Opinion
No. 2 CA-CR 2016-0085
04-12-2017
THE STATE OF ARIZONA, Appellee, v. KEVIN LECIL CASTILLO, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel, Phoenix By Kathryn A. Damstra, Assistant Attorney General, Tucson Counsel for Appellee Dean Brault, Pima County Legal Defender By Joy Athena, Assistant Legal Defender, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24. Appeal from the Superior Court in Pima County
No. CR20101631001
The Honorable Howard Fell, Judge Pro Tempore
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel, Phoenix
By Kathryn A. Damstra, Assistant Attorney General, Tucson
Counsel for Appellee Dean Brault, Pima County Legal Defender
By Joy Athena, Assistant Legal Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Howard authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Vásquez concurred. HOWARD, Presiding Judge:
¶1 After a jury trial held in his absence, Kevin Castillo was convicted of criminal damage, endangerment, driving while under the influence of intoxicating liquor, and driving with a blood alcohol concentration (BAC) of .08 or greater. The trial court sentenced him to concurrent prison terms, the longest of which is 2.25 years. On appeal, he argues the court erred in rejecting his motion to vacate the judgment, in which he asserted his absence from trial was involuntary and his conviction for driving under the influence must be vacated because the state did not prove he was impaired by intoxicating liquor. We affirm.
Factual and Procedural Background
¶2 We view the evidence in the light most favorable to upholding the jury's verdicts. State v. Cox, 217 Ariz. 353, ¶ 22, 174 P.3d 265, 269 (2007). In August 2009, Castillo drove his car in the wrong direction on a one-way street, failed to stop at an intersection where cross-traffic was proceeding on a green light, and crashed into another car, injuring its driver. A police officer who spoke with Castillo testified that he had denied having been drinking despite smelling of intoxicants and showing other signs of intoxication. A second police officer also testified Castillo had showed signs of intoxication, including that his breath smelled of alcohol. Castillo exhibited six of six impairment signs during a horizontal gaze nystagmus test, and breath testing showed his BAC was .145 and .143. Castillo admitted to the second officer that he had "dr[u]nk mouthwash a few hours earlier" but denied having had anything else to drink. A criminologist confirmed that mouthwash sometimes contains alcohol.
¶3 Following his indictment, Castillo appeared for most but not all scheduled hearings. At a pretrial conference in May 2012, he was advised of the November 2012 trial date and admonished about the consequences of failing to appear, and confirmed he understood. He subsequently failed to maintain contact with the court or his counsel. In October 2012, defense counsel asked the court to prohibit trial from proceeding in Castillo's absence. The court declined to rule on that request, but reset the trial for April 2013. On the first day of trial, counsel informed the court she did not know Castillo's whereabouts, and the court ordered that trial would proceed in his absence.
¶4 After his arrest in Nevada in January 2016, Castillo was sentenced as described above. He then moved to vacate the judgment pursuant to Rule 24.2, Ariz. R. Crim. P., asserting he had been involuntarily absent from his trial. Castillo claimed he suffered from "a severe hernia requiring surgery" and, because he was "homeless [and] without funds," he had "used his last few dollars" to travel to California "where his family resides." He asserted, citing State v. Garcia-Contreras, 191 Ariz. 144, 953 P.2d 536 (1998), that his choice was involuntary because he was forced to choose "between court attendance and destitution and illness." He requested an evidentiary hearing to "explain, on the record, the details of his involuntary absence."
¶5 At the subsequent hearing, Castillo began to testify about his health problems when the trial court stopped the examination, questioning the relevance of that testimony and noting Castillo had been informed of the trial date and had been admonished of the consequences of failing to appear. Defense counsel explained that she wished to establish that, because Castillo was "homeless, destitute, and severely ill," he had no meaningful option other than to accept money from a family friend to travel to California for medical treatment. The court accepted counsel's "offer of proof," but nonetheless observed that Castillo had not informed the court or his counsel of the medical issues and left despite knowing the date of his trial. The court, however, allowed counsel to make an additional offer of proof and introduce several exhibits.
¶6 Counsel avowed Castillo lacked health insurance or sufficient funds for treatment and had lost his "court documentation" when he was evicted, prompting his move to California where he could receive support from family and friends. She further asserted Castillo had unsuccessfully attempted to reach his attorney—ultimately leaving a message—as well as the court, leading him to conclude his case had been dismissed. The submitted exhibits included an affidavit from a friend of Castillo who claimed he had attempted to find information about Castillo's case via online databases and telephone inquiries, but had been unsuccessful. Counsel also submitted a letter from a medical doctor stating he had seen Castillo in March 2012 and had advised him "to seek emergent and quick help for hernia repair." The court "accept[ed] the avowals of [counsel]" as well as Castillo's limited testimony, but determined Castillo had been voluntarily absent from his trial, noting "[h]e had ample opportunity to contact the Court and other individuals while he was out of custody and prior to his leaving for California" and had been properly admonished both of his trial date and the consequences should he fail to appear. The court thus denied the motion to vacate, and this appeal followed.
Discussion
Motion to Vacate
¶7 "We review a trial court's denial of a motion to vacate a judgment for abuse of discretion." State v. Parker, 231 Ariz. 391, 408, ¶ 78, 296 P.3d 54, 71 (2013). A court may presume a defendant has waived the right to be present at trial if the defendant had personal notice of (1) the time of the proceeding, (2) the right to be present at it, and (3) a warning that the proceeding would go forward in the defendant's absence if he failed to appear. Ariz. R. Crim. P. 9.1. The rule creates a rebuttable presumption of voluntary waiver. See Ariz. R. Crim. P. 9.1 cmt. "The defendant bears the burden of overcoming the inference and showing that the absence was involuntary." State v. Sainz, 186 Ariz. 470, 473 n.2, 924 P.2d 474, 477 n.2 (App. 1996). Castillo does not assert that the court acted improperly in initially inferring his absence from trial was voluntary, only that the court erred in concluding he had not overcome that inference during the post-judgment proceeding.
¶8 Relying primarily on State v. Bishop, 139 Ariz. 567, 679 P.2d 1054 (1984), Castillo first argues the trial court erred because it did not allow him to testify and thus improperly relied on "hearsay to presume waiver of a significant constitutional right." We find Bishop inapplicable. There, the trial court found the defendant was voluntarily absent based, in part, on out-of-court statements made to the court by deputies who claimed the defendant had refused to attend the relevant hearings. Id. at 569-70, 679 P.2d at 1056-57. In granting relief, the supreme court observed there are "difficulties presented by relying on hearsay to find a waiver of constitutional rights" and concluded the trial court had abused its discretion by not permitting the defendant to question those deputies or to testify. Id. at 570, 679 P.2d at 1057. But, here, the court accepted Castillo's avowals, and Castillo has not identified any relevant information he was unable to present in his offer of proof. Nor did the court make any credibility findings in rejecting Castillo's motion. In these circumstances, we cannot say the court erred in declining to allow Castillo to testify. See Ariz. R. Evid. 611(a) (court entitled to exercise control "over the mode and order of examining witnesses and presenting evidence"); State ex rel. Montgomery v. Padilla, 239 Ariz. 314, ¶ 13, 371 P.3d 642, 646 (App. 2016) ("[A] trial court has considerable discretion to determine what procedures are appropriate in a particular case.").
Although we find no reversible error, we nonetheless encourage trial courts to conduct a complete evidentiary hearing when a defendant wishes to present evidence that his or her absence was involuntary to ensure the defendant has been given a full opportunity to rebut the presumption that his or her absence was voluntary. See Sainz, 186 Ariz. at 473, 924 P.2d at 477.
¶9 Castillo next repeats his argument based on Garcia-Contreras that his failure to appear was involuntary because he lacked a meaningful choice between appearing at his trial and obtaining needed medical care. In Garcia-Contreras, our supreme court determined that a defendant forced to choose between attending a hearing and his due process right to not appear before a jury in prison attire was not voluntarily absent. 191 Ariz. 144, ¶¶ 8, 14, 953 P.3d at 538-40. The court emphasized that "[v]oluntary choice presupposes meaningful alternatives. Put another way, a voluntary waiver of the right to be present requires true freedom of choice." Id. ¶ 11.
¶10 A defendant should not be forced to choose between waiving the right to be present at trial and seeking treatment for a "sudden unexpected medical emergency." State v. Reed, 196 Ariz. 37, ¶ 6, 992 P.2d 1132, 1134 (App. 1999), quoting Bottom v. State, 860 S.W.2d 266, 267 (Tex. App. 1993). But Castillo has not established his medical problems prevented him from appearing at trial. Nor has he established that they constituted a sudden emergency. Instead, the record indicates the medical issues had persisted for some time, and Castillo had been aware that he needed surgery months before the May 2012 pretrial hearing. Although we recognize Castillo may not have had the means to readily address his medical needs in Arizona, he acknowledges that he had an option other than failing to appear: contacting his counsel or the court to apprise them of his circumstances.
¶11 Castillo argues, however, that he tried to avail himself of that option but was unable to reach the court or counsel. "An out-of-custody defendant has the responsibility to remain in contact with his attorney and the court." Bishop, 139 Ariz. at 571, 679 P.2d at 1058. As the trial court suggested, this requirement is not difficult to meet. Castillo provided virtually no details about his efforts to contact the court or counsel and, based on the entirety of the circumstances, the court was free to conclude his efforts were insufficient.
¶12 Castillo also argues his absence was involuntary because he reasonably believed his case had been dismissed since a friend acting on his behalf had "made searches of the public record, called the court, and spoken to attorneys" without discovering information about his case. But, even if the friend's affidavit is considered, it does not establish when these efforts were undertaken. And, during his last appearance in May 2012, Castillo was advised of his trial date and nothing in the record suggests there was any reason for Castillo to believe the case would be dismissed. As the state points out, Castillo's friend acknowledged that he had been informed the public record might not contain information about the case. The trial court readily could determine Castillo's belief his case had been dismissed was unreasonable—particularly in light of his failure to make a meaningful effort to maintain contact with counsel or the court.
¶13 Castillo additionally claims the trial court gave his medical and financial "circumstances no weight" in evaluating whether he was voluntarily absent from trial because it focused on the fact he had the opportunity to contact counsel and had been admonished about the consequences of failing to appear. But, as we have explained, despite his health and financial issues, Castillo did not establish his failure to maintain contact with counsel or the court or his belief his case had been dismissed were reasonable under the circumstances.
Sufficiency of the Evidence
¶14 Castillo contends the evidence supporting his conviction of driving under the influence was insufficient because there was no evidence he was under the influence of an intoxicating liquor, as required by A.R.S. § 28-1381(A)(1). To obtain a conviction under § 28-1381(A)(1), the state was required to demonstrate Castillo had been driving or "in actual physical control of a vehicle" "[w]hile under the influence of intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance or any combination of liquor, drugs or vapor releasing substances if the person is impaired to the slightest degree." Castillo asserts the sole evidence presented was that he "had consumed mouthwash, which is not an intoxicating liquor."
¶15 We review the sufficiency of the evidence de novo, State v. West, 226 Ariz. 559, ¶ 15, 250 P.3d 1188, 1191 (2011), and will affirm if the conviction is supported by "substantial evidence," State v. Ellison, 213 Ariz. 116, ¶ 65, 140 P.3d 899, 916-17 (2006). Evidence is substantial if reasonable people could accept it as proving, beyond a reasonable doubt, all the elements of a crime and the defendant's responsibility for it. See State v. Bearup, 221 Ariz. 163, ¶ 16, 211 P.3d 684, 688 (2009). We review issues of statutory interpretation de novo. Fragoso v. Fell, 210 Ariz. 427, ¶ 7, 111 P.3d 1027, 1030 (App. 2005).
¶16 We find ample evidence to support Castillo's conviction. As the state points out, because Castillo's BAC was above .08, the jury was permitted to presume Castillo "was under the influence of intoxicating liquor" even if mouthwash did not qualify as such. § 28-1381(G)(3). Although Castillo responds that this reading of subsection (G)(3) "would contort the law," he does not explain this assertion or develop any argument that the presumption means something other than what it plainly says. See State v. Lee, 236 Ariz. 377, ¶ 16, 340 P.3d 1085, 1090 (App. 2014) (plain language best indicator of legislative intent); see also State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) (insufficient argument on appeal waives claim). And, in any event, even absent the statutory presumption, there was substantial circumstantial evidence Castillo had consumed intoxicating liquor: he smelled of alcohol and appeared impaired. See State v. McLoughlin, 133 Ariz. 458, 461 n.2, 652 P.2d 531, 534 n.2 (1982) (jurors may rely on own common sense and experience in evaluating evidence). Finally, the jury was not required to believe his statement to the police.
¶17 Moreover, Castillo is incorrect that mouthwash containing alcohol is not an "intoxicating liquor" as contemplated by § 28-1381(A)(1). Citing a dictionary and State v. Giersch, 4 S.E. 193 (N.C. 1887), Castillo asserts an "intoxicating liquor" is a distilled or fermented beverage and thus does not include mouthwash because it is not fermented or distilled. Castillo apparently overlooks that alcohol, a common component of mouthwash, is necessarily a product of fermentation. Nor has he cited any authority adopting a definition of "intoxicating liquor" that would exclude mouthwash when used as a beverage. Indeed, we have found numerous decisions concluding that the term "intoxicating liquor" is commonly understood to include any liquid used as a beverage that contains enough alcohol to cause intoxication. See Lambert v. State, 694 P.2d 791, 793-94 (Alaska Ct. App. 1985) ("The common definition of 'intoxicating liquor' is a beverage containing alcohol"; cough medicine containing alcohol is intoxicating liquor); State v. Bahl, 242 N.W.2d 298, 302 (Iowa 1976) ("'intoxicating liquor' includes any beverage which contains sufficient alcohol so that when imbibed in such quantity as is practically possible for consumption will produce intoxication"; beer containing less than four percent alcohol is intoxicating liquor); Franz v. State, 57 N.W.2d 139, 142 (Neb. 1953) ("Intoxicating liquor generally includes and means any liquor intended for use as a beverage, or capable of being so used, which contains alcohol no matter how obtained, in such a percent that it will produce some degree of intoxication when imbibed in a quantity that may practically be drunk."); State v. Miller, 345 N.E.2d 82, 85 (Ohio Ct. App. 1975) (intoxicating liquor is any beverage containing sufficient alcohol to cause impairment); Thornton v. N.D. State Highway Comm'r, 399 N.W.2d 861, 863 (N.D. 1987) (cough syrup is intoxicating liquor when used as a beverage because it contains alcohol).
Castillo also cites Hasten v. State, 35 Ariz. 427, 280 P. 670 (1929), claiming it is "apparent from the context" in that case "that mouthwash would not have been considered an 'intoxicating liquor.'" We find nothing in Hasten that supports Castillo's assessment. --------
Disposition
¶18 We affirm Castillo's convictions and sentences.