People of Michigan v. John Andres Castillo

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

March 21, 2024

Plaintiff-Appellee,

v No. 363149

Oakland Circuit Court

JOHN ANDRES CASTILLO, LC No. 2020-274129-FC

Defendant-Appellant.

Before: GADOLA, C.J., and K. F. KELLY and MURRAY, JJ.

PER CURIAM.

Defendant appeals by right his jury trial convictions of first-degree criminal sexual conduct

(“CSC-I”) and second-degree criminal sexual conduct (“CSC-II”). The trial court sentenced

defendant as a second-offense habitual offender to concurrent prison terms of 14 to 35 years for

the CSC-I conviction, and 8 to 22 years for the CSC-II conviction. Finding no errors warranting

reversal, we affirm.

I. BASIC FACTS AND PROCEDURAL HISTORY

Defendant John Andres Castillo was convicted of sexually assaulting an adolescent family

member in defendant’s apartment on November 30, 2019. The prosecutor presented evidence that

before this incident, the victim had a very close relationship with defendant. On November 30,

2019, the victim stayed overnight in the apartment where defendant lived. The victim testified

that after she fell asleep in defendant’s twin-sized bed, she was awakened by defendant

inappropriately touching her. She disclosed the incident to her mother the next day and underwent

a sexual assault forensic examination on December 2, 2019, which revealed the presence of

defendant’s DNA on different areas of her body. The prosecutor also presented other-acts

evidence involving defendant inappropriately touching two other adolescent family members.

The defense theory at trial was that defendant did not digitally penetrate the victim, and he

did not intentionally touch her breasts for a sexual purpose. Instead, defendant asserted that the

child’s allegations were inconsistent, and her trial testimony was not credible. Defendant

presented two witnesses, defendant’s mother and sister, who testified that the victim was acting

normally on the morning after the alleged incident and did not want to return home. Defendant

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also highlighted the testimony of another family member who was called as a prosecution witness,

and who testified that he was a light sleeper and did not hear anything inappropriate as he slept

approximately three feet away from defendant and the victim. Defendant also emphasized how

the police failed to “investigate” the apartment to collect evidence and failed to interview key

witnesses, including the family member in the room during the alleged assault.

As noted, the jury convicted defendant of one count of CSC-I, MCL 750.520b(1)(b) and

one count of CSC-II, MCL 750.520c(1)(b), and defendant was sentenced as a second-offense

habitual offender, MCL 769.10, to concurrent prison terms of 14 to 35 years for the CSC-I

conviction, and 8 to 22 years for the CSC-II conviction. This appeal followed.

II. OTHER-ACTS EVIDENCE

Defendant first challenges the trial court’s decision to allow the prosecutor to present

evidence that defendant also sexually assaulted two other adolescent family members in 2019. The

evidence was introduced under MCL 768.27a(1), but defendant argues that it should have been

excluded under MRE 403 because it was unduly prejudicial. We disagree.

A. STANDARDS OF REVIEW

We review a trial court’s decision to admit or exclude evidence for an abuse of discretion.

People v Thorpe, 504 Mich 230, 251-252; 934 NW2d 693 (2019). “The decision to admit evidence

is within the trial court’s discretion and will not be disturbed unless that decision falls outside the

range of principled outcomes.” Id. at 251-252 (quotation marks and citation omitted.) “A decision

on a close evidentiary question ordinarily cannot be an abuse of discretion.” Id. “Preliminary

questions of law, such as whether a rule of evidence or statute precludes the admission of particular

evidence, are reviewed de novo . . . .” People v Bynum, 496 Mich 610, 623; 852 NW2d 570

(2014).

B. ANALYSIS

Under MCL 768.27a(1), “in a criminal case in which the defendant is accused of

committing a listed offense against a minor, evidence that the defendant committed another listed

offense against a minor is admissible and may be considered for its bearing on any matter to which

it is relevant.” Evidence is relevant if it has any tendency to make the existence of a fact that is of

consequence to the action more probable or less probable than it would be without the evidence.

MRE 401. A defendant’s propensity to commit a crime makes it more probable that he committed

the charged offense. People v Watkins, 491 Mich 450, 470; 818 NW2d 296 (2012).

The charged offense and the other acts all qualify as listed offenses against a minor. See

MCL 768.27a(2). The other-acts evidence was relevant to show defendant’s propensity to sexually

assault underaged females to whom he had access because of their familial relationship and

therefore assisted the jury in weighing the victim’s credibility. Indeed, defendant repeatedly

sought to impugn the victim’s credibility, for example, by highlighting the inconsistencies in her

interview statements and trial testimony, and by suggesting that it was inconsistent for her to claim

that defendant sexually assaulted her, yet fail to disclose anything to anyone in the apartment the

following morning. The defense also argued that the victim’s claim was not credible because

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defendant’s other family member, who is a light sleeper, was in a bed only three feet away and

heard nothing. Thus, the probative value of the other-acts evidence was high because it tended to

show that defendant had a proclivity toward assaulting young girls.

However, evidence offered under MCL 768.27a is still subject to MRE 403, which

provides that relevant evidence may be excluded if its probative value is substantially outweighed

by the danger of unfair prejudice. MRE 403; Watkins, 491 Mich at 481. MRE 403 is not, however,

intended to exclude evidence merely because it is “damaging” to the opponent, as any relevant

evidence will be damaging to some extent. People v Mills, 450 Mich 61, 75; 537 NW2d 909

(1995), mod 450 Mich 1212 (1995). Instead, it is “only when the probative value is substantially

outweighed by the danger of unfair prejudice that evidence is excluded.” Id. (emphasis in the

original). Unfair prejudice exists where there is “a danger that marginally probative evidence will

be given undue or pre-emptive weight by the jury” or “it would be inequitable to allow the

proponent of the evidence to use it.” Id. at 75-76; People v McGuffey, 251 Mich App 155, 163;

649 NW2d 801 (2002). When applying MRE 403 to evidence in the context of MCL 768.27a,

“courts must weigh the propensity inference in favor of the evidence’s probative value rather than

its prejudicial effect.” Watkins, 491 Mich at 487. Thus, “other-acts evidence admissible under

MCL 768.27a may not be excluded under MRE 403 as overly prejudicial merely because it allows

a jury to draw a propensity inference.” Id. Courts should consider the following factors when

deciding whether to exclude other-acts evidence under MRE 403 as being overly prejudicial:

(1) [T]he dissimilarity between the other acts and the charged crime, (2) the

temporal proximity of the other acts to the charged crime, (3) the infrequency of

the other acts, (4) the presence of intervening acts, (5) the lack of reliability of the

evidence supporting the occurrence of the other acts, and (6) the lack of need for

evidence beyond the complainant’s and the defendant’s testimony. [Watkins, 491

Mich at 487-488.]

When weighing the probative value of other-acts evidence, courts should consider the extent to

which the other-acts evidence supports the victim’s credibility and rebuts any defense attack on

the victim’s credibility. Id. at 491-492.

Despite defendant’s arguments, the first Watkins factor—similarity between the other act

and the charged sexual assault—weighs in favor of admissibility. The other acts and the current

offenses are “of the same general category because they involve[d] sex crimes . . . against

children.” See People v Duenaz, 306 Mich App 85, 101; 854 NW2d 531 (2014) (quotation marks

and citation omitted). Defendant’s victims were all young, adolescent children similar in age when

the sexual assaults occurred. Each child was a member of defendant’s family, which is how

defendant had access to each individual. The charged offenses each involved unwanted sexual

contact, which corresponded to the unwanted and unexpected sexual contact involved in the other

acts. Although there were differences, most notably that defendant digitally penetrated the victim

in this case and touched her breast underneath her clothing, whereas he inappropriately touched

the other children over their clothing, each situation involved defendant’s opportunistic sexual

advances against young family members.

Defendant also challenges the fifth factor from Watkins—the lack of reliability of the

evidence supporting the occurrence of the other acts. Defendant contends that the testimony of

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the other-acts witnesses was not reliable because “no reports were made” by the other young girls

until after the disclosure in this case. However, “[i]t is the province of the jury to determine

questions of fact and assess the credibility of witnesses. As the trier of fact, the jury is the final

judge of credibility.” People v Lemmon, 456 Mich 625, 637; 576 NW2d 129 (1998) (citation and

quotation marks omitted). Thus, defendant’s reliability argument is not persuasive.

Further, contrary to defendant’s argument, while the evidence was not legally necessary,

the other-acts evidence bolstered the victim’s credibility and negated defendant’s attack on her

credibility at trial. Defendant repeatedly argued at trial that the victim’s testimony was not credible

because there were no eyewitnesses, particularly the other family member who was also sleeping

in the room, to corroborate her claims. While there was evidence that defendant’s DNA was

recovered from the child’s neck and breast swabs, defendant argued that there “was no DNA found

to prove that [defendant] penetrated the vaginal opening with his fingers or anything else.”

Further, there was testimony that defendant and the victim had a very close relationship, cuddled

regularly, had slept in the same twin-sized bed that night, and “were in a spooning position.”

Defendant also argued that according to the prosecutor’s expert, DNA can be deposited on another

person in a number of ways.

Defendant’s arguments are ultimately unavailing. In total, considering the high probative

value of the other-acts evidence, its probative value was not substantially outweighed by the danger

of unfair prejudice. The other-acts evidence was probative of defendant’s intent and propensity to

sexually assault his young family members. Moreover, in its final instructions, the trial court gave

a cautionary instruction to the jury concerning the proper use of the evidence, thereby limiting the

potential for unfair prejudice. In sum, because the probative value of the other-acts evidence was

not substantially outweighed by the danger of unfair prejudice, the trial court did not abuse its

discretion by allowing the evidence at trial.

III. PROSECUTORIAL MISCONDUCT1

Next, defendant argues that the prosecutor improperly shifted the burden of proof during

closing argument by repeatedly arguing that there was no evidence that the victim had a motive to

lie, which defendant argues implied that defendant failed to provide such a motive, and that defense

counsel was ineffective for failing to object to the prosecutor’s argument. We disagree.

A. STANDARDS OF REVIEW

“In order to preserve an issue of prosecutorial misconduct, a defendant must

contemporaneously object and request a curative instruction.” People v Bennett, 290 Mich App

465, 475; 802 NW2d 627 (2010). As defendant acknowledges, there was no objection to the

challenged remarks in the trial court, leaving this claim of prosecutorial misconduct unpreserved.

We review unpreserved claims of prosecutorial misconduct for plain error affecting defendant’s

1

As we noted in People v Cooper, 309 Mich App 74, 87-88; 867 NW2d 452 (2015), “the phrase

‘prosecutorial misconduct’ has become a term of art in criminal appeals . . . [but] these claims of

error might be better and more fairly presented as claims of ‘prosecutorial error,’ with only the

most extreme cases rising to the level of ‘prosecutorial misconduct.’ ”

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substantial rights. People v Roscoe, 303 Mich App 633, 648; 846 NW2d 402 (2014). We will not

reverse if the alleged prejudicial effect of the prosecutor’s conduct could have been cured by a

timely instruction. People v Watson, 245 Mich App 572, 586; 629 NW2d 411 (2001).

“Whether a defendant has been denied the effective assistance of counsel is a mixed

question of fact and constitutional law.” People v Solloway, 316 Mich App 174, 187; 891 NW2d

255 (2016). “To demonstrate ineffective assistance of counsel, a defendant must show that his or

her attorney’s performance fell below an objective standard of reasonableness under prevailing

professional norms and that this performance caused him or her prejudice.” People v Nix, 301

Mich App 195, 207; 836 NW2d 224 (2013) (citation omitted). “To demonstrate prejudice, a

defendant must show the probability that, but for counsel’s errors, the result of the proceedings

would have been different.” Id. “A defendant must meet a heavy burden to overcome the

presumption that counsel employed effective trial strategy.” People v Payne, 285 Mich App 181,

190; 774 NW2d 714 (2009).

B. ANALYSIS

“A prosecutor may not imply in closing argument that the defendant must prove something

or present a reasonable explanation for damaging evidence because such an argument tends to shift

the burden of proof.” People v Fyda, 288 Mich App 446, 463-464; 793 NW2d 712 (2010). In

addition, “a prosecutor may not comment on the defendant’s failure to present evidence because

it is an attempt to shift the burden of proof.” Id. However, a prosecutor is entitled to comment on

defense theories or the strength of evidence presented by the defendant, People v Caddell, 332

Mich App 27, 71-72; 955 NW2d 488 (2020), and “[a]ttacking the credibility of a theory advanced

by a defendant does not shift the burden of proof.” People v McGhee, 268 Mich App 600, 635;

709 NW2d 595 (2005). Prosecutors are also permitted to argue from the facts in evidence that a

witness is worthy of belief. People v Cain, 299 Mich App 27, 36; 829 NW2d 37 (2012), vacated

in part on other grounds 495 Mich 874 (2013).

The challenged remarks, viewed in context, were part of a permissible argument regarding

credibility and were responsive to defendant’s theory that he was not guilty because the victim was

not credible. In the opening statement, defense counsel stated that “this case hinges on the

credibility of the witnesses,” and “there was no inappropriate touching or sexual acts that took

place that night.” Defendant cross-examined the victim about her account of what occurred, and

elicited: (1) that there were inconsistencies in her prior statements and trial testimony, including

that she had not previously mentioned during any interview that defendant whispered things in her

ear about her being “hot” and “sexy” or that he gave her a pillow to put over her face to muffle the

noise; (2) that she did not call her father to pick her up that morning; (3) that she did not disclose

anything to any of the people in the apartment during the hours that she was there that morning;

and (4) that she did not disclose the incident to her father when defendant dropped her off. In

closing argument, defense counsel reiterated and summarized the defense theory. Defendant’s

opening statement, cross-examination, and closing argument clearly involved challenges to the

credibility of the victim’s account of the offenses, and the prosecutor was permitted to respond

that the victim had no motive to lie. Accordingly, the prosecutor’s remarks were not improper and

did not shift the burden of proof.

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Because the prosecutor’s remarks were not improper, defense counsel’s failure to object

was not objectively unreasonable, and failure to advance a “futile objection does not constitute

ineffective assistance of counsel.” People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120

(2010). Furthermore, the record does not support any contention that a reasonable probability

exists that, but for counsel’s failure to object, the outcome of defendant’s trial would have been

different. Nix, 301 Mich App at 207. The trial court’s jury instructions were sufficient to dispel

any possible prejudice. See People v Breidenbach, 489 Mich 1, 13; 798 NW2d 738 (2011) (stating

that juries are presumed to follow the court’s instructions). Therefore, defendant has not

established a claim of ineffective assistance of counsel for failure to object to the prosecutor’s

remarks.

IV. INEFFECTIVE ASSISTANCE OF COUNSEL

Next, defendant argues that defense counsel was ineffective for failing to move for a

mistrial after the victim’s mother and the investigating detective made prejudicial remarks that

referred to defendant’s prior criminal behavior. We disagree.

During defendant’s cross-examination of the victim’s mother, defense counsel asked her

questions seeking to establish that defendant and the victim’s father did not previously have a good

relationship because the mother dated defendant before dating the victim’s father. The mother gave

the following response:

Q. And before you started dating [the victim’s father], you actually dated

Mr. Castillo, John Castillo, correct?

A. Yes.

Q. And how long was that relationship?

A. Only a couple months.

Q. And you would agree with me that part of the reason that my client and

[the victim’s father] didn’t get along was due to the fact that you had—

A. No. Actually, it wasn’t. It had nothing to do with it.

* * *

Q. So you stated through your marriage, [the victim’s father] and John did

not have a good relationship, correct?

A. Uh-uh. No, he—but there was a lot of things on John, I mean the child

abuse and everything.

Subsequently, during the prosecutor’s direct examination of the investigating detective, he

was asked about his investigation and gave the following response:

Q. At some point in time, you complete your investigation.

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A. Correct.

* * *

Q. What do you do once it’s completed?

A. During this—this one, it was completing the interviews that we felt that

were needed, and at that point it was a wait, a sit and wait for the CSC kit that had

been completed, for that to be finalized and analyzed and for me to get the results

back.

Q. So you do the part in your investigation, and then you’re ultimately waiting

on the DNA work to be completed?

A. Correct.

Q. And that got completed I think sometime in March, we had mentioned, of

2020?

A. Yeah, February. End of February, March, yeah.

Q. Okay. Once that’s completed, what do you do with the case at that point.

A. I go over the results. In this case, I read the results from the Oakland

County Sheriff’s Forensic Lab. I see that there is a positive hit for John Castillo

based on a CODIS[2] hit, and at that point, we have enough information for me to

submit my report to the Oakland County Prosecutor’s Office for a warrant.

Preliminarily, defendant’s assertion that “at least” an evidentiary hearing “is required to

inquire into defense counsel’s reasons for not making a motion for mistrial” is without merit.

Defense counsel discussed both remarks on the record outside the jury’s presence and placed her

reasons on the record for proceeding without requesting a mistrial, indicating that she had

researched the matter and did not believe that the objectionable testimony rose “to the level of a

reason for asking for a mistrial.” Furthermore, defendant has failed to demonstrate a reasonable

probability that any motion for a mistrial would have been successful. A “mistrial should be

granted only for an irregularity that is prejudicial to the rights of the defendant, and impairs his

ability to get a fair trial.” People v Haywood, 209 Mich App 217, 228; 530 NW2d 497 (1995)

(citations omitted). Regarding the mother’s testimony, there is nothing “irregular” about defendant

receiving a responsive answer to a question posed by his own counsel, and defendant has not

persuasively argued that her answer was sufficiently prejudicial to impair his ability to receive a

fair trial. The victim’s mother did not mention the word “conviction,” her reference to “child abuse”

was fleeting, and it was plausible that the jury would have understood the remark as referring to the

allegations in the current case. The trial court’s comments during the discussion of this matter also

2

CODIS is an acronym for the Combined Offender DNA Index System.

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indicate that it was highly unlikely that the court would have found that the objectionable testimony

rose to the level of warranting a mistrial.

Regarding the detective’s testimony, his improper reference to CODIS was not grounds for a

mistrial because it was not elicited by the prosecutor’s questioning. Instead, the brief remark was part

of an unsolicited answer to an otherwise proper question. Generally, “an unresponsive, volunteered

answer to a proper question is not grounds for the granting of a mistrial.” Haywood, 209 Mich

App at 228. Further, as defense counsel aptly indicated in the trial court, none of the seated jurors

had any apparent law enforcement experience, so counsel did not believe that any juror would

have deduced that the isolated reference suggested prior criminal activity, particularly considering

that the mere mention of “CODIS” does not necessarily mean that there was a conviction. In

addition, there was no repeated reference to CODIS, or an indication that defendant was involved

in any previous criminal activity or had a prior criminal record, and any such inference on the basis

of the prosecutor’s question and the detective’s response would have been tenuous.

For these reasons, defense counsel’s failure to move for a mistrial was not objectively

unreasonable, and defendant cannot demonstrate that he was prejudiced by counsel’s failure to

request a mistrial. See Ericksen, 288 Mich App at 201 (stating that counsel cannot be deemed

ineffective for failing to advocate a meritless position).

V. DUE PROCESS

Defendant also argues that his right to due process and a fair trial were violated because

the investigating detective failed to “investigate the apartment” and interview the other occupants

to locate and preserve potentially exculpatory evidence. Again, we disagree.

A. STANDARDS OF REVIEW

To properly preserve an issue for appeal, a defendant must timely object in the trial court,

even if the right asserted is constitutional in nature. People v Carines, 460 Mich 750, 752-753,

762-763; 597 NW2d 130 (1999). Although defense counsel questioned the detective about his

failure to interview the occupants of the apartment and inspect the apartment, he did not preserve

this issue by arguing that the detective’s omissions denied him his right to a fair trial. Therefore,

this issue is unpreserved. We review defendant’s unpreserved constitutional claim for plain error

affecting his substantial rights. Id. at 763-764.

B. ANALYSIS

Defendant’s contention that his right to due process was violated because the investigators

failed to follow certain investigatory leads is unconvincing because defendant confuses the duty

to disclose evidence with a duty to find evidence to disprove a victim’s claims. There is a clear

distinction between a duty to disclose known exculpatory evidence to the defendant and a duty to

develop evidence for the defendant. See People v Coy (After Remand), 258 Mich App 1, 22; 669

NW2d 831 (2003). The authorities cited by defendant do not support his argument that the police

and the prosecutor have a duty to investigate on his behalf. For example, although Brady v

Maryland, 373 US 83, 87; 83 S Ct 1194; 10 L Ed 2d 215 (1963), holds that “the suppression by

the prosecution of evidence favorable to an accused upon request violates due process where the

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evidence is material either to guilt or to punishment,” defendant does not explain what favorable

evidence the prosecutor possessed and withheld. Indeed, the gravamen of a Brady violation is the

prosecutor’s failure to disclose favorable evidence within its control unknown to the defense.

People v Chenault, 495 Mich 142, 153; 845 NW2d 731 (2014). Defendant only argues that police

did not “investigate” the apartment or interview its occupants, which potentially could have

supported his version of events. In the absence of “a showing of suppression of evidence,

intentional misconduct, or bad faith,” due process does not require the prosecutor to seek and find

exculpatory evidence or test evidence for a defendant’s benefit. Coy, 258 Mich App at 21.

Similarly, there is no requirement that the prosecutor negate every theory consistent with a

defendant’s innocence. People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000).

Furthermore, there is no basis in the record for finding any bad faith or intentional

misconduct by the police or prosecutor. At trial, the investigating detective acknowledged that he

did not go to the apartment or interview any of its occupants, including the family member who

was apparently sleeping in the room where the assault occurred. The detective explained that he

was not the first responding officer, who is the person who would have made the initial contact at

the apartment or the police station. The detective began his investigation the next day after he was

given the statements. The allegations, which involved a situation that “was more intimate and

closed off” from people, factored into his decisions about who to interview. Furthermore, in light

of the circumstances of this case, the decision not to collect the bedsheets for DNA testing was not

unreasonable because it was never disputed that defendant and the victim slept in the same twin-

sized bed and “spoon[ed]” that night. In addition, defendant was certainly aware that the other

family member was asleep in the same bedroom. Moreover, defendant was undoubtedly aware

that his mother and sister were in the apartment, and he called both as defense witnesses at trial.

In sum, defendant’s right to due process and a fair trial was not violated by the investigating

detective’s failure to go to the apartment or interview any additional witnesses.

VI. SCORING OF OFFENSE VARIABLES

In his last claim on appeal, defendant raises two issues concerning the scoring of offense

variables during his sentencing, neither of which warrant appellate relief.

First, defendant asserts that remand is required to correct adjustments to the scoring of

Offense Variable (OV) 8 (victim asportation or captivity) and OV 10 (predatory conduct) of the

sentencing guidelines, which the parties agreed to during sentencing. However, the record

discloses that an updated SIR was prepared six days after sentencing and correctly shows that the

court assigned zero points for OV 8 and 10 points for OV 10 in accordance with the parties’

stipulations at sentencing. Because the SIR has already been updated to reflect the correct scores

for OVs 8 and 10, this issue is moot and defendant is not entitled to any additional relief. See

People v Bonilla-Machado, 489 Mich 412, 416; 803 NW2d 217 (2011).

Defendant also challenges the five-point score for OV 3 (physical injury to a victim), to

“preserve[] this issue for future appeals.” However, defendant expressly requested a five-point

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score for OV 3, thereby waiving appellate review of his substantive claim of a scoring error.3

People v Kowalski, 489 Mich 488, 504; 803 NW2d 200 (2011).

Affirmed.

/s/ Michael F. Gadola

/s/ Kirsten Frank Kelly

/s/ Christopher M. Murray

3

Defendant asserts that the factual basis for the stipulated five-point score was that SC underwent

a sexual assault examination. Defendant contends that this Court’s decision in People v Johnson,

342 Mich App 90; 992 NW2d 668 (2022), supports the five-point score on that basis, but he asserts

that the stipulation may no longer legally support the score because the Michigan Supreme Court

granted oral argument to consider an application for leave to appeal in the Johnson case. See

People v Johnson, 510 Mich 1118 (2022). After defendant filed his brief, the Michigan Supreme

Court denied the application for leave to appeal in Johnson. See People v Johnson, ___ Mich ___;

997 NW2d 903 (2023). Therefore, even if this issue had not been waived, defendant would not be

entitled to appellate relief.

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