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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

FILED 9-3-2020
STATE v. CASTILLO

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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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¶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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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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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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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 
STATE v. CASTILLO

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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.