor e 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 n ot contribute to the verdict obtained. State v. Morris , 215 Ariz. 324, 335, ¶ 44 (2007). Here, Castillo argued that M.C. fabricated theSTATE v. CASTILLO Decision of the Court

7 allegations

. While it is true that the State was not required to prove the exact date s of the offenses, a key part of th e defense’s strategy was to cast doubt as to M.C.’s recollection of the inc idents, 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 T he State did not offer substantial corroborating evidence in this case. See State. v. Thomps on , 167 Ariz. 230, 235 (App. 1990). T he 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 allega tions

. 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 time frames did not contribute to the ve rdict.

CONCLUSION

¶25 We vac a te Castillo’s conviction and sentence as to Count 8. We reverse his convictions and sentences on C ounts 2 and 3 and remand for further proceedings. We affirm the remaining convictions and
sentences.