State v. Gastelum

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

COSMOS GUADALUPE GASTELUM, Appellant.

No. 1 CA-CR 23-0150
FILED 01-27-2026

Appeal from the Superior Court in Yavapai County
No. P1300CR202200032
The Honorable Debra R. Phelan, Judge

AFFIRMED

COUNSEL

Law Offices of Stephen L. Duncan P.L.C., Scottsdale
By Stephen L. Duncan
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Eric K. Knobloch
Counsel for Appellee
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MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Anni Hill Foster and Judge Paul J. McMurdie joined.1

B R O W N, Judge:

¶1 This appeal is presented to us pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969). Defense counsel
has searched the record on appeal and advised us there are no meritorious
grounds for reversal. Gastelum was given the opportunity to file a
supplemental brief and has done so. Our obligation is (1) to ascertain
whether counsel has “conscientiously performed” their duty to review the
record for arguable issues, and (2) to conduct our own review of the record
for reversible error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999).

¶2 Our initial review of the record revealed non-frivolous issues,
and under Penson v. Ohio, 488 U.S. 75 (1988), we ordered supplemental
briefing on (1) whether the trial court committed reversible error by failing
to conduct additional questioning of a prospective juror (“Juror 33”) during
voir dire or to sua sponte strike Juror 33 for cause; and (2) whether the
prosecutor’s comments on Gastelum’s decision not to testify at trial require
reversal. The parties filed their respective briefs, and for the reasons
discussed below, we conclude that Gastelum has failed to establish
reversible error.

BACKGROUND

¶3 On January 1, 2022, M.M., a minor, was staying at Gastelum’s
home after a New Year’s Eve party. Early in the morning, Gastelum
committed several sex acts against M.M. After M.M. told Gastelum to

1 Judge Paul J. McMurdie was a sitting member of this Court when the
matter was assigned to this panel of the Court. He retired effective
December 31, 2025. In accordance with the authority granted by Article 6,
Section 3, of the Arizona Constitution and A.R.S. § 12-145, the Chief Justice
of the Arizona Supreme Court designated Judge Paul J. McMurdie as a
judge pro tempore of the Court of Appeals, Division One, for the purpose of
participating in the resolution of cases assigned to this panel during his
term in office.

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leave, her sister picked her up and took her to M.M.’s grandmother’s home.
Later that day, M.M. spoke with a police officer, a forensic interviewer with
Yavapai Family Advocacy Center, and a sexual assault nurse examiner
(“Nurse”). The Nurse performed an exam on M.M., which revealed injuries
to M.M.’s vagina and anus consistent with penetration.

¶4 Police arrested Gastelum that day, and a grand jury later
indicted him on one count of molestation of a child (Count 1) in violation
of A.R.S. § 13-1410, and four counts of sexual conduct with a minor, in
violation of A.R.S. § 13-1405. The sexual conduct charges (Counts 2–5)
alleged that Gastelum had (1) digitally penetrated M.M.’s vagina with his
finger, (2) digitally penetrated her anus, (3) engaged in masturbatory
contact of “penis to vulva,” and (4) penetrated M.M.’s anus with his penis.

¶5 M.M., who was 14 years old at the time of the jury trial held
in February 2023, testified that Gastelum had touched her vagina and that
afterward he pulled down her pants and “put his penis inside [her] butt,”
causing her pain. She denied that he had put his penis in her vagina or that
he had inserted his finger in her vagina or anus. But the officer who first
interviewed M.M. testified that M.M. informed the officer that she
recognized Gastelum’s penis being pushed against her vagina. The Nurse
likewise confirmed that M.M. relayed similar information, and that
Gastelum had “put his finger in [her] butt” and her vagina, and that he had
attempted to put his penis in her vagina but did not. The Nurse testified
that M.M. had injuries consistent with the alleged acts. A forensic scientist
testified that an analysis of anal swabs taken from M.M. matched
Gastelum’s DNA profile at “10 YSTR locations” and thus Gastelum “and all
of his paternally related male relatives cannot be excluded as the
contributor.” Gastelum did not testify.

¶6 The jury convicted Gastelum on four of the five counts,
acquitting him of sexual conduct with a minor based on the allegation that
he digitally penetrated M.M.’s anus. The court sentenced Gastelum to
presumptive, consecutive terms for each count, resulting in a 17-year
sentence for molestation and 20-year sentences for each sexual conduct with
a minor conviction. Gastelum appealed and we have jurisdiction under
A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033.

DISCUSSION

¶7 In his Penson brief, Gastelum argues (1) the trial court erred
by failing to sua sponte strike a juror for cause, and (2) the prosecutor
improperly commented on his decision not to testify at trial. In his

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supplemental pro per brief, Gastelum argues that his conviction for
molestation and two of his convictions for sexual conduct with a minor
should be vacated based on multiplicity concerns and insufficient evidence.

A. Biased Juror

¶8 Gastelum argues the trial court erred by failing to strike Juror
33 for cause based on that juror’s responses to questions about the
testimony of law enforcement officers. Before trial, the court provided
written questionnaires to the prospective jurors, which included the
following:

[T]he Judge will instruct you that you cannot believe the
testimony of a law enforcement officer over that of a civilian
witness simply because of their status as law enforcement.
Would you be able to follow this instruction?

Juror 33 answered “no” to this question.

¶9 On the first day of trial during jury selection, the court and
the parties conducted voir dire with the prospective jurors. The following
exchange occurred between the court and Juror 33:

[THE COURT:] I had a couple of follow-up questions for just
a few of you individually based on my review of the surveys
with the attorneys . . .

All right. This is Juror 33. Juror 33, could you stand for me
first. On your online survey, I could not tell if this was a
genuine response or just clicking through on answers, so I am
just going to ask you the question that was posed in the
survey and ask for your answer.

The question is: The judge will instruct you that you cannot
believe the testimony of a law enforcement officer over that of
a civilian witness simply because of their status as law
enforcement. Would you be able to follow that instruction?

[JUROR 33]: It would be difficult for me.

THE COURT: Can you elaborate on that, please?

[JUROR 33]: I am a supporter of the police department and I will
take their word over somebody else’s in that respect.

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THE COURT: That’s why I wanted to follow up with you on
that question. Thank you, Juror 33.

(Emphasis added.)

Neither party nor the court asked Juror 33 any other questions. Nor did
either party challenge Juror 33 for cause. Juror 33 was ultimately selected
to sit on the jury and was not selected as an alternate after closing
arguments.

¶10 Under Arizona Rule of Criminal Procedure (“Rule”) 18.4(b),
“[t]he court, on motion or on its own, must excuse a prospective juror or
jurors from service in the case if there is a reasonable ground to believe that
the juror or jurors cannot render a fair and impartial verdict.” Gastelum
did not object to Juror 33’s inclusion on the jury at trial. Without a timely
objection or challenge for cause, we review a court’s failure to sua sponte
strike a juror for cause for fundamental error. State v. Bible, 175 Ariz. 549,
573 (1993); State v. Molina, 211 Ariz. 130, 134, ¶ 15 (App. 2005).

¶11 Gastelum suggests we should review any error in not striking
Juror 33 for structural error. “Structural error is a narrow category” of trial
error that “’deprive[s] defendants of basic protections without which a
criminal trial cannot reliably serve its function as a vehicle for
determination of guilt or innocence.’” State v. Trudell, 258 Ariz. 290, 293,
¶ 16 (App. 2024) (quoting State v. Ring, 204 Ariz. 534, 552, ¶ 45 (2003)).
Gastelum argues “[t]he fairness and impartiality of juries are fundamental
to the integrity of the legal system,” and that accordingly, “empaneling of
a biased juror is a structural error that affects the integrity of the legal
system.” He relies on State v. Anderson, 197 Ariz. 314 (2000), a capital case
in which the trial court excluded jurors for cause who voiced objections to
the death penalty; the court did not allow additional voir dire of these
jurors, and our supreme court reversed. Id. at 318, 321, ¶¶ 5, 16.

¶12 But we are not persuaded by Gastelum’s reliance on Anderson.
In Anderson, our supreme court held that striking jurors without giving the
defense the chance to rehabilitate the jurors was structural error, reasoning
in part that “[e]rrors involving the composition of the court or jury affect
the legitimacy of the entire proceeding, leaving nothing to measure or
weigh and requiring reversal.” Id. at 323–24, ¶¶ 21–23. Unlike the
defendant in Anderson, Gastelum had the opportunity, at the very least, to
rehabilitate Juror 33 by conducting additional voir dire or challenging them
for cause. See id. at 318, ¶ 5; cf. State v. Garcia-Contreras, 191 Ariz. 144,
148–49, ¶¶ 17–20 (1998) (finding structural error when a defendant was

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involuntarily excluded during jury selection and unable to effectively
exercise challenges to potential jurors). Thus, we disagree with Gastelum’s
argument that the trial court’s failure to strike Juror 33 was structural error.
Instead, our standard of review here is fundamental error, which requires
Gastelum to show: (1) trial error occurred; (2) that error was fundamental;
and (3) the error prejudiced him. State v. Escalante, 245 Ariz. 135, 142, ¶ 21
(2018). Fundamental errors are those which (1) go to the foundation of the
case, (2) take away from the defendant a right essential to their defense, or
(3) are so egregious that the defendant could not possibly have received a
fair trial. Id.

¶13 Juror 33’s responses about law enforcement testimony gave
the trial court reasonable grounds to believe the juror could not render a
fair and impartial verdict. State v. Bingham, 176 Ariz. 146, 147 (App. 1993)
(“A juror’s inclination to credit the testimony of police officers more than
other witnesses is grounds for dismissing the juror.”). Neither party nor
the court ever received later assurances that Juror 33 could set aside the
prejudice in favor of law enforcement testimony. Under such facts, the
court should have removed the juror under Rule 18.4(b), and the failure to
do so was error. See Bingham, 176 Ariz. at 147 (concluding the record
showed “unrebutted evidence of prejudice sufficient to require removal”
because the trial court “made no further inquiry” about a juror’s expressed
predisposition to favor testimony of police officers).

¶14 The State contends the juror’s bias was rehabilitated through
several subsequent questions posed by the parties to the venire as a whole,
and Juror 33 did not indicate at any of these points an inability to serve
fairly and impartially. But none of these questions, or the related discussion
with the potential jurors, addressed the specific bias Juror 33 expressed.
Thus, we reject the State’s contention that these questions sufficiently
rehabilitated Juror 33.

¶15 We also conclude that the court’s error was fundamental.
“Even a single partial juror violates a defendant’s constitutional right to a
fair trial.” State v. Lehr, 227 Ariz. 140, 151, ¶ 49 (2011) (quotation omitted).
Because the “right to a jury composed of unbiased, impartial jurors is
protected by the United States and Arizona constitutions,” State v. Jimenez, 255 Ariz. 550, 553, ¶ 4 (App. 2023), the court’s failure to sua sponte strike
Juror 33, at a minimum, deprived Gastelum of a constitutional right
essential to his defense, Escalante, 245 Ariz. at 141, ¶ 19. However, to secure
reversal of his convictions, Gastelum must also show the error prejudiced
him. Id. at 142, ¶ 21. To make this showing, Gastelum must show that,
absent the error, “a reasonable jury could have reached a different verdict.”

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Id. at 144, ¶ 29 (citation modified). This “could have” standard is not easily
satisfied; it is an objective inquiry that excludes “imaginative guesswork.”
Id. at ¶ 31.

¶16 Gastelum’s briefing provides no explanation as to how the
failure to strike Juror 33 prejudiced his case. Gastelum does not even
mention, much less analyze, the “could have” standard for showing
prejudice. See Escalante, 245 Ariz. at ¶¶ 29, 31. Instead, he merely recites
the principle that the “inclusion of a potentially biased juror undermines
the defendant’s right to a fair trial.” But that assertion is more relevant to
whether any error was fundamental, not prejudicial. See id. at 141, ¶ 18.
Gastelum never discusses this error as it relates to the evidence presented
at trial, the parties’ arguments, or any other portions of the record that
would show what role the error played in the trial. Id. at 144, ¶ 31; see also
State v. Dickinson, 233 Ariz. 527, 531, ¶ 13 (App. 2013) (“Prejudice is a
fact-intensive inquiry, the outcome of which will depend upon the type of
error that occurred and the facts of a particular case.” (citation modified));
State v. Peraza, 239 Ariz. 140, 149–50, ¶ 37 (App. 2016) (noting the defendant
“bears the burden to show he was prejudiced” by the error, and that the
“fact-intensive inquiry . . . required to establish prejudice” necessarily
differs from case to case). Because Gastelum has neglected to connect this
error to any factual analysis of the record, he has not met his burden of
demonstrating prejudicial error.

B. Failure to Testify

¶17 Gastelum argues the prosecutor improperly commented on
his decision not to testify at trial. During the rebuttal closing argument, the
prosecutor argued in part as follows:

So let’s talk about credibility of witnesses, because [defense
counsel] read you a portion of that instruction but he also left
out some key parts. It’s on page three of your jury
instructions. In evaluating testimony, you should use the
tests for truthfulness that people use in determining matters
of importance in everyday life—there’s that life experience
and common sense that you get to take in the jury room with
you—including such factors as the witness’ ability to see or
hear or know the things the witness testified to. I’m going to
pause there. There were two witnesses to this crime: [M.M.]
and the defendant. And, luckily, we live in America where
he doesn’t have to take the stand and say anything if he
doesn’t want to. Luckily, we live in a country where it’s not

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enough to just point a finger at someone and say guilty, hang
him up. Luckily, we live in a country where I am held to a
burden. But there are two witnesses, two eyewitnesses, and
so we have to go beyond that. We have to look at other
evidence.

Because Gastelum did not object to this argument, we will reverse only if
he has established fundamental, prejudicial error.

¶18 “It is well-established that both federal and state laws prohibit
a prosecutor from making any comment, direct or indirect, about a
defendant’s failure to testify.” State v. Ramos, 235 Ariz. 230, 234, ¶ 10 (App.
2014); see also U.S. Const. amend. V; Ariz. Const. art. 2, § 10. Such comments
reflect a “penalty imposed by courts for exercising a constitutional privilege
[against self-incrimination]” by making assertion of that right costly. Griffin
v. California, 380 U.S. 609, 614 (1965). Whether a statement is improper turns
upon the context in which it is made and whether the jury would “naturally
and necessarily” perceive the statement to be a comment on the defendant’s
decision not to testify. State v. Acuna Valenzuela, 245 Ariz. 197, 221, ¶ 104
(2018). To be improper, the comment must also be adverse, meaning that it
“support[s] an unfavorable inference against the defendant and, therefore,
operate[s] as a penalty imposed for exercising a constitutional privilege.”
State v. Mata, 125 Ariz. 233, 238 (1980); see also Lakeside v. Oregon, 435 U.S.
333, 338–39 (1978) (“It is clear from even a cursory review of the facts and
the square holding of the Griffin case that the Court was there concerned
only with adverse comment, whether by the prosecutor or the trial
judge—comment by the prosecution on the accused’s silence or instructions
by the court that such silence is evidence of guilt.” (citation modified)).

¶19 Standing alone, the prosecutor’s comment that Gastelum
“doesn’t have to take the stand and say anything if he doesn’t want to” is
not improper. Statements that “simply affirm[] the defendant’s right not to
testify at trial” are not adverse. State v. Church, 175 Ariz. 104, 106–07 (App.
1993) (concluding that the prosecution’s statement in closing that the
defendant “need not testify, and this is not something that [the jury] should
consider in deliberations on this case, because it is a right that he has” was
not adverse). But we cannot ignore that this statement was made just after
the prosecutor emphasized to the jury that the defendant was one of two
witnesses to the crimes in question. Considering that the other witness the
prosecutor mentioned did testify, the prosecutor’s comments implied that
Gastelum had relevant information he failed to provide by deciding not to
testify; the comments were improper. See State v. Trostle, 191 Ariz. 4, 16
(1997) (finding improper the prosecutor’s comment in rebuttal that “only

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two individuals knew detailed information of the crime: ‘[o]ne is [a
co-conspirator] and the other one is sitting right here at the table asking you
not to hold him accountable through his lawyer’”); State v. Thompson, 252
Ariz. 279, 299, ¶ 77 (2022) (“As relevant here, we have held that a prosecutor
cannot point out that the defendant supplied no evidence concerning a
factual circumstance if the defendant is the only person who could provide
that evidence because that serves as a comment on the defendant’s failure
to testify.”). Such comments violated Gastelum’s constitutional rights and
thus constitute fundamental error. Ramos, 235 Ariz. at 236, ¶ 16; Escalante,
245 Ariz. at 141, ¶ 19.

¶20 Again, Gastelum must establish prejudice. Escalante, 245
Ariz. at 142, ¶ 21. But as with his briefing on juror bias, Gastelum fails to
develop an argument based on any fact in the record or evidence presented
at trial as to how the error prejudiced him. Because he has failed to bear his
burden of engaging in the necessary, fact-intensive analysis required under
fundamental error review, reversal is not warranted. See Dickinson, 233
Ariz. at 531, ¶ 13 (explaining that a defendant “must affirmatively prove
prejudice and may not rely upon speculation to carry his burden” (citation
modified)); Peraza, 239 Ariz. at 149–50, ¶ 37.

¶21 Our conclusion that Gastelum has not established
fundamental error should not be taken as approval of the prosecutor’s
comments. There is little reason to make even non-adverse comments that
draw the jury’s attention to a defendant’s exercise of the right to remain
silent. See Church, 175 Ariz. at 107. Such comments are not only unhelpful,
they also come perilously close to violating the constitutional rights of
criminal defendants. The wiser decision for prosecutors is to avoid making
any comments about a defendant’s decision not to testify.

C. Multiplicity

¶22 In his pro se supplemental brief, Gastelum contends his
charges raise concerns of multiplicity, which “occurs when a defendant is
charged with a single offense in multiple counts,” raising concerns about
double jeopardy. State v. Rix, 256 Ariz. 125, 136, ¶ 34 (App. 2023).
Multiplicity can be triggered when (1) the same conduct violates two
different criminal statutes, or (2) multiple violations of the same statute are
based on the same conduct. State v. Jurden, 239 Ariz. 526, 529, ¶¶ 10–11
(2016). When a person is charged for multiple violations of the same statute,
the central question is whether the actions charged violate the criminal
statute in “separate and distinct ways.” State v. Moninger, 258 Ariz. 18, 22,
¶ 12 (2024).

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¶23 “A person commits sexual conduct with a minor by
intentionally or knowingly engaging in sexual intercourse . . . with any
person who is under eighteen years of age.” A.R.S. § 13-1405(A). As
defined by statute, “sexual intercourse” includes “penetration into the
penis, vulva or anus by any part of the body or by any object or
masturbatory contact with the penis or vulva.” A.R.S. § 13-1401(4). “A
person commits molestation of a child by intentionally or knowingly
engaging in . . . sexual contact . . . with a child who is under fifteen years of
age.” A.R.S. § 13-1410(A). Sexual contact means, among other things,
“direct or indirect touching, fondling or manipulating of any part of the
genitals.” A.R.S. § 13-1401(3)(a).

¶24 Concerning the charges for which Gastelum was convicted,
the State alleged Gastelum committed sexual conduct with a minor by
committing the following acts: (1) penetrating M.M.’s vagina with his
finger, (2) penetrating M.M.’s anus with his penis and (3) engaging in
masturbatory contact with M.M.’s vulva with his penis. Each act involves
a different way of engaging in sexual intercourse. Thus, the convictions do
not result in multiplicity. See Moninger, 258 Ariz. at 24, ¶ 23 (noting that a
defendant could commit luring a minor for sexual exploitation under A.R.S.
§ 13-3554 multiple times if different types of sexual conduct are involved).

D. Sufficiency of the Evidence

¶25 Gastelum also contends his convictions are not supported by
the evidence. Substantial evidence supporting a conviction is “proof that
reasonable persons could accept as adequate and sufficient to support a
conclusion of defendant’s guilt beyond a reasonable doubt.” State v. West, 226 Ariz 559, 562, ¶ 16 (2011) (citation modified). Gastelum argues M.M.’s
testimony conflicted with her earlier statements to other witnesses, and at
trial, she could not remember Gastelum penetrating her anus or vagina
with his finger; nor did she recall him placing his penis in her vagina. But
the fact that M.M.’s testimony conflicted with previous statements she
made to others does not establish a lack of substantial evidence. The weight
to be assigned to the evidence and the credibility of witnesses are questions
that lie exclusively with the jury; we will not reweigh the evidence or
reassess credibility on appeal. State v. Buccheri-Bianca, 233 Ariz. 324, 334,
¶ 38 (App. 2013).

¶26 The evidence presented at trial supports Gastelum’s
convictions. To prove that Gastelum committed molestation of a child, the
State needed to show that Gastelum “intentionally or knowingly engag[ed]
in or caus[ed] a person to engage in sexual contact . . . with a child who is

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under fifteen years of age.” A.R.S. § 13-1410. Sexual contact includes “any
direct or indirect touching, fondling or manipulating of any part of the
genitals.” A.R.S. § 13-1401(A)(3)(a). M.M. testified that Gastelum touched
her vagina while lying down next to her before pulling down her pants.
Such touching, even through clothing, constitutes molestation. State v.
Mendoza, 234 Ariz. 259, 260, ¶ 6 (App. 2014).

¶27 The State needed to prove that Gastelum “intentionally or
knowingly engag[ed] in sexual intercourse . . . with any person who is
under eighteen years of age” to convict Gastelum of sexual conduct with a
minor. A.R.S. § 13-1405(A). Sexual intercourse is defined as “penetration
into the penis, vulva or anus by any part of the body . . . or masturbatory
contact with the penis or vulva.” A.R.S. § 13-1401(A)(4); see also State v.
Marshall, 197 Ariz. 496, 506, ¶ 39 (App. 2000) (explaining that “one cannot
penetrate the vagina without also contacting or penetrating the vulva”).
Gastelum’s convictions reflect three ways of engaging in sexual intercourse:
(1) penetrating M.M.’s vagina with his finger (Count 2), (2) engaging in
masturbatory contact against M.M.’s vulva with his penis (Count 4), and (3)
penetrating M.M.’s anus with his penis (Count 5).

¶28 Substantial evidence supports Gastelum’s convictions. As to
Count 5, M.M. testified that Gastelum “put his penis inside [her] butt,” that
he went “all the way inside,” causing her pain. Though M.M. did not
specifically use the term “anus,” a jury could reasonably infer from her
description of events that Gastelum did penetrate her anus. As to Counts 2
and 4, Gastelum is correct that M.M. disclaimed that he put his finger in her
vagina or engaged in masturbatory contact with his penis against her
vagina. But other witnesses testified that M.M. did inform them that such
conduct occurred the same day the crimes were committed. The officer
who first interviewed M.M. testified that M.M. reported “she felt a firm
object” and moments later recognized it was Gastelum’s penis being
pressed against her vagina. The Nurse testified that M.M. made similar
statements that Gastelum had put his finger in her vagina; this was
corroborated by the results of the exam the Nurse conducted. It was not
unreasonable for the jury to give more weight to these statements than
M.M.’s testimony at trial. M.M. acknowledged during her testimony that
her memory had faded since the crimes took place, and an expert witness
for the State testified that memories of traumatic events can fade. Gastelum
has not shown the evidence is insufficient evidence to support the jury’s
verdicts.

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CONCLUSION

¶29 After reviewing the entire record and considering Gastelum’s
arguments, Gastelum has failed to establish that reversible error occurred.
Clark, 196 Ariz. at 541, ¶ 50. Thus, we affirm Gastelum’s convictions and
sentences for molestation of a child and sexual conduct with a minor.
Defense counsel has no further obligations unless counsel finds an issue
that may be appropriately submitted to the Arizona Supreme Court by
petition for review. State v. Shattuck, 140 Ariz. 582, 584–85 (1984). Gastelum
may file either a pro se motion for reconsideration or a petition for review
within 30 days from the date of this decision. If he files a timely motion for
reconsideration, he has 15 days after that motion is decided to file a petition
for review. See Ariz. R. Crim. P. 31.21.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JT

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