State v. Gordillo

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

NOEL JESUS GORDILLO, Appellant.

No. 1 CA-CR 25-0115
FILED 05-13-2026

Appeal from the Superior Court in Maricopa County
No. CR2023-111151-001
The Honorable Geoffrey H. Fish, Judge

AFFIRMED

COUNSEL

Arizona Attorney General's Office, Phoenix
By Michael T. O'Toole
Counsel for Appellee

Bain & Lauritano, P.L.C., Glendale
By Amy E. Bain
Counsel for Appellant
STATE v. GORDILLO
Decision of the Court

MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Andrew M. Jacobs and Judge Brian Y. Furuya joined.

M O R S E, Judge:

¶1 Noel Jesus Gordillo ("Gordillo") appeals his conviction for
second-degree murder. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND 1

¶2 On March 5, 2023, at around 8:00 p.m., "John"2 rode his bike
near 28th Drive and West Cactus Road and stopped to speak with Gordillo's
sister. During the conversation, Gordillo approached the pair, took John's
bike, and rode off. John felt nervous and left to find his friend ("Michael")
to warn him that he might be in danger. John found Michael and tried to
get his attention. But Gordillo then rode the stolen bicycle to Michael,
pointed a gun, yelled "hey, Michael," and shot him.

¶3 Michael ran across the street into a restaurant. He bled from
his mouth and collapsed onto a table and then the floor. He then stood up
and left the restaurant, leaving a backpack on the floor, and ran across the
street, leaving a trail of blood. Michael entered a convenience store holding
his bloody jaw and collapsed. Michael later died from the gunshot wound
to his head.

¶4 John followed Michael to the restaurant and grabbed the
backpack. John then followed Michael to the convenience store, but the
employees had locked the doors and did not allow John to enter. John later
retrieved Michael's scooter from near where he had been shot and returned
the scooter and backpack to Michael's girlfriend. The next day, John
retrieved his stolen bicycle from Gordillo's sister and had his friend call
"Silent Witness"—an anonymous tip line—to report the shooting.

1 We view the evidence in the light most favorable to sustaining the
verdict and resolve all reasonable inferences against Gordillo. See State v.
Stroud, 209 Ariz. 410, 412, ¶ 6 (2005).
2 We use pseudonyms to protect the privacy of victims and witnesses.

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STATE v. GORDILLO
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¶5 Eventually, on March 14, 2023, John chose to speak with the
police because he felt he "had to do what's right." John identified Gordillo
from a photographic lineup, and, on March 15, 2023, Gordillo was arrested.

¶6 The State charged Gordillo with second-degree murder and,
after a fifteen-day trial, a jury convicted him. The trial court sentenced
Gordillo to 20 years in prison. Gordillo timely appealed and we have
jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

DISCUSSION

¶7 On appeal, Gordillo challenges the denial of his motion for
new trial. Gordillo also contends the court erred by allowing a detective to
testify as an expert without providing the required foundation.

I. Motion for New Trial or Judgment of Acquittal.

¶8 Gordillo moved for a new trial under Arizona Rule of
Criminal Procedure ("Rule") 24.1. Gordillo argues the trial court erred in
denying the motion because there was "insufficient evidence to support"
the conviction and the prosecutor knowingly presented false testimony.

a. Sufficiency of the Evidence.

¶9 First, Gordillo argues the trial court erred in denying his Rule
24.1 motion for a new trial because the verdict was contrary to the weight
of the evidence.

¶10 We review a trial court's denial of a motion for new trial under
Rule 24.1(c)(1) for an abuse of discretion, and we will find no abuse if the
evidence was sufficient to support the challenged verdict. State v. Harm,
236 Ariz. 402, 406, ¶ 11 (App. 2015).

¶11 The trial court may grant a new trial if "the verdict is contrary
to law or the weight of the evidence." Ariz. R. Crim. P. 24.1(c)(1). In
considering the sufficiency of evidence, we view all facts in favor of the
verdict and resolve all evidentiary conflicts against the defendant. State v.
Pena, 235 Ariz. 277, 279, ¶ 5 (2014). Our review is confined to determining
whether there is substantial evidence to support the verdict. Id.
"Substantial evidence is more than a mere scintilla and is such proof that
reasonable persons could accept as adequate and sufficient to support a
conclusion of defendant's guilt beyond a reasonable doubt." State v. Ellison,
213 Ariz. 116, 134, ¶ 65 (2006) (cleaned up). Substantial evidence may be
direct or circumstantial. State v. Pena, 209 Ariz. 503, 505, ¶ 7 (App. 2005). If

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STATE v. GORDILLO
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reasonable people "could differ as to whether the evidence establishes a fact
in issue, that evidence is substantial." State v. Mincey, 141 Ariz. 425, 432
(1984). We do not "reweigh the evidence to decide if [we] would reach the
same conclusions as the trier of fact." State v. Barger, 167 Ariz. 563, 568 (App.
1990).

¶12 Gordillo highlights that no weapons, bullet casings, or
projectiles were found at the scene, no video of the actual shooting existed,
and no DNA testing was done. Gordillo also contends that John's testimony
lacked credibility due to inconsistent statements and drug impairment at
the time of the shooting.

¶13 John testified he saw Gordillo shoot Michael and identified
Gordillo in a photo lineup. The jury saw photographs and video footage
placing Gordillo at the scene of the shooting. Although Gordillo initially
denied it, he eventually admitted to being in the area that night. Text
messages from Gordillo to another individual before the shooting
demonstrated Gordillo's attempt to purchase a weapon and bullets and that
Gordillo had plans to "pull up" on someone and get them. Lastly, the jury
was permitted to use Gordillo's conflicting statements about whether he
was present at the scene of the shooting as showing "consciousness of guilt."
See State v. Fulminante, 193 Ariz. 485, 494, ¶ 27 (1999).

¶14 To the extent Gordillo attacks John's credibility as a witness,
he demonstrates no reversible error. Gordillo's counsel subjected John to
cross-examination, where his drug use was presented to the jury to impeach
his testimony. State v. Orantez, 183 Ariz. 218, 222 (1995) ("Evidence of
intoxication at the time of observation is admissible to attack a witness on
[his] ability to perceive and remember."). Similarly, Gordillo's counsel
impeached John's credibility with his prior inconsistent statements. See
Ariz. R. Evid. 613. Despite this evidence, the jury accepted John's version
of events. See State v. Hall, 204 Ariz. 442, 455, ¶ 55 (2003) ("The credibility
of witnesses [] is a matter for the jury.").

¶15 Substantial evidence supports the jury's verdict. As such,
Gordillo has not demonstrated that the trial court abused its discretion in
denying his motion for new trial. See State v. Fischer, 242 Ariz. 44, 52, ¶ 28
(2017) ("The appellate court's role is not to weigh the evidence. It is to
determine whether, resolving every conflict in support of the [verdict],
substantial evidence supports the [verdict].").

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STATE v. GORDILLO
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b. Knowing Presentation of False Testimony.

¶16 Gordillo argues the trial court erred in denying his motion for
new trial because the State knowingly presented John's false testimony.
Gordillo contends the State knew John's testimony regarding his possession
and use of Michael's backpack was false because the story changed
throughout the case and the State did not call Michael's girlfriend as a
witness. Gordillo alleges this misconduct violated his right to due process.

¶17 Absent a clear abuse of discretion, we will not disturb the trial
court's ruling on a motion for new trial based on prosecutorial misconduct.
See State v. Lee, 189 Ariz. 608, 616 (1997). However, we review de novo
alleged due process violations. State v. Hargrave, 225 Ariz. 1, 13, ¶ 42 (2010).

¶18 Leading up to trial, the State's witnesses told conflicting and
changing stories regarding Michael's backpack and where John went
immediately after the shooting. At one point John stated he retrieved the
backpack from his friend's girlfriend and, at another point, denied taking
the backpack from the restaurant. John's testimony and pre-trial statements
contained other inconsistencies, including, whether he knew Michael at the
time of the shooting and whether he looked through the backpack before
giving it to Michael's girlfriend.

¶19 However, John admitted he had not been honest in his initial
conversations with police. When asked why, John testified that the victim
was his friend and he wanted justice for him, he felt guilty about not being
honest, and he was scared about the legal repercussions of his dishonesty.
At trial, he stated he was "not as scared and nervous," and wanted "to tell
the whole truth."

¶20 To prevail on a claim that the state presented false testimony,
a defendant must establish that "(1) the testimony [] was actually false,
(2) the prosecution knew or should have known that the testimony was
actually false, and (3) that the false testimony was material." United States
v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003) (citing Napue v. Illinois, 360
U.S. 264, 269–71 (1959)). "[A] new trial is not required unless we find
[testimonial] inconsistencies to be of such a nature as to convince this Court
that the witness was committing, or had committed, perjury." State v.
Morrow, 111 Ariz. 268, 271 (1974) (cleaned up). And "[w]hile prosecutors
may not knowingly allow a witness to testify falsely, cross-examination is
the appropriate tool for probing the truthfulness of a witness's statements."
State v. Rivera, 210 Ariz. 188, 190, ¶ 11 (2005) (citation omitted); see also id. at

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194, ¶ 28 ("Absent a showing that the prosecution was aware of any false
testimony, the credibility of witnesses is for the jury to determine.").

¶21 Gordillo fails to demonstrate that John's testimony was false;
he shows only that John had made prior inconsistent statements. Mere
inconsistency in testimony by government witnesses does not establish the
prosecutor knowingly used false testimony. United States v. Sherlock, 962
F.2d 1349, 1364 (9th Cir. 1989); see also United States v. Bailey, 123 F.3d 1381,
1396 (11th Cir. 1997) (explaining perjury is not established by the fact that a
witness's "testimony is challenged by another witness or is inconsistent
with prior statements" (citation omitted)).

¶22 The trial court highlighted this conclusion stating, "this
[c]ourt can certainly not make th[e] determination that this was perjury
because the [c]ourt is not sure what the truth is, frankly." Regarding the
State's decision to not call Michael's girlfriend, the trial court stated it was
the State's "own trial strategy" to make that determination. Gordillo does
not point to any error aside from his conclusory statement that the State
knew John's testimony was false. On this record, Gordillo has not
demonstrated any error. See State v. Ferrari, 112 Ariz. 324, 334 (1975)
(explaining that inconsistent statements alone do not demonstrate that the
State knowingly used perjured or false testimony); see also Tapia v. Tansy,
926 F.2d 1554, 1563 (10th Cir. 1991) ("Contradictions and changes in a
witness's testimony alone do not constitute perjury and do not create an
inference, let alone prove, that the prosecution knowingly presented
perjured testimony.").

II. Admission of "Expert" Testimony.

¶23 Gordillo argues that his right to due process was violated
because the trial court improperly allowed a detective to testify as an expert.
Gordillo contends the State failed to lay adequate foundation for the
detective's expert testimony, the State did not provide proper notice to the
defense to use the detective for expert testimony, the testimony that he was
expecting to find a "small caliber wound" violated the trial court's
instruction not to opine "specifically on the caliber of the bullet," and the
testimony differed from the expert testimony of the forensic examiner.
Gordillo then argues that the admission of the testimony prejudiced him
because it weakened his case.

¶24 When the State began questioning the detective based on
images of Michael's wound, Gordillo's counsel objected. Gordillo's counsel
cited a variety of grounds, including relevancy, speculation, lacking

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STATE v. GORDILLO
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foundation, Rule 403 issues, and that it was improper expert testimony. The
trial court stated that it wanted to hear the question and requested the State
lay more foundation regarding the detective's experience with gunshot
wounds. Gordillo's counsel responded "[s]o the [c]ourt is allowing his
nonexpert opinion?" The trial court responded that, after the State laid
more foundation, the detective could testify about Michael's wound.
However, the trial court stated that the detective should not testify
"specifically what the caliber of this bullet [was]." The State then proceeded
to lay more foundation about the detective's experience with gunshot
wounds. When the detective's testimony moved into how gunshot wounds
differ based on the type of gun used, Gordillo's counsel objected again,
arguing the testimony was improper expert testimony. The trial court
overruled this objection stating that the testimony was based on the
detective's "own experience and training." When the State asked the
detective what sort of gun he was looking for based on his experience with
gunshot wounds, Gordillo's counsel objected for relevance. The trial court
overruled this objection. The detective stated he was looking for a small-
caliber weapon because the bullet wound was small. He also testified that
some weapons do not leave casings or, alternatively, no casings would be
left at the scene of a shooting if the shooter fired the gun from inside a bag
or container.

¶25 We review evidentiary rulings for an abuse of discretion.
State v. Blakely, 204 Ariz. 429, 437, ¶ 34 (2003). Arizona Rule of Evidence 701
provides that lay witness testimony must be "(a) rationally based on the
witness's perception; (b) helpful to clearly understanding the witness's
testimony or to determining a fact in issue; and (c) not based on scientific,
technical, or other specialized knowledge within the scope of Rule 702."

¶26 Here, the detective testified based on his perceptions of the
photos of the wound. The testimony was helpful to determine facts in issue,
i.e., whether the gun used would have made a "pop" sound, whether it was
the same gun found at Gordillo's apartment, and whether it was big enough
to protrude from a backpack. His testimony was not based on any
specialized knowledge and was reasonably based on his observations and
experience. See State v. Romero, 258 Ariz. 237, 248, ¶ 34 (App. 2024) ("When
a lay witness draws a reasonable inference from his 'firsthand knowledge
and perceptions of a situation,' the testimony is admissible . . ." (quoting
State v. Ayala, 178 Ariz. 385, 388 (App. 1994))). Additionally, the detective
stayed within the trial court's parameters by not opining about the specifics
of the caliber of the bullet, only stating generally he was "expecting to see a
small caliber round."

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¶27 Gordillo does not point to any authority suggesting that the
challenged testimony in this case could only be offered by an expert. To the
contrary, observation that the wound appeared consistent with a
small-caliber firearm seems squarely within the witness's firsthand
knowledge and perceptions of the situation as contemplated in Romero. We
also note that this approach finds support from other jurisdictions. See State
v. Williams, 439 So.2d 663, 666 (La. App. 1993) (permitting lay testimony
from police that a wound was made from "a small caliber weapon" because
it "did not require expert ballistics tests or knowledge" and the witness was
"not asked to identify the caliber but only its relative size"); State v. Platt, 241
N.E.3d 313, 337–39, ¶¶ 73–79 (Ohio App. 2024) (allowing lay opinion
testimony about firearm handling and safety, explaining police officers
"may offer lay testimony concerning matters that are within the officer's
experience and observations" (cleaned up))); State v. Morrison, 847 S.E.2d
238, 244 (N.C. App. 2020) (allowing lay testimony from a victim that he
heard shots from a semi-automatic (versus automatic) weapon based on his
own perception and prior knowledge of guns); People v. Oliver, 427 N.W.2d
898, 904 (Mich. App. 1988) (allowing lay opinion testimony by officers that
dents in car were consistent with damage from small-caliber bullets). The
witness offered permissible lay opinion testimony and Gordillo has not
demonstrated any error by the trial court.

CONCLUSION

¶28 For the foregoing reasons, we affirm.

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

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