State v. Castillo-Cervantes ( 2020 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
COSME CASTILLO-CERVANTES,
Appellant.
No. 1 CA-CR 19-0460
FILED 12-22-2020
Appeal from the Superior Court in Maricopa County
No. CR2017-136493-001
The Honorable Julie A. LaFave, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Eliza Ybarra
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Robert W. Doyle
Counsel for Appellant
STATE v. CASTILLO-CERVANTES
Decision of the Court
MEMORANDUM DECISION
Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge D. Steven Williams joined.
W E I N Z W E I G, Judge:
¶1 Defendant Cosme Castillo-Cervantes appeals his felony
convictions and sentences for sexual conduct with a minor and kidnapping.
We affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Defendant sexually assaulted his niece in 2013 or 2014 when
she was twelve or thirteen years old. About four years later, she told her
brother what happened after observing Defendant’s growing interest in
their youngest sister. The siblings told their mother who took the victim to
a medical clinic. The clinic told law enforcement. Police investigated.
¶3 Defendant was interviewed by Detective Barrios. He
admitted forcing himself on the victim, describing his sexual misconduct
and saying he felt “really bad” about it. A grand jury indicted Defendant
on one count of sexual conduct with a minor under fifteen years old and
one count of kidnapping a minor under fifteen years old, class 2 felonies
and dangerous crimes against children. See A.R.S. §§ 13-705(Q)(1)(e), (i); -
1304(A)(3), (B); -1405. Defendant pled not guilty.
¶4 Defendant argued at trial that Detective Barrios coerced his
confession. The State called Detective Godbehere, the case agent and
member of the Children’s Crimes Unit, who acknowledged that law
enforcement has trouble investigating child sex crimes because “we do not
have evidence to show that a crime occurred or probable cause, [and] the
case is closed.” After defense counsel’s unsuccessful relevance objection,
the prosecutor continued:
Q. How many - - ballpark or percentage of 100 cases,
how many would be closed and not forwarded to
the county attorney?
A. I would say about 90 percent.
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STATE v. CASTILLO-CERVANTES
Decision of the Court
Q. Okay. So ten percent are forwarded to the county
attorney’s. And of the cases that are sent to the
county attorney, what percentage of those cases are
actually filed, charges are filed?
A. I would guess maybe . . . 50 percent of the ten
percent.
¶5 Defendant was convicted on both counts after a five-day jury
trial. The superior court imposed consecutive sentences totaling 23 years,
the mandatory minimum. See A.R.S. §§ 13-705(C), (D), (M), (O), 13-1304(B),
13-1405(B). Defendant timely appealed. We have jurisdiction. See Ariz.
Const. art. 6, § 9; A.R.S. §§ 12-120.21(A)(1), 13-4031 and 13-4033(A)(1).
DISCUSSION
¶6 Defendant contends the superior court erroneously admitted
the trial testimony of Detective Godbehere about the percentage of sex
crime investigations closed short of an indictment. We review evidentiary
rulings for an abuse of discretion, but review de novo questions of law
related to the admissibility of evidence. State v. Leteve, 237 Ariz. 516, 524, ¶
18 (2015).
¶7 Defendant reasserts his relevance objection. But even
assuming the evidence was irrelevant, its admission was harmless error
because “the guilty verdict actually rendered in this trial was surely
unattributable to the error.” State v. Bible, 175 Ariz. 549, 588 (1993)
(emphasis omitted) (citation omitted). Again, Defendant confessed to
Detective Barrios.
¶8 Defendant asserts three arguments not raised at trial. We
review for fundamental error, State v. Lopez, 217 Ariz. 433, 434-35, ¶ 4 (App.
2008), and find none. He first argues that Detective Godbehere’s testimony
improperly bolstered the victim’s credibility, but the record does not
support the argument. Detective Godbehere testified that investigators
have “a lot of reasons” for not referring matters for indictment and
prosecution. Moreover, Detective Godbehere explained that an indictment
turns on probable cause as measured by all evidence, not just the victim’s
credibility.
¶9 Defendant next argues that Detective Godbehere’s testimony
constituted impermissible prosecutorial vouching. Prosecutorial vouching,
however, requires “personal assurances” made by the prosecutor “of a
witness’ truthfulness.” See State v. Dunlap, 187 Ariz. 441, 462 (App. 1996);
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STATE v. CASTILLO-CERVANTES
Decision of the Court
see also State v. Acuna Valenzuela, 245 Ariz. 197, 219, ¶ 86 (2018) (prosecutor’s
comments did not constitute vouching because she did not “use ‘I’ or ‘me’
to indicate what her personal opinion on the case was to the jury” (emphasis
omitted)). Defendant never identifies such “personal assurances” in the
record.
¶10 And last, Defendant argues that Detective Godbehere’s
testimony improperly “appeal[ed] to the passions, fears, or prejudices of
the jury.” But the court instructed jurors that: “A charge is not evidence
against the defendant. You must not think the defendant is guilty just
because of a charge.” It also cautioned the jury not to be influenced by
sympathy or prejudice. The jury is presumed to have followed those
instructions and Defendant has offered no evidence to rebut that
presumption. See State v. Murray, 184 Ariz. 9, 25 (1995).
CONCLUSION
¶11 We affirm Defendant’s convictions and sentences.
AMY M. WOOD • Clerk of the Court
FILED: AA
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