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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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

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 C ounsel for AppellantSTATE v. CASTILLO Decision of the Court

2 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 supe rior 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 attempt ed 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 chas ed after Castillo on foot

. ¶3 Castillo abruptly turned around and headed to ward Patricia and Rosemary . As he approached the women , he sped up and intentionally swerved into them. After the collision, C astillo left the scene with his sister following him in her car. Castillo eventually stopped and got into his sister ’s car . S he 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)).STATE v. CASTILLO Decision of the Court

3 happened, or what day it was. The paramedics observed a fractur e that penetrated thro ugh 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 R osemary sustained injuries to her arms and hands.

¶5 T he State charged Castillo with three count s 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 a n 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 testim ony regarding Castillo’s demeano r that day, but unless the officer had “some specialized training or experience,” he would not opine on whether Castillo w as under the influence of heroin.

¶6 During the State’s case

- in

- chief, the State called numerous witnesse s, including eye

- witnesses, police officers, medical professionals
, and Patricia

. Patricia testified that she was married and had six children
, but that o ne child had recently passed away. Patricia further testified that Rosemary was absen t 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 “popp ing out ; ” and she was unable to walk for “[a]bout six months” following the incident . D uring 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 sho es 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 knowSTATE v. CASTILLO Decision of the Court

4 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 fru strated —
¶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 requi red a mistrial. The court denied the motion but str uc k the statement and instruct ed 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, b efore deliberati ng , 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 consider ed .”

¶8 T he 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 . The y found Castillo not guilty on the remaining two counts relating to Rosemary. Following an aggravation phase, the jury found aggravating factor s on counts 1, 2, and 3. The court found Castillo had a historical prior felony conviction and sentenced him t o 6.5 years on

c ount 1 and to 4.5 years each onc ounts 2 and 3 to be served concurrently. Additionally, the court sentenced Castillo to 3.25 years relating to c ount 5 to be served consecutively to c ounts 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 mis trial following Patrici a’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, ” andSTATE v. CASTILLO Decision of the Court

5 should only be granted “when it appea rs 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 T he S tate did not elicit Patricia’s statement ; instead
, sh e spontaneously volunteered it. Immediately following th e 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 court room

. Also, before jury deliberation, the court instructed the jury to disregard any

s tricken testimony. W e 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 th e presumption was

overcome here. Accordingly, t he superior court did not abuse its discretion.

B. The Superior Court did not Commit Err by Failing to Declar e 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 f or 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 we nt 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 o ne 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 partySTATE v. CASTILLO Decision of the Court

6 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 12 6, ¶ 23.

¶14 Here, t he 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 pro secution ; 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 need ed to establish aggravated assault under A.R.S. § 13-1204(A)(3). See State v. Pena , 235 Ariz. 277, 280, ¶ 11 (2014) (jury mus t 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 . H owever, as the State posits
, her
comments might also paint her as a “lo o se cannon.” T he defense could have had tactical reasons for not requesting a mistrial

. See Dickinson , 242 Ariz. at 12 6, ¶ 23. Additionally, the court instructed the jur ors n ot 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 b ecause there was no err or , 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).STATE v. CASTILLO Decision of the Court

7 CONCLUSION

¶16 For the for e going reasons
, we affirm Castillo’s convictions and sentences.