Cite as 2023 Ark. App. 313 ARKANSAS COURT OF APPEALS DIVISION I No. CR-22-341 NAHAMAN SOLORES CASTILLO Opinion Delivered May 31, 2023 APPELLANT APPEAL FROM THE CONWAY COUNTY CIRCUIT COURT V. [NO. 15CR-19-243] STATE OF ARKANSAS HONORABLE JERRY DON RAMEY, APPELLEE JUDGE AFFIRMED BRANDON J. HARRISON, Chief Judge A Conway County jury convicted Nahaman Castillo on one count of fourth-degree sexual assault, a Class A misdemeanor. Ark. Code Ann. § 5-14-127(a)(1)(B) & (b)(2) (Supp. 2021). The jury found him guilty of having sexual contact with his minor daughter in June 2019 while her mother Isyurai Martinez was at work. The jury acquitted him of second- degree sexual assault for that incident; it also acquitted on second-degree and fourth-degree sexual-assault charges brought on a different alleged incident. Castillo was sentenced, at the jury’s recommendation, to twelve months’ probation and no fine. Castillo appeals from the circuit court’s denial of two motions for mistrial. That is never an easy lift for the appellant: a mistrial is a drastic remedy that should be declared only when there has been an error so prejudicial that justice cannot be served by continuing the trial or when it cannot be cured by an instruction. Halliburton v. State, 2020 Ark. 101, at 18, 594 S.W.3d 856, 867. The decision lies within the sound discretion of the circuit court, and we do not disturb it unless an abuse of discretion or manifest prejudice to the complaining party is shown. Barnum v. State, 2020 Ark. App. 523, 614 S.W.3d 453. The first mistrial motion involved what Castillo says was an improper reference to his immigration status. Neither Castillo nor Martinez was lawfully present in this country. Before trial, Castillo moved to exclude references to his immigration status. The prosecutor responded, “I didn’t have any intention of mentioning that.” The court replied, “Okay.” And indeed, the State did not mention Castillo’s immigration status in its case-in-chief. But Castillo decided to testify. In anticipation of his testimony, the defense called Mike Miller—who owned the restaurant in Morrilton where Castillo worked—to testify to Castillo’s reputation for truthfulness. Miller said he thought Castillo was a truthful person. On cross-examination, the prosecution asked, “Has [Castillo] ever told you whether or not he’s illegally in the United States or not.” Miller answered, “Yes, sir.” The prosecutor asked, “What did he tell you?” Defense counsel then moved for a mistrial, arguing that a court order barred that inquiry, and the testimony was prejudicial. The State said the questions could be relevant to Miller’s credibility if, for example, Miller had been employing and paying someone he knew could not legally work. The court denied the motion for mistrial. It found the defense opened the door to the question by eliciting testimony on Castillo’s truthfulness. But it ordered the prosecutor to ask no more questions on the subject. Defense counsel did not ask for a jury admonition, and none was given. We affirm the denial of the first motion for mistrial. By that point in the trial, the …
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