State v. Castaneda

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
ARSENIO CASTANEDA, JR., Appellant.
No. 1 CA-CR 21-0525
FILED 9-13-2022
Appeal from the Superior Court in Yavapai County
No. P1300CR202001489
The Honorable Debra R. Phelan, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Brian R. Coffman
Counsel for Appellee
Law Office of Nicole Countryman, Phoenix
By Nicole Countryman
Counsel for Appellant
OPINION
Vice Chief Judge David B. Gass delivered the opinion of the court, in which
Presiding Judge Samuel A. Thumma and Judge Cynthia J. Bailey joined.
STATE v. CASTANEDA
Opinion of the Court
G A S S, Vice Chief Judge:
¶1 Defendant Arsenio Castaneda appeals his convictions and
sentences for abuse of a child under fifteen years of age and various drug
offenses. Because the superior court did not abuse its discretion in finding
a five-year-old witness competent to testify, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 This court reviews the facts in the light most favorable to
sustaining the verdicts, resolving all reasonable inferences against
Castaneda. See State v. Felix, 237 Ariz. 280, 283, ¶ 2 (App. 2015).
¶3 In November 2020, state troopers stopped a reportedly stolen
car traveling on a Yavapai County highway. Troopers removed and
detained the two adult passengers and the driver, Castaneda. Castaneda’s
four-year-old son remained asleep in the car.
¶4 After noticing burn-marked aluminum foil on the driver’s
side floorboard, troopers removed the child from the car and allowed him
to stand near Castaneda. Troopers searched the car and found a backpack
containing 150 fentanyl pills and a gun in the trunk. They also found a glass
pipe in the glove compartment. Though Castaneda admitted using the
aluminum foil to smoke fentanyl and the glass pipe to smoke
methamphetamine, he denied knowledge of the pills.
¶5 Troopers took Castaneda and his son to a substation. After
Castaneda asked multiple times to take the child to the restroom, troopers
witnessed the child take a fentanyl pill out of his pocket. When troopers
asked about the pill, the child responded, “They are my daddy’s.” The child
pulled another pill from his pocket after troopers asked whether he had
more pills. One of the troopers removed seven more pills from the child’s
pocket. Laboratory testing showed those nine pills and the others from the
backpack contained fentanyl. When troopers confronted Castaneda about
the nine pills, he cried and apologized.
¶6 As relevant here, the State charged Castaneda with one count
of child abuse of a child under fifteen years of age, one count of sale or
transportation of narcotic drugs (fentanyl), one count of possession or use
of narcotic drugs (fentanyl), one count of misconduct involving weapons,
and two counts of possession of drug paraphernalia.
¶7 At trial, the State called Castaneda’s son as a witness. On
direct examination, the son correctly stated his first and last name and his
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STATE v. CASTANEDA
Opinion of the Court
age. The State asked whether he knew the difference between the truth and
a lie. The child responded, “Lie.” The State then asked, “If I told you that I
am wearing bright red pants today, would that be a truth or a lie?” Though
the child incorrectly responded, “True,” he correctly answered “Black”
when the State’s counsel asked, “What color are my pants?” The son also
correctly answered “Red” when the State’s asked, “What color is your
shirt?” But the son incorrectly answered the question, “So if I said it was
blue, is that right?”
¶8 The State then asked the child if he remembered taking
something out of his pocket during the incident and giving it to the
troopers. The child replied, “No.” The State asked, “Do you remember
telling me and your mom that you had some pills in your pocket that daddy
put there?” The child replied, “Yeah.” The child then stood up and, placing
his hands behind his back, twice demonstrated to the jury how his father
put the pills into his pocket. The child replied, “yeah” when the State asked
if he remembered his father putting the pills into his pocket.
¶9 On cross examination, defense counsel asked the child what
was happening while he stood next to his father during the stop. The child
said his father “put it in my pocket.” Defense counsel then asked if the “man
in the back seat put pills in your pocket” and if the man told him, “they
were your daddy’s pills.” The child replied, “Yeah.”
¶10 On redirect, the State asked the child who put the pills in his
pocket during the incident. The child replied, “[m]y dad.” The child again
replied “Daddy” when asked whether the man in the back seat or his father
placed the pills in his pocket.
¶11 Castaneda twice timely challenged his son’s competency as a
witness. On the first day of trial, Defense counsel objected to the child’s
competency based on his young age. Later, during the child’s direct
examination, defense counsel again raised the competency issue, arguing
the child’s responses regarding the day of the incident were “going all over
the place.” The superior court overruled Castaneda’s objection.
¶12 A jury found Castaneda guilty on five of the six counts,
finding him not guilty of the misconduct involving weapons. The superior
court sentenced Castaneda to 13 years in prison for child abuse. On the
remaining counts, the superior court imposed a term of probation to start
after the prison sentence. Castaneda timely appealed. This court has
jurisdiction under article VI, section 9, of the Arizona Constitution, and
A.R.S. §§ 13-4031 and 13-4033.A.1.
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STATE v. CASTANEDA
Opinion of the Court
ANALYSIS
¶13 Castaneda contends the superior court erred in permitting the
then-five-year-old child to testify at trial. Castaneda argues the child was
incompetent to testify because his “responses were confusing, and
demonstrated that he was unable to competently communicate about the
incident or understand what it meant to tell the truth.”
¶14 On appeal, this court defers to the superior court’s
determination regarding a witness’s competency to testify. Zimmer v. Peters,
176 Ariz. 426, 429 (App. 1993) (citing State v. Apodaca, 166 Ariz. 274, 276
(App. 1990)); see also State v. Melendez, 135 Ariz. 390, 394 (App. 1982). This
court will reverse the superior court’s competency decision only if the
decision constitutes a clear abuse of discretion. See State v. Garner, 116 Ariz.
443, 446 (1977), superseded by rule on other grounds as stated in State v. Ferrero,
229 Ariz. 239, 241–42, ¶¶ 8–13 (2012). A superior court abuses its discretion
if its ruling “is manifestly unreasonable, exercised on untenable grounds or
for untenable reasons.” State v. Woody, 173 Ariz. 561, 563 (App. 1992)
(quoting Williams v. Williams, 166 Ariz. 260, 265 (App. 1990)). Additionally,
if a defendant preserves an issue for appeal by objecting at trial, this court
applies the harmless-error standard. State v. Henderson, 210 Ariz. 561, 567,
¶ 18 (2005) (citations omitted).
¶15 “In any criminal trial every person is competent to be a
witness.” A.R.S. § 13-4061; see also Ariz. R. Evid. 601 (“[e]very person is
competent to be a witness unless these rules or an applicable statute
provides otherwise”); A.R.S. § 12-2201.A (“[e]very person . . . may testify in
any civil or criminal proceeding . . . except as otherwise expressly provided
by law”); cf. A.R.S. § 12-2202(2) (“The following shall not be witnesses in a
civil action: . . . Children under ten years of age who appear incapable of
receiving just impressions of the facts respecting which they are to testify,
or of relating them truly.” (emphasis added)).
¶16 “Neither age, mental capacity nor feeble-mindedness renders
a witness incompetent or disqualified.” State v. Super. Ct. (Pima Cnty.), 149
Ariz. 397, 399 (App. 1986) (discussing A.R.S. § 13-4061). Instead,
competency depends on a witness’s ability to observe, recollect, and
communicate about the event in question. See State v. Brown, 102 Ariz. 87,
89 (1967) (citing People v. McCaughan, 317 P.2d 974, 981 (Cal. 1957)). “In
instances of extreme youth, to find a lack of competency, the [superior
court] must be convinced that no trier of fact could reasonably believe that
the prospective witness could have observed, communicated, remembered
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STATE v. CASTANEDA
Opinion of the Court
or told the truth with respect to the event in question.” Pima Cnty., 149 Ariz.
at 401.
¶17 Castaneda argues the child’s responses “demonstrated that
he was unable to competently communicate about the incident or
understand what it meant to tell the truth.” But on direct examination, the
child stood up, placed his hands behind his back, and twice reenacted how
his father put the pills in his pocket. Also, on cross examination, the child
said his father “put it in my pocket” while the child stood next to him the
day of the incident. And again, on redirect, the child twice stated his father
placed the pills in his pocket during the incident. The child, therefore,
adequately observed, recollected, and communicated about the event in
question when he physically demonstrated and recounted in detail how his
father placed the pills in his pocket. See Brown, 102 Ariz. at 89.
¶18 Castaneda also contends the child’s “responses were
confusing” and “demonstrated he did not know the difference between the
truth and a lie.” True, the child did not seem to grasp abstract concepts like
truth and lies when he said, “Lie” after the State asked whether he knew
the difference between the two concepts. He also answered, “True” when
the prosecutor asked whether he was wearing bright red pants, though the
prosecutor was wearing black pants.
¶19 But whether a child “is incapable of formulating an abstract
definition of truth aids [the court] very little in determining whether that
child has an intuitive grasp of the difference between truth and falsehood.”
State v. Pittman, 118 Ariz. 71, 76 (1978). “A preschool-aged child generally
does not understand abstract concepts such as . . . truth or [a] lie.” Pima
Cnty., 149 Ariz. at 400. That lack of understanding, however, goes to the
credibility of the witness and the weight of the testimony—not competency.
Id. (citing Pinal Cnty. Juv. Action Nos. J-1123 and J-1124, 147 Ariz. 302, 306
(App. 1985)).
¶20 Younger children typically are more comfortable with
concrete lines of questioning. See Angela D. Evans & Thomas D. Lyon,
Assessing Children’s Competency to Take the Oath in Court: The Influence of
Question Type on Children’s Accuracy, 37 Law & Hum. Behavior 195, 195–96
(2012). Though the son struggled with concepts such as “truth” and “lying,”
son did not struggle with concrete factual issues. Indeed, when asked more
concrete questions, the son correctly answered questions regarding colors,
and numbers. And he accurately stated his first and last name, and his age.
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STATE v. CASTANEDA
Opinion of the Court
¶21 This court has reversed a superior court’s finding of
incompetency in a similar case involving an even younger witness. In Pima
Cnty., this court recognized at times, “[a] child’s testimony may be rambling
and disjointed, characterized by lack of continuity, spotty memory and an
inability to discuss specific dates and times.” 149 Ariz. at 400. Even so, this
court held the three-year-old witness was competent to testify in a criminal
trial because, though she did not grasp abstract concepts like truth and lies,
she accurately answered preliminary questions regarding her name, age,
and the colors of items in the courtroom. Id. at 399–401. Here, the child
answered the same concrete questions asked in Pima Cnty., and he was two
years older. Moreover, his testimony demonstrated he observed and could
communicate about the event. See id. at 401.
¶22 Because substantial evidence supports the superior court’s
finding the child was competent to testify, the superior court did not abuse
its discretion in permitting the child to testify, and we need not address
harmless error.
CONCLUSION
¶23 We affirm Castaneda’s convictions, sentence, and probation
grants.
AMY M. WOOD • Clerk of the Court
FILED: AA
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