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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CARLOS CRUZ CASTRO, Appellant.

No. 1 CA-CR 18-0095

Appeal from the Superior Court in Maricopa County

No. CR2016-005489-001 DT

The Honorable Jose S. Padilla, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Alice Jones

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Terry J. Reid

Counsel for Appellant

MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court, 

in which Judge Maria Elena Cruz and Judge Kenton D. Jones joined.

FILED 3-28-2019
STATE v. CASTRO

Decision of the Court

2

W I N T H R O P, Judge:

¶1 Carlos Cruz Castro (“Appellant”) appeals his convictions and 

sentences for two counts of aggravated assault, each a class two dangerous 

felony. He argues the trial court abused its discretion by admitting 

improper character evidence and “other act” evidence of his criminal 

history and in denying his motion for new trial based on the admission of 

that evidence. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY1

¶2 In the fall of 2015, Appellant had an outstanding arrest 

warrant for absconding from “parole supervision.” Given concerns over 

his propensity for violence based on his prior criminal history, Surprise 

Police Department officers conducted a “threat assessment” and created an 

operation plan to locate, covertly surveil, and apprehend Appellant while 

attempting to minimize the risk to the public.

¶3 On November 2, 2015, Officers Felix and Lindsey were in a 

blue Nissan Altima, and Detective Baldwin and Officer Galaz were in a grey 

Chevy Impala, both unmarked police vehicles. Although not dressed in full 

uniform, Officers Felix, Lindsey, and Galaz wore vests with the word

“POLICE” emblazoned on them and had their badges attached to the front 

of the vests; Detective Baldwin wore a lanyard with his badge on it.

¶4 Detective Baldwin and Officer Galaz located Appellant 

driving alone in a white Dodge Charger and notified Officers Felix and 

Lindsey, who were nearby. Appellant had pulled into a hotel parking lot, 

where Detective Baldwin and Officer Galaz were parked, but instead of 

parking his vehicle, he drove through the lot and toward the exit, just as 

Officers Felix and Lindsey arrived, blocking his exit.

¶5 Officers Felix and Lindsey made eye contact with Appellant, 

and Officer Lindsey put his hand up in a stopping motion and said, “Stop.” 

The officers sought to immediately take Appellant into custody because 

they believed he had recognized them as police officers, may have 

recognized the Impala as a police vehicle when he drove past it in the 

parking lot, and might strike a person or vehicle in the parking lot or pose 

a danger to the public if he left the premises.

 

1 We view the facts in the light most favorable to sustaining the verdict 

and resolve all reasonable inferences against Appellant. State v. Kiper, 181 

Ariz. 62, 64 (App. 1994).
STATE v. CASTRO

Decision of the Court

3

¶6 Instead of complying, Appellant reversed the Charger, did a 

“J-turn,” and struck a parked truck before his Charger appeared to stall. 

Officer Felix tried to drive past Appellant, but before the Altima could get 

past the Charger, Appellant revved the Charger’s engine, shot forward, and 

struck the Altima’s driver’s side. Meanwhile, Detective Baldwin had 

driven the Impala over to assist Officers Felix and Lindsey, and after 

striking the Altima, the Charger struck the passenger side of the Impala, 

where Officer Galaz was located. Believing it was a “lethal situation” and 

their safety was at risk, Officers Felix and Lindsey drew their firearms.

¶7 Appellant exited the Charger and ran. All four officers exited 

their vehicles, drew their weapons, and chased Appellant while identifying 

themselves as police officers and commanding Appellant to stop, but 

Appellant kept running. Detective Baldwin caught up to Appellant,

pushed him to the ground, and he was eventually arrested.2

¶8 Appellant was subsequently charged by indictment with four 

counts of aggravated assault, each a class two dangerous felony (Counts IIV); one count of resisting arrest, a class six felony (Count V); and two 

counts of aggravated assault, each a class four felony (Counts VI-VII). See

Ariz. Rev. Stat. (“A.R.S.”) §§ 13-1203, -1204, -2508.

¶9 On the date set for trial, Appellant filed a motion in limine 

seeking to preclude the State’s witnesses from providing at least twentyone items of testimony he contended constituted inadmissible character 

and other act evidence. Appellant stated he would argue at trial he “was 

justified in his reaction to reckless behavior of the undercover police 

officers” and the reasonableness of his behavior under the circumstances 

would be directly at issue. He further stated he would allege ”the police 

officers intentionally or recklessly created a dangerous situation for [him],” 

and did so by violating both departmental policies and procedures and 

Arizona law; specifically, A.R.S. § 13-1204. He anticipated the State’s 

witnesses would testify that the means of the arrest were necessary under 

the circumstances, about his “dangerous nature,” and that he knew the 

officers were police officers to attempt to justify their own unjustifiable 

behavior.

 

2 As a result of the incident, Officer Felix suffered herniated and 

bulging discs, resulting in severe pain and numbness, and had to medically 

retire. Also, when the Charger struck the Impala, Officer Galaz injured his 

left pinky finger, which he can no longer straighten and has lost range of 

motion, despite undergoing months of physical therapy.
STATE v. CASTRO

Decision of the Court

4

¶10 The parties discussed the motion at the close of jury selection. 

The State argued that, in light of Appellant’s justification defense, it was 

important to provide context to the jury about why Appellant was being 

arrested, why the officers conducted the arrest the way they did, that 

Appellant knew police officers were after him because he knew he had a 

parole violation, and that knowing Appellant’s history would be relevant 

to the officers’ reasonable apprehension of imminent physical injury, an 

element of Counts I through IV. The State argued it should not have to 

present its case “in a vacuum” and only inform the jury that Appellant had 

a valid arrest warrant.

¶11 The trial court went through Appellant’s list, weighing the 

probative value and the potential for unfair prejudice, and precluded most

items as requested, but allowed the State to elicit certain items that were 

relevant to explaining the officers’ conduct and to rebut Appellant’s 

disclosed defense, including character evidence that Appellant was a 

potentially dangerous felon with a known violent criminal history and 

other act evidence that Appellant was on parole and had prior convictions 

for unlawful flight from a law enforcement vehicle, misconduct involving 

weapons, and aggravated assault.

¶12 During trial, the officers discussed Appellant’s prior criminal 

history in connection with how they created the plan to apprehend him, 

testifying they believed they had to apprehend him immediately once he 

recognized them as officers because of his potential danger to the public. 

Appellant challenged the officers on cross-examination as to whether they 

were following their policies and procedures and generally regarding their 

actions that day.

¶13 In his defense, Appellant presented a retired police 

officer/defense investigator, who testified regarding his prior experience in 

making operational plans to apprehend suspects and opined it was 

dangerous for undercover officers to conduct an arrest. He had also 

examined the Altima and concluded someone “wouldn’t be able to tell who 

or what was in that vehicle” because of the tinted windows. Another 

detective involved in Appellant’s arrest testified on rebuttal, however, that 

although the Altima had tinted side windows, the front windshield had no 

tint.
STATE v. CASTRO

Decision of the Court

5

¶14 Appellant also testified, admitting he had five prior felony 

convictions3 and was not in compliance with his parole on November 2, 

2015. He also stated that, on October 17, 2015, he awoke to gunshots being 

fired at his home, he did not know who had fired the shots, and it scared 

him, but he did not contact police because of his parole violation. He stated 

that on November 2, the Altima aggressively came at him, it had darktinted windows such that he could not see inside, and he thought it could 

be the person who had shot at his house. He claimed he was in fear for his 

life, reversed the Charger, and accidentally hit the truck. He then drove 

forward and hit the Altima, and although he vacillated on whether he did 

so intentionally, he at one point admitted he intentionally accelerated 

forward. He claimed he thought the Impala was coming straight at him 

and then he saw a gun pointed at him. He then panicked and fled, thinking 

he was going to die, but claimed he stopped running when he heard, 

“Police. Put your hands up. Get on the ground.” He said he was relieved 

when he realized it was police and claimed he turned, put his hands up, 

and did not resist arrest. However, Officer Galaz’ body-cam footage 

showed Appellant was still running away when Detective Baldwin tackled 

him. Appellant also claimed he had no reason to believe he was being 

followed by police, although on cross-examination, he admitted knowing

there was an active warrant out for his arrest for violating his parole, and 

he was “on the run from the law.”

¶15 The parties had several discussions with the trial court 

regarding final jury instructions, but defense counsel did not request a 

limiting instruction regarding character or other act evidence. At one point, 

the trial court stated “we don’t really have” other act evidence and that it 

would omit such an instruction, and defense counsel remained silent. The 

court did later instruct the jury, in relevant part, to “not be influenced by 

sympathy or prejudice,” the jury was to consider evidence of Appellant’s 

criminal history “only as it may affect [his] believability as a witness,” and 

Appellant’s prior convictions were not “evidence of guilt of the crime for 

which [he] is now on trial for.”

¶16 In closing arguments, the prosecutor discussed Appellant’s 

criminal history regarding how the officers conducted the arrest and how 

it rebutted his justification defenses. Defense counsel argued Officer Felix 

“went rogue” and did not follow procedure, and the officers were now 

 

3 After the State had rested its case-in-chief, the court addressed the 

State’s motion to impeach Appellant with his prior felony convictions 

under Arizona Rule of Evidence (“Rule”) 609, allowing testimony as to five 

sanitized convictions.
STATE v. CASTRO

Decision of the Court

6

trying to justify what happened when they created the dangerous situation. 

Defense counsel also argued Appellant had testified even though he knew 

the jury would “hear all the bad things about [him],” and that Appellant 

was justified in his use of force. On rebuttal, the prosecutor highlighted the 

court’s instruction regarding a defendant’s criminal history, stating, “It tells 

you that his history is not evidence of guilt in this case and it’s not. The 

State does not allege that he’s guilty because he’s done [a] bad thing in the 

past. But you may consider that in de[termining] the defendant’s credibility 

as a witness.”

¶17 The jury acquitted Appellant of five of the seven offenses, but 

found him guilty of Counts I and II, relating to placing Officers Felix and 

Lindsey in reasonable apprehension of imminent physical injury and using 

his vehicle as a dangerous instrument. The jury also found as aggravating 

factors that Appellant committed both offenses while on parole; he had a 

felony conviction within ten years of the date of the offenses; and he caused 

physical, emotional, or financial harm to Officer Felix.

¶18 Appellant moved for a new trial, arguing the trial court 

improperly admitted his prior criminal history. The State responded the 

evidence was properly admitted to explain how the officers’ actions were 

reasonable under the circumstances and to rebut defense counsel’s 

“misleading” arguments and characterizations of the case. The State noted 

that even the defense’s investigative expert agreed that prior convictions of 

the sort known to the officers were “quite relevant in determining how to 

conduct an arrest.” The State further argued it had been “careful to argue 

to the jury that the convictions should not be considered evidence of guilt,” 

and Appellant did not suffer substantial prejudice from the admission of 

his prior convictions, especially because he also admitted having two 

additional felony convictions during his testimony.

¶19 The trial court held oral argument on the motion, and after 

hearing from the parties, denied the motion, explaining as follows:

And let me say this: Before we actually came out here, 

we talked about this and, at that point in time, it became 

abundantly clear to the Court that the simplest way to state it 

is that the officers were going to be put on trial. There was 

mention that the officers were involved in an illegal --

something illegal and that they committed illegal acts; that is, 

broke the law.
STATE v. CASTRO

Decision of the Court

7

Now, the one thing you cannot do with 404(B) 

evidence is argue, see, he was violent and that’s why he was 

violent today. The argument was to present it to explain why 

it is the officers were doing what they did, why they felt they 

had to cut him off, why they were wearing their vests, 

basically the reasons for the stop that was going to be 

challenged in open court as an illegal stop. So, again, under 

normal circumstances, would that be permitted? No. But in 

this particular circumstance, when the defense is that, 

essentially, that Mr. Castro was defending himself from what 

we now know are police officers, it becomes relevant. It 

becomes probative as to the officer’s conduct that is being put 

on trial. Is it more prejudicial? It’s right there on the line, but 

I found that it is not more prejudicial than probative simply 

because of the defense, and that defense permeated the trial 

just like the defense of the officers’ actions permeated the trial.

Trials, by their very nature, are prejudicial either to the 

State when there’s the exculpatory evidence presented or to 

the defense when the facts of the case are and if there’s 404(B) 

or other evidence presented that shows negatively on the 

defendant. That’s the very nature of any trial. All evidence is 

prejudicial to one party or the other. The question is: Is it 

unfairly prejudicial and does that unfair prejudice outweigh 

any probative value?

Again, I don’t see any other way the State could 

present an explanation for the officers’ conduct. Was it 

aggressive? No question, you know. And I suspect -- and 

again, I call them compromised rulings or verdicts. I suspect 

the jury felt that way. I thought for sure they would get him 

guilty on the resisting arrest. It was the clearest showing of 

the case. I was surprised, but, again, I guess that’s why we go 

to trial is you never know what a jury is going to do. But as 

far as the evidence to counter the defense argument, again, I 

suppose it could have been brought up in rebuttal to counter 

the defense. However, since the defense was made clear at 

the beginning of the trial, the Court cannot find that Mr. 

Castro was overly prejudiced by the evidence produced; that 

is, as to why the officers essentially treaded with caution and 

treaded perhaps more aggressively than they would have on 

other circumstances when they apprehend felons that have 

absconded.
STATE v. CASTRO

Decision of the Court

8

¶20 After finding Appellant had four prior felony convictions for 

sentencing purposes, the trial court sentenced Appellant as a Category 3 

offender to a presumptive term of 15.75 years’ imprisonment in the Arizona 

Department of Corrections for Count I and a concurrent, mitigated term of 

10.5 years’ imprisonment for Count II.4

¶21 Appellant filed a timely notice of appeal. We have 

jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and 

A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).

ANALYSIS

I. Standards of Review

¶22 In general, we review a trial court’s evidentiary rulings, 

including the admission of other act evidence, for an abuse of discretion.

See State v. Acuna Valenzuela, 245 Ariz. 197, 207, ¶ 11 (2018); State v. Scott, 

243 Ariz. 183, 187, ¶ 14 (App. 2017). Because the trial court is in the best 

position to balance the probative value of challenged evidence against its 

potential for unfair prejudice, we afford that court wide discretion when

making determinations under Rule 403. State v. Damper, 223 Ariz. 572, 577, 

¶ 20 (App. 2010) (citation omitted). We also review a trial court’s denial of 

a motion for new trial for an abuse of discretion. State v. Gulbrandson, 184 

Ariz. 46, 60 (1995).

¶23 Even when a trial court errs in making an evidentiary ruling, 

however, a timely objected-to error is subject to harmless error review. See 

State v. Rankovich, 159 Ariz. 116, 120 (1988). When a defendant fails to timely 

object, we review for fundamental error. See State v. Escalante, 245 Ariz. 135, 

138, ¶ 1 (2018); State v. Larin, 233 Ariz. 202, 208, ¶ 14 (App. 2013). Under 

fundamental error review, a defendant must first establish trial error exists, 

and then must show the error was fundamental because it (1) went to the 

 

4 At sentencing, the trial court correctly acknowledged it lacked

discretion to sentence Appellant to less than the presumptive sentence of 

15.75 years’ imprisonment for each count and doing so would constitute an 

“illegal sentence.” See A.R.S. §§ 13-703(J); -708(A); -1204(C). Nonetheless, 

as the State concedes, the court’s sentencing orders reflect the court 

imposed a 10.5-year sentence for Count II, and the sentencing transcript 

does not clearly reflect the sentence the court intended to impose for that 

count. Because the State did not file a cross-appeal, we lack subject matter 

jurisdiction to correct the sentence imposed for Count II. See State v. 

Anderson, 171 Ariz. 34, 35 (1992).
STATE v. CASTRO

Decision of the Court

9

foundation of the case, (2) took from the defendant a right essential to his 

defense, or (3) was so egregious that he could not possibly have received a 

fair trial. Escalante, 245 Ariz. at 142, ¶ 21. A defendant who satisfies his 

burden of establishing fundamental error under prongs one or two must 

make a separate showing of prejudice, which requires proof that a 

reasonable jury could have reached a different verdict. Id. at 142, 144, 

¶¶ 21, 29 (citations omitted).

II. Arizona Rule of Evidence 404(a)

¶24 Appellant argues the trial court abused its discretion in 

admitting improper character evidence that he was a potentially dangerous 

felon with a known violent criminal history and in denying his motion for 

new trial based on the admission of that evidence. Even assuming arguendo

that Appellant has not waived this argument by failing to raise it in his 

motion for new trial, see State v. Davis, 117 Ariz. 5, 7-8 (App. 1977), we find 

no error requiring reversal.

¶25 Pursuant to Rule 404(a), “evidence of a person’s character or 

a trait of his character is not admissible for the purpose of proving that he 

acted in conformity therewith on a particular occasion.” Rankovich, 159 

Ariz. at 120 (citing Bell v. State, 143 Ariz. 305 (App. 1984)).

¶26 Because “[t]he State may not introduce evidence of a person’s 

violent nature in order to establish that he committed a violent crime,” id.

(citing Bell, 143 Ariz. at 309), we find concerning the testimony Appellant 

was a potentially dangerous felon with a known violent criminal history

because of the danger that it could be used as proof of his intent to commit 

the charged offenses. However, evidence of Appellant’s violent nature was 

relevant to rebut his defense theory that officers used unnecessarily 

excessive force and that he did not knowingly attempt to flee law 

enforcement officers. Also, the trial court instructed the jury that it was to 

consider evidence of Appellant’s criminal history only as it might affect his 

believability as a witness, and not as evidence of his guilt in the charged 

crimes. Thus, in effect, the jury was instructed the evidence was not to be 

used to prove Appellant acted “in conformity therewith on a particular 

occasion.” Id.; Ariz. R. Evid. 404(a). We presume the jury followed the 
STATE v. CASTRO

Decision of the Court

10

court’s instructions. See State v. McCurdy, 216 Ariz. 567, 574, ¶ 17 (App.

2007).5

¶27 Moreover, the record makes clear the jury did follow the 

court’s instructions, and any error in admitting the testimony was harmless 

beyond a reasonable doubt. See Rankovich, 159 Ariz. at 120; State v. Spreitz, 

190 Ariz. 129, 142 (1997). That the jury acquitted Appellant of five of the 

seven charged offenses shows it was not improperly influenced by the 

character evidence. See State v. Stuard, 176 Ariz. 589, 600 (1993) (concluding 

the decision to acquit the defendant of certain charges “demonstrate[d] the 

jury’s careful and proper consideration of the evidence”); see also State v. 

Jones, 203 Ariz. 1, 10, ¶ 33 (2002) (finding evidentiary error harmless and 

noting, “the jury actually acquitted Defendant of one of the sexual assault 

counts, suggesting that the jurors made reasoned decisions based on the 

evidence presented, rather than lashing out in an emotional response to the 

photographs”). And, even if the character evidence had not been admitted, 

the jury would still have heard about Appellant’s criminal history, 

including his five prior felony convictions and parole status, because he 

testified in his defense. Finally, the evidence supporting Appellant’s 

convictions was overwhelming and included both video evidence and his 

admission that he intentionally accelerated forward into the Altima, 

satisfying the intent element of Counts I and II. Thus, there is no reasonable 

probability the verdict would have been different had the character 

evidence not been admitted, see State v. Hoskins, 199 Ariz. 127, 142-43, ¶ 57 

(2000), and any error in admitting the evidence was harmless.

 III. Arizona Rule of Evidence 404(b)

¶28 Appellant also argues the trial court abused its discretion in 

admitting other act evidence of his criminal history—specifically, that he 

was on parole and had prior convictions for unlawful flight from a law 

enforcement vehicle, misconduct involving weapons, and aggravated 

assault—and in denying his motion for new trial based on the admission of 

that evidence.

¶29 In general, relevant evidence is admissible at trial. See Ariz. 

R. Evid. 401, 402. However, under Rule 404(b), with limited exception, 

“evidence of other crimes, wrongs, or acts is not admissible to prove the 

character of a person in order to show action in conformity therewith.” 

 

5 Also, as we have recognized, the prosecutor addressed this issue in 

his closing rebuttal argument, clarifying that Appellant’s history was not to 

be used as evidence of guilt.
STATE v. CASTRO

Decision of the Court

11

Such evidence is, however, “admissible for other purposes, such as proof of 

motive, opportunity, intent, preparation, plan, knowledge, identity, or 

absence of mistake or accident.” Ariz. R. Evid. 404(b). Rule 404(b)’s list of 

other purposes is not exhaustive; “if evidence is relevant for any purpose 

other than that of showing the defendant’s criminal propensities, it is 

admissible even though it refers to his prior bad acts.” State v. Jeffers, 135 

Ariz. 404, 417 (1983) (citations omitted); accord Scott, 243 Ariz. at 187, ¶ 14

(citation omitted). Other act evidence is admissible if (1) it is shown by clear 

and convincing evidence, (2) it is offered for a proper purpose under Rule 

404(b), (3) it is relevant to prove that purpose, (4) the act’s probative value 

is not substantially outweighed by the danger of unfair prejudice, and (5) 

an appropriate limiting instruction is given if requested. State v. Anthony, 

218 Ariz. 439, 444, ¶ 33 (2008).

A. Clear and Convincing Evidence

¶30 Appellant contends the trial court erred by not holding the 

State to its burden of proof of clear and convincing evidence. See State v. 

Terrazas, 189 Ariz. 580, 582 (1997). Because he did not clearly raise this 

argument below, we review for fundamental error.6 See State v. Lopez, 217 

Ariz. 433, 434-35, ¶ 4 (App. 2008).

¶31 Appellant has not demonstrated that error occurred, 

fundamental or otherwise. Appellant argues the State had to produce 

evidence such as police reports or witnesses for the trial court to rule on the 

admissibility of the evidence. But a trial court need not conduct an 

evidentiary hearing before admitting evidence under Rule 404(b), State v. 

LeBrun, 222 Ariz. 183, 186, ¶ 10 (App. 2009), particularly when there is no 

“true factual dispute regarding the other acts,” State v. James, 242 Ariz. 126, 

133, ¶ 24 (App. 2017). In addition, Rule 404(b) does not specify or limit the 

evidence a trial court may consider in ruling on the admissibility of the 

other act evidence.

¶32 Arizona Rule of Evidence 104(a) requires a court to “decide 

any preliminary question about whether a witness is qualified, a privilege 

exists, or evidence is admissible,” and “[i]n so deciding, the court is not 

 

6 Even assuming arguendo that Appellant’s motion for new trial can 

fairly be construed as raising the argument, this did not sufficiently 

preserve it because he did not timely raise the argument when the court 

ruled on his motion in limine. See Larin, 233 Ariz. at 208, ¶ 14 (reviewing 

an issue raised for the first time in a motion for new trial for fundamental 

error only).
STATE v. CASTRO

Decision of the Court

12

bound by evidence rules, except those on privilege.” Further, “[w]hen the 

relevance of evidence depends on whether a fact exists, proof must be 

introduced sufficient to support a finding that the fact does exist. The court 

may admit the proposed evidence on the condition that the proof be 

introduced later.” Ariz. R. Evid. 104(b). Thus, a trial court has the authority 

to determine the admissibility of other-act evidence based solely upon 

offers of proof, including avowals of what witnesses’ testimony will be. Cf. 

Huddleston v. United States, 485 U.S. 681, 689-90 (1988) (discussing the 

admission of evidence under Rule 104(b), Fed. R. Evid., and noting a trial 

court may at “a later point in the trial assess whether sufficient evidence 

has been offered to permit the jury to make the requisite finding”).7

¶33 In this case, both the prosecutor and defense counsel agreed 

the facts listed in the motion in limine would be testified to by the police 

officers. These facts were not in dispute. See James, 242 Ariz. at 133, ¶ 24

(“Given the absence of a true factual dispute regarding the other acts, the 

trial court did not abuse its discretion in finding the clear-and-convincingevidence standard satisfied, even in the absence of a pretrial hearing with 

live witness testimony.”). Further, the State had previously provided 

written notice of Appellant’s prior convictions, including the cause 

numbers, and the fact that Appellant was on parole for one of the 

convictions.8 Accordingly, the proffer of the expected testimony was 

sufficient to permit the court to find the other acts proven by clear and 

 

7 This reading of the rules of evidence is supported by the fact that 

upon review, we examine the evidence the State ultimately offered at trial 

to determine whether the prosecution proved the defendant’s commission 

of the uncharged act by clear and convincing evidence—not the 

information and argument presented when the preliminary ruling of 

admissibility was made. See, e.g., State v. Garcia, 224 Ariz. 1, 11-12, ¶¶ 32-39 

(2010) (reviewing evidence admitted during the aggravation phase of a 

capital trial in determining whether the court abused its discretion in 

admitting other act evidence); Anthony, 218 Ariz. at 443-45, ¶¶ 26-37 

(reviewing evidence presented at trial to determine whether clear and 

convincing evidence supported other act evidence when the trial court 

admitted evidence based on the parties’ briefs and oral argument); State v. 

Nordstrom, 200 Ariz. 229, 248, ¶ 57 (2001) (concluding the evidence at trial 

satisfied Terrazas’ clear and convincing evidence standard), abrogated on 

other grounds by State v. Ferrero, 229 Ariz. 239, 243, ¶ 20 (2012).

8 A trial court may take judicial notice of its own records. In re Sabino 

R., 198 Ariz. 424, 425, ¶ 4 (App. 2000); Ariz. R. Evid. 201.
STATE v. CASTRO

Decision of the Court

13

convincing evidence. See State v. Vega, 228 Ariz. 24, 29, ¶ 19 (App. 2011) 

(“Having decided to admit the testimony pursuant to Rule 404(b), the 

superior court necessarily concluded the testimony constituted clear and 

convincing evidence of the act.” (citation omitted)); see also State v. Lee, 189 

Ariz. 608, 616 (1997) (presuming trial judges know the law and apply it in 

making their decisions (citations omitted)). Thus, no error occurred, 

fundamental or otherwise.9

B. Other Acts Offered for a Proper Purpose

¶34 Appellant next argues the other acts were not admitted for a 

proper purpose because no permissible inferences could have been drawn 

from the evidence.

¶35 In this case, however, the evidence of Appellant’s prior 

criminal history was admitted for a proper purpose and not to prove his 

character to show action in conformity therewith. See Huddleston, 485 U.S. 

at 686 (noting the threshold inquiry under Federal Rule of Evidence 404(b) 

is whether “evidence is probative of a material issue other than character”). 

Appellant’s history was relevant to explain the full circumstances regarding 

Appellant’s arrest, including the officers’ actions that day, and to show why 

the officers were placed in reasonable apprehension of imminent physical 

injury. See A.R.S. § 13-1203(A)(2); see also Ferrero, 229 Ariz. at 244, ¶ 23 

(stating a proper non-propensity purpose to admit other act evidence is 

“allowing the jury to hear the full story of the crime” (quoting United States 

v. Green, 617 F.3d 233, 249 (3d Cir. 2010))). Further, Appellant’s defense 

made the other act evidence particularly relevant. See State v. Hardy, 230 

Ariz. 281, 290, ¶ 39 (2012) (concluding that other act evidence was 

admissible, in part, to rebut a defense theory); State v. Hargrave, 225 Ariz. 1, 

9-10, ¶ 22 (2010) (concluding that other act evidence was admissible because 

it was relevant to rebut the defendant’s primary defense and “it made the 

defendant’s story less plausible”). As the trial court noted in ruling on the 

 

9 Moreover, even if we were to find error, Appellant cannot on this 

record demonstrate prejudice. The lack of pretrial proof by clear and 

convincing evidence does not go to the foundation of the case, take away 

an essential right, or prejudice Appellant—rather, any theoretical 

fundamental error or resulting prejudice would necessarily have come from 

the admission of the evidence itself, see generally Escalante, 245 Ariz. at 141-

42, ¶¶ 18-19, 21, and the evidence admitted at trial—including Appellant’s 

admissions to his prior felony convictions, his parole status, and that he had 

been in violation of his parole—proved the other act evidence by clear and 

convincing evidence.
STATE v. CASTRO

Decision of the Court

14

motion for new trial, Appellant had made clear he would be putting the 

officers “on trial” and arguing he was justified in using force against them. 

The other act evidence went to the manner of the stop, which Appellant

acknowledges was at issue in this case, and whether Appellant’s use of 

force was justified and reasonable under the circumstances. See A.R.S. § 13-

404(B)(2) (providing that the threat or use of physical force against another 

is not justified to resist an arrest the person knows or should know is being 

made by a peace officer, whether the arrest is lawful or unlawful, unless the 

physical force used by the peace officer exceeds that allowed by law); State 

v. Carson, 243 Ariz. 463, 465, ¶ 9 (2018) (stating that justification defenses 

use an objective standard based “on the beliefs of a ‘reasonable person’ in 

the defendant’s circumstances rather than the defendant’s subjective 

beliefs” (citation omitted)). Also, because Appellant denied knowing the 

officers were police officers, the fact he had absconded from parole was 

relevant to show he knew police officers could seek to arrest him, and went 

to the reasonableness of his belief that it could have been someone else 

following him. Accordingly, the other act evidence was relevant and 

probative to the issues at trial given Appellant’s defenses.

C. Probative Value and Potential for Unfair Prejudice

¶36 Appellant also argues the trial court failed to properly weigh 

the probative value of the other act evidence against the evidence’s 

potential for unfair prejudice.

¶37 Arizona Rule of Evidence 403 provides that a court may 

exclude relevant evidence if its probative value is substantially outweighed 

by a danger of, inter alia, unfair prejudice. However, not all harmful 

evidence is unfairly prejudicial. State v. Mott, 187 Ariz. 536, 545-46 (1997). 

Only evidence that has an undue tendency to suggest a decision on an 

improper basis—such as emotion, sympathy, or horror—is unfairly 

prejudicial. State v. Connor, 215 Ariz. 553, 564, ¶ 39 (App. 2007) (citation

omitted). The trial court is afforded broad discretion in deciding 

admissibility because it “is in the best position to balance the probative 

value of challenged evidence against its potential for unfair prejudice.” 

State v. Harrison, 195 Ariz. 28, 33, ¶ 21 (App. 1998).

¶38 In this case, the trial court weighed the evidence and excluded 

much of the character and other act evidence because of its potential for 

unfair prejudice. The admitted other act evidence was probative of the 

relevant issues at trial, and, thus, “was adversely probative in the sense that 

all good relevant evidence is.” State v. Schurz, 176 Ariz. 46, 52 (1993); see also 

State v. Villalobos, 225 Ariz. 74, 80, ¶ 20 (2010) (concluding that other act 
STATE v. CASTRO

Decision of the Court

15

evidence was not unfairly prejudicial in light of the defendant’s defenses, 

which made the other act evidence highly relevant); State v. Lamar, 144 Ariz. 

490, 497 (App. 1984) (“[E]vidence of prior bad acts, another offense or 

misconduct, is admissible to show the complete story even though other 

prejudicial facts are revealed thereby.” (citation omitted)). Moreover, the 

trial court sanitized all of Appellant’s prior convictions when they were 

used for impeachment purposes, indicating the court sought to prevent any 

use of other act evidence for an improper purpose.

¶39 Further, as we have recognized, Appellant did not request a 

Rule 404(b) limiting jury instruction, and the trial court was under no duty 

to sua sponte give one.10 See State v. Ellison, 213 Ariz. 116, 133, ¶ 61 (2006) 

(stating that, absent fundamental error, a defendant may not complain if 

the trial court fails to sua sponte provide limiting instructions)11; see also State 

v. Taylor, 127 Ariz. 527, 530 (1980) (“It has long been the rule in this 

jurisdiction that unless an objection is interposed to an instruction, or a 

request for an instruction is made, error cannot be predicated on the giving 

or the failure to give such an instruction.” (citations omitted)). The court

did, however, instruct the jury that Appellant’s prior convictions were not 

“evidence of guilt of the crime for which [he was] now on trial for.” On this 

record, the trial court did not err in balancing the probative value of the 

other act evidence against its danger for unfair prejudice, and did not 

commit fundamental, prejudicial error in not providing a Rule 404(b) 

limiting jury instruction.

 

10 By not specifically arguing the trial court erred in failing to give a 

limiting instruction, Appellant has abandoned and waived any such claim. 

See State v. Carver, 160 Ariz. 167, 175 (1989); see also State v. Moreno-Medrano, 

218 Ariz. 349, 354, ¶ 17 (App. 2008) (declining to review for fundamental 

error where an appellant failed to argue an alleged error was fundamental).

11 The fact that the jury acquitted Appellant of five charged crimes 

shows the jury was not improperly influenced by the other act evidence and 

the evidence was not unfairly prejudicial. See Stuard, 176 Ariz. at 600 

(concluding the decision to acquit the defendant of certain charges 

“demonstrate[d] the jury’s careful and proper consideration of the 

evidence”); State v. Herrera, 232 Ariz. 536, 548, ¶ 32 (App. 2013) (“[T]he fact 

that the jury did not find Herrera guilty of all charges suggests it had not 

been so affected by the evidence of other acts that the guilty verdicts it 

rendered were the result of ‘emotion, sympathy or horror.’” (citations 

omitted)).
STATE v. CASTRO

Decision of the Court

16

D. Due Process

¶40 Appellant also argues the admission of the other act evidence 

violated his due process rights. Although it is a due process violation to 

admit evidence “that is so unduly prejudicial that it renders the trial 

fundamentally unfair,” Payne v. Tennessee, 501 U.S. 808, 825 (1991), it is only 

when “there are no permissible inferences the jury may draw from the 

evidence [that] its admission violate[s] due process,” Jammal v. Van de Kamp, 

926 F.2d 918, 920 (9th Cir. 1991). And, “[e]ven then, the evidence must ‘be 

of such quality as necessarily prevents a fair trial.’” Id. (citation omitted). 

Because there were several permissible inferences that could be drawn from 

the other act evidence and it was not unfairly prejudicial, no due process 

violation occurred, and the trial court did not abuse its discretion in 

admitting that evidence.

CONCLUSION

¶41 Appellant’s convictions and sentences are affirmed.