                                  IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
                            STATE OF ARIZONA,
                          Appellee/Cross-Appellant,

                                      v.

                     JOEL RANDU ESCALANTE-OROZCO,
                          Appellant/Cross-Appellee.

                            No. CR-13-0088-AP
                           Filed January 12, 2017

        Appeal from the Superior Court in Maricopa County
            The Honorable Warren J. Granville, Judge
                       No. CR 2007-008288
   AFFIRMED IN PART, REVERSED AND REMANDED IN PART

COUNSEL:

Mark Brnovich, Arizona Attorney General, Dominic Draye, Solicitor
General, Lacey Stover Gard, Chief Counsel, Capital Litigation Section, and
Jeffrey L. Sparks (argued), Assistant Attorney General, Phoenix, Attorneys
for State of Arizona

Gregory J. Kuykendall (argued) and Theresa Loken, Kuykendall &
Associates, Tucson, Attorneys for Joel Randu Escalante-Orozco

David J. Euchner, Tucson, Attorney for Amicus Curiae Arizona Attorneys
for Criminal Justice

JUSTICE TIMMER authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES
BRUTINEL and BOLICK joined.

JUSTICE TIMMER, opinion of the Court:

¶1           Joel Randu Escalante-Orozco was sentenced to death after a
jury found him guilty of first degree murder, sexual assault, and first degree
burglary. We have jurisdiction over his automatic appeal and the State’s
                    STATE V. ESCALANTE-OROZCO
                         Opinion of the Court

cross-appeal under article 6, section 5(3) of the Arizona Constitution and
A.R.S. § 13-4031.1 We affirm Escalante-Orozco’s convictions and non-death
sentences. To comply with the United States Supreme Court’s decision in
Lynch v. Arizona, 136 S. Ct. 1818 (2016), we vacate the death sentence and
remand for a new penalty phase.

                             BACKGROUND2

¶2            In March 2001, Escalante-Orozco was employed as a live-in
maintenance worker at a Phoenix apartment complex. On March 9, he
installed flooring in the apartment that victim Maria R. shared with her
three-year-old son.

¶3           Maria’s body was found the next morning face down in her
bathtub with her nightshirt bunched around her neck. She had been beaten,
sexually assaulted, and stabbed until she bled to death. Maria’s young son
was wandering unharmed in the apartment.

¶4           Escalante-Orozco sold his car and immediately left for Mexico
without informing apartment management. Six years later, federal agents
detained Escalante-Orozco in Idaho and notified Phoenix Police.

¶5            After waiving his Miranda3 rights, Escalante-Orozco told
Phoenix Police officers that he drank two beers on the night of the murder
and then “everything went blank” until he found himself lying on Maria in
her hallway with his hand on her “private part.” He denied putting Maria’s
body in the bathtub but said he had washed blood off his face and hands.
Frightened, he returned to his apartment, showered, gathered important
documents, threw his blood-covered clothes into an apartment complex
dumpster, and took a bus to Mexico the next day. He denied assaulting or
killing Maria and suggested he had been drugged and set up by relatives
who were angry with him.


1     We cite the current versions of statutes unless material changes have
been made since Escalante-Orozco committed the offenses.

2      We view the facts in the light most favorable to sustaining the jury’s
verdict. State v. Gallegos, 178 Ariz. 1, 9, 870 P.2d 1097, 1105 (1994).

3      Miranda v. Arizona, 384 U.S. 436 (1966).
                                      2
                     STATE V. ESCALANTE-OROZCO
                          Opinion of the Court


¶6             The State indicted Escalante-Orozco on one count of first
degree murder, two counts of sexual assault, and one count of first degree
burglary and sought the death penalty. After a prescreening evaluation
revealed that Escalante-Orozco had an intelligence quotient (“IQ”) less than
seventy-five, the trial court conducted a twenty-one-day Atkins4 hearing to
determine whether he suffers from an intellectual disability, making him
ineligible for the death penalty. See A.R.S. § 13-753. The court ultimately
found that Escalante-Orozco did not meet his burden of proving intellectual
disability.

¶7            At trial, the court dismissed one of the sexual assault charges,
and the jury found Escalante-Orozco guilty on all remaining counts. The
jury found that Escalante-Orozco had murdered Maria in an especially
cruel manner, see A.R.S. § 13-751(F)(6), and, after considering mitigation
evidence, determined that he should be sentenced to death. The court
imposed consecutive sentences of fifteen and twenty years’ imprisonment
for the sexual assault and burglary counts, respectively.

                               DISCUSSION

       I.     Appeal and cross-appeal

              A.     Pretrial Issues

              1.     Constitutionality of Arizona’s framework             for
                     determining intellectual disability

¶8            A person with an intellectual disability cannot be sentenced
to death. A.R.S. § 13-753; Atkins, 536 U.S. at 321. The Supreme Court has
not directed a precise methodology for determining intellectual disability.
See Bobby v. Bies, 556 U.S. 825, 830 (2009) (“Our opinion [in Atkins] did not
provide definitive procedural or substantive guides for determining when
a person who claims mental retardation ‘will be so impaired as to fall
[within Atkins’ compass].’”). Escalante-Orozco argues that aspects of § 13-
753, which provides Arizona’s framework for determining whether a
capital defendant has an intellectual disability, are unconstitutional. We
review matters of statutory interpretation and constitutional law de novo.


4      Atkins v. Virginia, 536 U.S. 304 (2002).
                                       3
                     STATE V. ESCALANTE-OROZCO
                          Opinion of the Court

State v. Roque, 213 Ariz. 193, 217 ¶ 89, 141 P.3d 368, 392 (2006). We presume
a statute is constitutional and will construe it to preserve its
constitutionality, if possible. State v. Thompson, 204 Ariz. 471, 474 ¶ 10, 65
P.3d 420, 423 (2003).

¶9             Before considering Escalante-Orozco’s arguments, it is useful
to broadly review the framework for determining an intellectual disability.
Arizona defines “intellectual disability” as meaning “a condition based on
a mental deficit that involves significantly subaverage general intellectual
functioning, existing concurrently with significant impairment in adaptive
behavior, where the onset of the foregoing conditions occurred before the
defendant reached the age of eighteen.” A.R.S. § 13-753(K)(3). When the
state files a notice of intent to seek the death penalty, the court, absent a
defendant’s objection, must appoint a prescreening psychological expert to
determine the defendant’s IQ. Id. § 13-753(B). If the IQ is higher than
seventy-five, the state can continue to seek the death penalty, and no further
action is necessary. Id. § 13-753(C).

¶10            If the defendant’s IQ is seventy-five or less, a more rigorous
inquiry is triggered. The court must appoint one or more experts to
examine the defendant “using current community, nationally and
culturally accepted physical, developmental, psychological and intelligence
testing procedures.” Id. § 13-753(D)—(E). The defendant is then afforded a
hearing, where he bears the burden of proving an intellectual disability by
clear and convincing evidence. Id. § 13-753(G). If the court finds that the
defendant has an intellectual disability, it must dismiss the notice of intent
to seek the death penalty. Id. § 13-753(H). If the defendant fails to prove an
intellectual disability, the notice remains in effect. Id. The defendant can
still introduce evidence of an intellectual disability or diminished mental
capacity at the penalty phase of the sentencing proceeding. Id.

                     (a)    IQ score cutoff

¶11            Section 13-753(F) provides that if all the defendant’s IQ test
scores are above seventy, the court cannot dismiss the notice of intent to
seek the death penalty on intellectual disability grounds. Escalante-Orozco
argues that this provision violates the Eighth Amendment and article II,
section 15 of the Arizona Constitution.



                                      4
                     STATE V. ESCALANTE-OROZCO
                          Opinion of the Court

¶12            Escalante-Orozco’s four IQ tests resulted in scores ranging
from fifty-eight to seventy-nine, considering adjustments for error. Because
some scores were below seventy, § 13-753(F) did not apply, and Escalante-
Orozco lacks standing to challenge the statute’s constitutionality. Cf. State
v. Reeves, 233 Ariz. 182, 185 ¶ 10, 310 P.3d 970, 973 (2013) (declining to reach
defendant’s constitutional challenge to a capital sentencing statute
permitting two retrials after a guilty verdict when the defendant was
subject to only one retrial); State v. Powers, 117 Ariz. 220, 225, 571 P.2d 1016,
1021 (1977) (holding that generally, only a person injured by a statute can
challenge its constitutionality).

¶13            We nevertheless address one of Escalante-Orozco’s
arguments to provide guidance in other cases. In Hall v. Florida, 134 S. Ct.
1986, 2001 (2014), the Supreme Court held that Florida’s definition of
intellectual disability as requiring an IQ test score of seventy or less,
without considering any margin of error, violated the Eighth Amendment.
Section 13-753(K)(5) requires courts to consider the margin of error when
determining a defendant’s IQ. But in State v. Roque, this Court stated,
without citing any authority, that “the statute accounts for margin of error
by requiring multiple tests,” and that “[i]f the defendant achieves a full-
scale score of 70 or below on any one of the tests, then the court proceeds to
a hearing.” 213 Ariz. 193, 228 ¶ 150, 141 P.3d 368, 403 (2006) (citation
omitted). Escalante-Orozco argues that Roque’s view that margin of error is
accounted for by conducting multiple tests rather than considering the
margin of error for each test makes subsection (F) unconstitutional under
Hall because it results in a bright-line cutoff.

¶14             Roque incorrectly described § 13-753(K)(5).           First, the
provision’s plain language provides that courts must consider the margin
of error for each IQ test, regardless of the number of tests. See A.R.S. § 13-
753(K)(5) (requiring the court to “take into account the margin of error for
the test administered”). This is consistent with established medical
practices. See Hall, 134 S. Ct. at 1995 (“The professionals who design,
administer, and interpret IQ tests have agreed, for years now, that IQ test
scores should be read not as a single fixed number but as a range. Each IQ
test has a ‘standard error of measurement . . . .’” (citation omitted)). Second,
if § 13-753(K)(5) is interpreted as Roque suggested, § 13-753(F) would violate
the Eighth Amendment by setting a full-scale score of seventy as a cutoff
without considering the margin of error for each individual test. Our
interpretation avoids this unconstitutional result.

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                     STATE V. ESCALANTE-OROZCO
                          Opinion of the Court


¶15           The trial court here considered the margin of error for each IQ
score. Therefore, Roque’s mistaken interpretation of § 13-753(K) did not
adversely affect Escalante-Orozco. As occurred in this case, courts should
consider the margin of error for each IQ score regardless of the number of
tests administered.

                      (b)    Definition of adaptive behavior

¶16           Section 13-753(K)(1) defines “adaptive behavior” as “the
effectiveness or degree to which the defendant meets the standards of
personal independence and social responsibility expected of the
defendant's age and cultural group.” This definition requires an “overall
assessment of the defendant’s ability to meet society’s expectations of him”
and differs from a clinical definition, which bases an impairment in
adaptive functioning on deficits in at least two life-skill categories without
considering strengths. See State v. Grell, 212 Ariz. 516, 529 ¶ 62, 135 P.3d
696, 709 (2006) (“Grell II”); see also State v. Boyston, 231 Ariz. 539, 547 ¶ 34,
298 P.3d 887, 895 (2013).

¶17            Escalante-Orozco and Amicus argue that Arizona’s definition
of “adaptive behavior” violates the Eighth Amendment and Hall by
deviating from the medical definition. Hall noted that “[t]he legal
determination of intellectual disability is distinct from a medical
diagnosis,” although the legal determination “is informed by the medical
community’s diagnostic framework.” 134 S. Ct. at 2000; see also Kansas v.
Crane, 534 U.S. 407, 413 (2002) (“[T]he science of psychiatry . . . informs but
does not control ultimate legal determinations..”). Section 13-753(K)(1) is
“similar in overall meaning” to the clinical definition. Grell II, 212 Ariz. at
529 ¶ 62, 135 P.3d at 709. And the required “overall assessment” permits
consideration of deficits in the life-skill categories identified by medical
clinicians. Id. Arizona’s failure to precisely align its definition of adaptive
behavior with the prevailing medical definition does not violate the Eighth
Amendment. Cf. Hooks v. Workman, 689 F.3d 1148, 1172 (10th Cir. 2012)
(concluding that a court is not constitutionally required to consider
adaptive deficits and ignore strengths); Ortiz v. United States, 664 F.3d 1151,
1168–69 (8th Cir. 2011) (noting that while “the mental health community
may ignore an individual’s strengths when looking at adaptive functioning,
presumably as a function of its role in providing support and services to
impaired individuals, the law makes a holistic view of an individual,

                                       6
                     STATE V. ESCALANTE-OROZCO
                          Opinion of the Court

recognizing that a few reported problems may not negate an inmate’s
ability to function in other ways” (internal quotes and interlineations
omitted)).
                    (c)   Standard of proof

¶18           In Grell II, this Court concluded that the predecessor to § 13-
753(G), which places the burden on a defendant in a pretrial inquiry to
prove intellectual disability by clear and convincing evidence, is
constitutional. 212 Ariz. at 521–25 ¶¶ 21–41, 135 P.3d at 701–06. Escalante-
Orozco and Amicus urge us to revisit that decision, but we decline to do so
here. Because the murder took place before August 1, 2002, we
independently review whether a preponderance of the evidence establishes
an intellectual disability. See State v. Grell, 231 Ariz. 153, 155 ¶ 10, 291 P.3d
350, 352 (2013) (“Grell III”). Thus, even if we assume that § 13-753(G) is
unconstitutional and the pretrial ruling was flawed, it would not make a
difference here.

              2.      Failure to hold competency hearing

¶19            The State asked for a Rule 11 competency evaluation. Three
psychologists evaluated Escalante-Orozco, and one found him incompetent
to stand trial. The parties stipulated to submit the competency issue to the
court based on the expert reports. See Ariz. R. Crim. P. 11.5(a) (providing
that when a hearing would otherwise be required to determine a
defendant’s competency, the parties may “by written stipulation, submit
the matter on the experts’ reports”). The trial court found that Escalante-
Orozco was competent to stand trial.

¶20             Escalante-Orozco argues that the court violated his rights to
due process and a fair trial by not holding a competency hearing because
one expert report raised more than a “doubt” about his competency. See
State v. Cornell, 179 Ariz. 314, 322–23, 878 P.2d 1352, 1360–61 (1994)
(requiring a hearing when there is a “good faith doubt about the
defendant’s ability . . . to participate intelligently in the proceedings”
(internal quotations omitted)). Escalante-Orozco’s stipulation precludes his
challenge. See State v. Pandeli, 215 Ariz. 514, 528 ¶ 50, 161 P.3d 557, 571
(2007) (discussing the invited error doctrine). Such stipulations are
“entirely in accord with due process.” State v. Contreras, 112 Ariz. 358, 359,
542 P.2d 17, 18 (1975) (citing predecessor statute to Rule 11.5(a)); see also
State v. Bates, 111 Ariz. 202, 203, 526 P.2d 1054, 1055 (1974) (concluding trial

                                       7
                     STATE V. ESCALANTE-OROZCO
                          Opinion of the Court

court did not err by failing to hold a competency hearing because the parties
stipulated to submit the issue to the court based on expert reports).

              3.      Motion to suppress statements to police

¶21           Escalante-Orozco argues that statements he made to Phoenix
Police Detective Julio Caraballo in a videotaped interview in Idaho were
inadmissible because (a) the detective did not properly advise Escalante-
Orozco of his Miranda rights, and (b) officers violated Article 36 of the
Vienna Convention on Consular Relations (“VCCR”). We review a trial
court’s denial of a motion to suppress for an abuse of discretion,
considering only evidence admitted at the suppression hearing and
viewing it in the light most favorable to sustaining the ruling. State v.
Wilson, 237 Ariz. 296, 298 ¶ 7, 350 P.3d 800, 802 (2015). Constitutional issues,
however, are reviewed de novo. State v. Moody, 208 Ariz. 424, 445 ¶ 62, 94
P.3d 1119, 1140 (2004).

                      (a)    Miranda warnings

                             (1)    Use of “licenciado”

¶22            Detective Caraballo read Escalante-Orozco his Miranda rights
from a Spanish-language form that accurately translated “attorney” as
“abogado.” When asked, Escalante-Orozco replied he understood his
rights. Detective Caraballo nevertheless questioned Escalante-Orozco
about the role of an attorney to ensure he understood it. In doing so, the
detective once translated “attorney” as “licenciado.” Escalante-Orozco
argues that he did not properly waive his Miranda rights because Detective
Caraballo’s use of “licenciado” was confusing and inadequately conveyed
the right to have an attorney present before and during questioning.

¶23             The trial court found that although “licenciado” primarily
means a university graduate and, secondarily, a lawyer, and Escalante-
Orozco “appeared confused” on the videotape by the words, the totality of
the circumstances demonstrated that the Miranda warnings were adequate.
See State v. Rivera, 152 Ariz. 507, 513, 733 P.2d 1090, 1096 (1987) (holding that
to determine adequacy of warnings, court looks to the totality of the
circumstances, including a defendant’s “background, experience and
conduct“ (citation omitted)). The court did not err.


                                       8
                     STATE V. ESCALANTE-OROZCO
                          Opinion of the Court

¶24             Detective Caraballo’s single use of “licenciado” was neither
misleading nor inaccurate. Cf. United States v. Botello-Rosales, 728 F.3d 865,
867 (9th Cir. 2013) (use of the Spanish word “libre” to indicate an attorney
would be “free” or without cost rendered Miranda warnings inadequate
because “libre” means being available or at liberty to do something); United
States. v. Perez-Lopez, 348 F.3d 839, 848–49 (9th Cir. 2003) (Spanish-language
Miranda warning that the defendant had the right to “solicit” the court for
an attorney found “constitutionally infirm because it did not convey to him
the government’s obligation to appoint an attorney for indigent accused”).
“Licenciado” is a synonym for “abogado.” See Merriam-Webster Online
Spanish-English          Dictionary,       http://www.spanishcentral.com/
translate/licenciado (last visited Nov. 10, 2016). Even if Escalante-Orozco
was not familiar with the term, the detective used it only once and used
“abogado” several times. And Escalante-Orozco stated that he understood
his rights before the detective used the word “licenciado.” Any confusion
encountered by Escalante-Orozco was further minimized because a federal
agent had given Miranda warnings the previous day and used the word
“abogado.”

                            (2)    Description of attorney’s role

¶25            Detective Caraballo described an attorney as someone who
could represent Escalante-Orozco “in front of the court,” “in front of the
jury,” and “in front of the case that is in front [sic].” Escalante-Orozco
contends that this description was misleading, confusing, and nonsensical
and incorrectly implied that he would only be provided an attorney at
court. Escalante-Orozco also argues that the initial, accurate advisory did
not cure the error because he had a fundamental misunderstanding of the
role of an attorney that was only made worse by Detective Caraballo’s use
of “licenciado.”

¶26           The trial court did not err in its ruling. The detective
accurately informed Escalante-Orozco that he had “the right to have an
attorney present before and during the questions if [he] desire[d],” and told
him that an attorney would be appointed for him if he could not afford one.
Escalante-Orozco stated that he understood these rights. The detective’s
subsequent description of an attorney was not inconsistent with the
advisory given and, in context, was reasonably viewed as a general
description of an attorney’s role rather than a repudiation of the just-
explained right to have that person present before and during questioning.

                                      9
                      STATE V. ESCALANTE-OROZCO
                           Opinion of the Court

Cf. Duckworth v. Egan, 492 U.S. 195, 203–05 (1989) (telling a suspect he would
be appointed an attorney “if and when [he went] to court” did not render
Miranda warning inadequate because officer initially conveyed that
defendant had a right to counsel before the police asked him questions and
could stop answering any time to talk to an attorney); California v. Prysock,
453 U.S. 355, 360–62 (1981) (failing to explicitly state that counsel would be
appointed before questioning did not invalidate a Miranda advisory when
suspect was informed of his right to have an attorney present during
questioning and his right to counsel appointed at no cost). Escalante-
Orozco also demonstrated an understanding that he could immediately
confer with an attorney by stating that an attorney was someone “to see . . .
why you guys have me here” and “to ask you why I’m here.”

                             (3)     Waiver

¶27          Escalante-Orozco argues that the State failed to prove that he
knowingly and intelligently waived his Miranda rights because he suffered
from an intellectual disability, was poorly acculturated, and had limited
knowledge of the American legal system.

¶28            Escalante-Orozco’s waiver was knowing and intelligent if he
understood his rights and intended to waive them. See State v. Naranjo, 234
Ariz. 233, 238 ¶ 7, 321 P.3d 398, 403 (2014). To determine the validity of a
waiver, courts examine the totality of circumstances, “including the
defendant’s background, experience, and conduct,” to decide the validity
of the waiver. Id. (citation omitted). Mental illness, low intelligence, or poor
linguistic abilities, standing alone, do not invalidate an otherwise knowing
and intelligent waiver. See id. at 238 ¶ 8; State v. Carrillo, 156 Ariz. 125, 134,
750 P.2d 883, 892 (1988).

¶29           The suppression hearing record supports the trial court’s
ruling that Escalante-Orozco knowingly and intelligently waived his
Miranda rights. He was interviewed in Spanish, he was twice read his rights
in Spanish, he indicated he understood his rights, and he freely answered
all questions. From the videotape, he appears to respond appropriately to
questions. Detective Caraballo testified that he “had no doubt that
[Escalante-Orozco] . . . understood his rights.” Although medical expert Dr.
Francisco Gomez opined that Escalante-Orozco did not understand his
Miranda rights, the trial court was free to disregard this opinion. Cf. State v.
Hyde, 186 Ariz. 252, 276, 921 P.2d 655, 679 (1996) (concluding that expert

                                       10
                     STATE V. ESCALANTE-OROZCO
                          Opinion of the Court

psychological testimony is “not appropriate . . . to show the actual mental
state of a defendant at a given time”).

                     (b)     The VCCR

¶30           Escalante-Orozco argues that officers violated Article 36 of
the VCCR and, as part of the totality of the circumstances, this violation
prevented him from making a knowing and intelligent waiver of his
Miranda rights. Article 36 requires authorities to advise a foreign national
detainee “without delay” of the detainee’s right to request that the
consulate be advised of the detention. See Sanchez-Llamas v. Oregon, 548 U.S.
331, 338–39 (2006). Authorities informed Escalante-Orozco of this right on
May 3, 2007, the day after federal agents detained him and Detective
Caraballo interrogated him. The record does not reflect whether Escalante-
Orozco asked authorities to notify the Mexican consulate of his detention,
but they did so a week after the arrest.

¶31           We need not decide whether authorities violated the VCCR.
The remedy for a violation of Article 36 of the VCCR is not suppression of
a foreign national’s otherwise admissible statements. Sanchez-Llamas, 548
U.S. at 349–50. And even if we assume that Escalante-Orozco would have
exercised his consular rights if he had been informed of them before his
interrogation, Detective Caraballo was entitled to proceed with the
interrogation when he did. See id. at 349 (stating that Article 36 “has nothing
whatsoever to do with . . . interrogations” and “secures only a right of
foreign nationals to have their consulate informed of their arrest or
detention—not to have their consulate intervene, or to have law
enforcement authorities cease their investigation pending any such notice
or intervention”); see also Consular Notification and Access 21 (4th ed. 2014).

¶32            Escalante-Orozco nevertheless argues that a VCCR violation
is relevant in determining whether a Miranda waiver was knowing and
intelligent, and the trial court erred by failing to consider that violation as
part of the totality of the circumstances. He relies on Sanchez-Llamas’
statement that “[a] defendant can raise an Article 36 claim as part of a
broader challenge to the voluntariness of his statements to police.” 548 U.S.
at 350. But Miranda violations and voluntariness are separate inquiries.
Compare State v. Tapia, 159 Ariz. 284, 286, 767 P.2d 5, 7 (1988) (“The necessity
of giving Miranda warnings relates to the admissibility of a confession based
upon defendant’s being apprised of his right to counsel and waiving that

                                      11
                     STATE V. ESCALANTE-OROZCO
                          Opinion of the Court

right and not to its voluntariness.”), with In re Andre M., 207 Ariz. 482, 484
¶ 7, 88 P.3d 552, 554 (2004) (noting that voluntariness concerns whether a
statement was given as a result of intimidation, coercion, or deception).
While a violation of the VCCR might bear on whether a defendant was
intimidated or coerced, it would have no bearing on whether the defendant
had been apprised of his right to counsel and made a knowing and
voluntary waiver.

              B.     Jury selection issues

              1.     Time limits

¶33           Escalante-Orozco argues that the trial court erred by
imposing a five-minute time limit for counsel’s questions to individual
prospective jurors, which impaired his right to a fair and impartial jury
under the state and federal constitutions. To prevail on his argument,
Escalante-Orozco must “demonstrate not only that the voir dire
examination was inadequate, but also that, as a result of the inadequate
questioning, the jury selected was not fair, unbiased, and impartial.” See
Moody, 208 Ariz. at 451 ¶ 95, 94 P.3d at 1146. We review the court’s decision
to impose the time limit for an abuse of discretion. See State v. Forde, 233
Ariz. 543, 560 ¶ 53, 315 P.3d 1200, 1217 (2014).

¶34            We reject Escalante-Orozco’s argument. The trial court is
authorized to “control the voir dire” but must permit a party, upon request,
to examine jurors for “a reasonable time.” Ariz. R. Crim. P. 18.5(d). Even
if the time afforded was insufficient, Escalante-Orozco fails to demonstrate
that the jury seated was not fair, unbiased, and impartial. See Moody, 208
Ariz. at 451 ¶ 95, 94 P.3d at 1146. The parties questioned jurors over the
course of five trial days. And despite the five-minute time limit, the court
posed appropriate follow-up questions to jurors beyond the time limit to
ensure that jurors were unbiased.

              2.     Batson challenges

¶35            Escalante-Orozco challenges the State’s preemptory strikes of
Jurors 17, 36, 61, 71, and 88, all of whom are racial minorities. See Batson v.
Kentucky, 476 U.S. 79, 89 (1986) (holding that the use of preemptory strikes
to exclude jurors based on their race violates the Fourteenth Amendment’s
Equal Protection Clause). A trial court uses a three-step analysis to decide

                                      12
                     STATE V. ESCALANTE-OROZCO
                          Opinion of the Court

a Batson challenge. State v. Newell, 212 Ariz. 389, 400 ¶ 53, 132 P.3d 833, 844
(2006). The defendant initially must make a prima facie showing that the
strike was racially discriminatory. Id. If this showing is made, the
prosecutor must provide a race-neutral rationale for the strike. Id. If the
prosecutor provides this rationale, the trial court must decide whether “the
defendant has established purposeful discrimination.” Id. (quoting Batson,
476 U.S at 93–94). We will uphold the court’s ruling unless it was clearly
erroneous. Id. at 400 ¶ 52, 132 P.3d at 844.

¶36             The trial court’s ruling was not clearly erroneous. The
prosecutor offered a race-neutral rationale by explaining that he struck the
contested jurors because their questionnaire answers indicated either
opposition to the death penalty or potential reluctance in imposing the
death penalty if warranted. He also cited Juror 36’s answer that graphic
and disturbing photographs would make it difficult for him to be fair and
impartial. He further expressed concern that Juror 71’s job as a high school
teacher could influence her. (The prosecutor also stated that Juror 71 was
inattentive, but the court did not share this observation so made “no finding
of that.”) The questionnaire answers bear out the prosecutor’s factual
assertions, and we defer to the trial court’s assessment of the prosecutor’s
credibility in explaining his strikes. Cf. State v. Hardy, 230 Ariz. 281,
285 ¶ 12, 283 P.3d 12, 16 (2012) (stating that “the trial court evaluates the
striking party’s credibility, considering the demeanor of the striking
attorney and the excluded juror to determine whether the race-neutral
rationale is a pretext for discrimination”). And one minority juror remained
on the jury. Cf. id. (“Although not dispositive, the fact that the state
accepted other minority jurors on the venire is indicative of a
nondiscriminatory motive.” (citation omitted)).

¶37            Escalante-Orozco faults the trial court for failing to “conduct
a cross-comparison analysis of the struck and non-struck jurors.” See Miller-
El v. Dretke, 545 U.S. 231, 241 (2005) (“If a prosecutor’s proffered reason for
striking a black panelist applies just as well to an otherwise-similar
nonblack who is permitted to serve, that is evidence tending to prove
purposeful discrimination to be consider at Batson’s third step.”). But
Escalante-Orozco failed to raise this argument to the trial court, meaning
“the prosecutor had no opportunity to offer distinctions between allegedly
similarly situated jurors or to clarify which factors were given more weight
in the choice to strike,” and “the trial court did not have an opportunity to
conduct an in-depth comparison of the jurors who were stricken and those

                                      13
                     STATE V. ESCALANTE-OROZCO
                          Opinion of the Court

who remained on the panel.” See State v. Medina, 232 Ariz. 391, 405 ¶ 49,
306 P.3d 48, 62 (2013). Defense counsel offered no counter to the
prosecutor’s explanations other than to contend that the prosecutor had
failed to prove race-neutral reasons for his strikes and that Juror 36’s
aversion to graphic photographs was not unique. We will not examine
more detailed comparisons than were presented to the trial court. Id.

              3.     Hardship recusals

¶38            Escalante-Orozco contends that the trial court’s act in
granting five potential jurors’ requests for recusal due to their limited
English language skills resulted in a systemic exclusion of non-English
speakers from jury service in violation of the federal and state constitutions.
We disagree. Section21-202(B)(3) requires the trial court to grant a person’s
recusal request if ”[t]he prospective juror is not currently capable of
understanding the English language.” See also State v. Morris, 215 Ariz. 324,
334 ¶ 42, 160 P.3d 203, 213 (2007) (holding that judges have broad discretion
to excuse jurors from service). For reasons explained in previous cases, §
21-202(B)(3) does not violate a defendant’s constitutional rights. See State v.
Rose, 231 Ariz. 500, 504–05 ¶ 11, 297 P.3d 906, 910–11 (2013); State v. Cota,
229 Ariz. 136, 143 ¶¶ 13–16, 272 P.3d 1027, 1034 (2012); State v. Cordova, 109
Ariz. 439, 441, 511 P.2d 621, 623 (1973); see also Duren v. Missouri, 439 U.S.
357, 367–68 (1979) (holding that the Constitution is not violated if ”a
significant state interest“ is ”manifestly and primarily advanced by those
aspects of the jury-selection process . . . that result in the disproportionate
exclusion of a distinctive group“). We decline to revisit those holdings.

              4.     Juror 92

¶39            Escalante-Orozco contends that the trial court violated his
right to a fair and impartial jury under the federal and state constitutions
by failing to sua sponte excuse Juror 92, an office assistant employed by the
Maricopa County Medical Examiner’s Office. He argues that Juror 92 likely
knew both Dr. Marco Ross, a witness who was formerly employed by the
Medical Examiner’s Office, and the author (who was not identified) of a
report on which Dr. Ross relied that originated from that office.

¶40           Because Escalante-Orozco did not object to seating Juror 92,
we review for fundamental error. State v. Henderson, 210 Ariz. 561, 567 ¶
19, 115 P.3d 601, 607 (2005). A fundamental error is error that goes to the

                                      14
                     STATE V. ESCALANTE-OROZCO
                          Opinion of the Court

foundation of the case, takes from the defendant a right that is essential to
his defense, and is of such magnitude that the defendant could not possibly
have received a fair trial. Id. Escalante-Orozco bears the burden of proving
that the error was fundamental and that the error prejudiced him. Id.

¶41            Section 21-211 requires disqualification of “[p]ersons
interested directly or indirectly in the matter under investigation.” The
record does not reflect that Juror 92 had such an interest. Juror 92 did not
indicate in the jury questionnaire that she knew Dr. Ross, and Escalante-
Orozco did not question her about it. He speculates that it was “likely” that
Dr. Ross and Juror 92 had contact and that she “may have known” the
unknown author of the medical examiner’s report, but the record does not
establish this likelihood. Juror 92’s position as an office assistant does not
suggest that she had contact with Dr. Ross or the unknown report author.
And because Dr. Ross left the medical examiner’s office, at the latest, in 2002
and Juror 92 started there in 2010, we know they did not simultaneously
work there. Significantly, Juror 92 said she could treat the case fairly and
impartially despite her work at the medical examiner’s office.

¶42            This case is unlike State v. Eddington, 228 Ariz. 361, 364 ¶¶ 11–
13, 266 P.3d 1057, 1060 (2011), in which a deputy sheriff employed by the
law enforcement agency that investigated the crime was disqualified from
sitting on the jury because he was potentially interested in the outcome of
the case. This Court reasoned that disqualification was warranted because
the sheriff’s office and the prosecutor shared an interest in “advocating for
a conviction.” Id. at 364 ¶ 11, 266 P.3d at 1060. A medical examiner’s office,
however, does not share such an interest with the prosecution.

¶43          The trial court did not commit fundamental error by failing to
sua sponte disqualify Juror 92.

              C.     Guilt Phase Issues

              1.     DNA Evidence

                     (a)     Motion to suppress

¶44           Escalante-Orozco argues that the trial court erred by denying
his motion to preclude DNA evidence. We review the court’s ruling for an
abuse of discretion, considering only evidence admitted at the suppression

                                      15
                     STATE V. ESCALANTE-OROZCO
                          Opinion of the Court

hearing and viewing it in the light most favorable to sustaining the ruling.
Wilson, 237 Ariz. at 298 ¶ 7, 350 P.3d at 802.

                             (1)    Sperm fraction from Maria’s nightshirt

¶45            Phoenix Police Department Crime Lab analyst Kathleen
Stoller obtained a mixed Y-STR profile from sperm on Maria’s nightshirt,
with the major part matching an unknown male and the minor part
“matching” Escalante-Orozco’s DNA profile at five loci (specific locations
of genes on chromosomes). (A Y-STR profile is one that excludes a female
DNA profile.) She testified at the suppression hearing that the same Y-STR
profile would be expected in all Escalante-Orozco’s paternal relatives and
in one in thirty-four southwestern Hispanics.

¶46            Escalante-Orozco argues that Stoller’s opinions were
unreliable and therefore inadmissible because she relied on a “match” at
one locus that fell below the threshold for identifying an allele set by the
police department’s protocol guidelines. See Ariz. R. Evid. 702 (providing
that admissible expert opinion must be “the product of reliable principles
and methods”). He points out that Stoller obtained below-threshold results
for other alleles that she did not use for statistical purposes, casting further
doubt on her reliance on one below-threshold allele.

¶47           The State demonstrated that Stoller’s DNA interpretation
technique was sufficiently reliable. She testified that the guidelines
permitted her to use the below-threshold allele for statistical purposes
because its measurement was greater than three times the “baseline noise”
in the graph generated by the device used to analyze genetic material. Her
testimony was corroborated by the Department’s protocol guidelines. And
the widely accepted Scientific Working Group on DNA Analysis Methods
(“SWGDAM”) Guidelines acknowledge that the threshold is malleable.

¶48           Escalante-Orozco further contends that Evidence Rule 403
required suppression because the Y-STR profile would be expected in one
in thirty-four southwestern Hispanics, meaning its probative value was
substantially outweighed by the danger of unfair prejudice or misleading
the jury. Unfair prejudice is an “undue tendency to suggest decision on an
improper basis, such as emotion, sympathy or horror.” State v. Mott, 187
Ariz. 536, 545, 931 P.2d 1046, 1055 (1997). The DNA evidence does not fall
within this category. And the evidence was not misleading. Stoller testified

                                      16
                     STATE V. ESCALANTE-OROZCO
                          Opinion of the Court

that the Y-STR profile could be found in others, and the jury could readily
understand this limitation and give the evidence whatever weight it
deserved.

                             (2)      “Included,”    “not    excluded,”     and
                                     “match”

¶49           Escalante-Orozco argues that the trial court erred by denying
his pretrial motion to preclude Stoller from using the words “included” and
“not excluded” interchangeably in relation to DNA evidence because it
would mislead and confuse the jury. We disagree. Stoller testified at a
pretrial hearing that “included” and “not excluded” mean the same thing.
The court did not abuse its discretion by crediting this testimony. This case
is unlike Duncan v. Kentucky, 322 S.W.3d 81 (Ky. 2010), relied on by
Escalante-Orozco, in which the Kentucky Supreme Court reversed
convictions in part because the prosecutor mischaracterized an expert’s
testimony that the defendant could not be excluded as a source of DNA
found in the victim’s panties as meaning that the defendant was the source
of that DNA. Id. at 91–92. That did not occur here.

¶50           We also reject Escalante-Orozco’s argument that the court
erred by permitting Stoller to use the word “match” to describe DNA
profiles consistent with his because it was likely to mislead jurors to believe
he was the source of the profile rather than a possible source. Stoller
explained at trial that her use of the word “match” did not mean that the
DNA could only have belonged to Escalante-Orozco.

                      (b)    Trial

¶51           We review the trial court’s evidentiary rulings for an abuse of
discretion. See State v. Blakley, 204 Ariz. 429, 437 ¶ 34, 65 P.3d 77, 85 (2003).
We review arguments raised for the first time on appeal, however, for
fundamental error. See Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d at 607.

                             (1)     Demonstrative chart

¶52           Stoller testified that swabs of Maria’s vagina contained a non-
sperm fraction with a mixed Y-STR profile, the major part of which matched
Escalante-Orozco’s profile at ten of seventeen loci. In response to defense
criticism that Stoller based her opinion on only one locus, the trial court

                                       17
                     STATE V. ESCALANTE-OROZCO
                          Opinion of the Court

permitted the State to display a demonstrative chart depicting Stoller’s
interpretive findings while she explained her opinion.

¶53            Escalante-Orozco argues that the trial court erred by
permitting the State to use the chart because it depicted six alleles with
below-threshold values and was therefore unreliable under Rule 702 and
violated Rule 403. We disagree. The State did not use the chart to argue
that the below-threshold alleles provided reliable data points or evidenced
a “match” between those locations and Escalante-Orozco’s profile. Indeed,
Stoller relied on the ten above-threshold loci and explicitly stated that the
below-threshold alleles were not reliable and “too weak to be sure that they
are even real.” Any possible undue prejudice that may have resulted was
resolved by Stoller’s explanation.

                            (2)    Exhibit 220

¶54           Stoller performed a Y-STR analysis on Maria’s right fingernail
clippings. Without objection, the trial court admitted as Exhibit 220 a chart
prepared by Stoller comparing Escalante-Orozco’s Y chromosomes with the
unknown male’s Y chromosomes taken from the vaginal swab and the right
fingernail clippings. Escalante-Orozco argues for the first time that the
court violated Rules 403 and 702 by admitting Exhibit 220 because it
permitted the jury to mistakenly conclude that Escalante-Orozco’s Y
chromosomes matched the clippings at sixteen loci rather than at fifteen
loci. We review for fundamental error.

¶55            The court did not err. Exhibit 220 shows allelic values at
fifteen loci with an additional loci yielding no results. And immediately
before presenting the chart, Stoller testified that she “was able to obtain
results at 15 out of the 17 locations.” Exhibit 220 did not permit the jury to
falsely conclude that clippings yielded a match at sixteen loci.

                            (3)    Admission of Y-STR DNA evidence

¶56          Escalante-Orozco argues for the first time that the trial court
violated Rules 403 and 702 by admitting Y-STR DNA evidence. We review
for fundamental error.

¶57         Escalante-Orozco contends that the Y-STR evidence has such
low probative value that it did not satisfy Rule 702’s “helpfulness”

                                     18
                       STATE V. ESCALANTE-OROZCO
                            Opinion of the Court

requirement. Rule 702’s requirement that evidence be “helpful” to the trier
of fact “goes primarily to relevance.” Daubert v. Merrell Dow Pharms., Inc.,
509 U.S. 579, 591 (1993). To be helpful, evidence must be related to a fact at
issue in the case and “fit” the facts of the case. Id.; see also State v. Salazar-
Mercado, 234 Ariz. 590, 593 ¶ 10 n.1, 325 P.3d 996, 999 n.1 (2014) (“Expert
testimony ‘fits’ if it is sufficiently tied to the facts of the case [so] that it will
aid the jury in resolving a factual dispute.” (internal quotation marks and
citation omitted)). In other words, the testimony must have “a valid
scientific connection to the pertinent inquiry” to be admissible. Daubert, 509
U.S. at 591. Escalante-Orozco argues that the Y-STR results did not meet
this requirement because the strongest inference the jury could have drawn
was that he was “possibly the DNA source.”

¶58           The Y-STR results were helpful to the jury. The results were
related to a disputed issue—whether Escalante-Orozco was the
perpetrator—because the fact he could not be excluded tended to make it
more likely that he sexually assaulted and killed Maria than if the Y-STR
results had excluded him. Although the Y-STR results could be attributed
to a statistically significant percentage of the general population, this
circumstance does not diminish or eliminate the fact that Escalante-Orozco
was among that group. Therefore, the Y-STR DNA evidence was probative
of the issue of guilt and met Rule 702’s requirement that evidence be
“helpful” to the trier of fact.

¶59            Escalante-Orozco also argues that because the Y-STR
evidence has only “marginal statistical significance,” it should have been
excluded under Rule 403 because it was confusing to the jury. We disagree.
As explained, the Y-STR evidence was probative of whether Escalante-
Orozco sexually assaulted and killed Maria. When presenting the Y-STR
results to the jury, Stoller extensively explained the statistics regarding the
number of people who would also match the profile, and she explained that
the results meant only that Escalante-Orozco could not be excluded. The
jury could understand the limited probative value of the DNA evidence
without danger of confusion.

                               (4)     Major contributor

¶60          Swabs taken of Maria’s vagina and external genitals yielded
non-sperm fractions with mixed Y-STR profiles. Stoller testified that the
“major part” of the profiles matched Escalante-Orozco’s. He contends that

                                         19
                     STATE V. ESCALANTE-OROZCO
                          Opinion of the Court

this conclusion was not scientifically valid as required by Rule 702 and
Daubert because it was based on the relative strengths of alleles at a single
locus. We review for fundamental error.

¶61            The trial court did not err. The SWGDAM Guidelines state
that “all loci should be evaluated” when interpreting mixtures with
major/minor male contributors, and that “[a] sample may be considered to
consist of a mixture of major and minor male contributors if a distinct
contrast in signal intensity exists among the alleles.” Stoller complied with
these guidelines. She evaluated all loci and concluded that Escalante-
Orozco was the major contributor because the allele consistent with his
profile was four times larger than one at the same locus belonging to an
unknown male. Although the defense expert witness criticized identifying
the major contributor based on information at only one locus, the jury could
decide whose opinion to credit.

              2.     Third-party culpability evidence

¶62            Escalante-Orozco argues that the trial court incorrectly
precluded evidence that Armando Gabriel Lopez-Garduno, Maria’s
boyfriend, assaulted and killed Maria. Escalante-Orozco also contends that
the court erroneously instructed the jury about third-party culpability. He
asserts that the errors violated his right to present a complete defense and
his rights to a fair trial under the state and federal constitutions. See
Chambers v. Mississippi, 410 U.S. 284, 302 (1973) (stating that preclusion of
third-party culpability evidence bearing “persuasive assurances of
trustworthiness” deprives a defendant of due process). We review the
admissibility of evidence and the decision to give a jury instruction for an
abuse of discretion. State v. Dann, 220 Ariz. 351, 363–64 ¶ 51, 207 P.3d 604,
616–17 (2009); State v. Prion, 203 Ariz. 157, 161 ¶ 21, 52 P.3d 189, 193 (2002).

                     (a)     Rocio Ugalde’s testimony

¶63           Escalante-Orozco sought to elicit testimony from Rocio
Ugalde that Maria had told her that Lopez-Garduno bruised Maria’s arm
and that he was violent with his wife. The trial court precluded the
testimony as inadmissible hearsay and pursuant to Rule 403.

¶64        Rule 807(a)(1), the residual exception to the hearsay rule,
permits admission of hearsay statements that have “equivalent

                                      20
                     STATE V. ESCALANTE-OROZCO
                          Opinion of the Court

circumstantial guarantees of trustworthiness” to firmly rooted exceptions.
Escalante-Orozco argues that Ugalde’s anticipated testimony was
corroborated by other evidence and was “at least as reliable” as a statement
against interest (Rule 804(b)(3)) or a statement by an opposing party (Rule
801(d)(2)). We disagree. Neither statement by Maria was against her own
interest. And we cannot say that the statements were against Lopez-
Garduno’s interest. Contrary to Escalante-Orozco’s unsupported assertion,
nothing in the record suggests that Maria learned from Lopez-Garduno that
he was violent with his wife.

¶65           We reject Escalante-Orozco’s argument that the statement
about the bruise was trustworthy because it is similar to a statement of then-
existing mental, emotional, or physical condition (Rule 803(3)) or a
statement for medical diagnosis or treatment (Rule 803(4)). Without
knowing the circumstances under which Maria made this statement, we
cannot discern how it bears similar indicia of reliability.

¶66            Escalante-Orozco also contends that Ugalde’s testimony was
not hearsay to the extent it was used to show the inadequacy of the police
investigation. See State v. Dunlap, 187 Ariz. 441, 457, 930 P.2d 518, 534 (1997)
(“[B]ecause [the] defendant elicited [a statement] to show the inadequacy
of the investigation, and did not offer it for the truth of the matter asserted,
it was not hearsay.”). But nothing suggests that Ugalde told police about
Maria’s statements, which arguably should have prompted a more diligent
investigation of Lopez-Garduno. Regardless, any error was harmless as
Ugalde testified that she named Lopez-Garduno as a suspect to the police,
and they followed up by interviewing him.

¶67           The trial court did not abuse its discretion by precluding the
contested testimony as hearsay. In light of this conclusion, we need not
address whether the court properly precluded the evidence under Rule 403.

                     (b)     Blanca Cisneros’ testimony

¶68           Escalante-Orozco sought to elicit testimony from Blanca
Cisneros that her husband, Lopez-Garduno, was a mean drunk, resisted
efforts to get help for alcoholism, lied about attending Alcoholics
Anonymous, hit her on two occasions, and that their relationship
deteriorated because of his drinking. The trial court precluded all
Cisneros’s testimony under Rule 403.

                                      21
                     STATE V. ESCALANTE-OROZCO
                          Opinion of the Court

¶69           The court did not abuse its discretion. The admissibility of
third-party culpability evidence is governed by Rules 401 to 403. State v.
Machado, 226 Ariz. 281, 284 ¶ 16, 246 P.3d 632, 635 (2011). The evidence
must have an effect on the defendant’s culpability and need only “tend[] to
create a reasonable doubt as to the defendant’s guilt.” Id. at 285 ¶ 24, 246
P.3d at 636 (citation omitted). The trial court did not err in ruling that
Cisneros’s anticipated testimony had scant probative weight and was
substantially outweighed by the danger of confusing or misleading the jury.
See Ariz. R. Evid. 403. The evidence had nothing to do with Lopez-
Garduno’s relationship with Maria and did not tend to create a reasonable
doubt about Escalante Orozco’s guilt. The jury would have had to speculate
to find otherwise. Cf. State v. Dann, 205 Ariz. 557, 569 ¶ 36, 74 P.3d 231, 243
(2003) (concluding no error to exclude under Rule 403 evidence of third-
party culpability founded on mere suspicion or speculation).

                     (c)    Lopez-Garduno’s statements

¶70            Lopez-Garduno could not be located at the time of trial. The
trial court permitted Escalante-Orozco to introduce his statements to police
by eliciting testimony from Detective Jose Cisneros. The court reasoned
that the statements were not hearsay because they were offered to show
that Lopez-Garduno gave inconsistent statements to police, which was
relevant to the adequacy of the investigation. At the State’s request, the
court also admitted a transcript of the detective’s complete interview with
Lopez-Garduno. The court instructed the jury that Lopez-Garduno’s
statements related to the scope of the police investigation and could not be
used to prove the truth of the statements.

¶71           Escalante-Orozco contends that Lopez-Garduno’s statements
that he and Maria had fought several days before her death and that he had
been “bad” to his wife were admissible without limitation as the statements
were either not hearsay or admissible as a hearsay exception. We disagree.
Rule 801(d)(2)(A), which provides that an opposing party’s statements are
not hearsay, did not apply because Lopez-Garduno was not a party. Rule
804(b)(3), which offers a hearsay exception if the statement has a tendency
to expose the declarant to criminal liability, did not apply because the
statements were vague and did not implicate criminal behavior. Rule 807,
the residual exception, did not apply because Lopez-Garduno’s statements
did not have “equivalent circumstantial guarantees of trustworthiness” as
established hearsay exceptions.

                                      22
                     STATE V. ESCALANTE-OROZCO
                          Opinion of the Court

¶72              The trial court sustained the State’s objection to permitting
Detective Cisneros to read the portion of Lopez-Garduno’s interview
transcript in which he admitted he was “bad” to his wife. Escalante-Orozco
incorrectly contends that the court excluded the evidence under Rule 404.
Although the court characterized Lopez-Garduno’s statement as describing
“[h]is prior bad 404 acts,” the court’s ruling rested on relevancy. The court
did not abuse its discretion. Lopez-Garduno’s statement that he was “bad”
to his wife was vague and did not tend to suggest that the police
investigation was inadequate. Cf. Ariz. R. Evid. 401 (“Evidence is relevant
if: (a) it has any tendency to make a fact more or less probable than it would
be without the evidence.”).

                     (d)    The March 9, 2001 police report

¶73          On March 9, 2001, the night before Maria’s murder, a
Hispanic man purportedly peeked through the blinds at another apartment
in Maria’s complex and threatened to kill a woman inside. The trial court
precluded admission of the police report documenting the event under
Rules 402 and 403 and Arizona Rule of Criminal Procedure 15.2.

¶74           Escalante-Orozco contends that the report tended to create a
reasonable doubt about his guilt and was therefore relevant and admissible
because (1) the apartment was located on the ground floor of a building
directly behind Maria’s building; (2) Maria’s front-window screen had been
removed and the window was open when her body was found; and (3)
Lopez-Garduno was Hispanic.

¶75           The trial court did not err. Escalante-Orozco never disclosed
a defense that someone other than Lopez-Garduno was the perpetrator. See
Ariz. R. Crim. P. 15.2(b) (requiring pretrial disclosure of defenses). His
defense was that Lopez-Garduno committed the crimes in the course of his
relationship with Maria, not that he randomly committed such acts against
women. Nothing tied Lopez-Garduno to the crime committed against the
other woman.

              3.     Character and other-act evidence

                     (a)    Robert Anderson’s testimony



                                     23
                     STATE V. ESCALANTE-OROZCO
                          Opinion of the Court

¶76            Escalante-Orozco installed flooring in Maria’s apartment the
day before the murder. Robert Anderson, Escalante-Orozco’s supervisor,
testified he observed Escalante-Orozco speaking to Maria in Spanish inside
her apartment while making “pleading” motions with his hands. Maria
gave Anderson a “funny look” that he interpreted as her requesting that he
get Escalante-Orozco to leave, and he did so. Although Anderson did not
understand Spanish, he believed Escalante-Orozco was not speaking in a
“normal tone.” When Escalante-Orozco went to pick up his paycheck later
that day, he seemed “agitated,” “wasn’t himself,” and “kept looking up” at
Maria’s apartment. The trial court admitted this evidence as permissible
other-act evidence.

¶77           Evidence of a defendant’s “other crimes, wrongs, or acts”
generally cannot be introduced to prove that the defendant acted the same
way on another occasion, but it can be used for other purposes, such as
proof of motive or identity. Ariz. R. Evid. 404(b). Before admitting such
evidence, the court must find (1) clear and convincing proof that the
defendant committed the act; (2) it is offered for a proper purpose under
Rule 404(b); (3) it is relevant to prove that purpose; and (4) its probative
value is not substantially outweighed by the danger of unfair prejudice.
State v. Anthony, 218 Ariz. 439, 444 ¶ 33, 189 P.3d 366, 371 (2008). If the court
admits the evidence, it must give an appropriate limiting instruction, if
requested. Id.

¶78          Contrary to Escalante-Orozco’s argument, the State
demonstrated that he committed the other acts by clear and convincing
evidence. Anderson testified during the Atkins hearing about his
observations, and the trial court was able to assess his credibility. Whether
Anderson understood Spanish and accurately surmised the tone of
Escalante-Orozco’s words and Maria’s reaction to them had no bearing on
whether Escalante-Orozco committed the other acts.

¶79              The trial court did not abuse its discretion by admitting
Anderson’s testimony as proof of motive. This Court has “long held that
where the existence of premeditation is in issue, evidence of previous
quarrels or difficulties between the accused and the victim is admissible.”
State v. Jeffers, 135 Ariz. 404, 418, 661 P.2d 1105, 1119 (1983) (citing Leonard
v. State, 17 Ariz. 293, 151 P. 947 (1915)). Such evidence “tends to show the
malice, motive or premeditation of the accused.” Id. Anderson’s
observations suggested that Escalante-Orozco was upset with Maria the

                                       24
                     STATE V. ESCALANTE-OROZCO
                          Opinion of the Court

day before her murder, which evidenced a motive for committing the
crimes.

¶80           The trial court did not err in finding that the probative value
of the other-act evidence was not substantially outweighed by the danger
of unfair prejudice. The evidence was not unfairly prejudicial. It did not
suggest a decision based on an improper basis “such as emotion, sympathy
or horror.” See Mott, 187 Ariz. at 545, 931 P.2d at 1055. And we fail to see
how the evidence confused the issues as it related to a motive for the crimes
committed against Maria. The jury was capable of deciding what weight to
give Anderson’s testimony in light of his inability to understand Spanish
and the jury’s assessment of Anderson’s powers of observation.

¶81           The trial court did not err by allowing the other-act evidence
as proof of motive. We need not address the trial court’s alternate bases for
admitting the evidence.

                      (b)    Cecilia Banda’s testimony

¶82           On cross-examination by defense counsel, Cecilia Banda,
Escalante-Orozco’s wife at the time of the murder, testified that Maria came
by the couple’s apartment once when both were home. When asked if she
noticed that Escalante-Orozco looked at Maria, Banda answered, “[h]e
looked at a lot of them.” When asked to clarify this answer on redirect,
Banda replied, “[h]e’s one of those kind of people that was like a flirt, I don’t
know how to explain it.” Escalante-Orozco argues for the first time that
Banda’s testimony was inadmissible character evidence. See Ariz. R. Evid.
404(a). We review for fundamental error. Henderson, 210 Ariz. at 567 ¶ 19,
115 P.3d at 607.

¶83          Even assuming that the evidence was inadmissible character
evidence, Escalante-Orozco has not shown fundamental, prejudicial error.
His defense theory was Lopez-Garduno committed the crimes. Escalante-
Orozco theorized at trial that Maria “was interested in him” and he went to
her apartment before the murder seeking companionship. Lopez-Garduno
caught them together and raped and killed Maria and knocked out
Escalante-Orozco in a jealous rage. To support this theory, defense counsel
used Banda’s testimony to argue that Escalante-Orzoco was a “flirt” and
“seemed to be interested in Maria.” In light of Escalante-Orozco’s use of


                                       25
                     STATE V. ESCALANTE-OROZCO
                          Opinion of the Court

the challenged testimony, we cannot fathom how its admission took away
a right essential to his defense or deprived him of a fair trial. See id.

              4.     Photographs

¶84            The trial court, without objection, admitted into evidence
nineteen autopsy photographs and six crime scene photographs depicting
Maria’s body. Escalante-Orozco now argues that the photographs were
needlessly cumulative and introduced solely to inflame the jury in violation
of Rule 403 and violated the constitutional guarantees of due process and a
fair trial. See State v. Anderson, 210 Ariz. 327, 340 ¶ 40, 111 P.3d 369, 382
(2005) (stating that photographs must not be introduced “for the sole
purpose of inflaming the jury” (quoting State v. Gerlaugh, 134 Ariz. 164, 169,
654 P.2d 800, 805 (1982))). We review for fundamental error. Henderson, 210
Ariz. at 567 ¶ 19, 115 P.3d at 607.

¶85           The trial court did not commit error, much less fundamental
error. The autopsy photographs were not cumulative because the medical
examiner used each one to explain a different aspect of his testimony. The
photographs established the number and severity of Maria’s injuries, the
defensive nature of some wounds, and that she suffered vaginal injuries.
Cf. Anderson, 210 Ariz. at 340 ¶ 40, 111 P.3d at 382 (“We begin from the
premise that any photograph of the deceased in any murder case is relevant
because the fact and cause of death are always relevant in a murder
prosecution.” (internal quotations, edits, and citation omitted)); State v.
Chapple, 135 Ariz. 281, 288, 690 P.2d 1208, 1215 (1983), superseded on other
grounds by A.R.S. § 13-756 (concluding that photographs are admissible “to
show the nature and location of the fatal injury, to help determine the
degree or atrociousness of the crime . . . [and] to illustrate or explain
testimony”).

¶86           The crime scene photographs were used by a detective to
describe the scene, including Maria’s body when found, and to demonstrate
she was dragged into the bathtub. The photographs depicted different
perspectives of the scene and were not needlessly cumulative. See Ariz. R.
Evid. 403.

¶87          None of the photographs were unduly gruesome. Cf. State v.
Anderson, 210 Ariz. 327, 340 ¶¶ 41, 43, 111 P.3d 369, 382 (2005) (finding
photographs depicting human decomposition, bloating, and skin slippage

                                     26
                     STATE V. ESCALANTE-OROZCO
                          Opinion of the Court

and discoloration admissible). As we have previously noted, “[t]here is
nothing sanitary about murder, and there is nothing in Rule 403 . . . that
requires a trial judge to make it so.” State v. Rienhardt, 190 Ariz. 579, 584,
951 P.2d 454, 459 (1997).

              5.     References to Maria’s son

¶88           The trial court admitted into evidence a partially redacted
transcript of Detective Caraballo’s interview with Escalante-Orozco, which
was also read to the jury. Escalante-Orozco argues for the first time that the
detective’s repeated questions about the impact of Maria’s murder on her
young son were irrelevant and unduly prejudicial and should have been
excluded as improper victim-impact evidence. He contends the court
deprived him of a fair trial by not doing so. We review for fundamental
error. Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d at 607.

¶89           The trial court did not err by permitting introduction of the
detective’s questions. Detective Caraballo’s questions provided context for
Escalante-Orozco’s repeated assertions that he did not kill Maria. Cf. State
v. Boggs, 218 Ariz. 325, 335 ¶ 81, 185 P.3d 111, 121 (2008) (acknowledging
that an officer’s statements can be admissible to provide context for the
suspect’s answers). Also, the statements were not unduly prejudicial.
Detective Caraballo’s references to Maria’s son were not overly descriptive
(e.g., “And that’s what you want me to tell this boy?” “Imagine what, what
trauma happening [sic] to this boy”). The jury knew from other evidence
that Maria’s son was in the apartment when his mother was killed, that his
clothes were bloody, and, according to Escalante-Orozco, that the child
appeared “scared . . . in the corner” when Escalante-Orozco “woke up” on
top of Maria and asked, “[w]hat’s wrong, son?” and “what happened?” The
detective’s references did not add anything new.

              6.     Prosecutorial misconduct in closing argument

¶90           Escalante-Orozco argues for the first time that the prosecutors
engaged in several acts of misconduct during closing arguments that
individually and cumulatively deprived him of due process and a fair trial
under the state and federal constitutions. We review for fundamental error.
Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d at 607.



                                     27
                     STATE V. ESCALANTE-OROZCO
                          Opinion of the Court

¶91            This Court will reverse a conviction for prosecutorial
misconduct when “(1) the prosecutor committed misconduct and (2) a
reasonable likelihood exists that the prosecutor's misconduct could have
affected the verdict.” State v. Benson, 232 Ariz. 452, 463 ¶ 40, 307 P.3d 19, 30
(2013). Even if individual acts of misconduct do not necessitate reversal,
we must decide whether the acts collectively evidence “persistent and
pervasive misconduct.” See State v. Bocharski, 218 Ariz. 476, 491–92 ¶ 74, 189
P.3d 403, 418–19 (2008) (citation omitted). We will reverse when “the
cumulative effect of the alleged acts of misconduct shows that the
prosecutor intentionally engaged in improper conduct and did so with
indifference, if not a specific intent, to prejudice the defendant.” Id. at 492
¶ 74, 189 P.3d at 419 (internal quotation and citation omitted).

                     (a)     DNA

¶92           The prosecutors argued in closing that Escalante-Orozco’s
DNA was found “inside of Maria’s vagina,” “on the back of Maria’s
nightshirt,” and “in her and on her.” Escalante-Orozco asserts that these
statements mischaracterized the evidence and constituted prosecutorial
misconduct.

¶93           The prosecutors inaccurately stated that Escalante-Orozco’s
DNA was discovered in and on Maria rather than accurately stating that
samples taken from Maria’s body yielded Y-STR profiles that did not
exclude him. Even if the prosecutors’ inaccurate remarks constituted
“misconduct,” Escalante-Orozco has failed to show a reasonable likelihood
that the comments affected the verdict. Stoller explained several times that
the Y-STR results did not establish that the DNA belonged to Escalante-
Orozco but only revealed that he could not be excluded as having provided
it. She also explained the statistics for each Y-STR result to demonstrate
that Y-STR DNA evidence is not as discriminating as other types of DNA
evidence and to inform the jury that numerous men could have provided
the DNA. The court also read a stipulation to the jury immediately before
closing arguments that Escalante-Orozco’s Y-STR profile matched five
profiles in a local DNA database of approximately 3800 Y-STR profiles.
Elsewhere in closing, the prosecutors correctly described the Y-STR results
as not excluding Escalante-Orozco or his paternally related male relatives.
Defense counsel repeatedly emphasized that the Y-STR DNA was not
discriminating. In sum, the jury was well aware that the Y-STR profile


                                      28
                     STATE V. ESCALANTE-OROZCO
                          Opinion of the Court

evidence did not conclusively establish Escalante-Orozco as the source of
DNA found in and on Maria. A new trial is not warranted.

                     (b)    Maria’s son

¶94           Escalante-Orozco argues that the prosecutor “improperly
injected facts outside the record,” “inflame[d] the jury,” and introduced
irrelevant victim-impact evidence by asserting in closing argument that
Maria’s son witnessed the crimes.

¶95             Prosecutors are given “[w]ide latitude” in closing argument
and “may comment on evidence and argue all reasonable inferences
therefrom.” State v. Dumaine, 162 Ariz. 392, 401, 783 P.2d 1184, 1193 (1989).
The prosecutor here reasonably inferred from the evidence that Maria’s son
saw what happened. The argument was not improper victim-impact
evidence. It explained why the son was scared when Escalante-Orozco
spoke to him—the son had witnessed the crimes—thereby casting doubt on
Escalante-Orozco’s claim that he did not kill Maria. Cf. State v. Nelson, 229
Ariz. 180, 190 ¶ 43, 273 P.3d 632, 642 (2012) (“Statements referring to the
victim’s family members are not improper . . . if they are supported by the
evidence. . . . Such arguments are proper as long as emotion does not reign
over reason.” (internal quotation and citation omitted)).

¶96            The prosecutor also argued that Escalante-Orozco “must have
had blood all over his face, in his hair, in his hands. Everywhere. And
that’s the face he looked at that little boy with.” Prosecutors “should not
call the jurors’ attention to matters the jury should not consider.” State v.
Ovante, 231 Ariz. 180, 186 ¶ 24, 291 P.3d 974, 980 (2013) (internal quotations,
edits, and citation omitted). Even if the prosecutor implicitly asked the jury
to consider the impact of Maria’s murder on her son, Escalante-Orozco has
not shown fundamental error. The statement was brief and made amid
lengthy closing arguments. The jurors knew from the evidence that the son
was present in the apartment and had seen Escalante-Orozco lying atop
Maria’s blood-soaked body. The prosecutor’s reference did not likely
influence the jury. See Moody, 208 Ariz. at 460, 94 P.3d at 1155 (stating that
a prosecutor’s improper remarks do not require reversal unless the jury was
probably influenced by them). In short, any error in permitting the remark
was not of such magnitude that Escalante-Orozco could not possibly have
received a fair trial. See Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d at 607.


                                      29
                     STATE V. ESCALANTE-OROZCO
                          Opinion of the Court

                      (c)    Misstatement of evidence

¶97           The prosecutor inaccurately argued that Escalante-Orozco
“[made] it clear that he did not go into [Maria’s] apartment during the day
[of the murder], even though Mr. Anderson said he was there.” In fact,
Escalante-Orozco admitted to Detective Caraballo that he worked in
Maria’s apartment that day.

¶98           It is improper for a prosecutor to misstate evidence, and, “if
done intentionally, would be a serious breach of the prosecutor’s duty.”
State v. Cannon, 148 Ariz. 72, 77, 713 P.2d 273, 278 (1985). Nothing indicates
that the prosecutor here intentionally misstated the evidence. Regardless,
Escalante-Orozco has not shown that the misstatement likely affected the
verdict. The comment was brief, and the trial court instructed the jury that
the lawyers’ closing arguments were not evidence, thereby lessening the
impact of the prosecutor’s misstatement. See Forde, 233 Ariz. at 568 ¶ 104,
315 P.3d at 1225.

                      (d)    Impugning defense counsel’s integrity

¶99           Escalante-Orozco argues that the prosecutor impugned the
defense in rebuttal closing argument by arguing that defense counsel
“pound[ed] the table” and tried to “distract [the jury] from the real issue . . .
of the defendant’s guilt in this case.” It is improper to “impugn the integrity
or honesty of opposing counsel.” Newell, 212 Ariz. at 403 ¶ 66, 132 P.3d at
847. But even if the prosecutor’s argument was improper, the trial court
did not commit fundamental error by failing to sua sponte strike the
comments or grant a mistrial. The jurors likely did not give much if any
weight to the prosecutor’s criticism. It was not focused on any specific
theory advanced by defense counsel. And, contrary to the prosecutor’s
remarks, defense counsel’s arguments were grounded on the evidence and
the court’s instructions of law. We cannot say that any error went to the
foundation of the defense or was of such magnitude that Escalante-Orozco
could not possibly have received a fair trial. See Henderson, 210 Ariz. at 567
¶ 19, 115 P.3d at 607.

                      (e)    Appealing to jurors’ emotions

¶100          While an autopsy photograph of Maria was displayed to the
jury, the prosecutor ended her rebuttal closing argument as follows:

                                       30
                     STATE V. ESCALANTE-OROZCO
                          Opinion of the Court


       She was an actual human being. And you are the only ones
       who can give her any sense of justice at this point. It has been
       12 years. It has been 12 years. She’s been waiting and she’s
       in the courtroom. And he took her voice and he stole it
       forever. So you get to be her voice. You get to find him guilty.
       So go back there and do that.

Escalante-Orozco argues that these remarks improperly appealed to the
jurors’ sympathies and passions.

¶101           Although a prosecutor has wide latitude in making closing
arguments and “may comment on the vicious and inhuman nature of the
defendant’s acts,” counsel cannot appeal to the passions and fears of the
jury. State v. Comer, 165 Ariz. 413, 426, 799 P.2d 333, 346 (1990). By telling
jurors they were the only ones who could give Maria justice and asking
them to be her voice, all while displaying an autopsy picture, the prosecutor
improperly appealed to the jurors’ passions. Cf. State v. Ottman, 144 Ariz.
560, 562, 698 P.2d 1279, 1281 (1985) (concluding prosecutor improperly
reminded jurors that victim’s wife was awaiting the verdict, that her “life is
totally destroyed” and that “she wants justice”); State v. Bible, 175 Ariz. 549,
603, 858 P.2d 1152, 1206 (1993) (“A jury in a criminal trial is not expected to
strike some sort of balance between the victim’s and the defendant’s
rights.”).

¶102           The trial court did not commit fundamental error by failing to
sua sponte strike the prosecutor’s comments and provide a corrective jury
instruction. See Bible, 174 Ariz. at 603, 858 P.2d at 1206 (describing the
remedy for improper closing remarks). The comments were fleeting, and
the court instructed jurors “not [to] be influenced by sympathy.” The error
was not of such magnitude to deprive Escalante-Orozco of a fair trial. See
Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d at 607.

                     (f)     Cumulative effect

¶103           The cumulative effect of the improper closing argument
statements does not show that the prosecutors intentionally acted with
indifference, or specific intent, to prejudice Escalante-Orozco. See Bocharski,
218 Ariz. at 491–92 ¶ 74, 189 P.3d at 418–19. The comments were brief, made
amid lengthy arguments, and did not constitute persistent and pervasive

                                      31
                     STATE V. ESCALANTE-OROZCO
                          Opinion of the Court

misconduct. And as explained, the court’s instructions diminished the
statements’ impact. The improper statements did not deprive Escalante-
Orozco of a fair trial or constitute fundamental error.

              7.     Denial of Rule 20 motion

¶104          The trial court partially granted Escalante-Orozco’s motion
for judgment of acquittal pursuant to Rule 20, Arizona Rules of Criminal
Procedure, by acquitting him on one count of sexual assault. Escalante-
Orozco argues that the court erred by refusing to acquit him of first degree
murder, burglary, and the second sexual assault charge. We review the
court’s ruling de novo. Boyston, 231 Ariz. at 551 ¶ 59, 298 P.3d at 899.

¶105           A motion for judgment of acquittal may be granted only if “no
substantial evidence supports the conviction.” State v. Davolt, 207 Ariz. 191,
212 ¶ 87, 84 P.3d 456, 477 (2004). Substantial evidence exists if “reasonable
persons may fairly differ as to whether certain evidence establishes a fact in
issue.” Id. (edits and citation omitted). Substantial evidence may be direct
or circumstantial. State v. Pena, 209 Ariz. 503, 505 ¶ 7, 104 P.3d 873, 875
(App. 2005).

¶106          Escalante-Orozco asserts that no substantial evidence
supports the sexual assault conviction, and that because the State’s entire
theory for Maria’s murder was predicated on sexual assault, the court erred
by not acquitting him of all charges. A person commits sexual assault by
“intentionally or knowingly engaging in sexual intercourse or oral sexual
contact with any person without consent of such person.” A.R.S. § 13-
1406(A).    As charged here, Escalante-Orozco engaged in “sexual
intercourse” if he penetrated Maria’s vulva with any part of his body or
with any object. See id. § 13-1401(A)(4). He did so “without consent” if
Maria was “coerced by the immediate use or threatened use of force”
against her or her property. Id. § 13-1401(A)(7)(a).

¶107          Substantial evidence supports the sexual assault conviction.
Escalante-Orozco admitted to Detective Caraballo that he woke up on top
of Maria with his hand on her genitals. Evidence showed that Maria had
lacerations around and inside her vagina, including three lacerations on the
inner parts of her minor labia, a laceration on the posterior fornix, where
the labia come together in the back part of the vaginal wall, and two one-
and-a-half inch lacerations on the walls of her vagina. The State’s expert

                                     32
                     STATE V. ESCALANTE-OROZCO
                          Opinion of the Court

testified that the injuries were “blunt force injuries” that could have been
caused by anything “from a fingernail to a larger foreign object.” The
expert also concluded, based on the hemorrhaging around the vaginal
lacerations, that they were likely caused within twenty-four hours of
Maria’s death. The DNA evidence established that Escalante-Orozco could
not be excluded as the contributor of the DNA tested from the vaginal swab.
The trial court did not err by refusing to grant the rest of the Rule 20 motion.

              D.     Aggravation Phase Issues

              1.     (F)(6) jury instruction

¶108           Escalante-Orozco argues that the trial court’s jury instruction
on the “especially cruel” aggravator, A.R.S. § 13-752(F)(6), was
unconstitutionally vague because it “inaccurately and unconstitutionally
suggested the jury was only required to find the murder cruel, and not that
the murder was ‘especially so.’” We review de novo whether the instruction
correctly stated the law. Benson, 232 Ariz. at 462 ¶ 38, 307 P.3d at 29.

¶109           Although the (F)(6) aggravator is facially vague, that defect
“may be remedied with an instruction requiring the jury to find the victim
was conscious during the mental anguish or physical pain and also . . . the
defendant knew or should have known that the victim would suffer.” Id.
at 463 ¶ 39, 307 P.3d at 30 (internal quotation and citation omitted); see also
State v. Anderson, 210 Ariz. 327, 352–53 ¶¶ 109–14, 111 P.3d 369, 394–95
(2005). The instruction contained these essential factors, and further
narrowing was not required.

              2.     Prosecutorial misconduct in closing argument

¶110          Escalante-Orozco argues for the first time that the prosecutors
engaged in several acts of misconduct during closing arguments that
individually and cumulatively deprived him of due process and a fair trial
under the state and federal constitutions. We review for fundamental error.
Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d at 607.

                     (a)     Sexual assault as proof of mental anguish
                             or physical pain




                                      33
                     STATE V. ESCALANTE-OROZCO
                          Opinion of the Court

¶111          Escalante-Orozco argues that the prosecutor misstated the
law by arguing that “evidence of rape is proof of mental pain and suffering”
under the (F)(6) aggravator. Escalante-Orozco correctly notes that we have
been unwilling to say that all murders involving a sexual assault
automatically qualify as especially cruel under (F)(6). See State v. Schackart,
190 Ariz. 238, 248, 947 P.2d 315, 325 (1997). But the prosecutor did not urge
a per se rule. After making the above-quoted statement, he focused on
Maria’s sexual-assault injuries, which can contribute to a finding that a
murder was especially cruel. Cf. Newell, 212 Ariz. at 406 ¶ 85, 132 P.3d at
850 (concluding that “sexual assault-related bruises and injuries” and other
evidence supported finding of especial cruelty); Schackart, 190 Ariz. at 248,
947 P.2d at 325 (stating that the sexual assault and other evidence supported
a finding of especial cruelty). He also argued that Maria’s multiple stab
wounds and other injuries demonstrated mental anguish and physical pain.
The statement was not improper.

¶112           Escalante-Orozco also argues that relying on the sexual
assault to satisfy the (F)(6) aggravating factor violated double jeopardy by
impermissibly “double counting” the sexual assault as the predicate for
felony murder and to establish the (F)(6) aggravator. We have previously
held that an element of a crime may be used for purposes of sentencing
enhancement and establishing aggravation. State v. Cruz, 218 Ariz. 149, 169
¶ 130, 181 P.3d 196, 216 (2008) (“In [State v.] Lara [171 Ariz. 282, 830 P.2d 802
(1992)], we held that an element of a crime may also be used to aggravate a
sentence. We have repeatedly applied the Lara rule in the capital context.”
(internal citation omitted)). Escalante-Orozco does not explain why we
should revisit those decisions, and we decline to do so.

                      (b)    Presence of Maria’s son during the murder

¶113          The prosecutor asked jurors to “[i]magine the fear that Maria
was experiencing as she tried to fight off the defendant, knowing that her
son was present in the apartment, could have been the next victim.” He
concluded that Maria not only feared for herself but for her son’s safety.
Escalante-Orozco argues that this argument was improper because (1) no
evidence suggested that the son was present during the murder, and (2)
Maria’s worry for her son’s safety could not constitute mental anguish
under (F)(6).



                                       34
                     STATE V. ESCALANTE-OROZCO
                          Opinion of the Court

¶114           We reject Escalante-Orozco’s first argument because the
prosecutor did not say the son saw the murder; he said the son was in the
apartment, which was supported by the evidence. We likewise reject the
second argument. Escalante-Orozco does not cite any authority suggesting
that fear for a young son’s safety cannot add to the mental anguish
experienced by a murder victim. Quite to the contrary, common sense tells
us it does. Cf. State v. Carter, 988 S.W.2d 145, 151 (Tenn. 1999) (upholding
jury’s especial cruelty finding in part because murder victims feared for
each other’s safety and the safety of their daughter who hid in the home);
id. (“[M]ental torment is intensified when a victim . . . anticipates the harm
or killing of [a] close relative and is helpless to assist.”).

                     (c)    Length of time Maria was conscious

¶115          Escalante-Orozco argues that the prosecutor improperly
speculated by arguing that the killing was “unusually great or significant”
based on “the length of time that Maria [] suffered.” This was fair
argument. Dr. Ross testified that a stab wound to Maria’s neck was the
primary cause of death. He opined that it would have taken “maybe 10, 15,
20 minutes” before Maria was unable to purposefully move to resist
continuing attacks and “anywhere from several minutes to probably
upwards of an hour” for her to die. This testimony, together with evidence
of the sexual assault, and Maria’s other wounds, including defensive
wounds, supported a reasonable inference that Maria was conscious and
suffered for a significant length of time.

              E.     Penalty Phase Issues

              1.     “Future dangerousness”

¶116           The trial court instructed the jury that if it decided to impose
a life sentence, “the Court will decide whether it would be imprisonment
for life without the possibility of release from prison, or imprisonment for
life with the possibility of release after 25 years.” Escalante-Orozco
objected, arguing that the jurors should not consider his potential for
release when deciding whether to impose the death penalty. He also asked
the court to tell jurors that a person convicted of first degree murder could
be released only through clemency proceedings as Arizona law does not
provide for parole. The trial court denied the objection and refused the


                                      35
                     STATE V. ESCALANTE-OROZCO
                          Opinion of the Court

requested instruction because it speculated about the future availability of
parole.

¶117           Escalante-Orozco argues that the court’s refusal to give his
requested instruction violated Simmons v. South Carolina, 512 U.S. 154 (1994)
(plurality opinion). In Simmons, the Court held that “where the defendant's
future dangerousness is at issue, and state law prohibits the defendant's
release on parole, due process requires that the sentencing jury be informed
that the defendant is parole ineligible.” 512 U.S. at 156. Parole is available
in Arizona only for juveniles and individuals who committed a felony
before January 1, 1994. A.R.S. § 41-1604.09(I). (Escalante-Orozco does not
fall into either category.) This Court has repeatedly held that even when a
defendant’s future dangerousness is at issue, the type of instruction given
by the trial court here does not violate Simmons because future release is
possible. See, e.g., State v. Lynch, 238 Ariz. 84, 103 ¶ 65, 357 P.3d 119, 138
(2015), rev. Lynch v. Arizona, 136 S. Ct. 1818 (2016). But the Supreme Court
recently rejected this holding. Lynch v. Arizona, 136 S. Ct. at 1819. The Court
concluded that the possibilities of clemency or a future statute authorizing
parole “[does not] diminish[] a capital defendant’s right to inform a jury of
his parole ineligibility.” Id. at 1819.

¶118           The State contends that Escalante-Orozco waived the
Simmons issue because he never explicitly argued that the State placed
future dangerousness at issue. We disagree. By objecting to the instruction
and explaining that the jury should not consider the possibility of his
release in deciding whether to impose the death penalty, Escalante-Orozco
sufficiently preserved the issue. Cf. State v. Fulminante, 193 Ariz. 485, 503 ¶
64, 975 P.2d 75, 93 (1999) (“An objection is sufficiently made if it provides
the judge with an opportunity to provide a remedy.”). This is especially so
as he also proposed an instruction that accurately described the only
available pathway to release—clemency—and argued in his motion for a
new trial that Simmons applied. Escalante-Orozco did not need to explicitly
contend that his future dangerousness was at issue for the judge to
comprehend the nature of the objection and fashion a remedy.

¶119          The State next argues that Simmons and Lynch do not apply
because the prosecutor did not put future dangerousness at issue. The
prosecutor did not have to explicitly argue future dangerousness for it to
be at issue; instead, it is sufficient if future dangerousness is “a logical


                                      36
                     STATE V. ESCALANTE-OROZCO
                          Opinion of the Court

inference from the evidence” or is “injected into the case through the State’s
closing argument.” Kelly v. South Carolina, 534 U.S. 246, 252 (2002).

¶120           Kelly provides guidance. There, the Court found that the trial
court should have given a Simmons instruction because the defendant’s
future dangerousness was put at issue by the prosecutor introducing
evidence at the sentencing hearing of the defendant’s violent tendencies
and by using violence-invoking nicknames to refer to the defendant. Id. at
252–55. The prosecutor “call[ed] correctional officers to testify to an escape
attempt, to testify to the fact that [defendant] has possession of a shank, by
calling inmates who testified to [defendant’s] behavior in the jail . . . [and]
his plan to take a female guard hostage.” Id. at 249 (internal edits omitted).
In his closing argument, the prosecutor called the defendant “the butcher
of Batesburg,” “Bloody Billy,” and “Billy the Kid,” invoking images of
violent men, and told the jurors he hoped they would “never in their lives
again have to experience being some thirty feet away from such a person.”
Id. at 249–50, 255 (internal edits omitted).

¶121           During the penalty phase here, the prosecutor introduced
evidence that Escalante-Orozco choked his ex-wife, Cecilia, by pinning her
neck down with his knee; yelled at Cecilia and shook her by the arms; threw
Cecilia down on the bed, held a knife to her throat, and threatened her life;
and bit off part of someone’s finger in a fight and showed the piece to
Cecilia after returning home. The prosecutor also introduced evidence that
Escalante-Orozco once fought with Cecilia, tore off her clothes, threatened
her with a knife, and dragged her outside by her hair while she was naked.
With regard to Maria’s murder, the prosecutor brought out the graphic
photographs of the crime scene and autopsy photos and went over the
brutality of the murder.

¶122          In closing, the State argued:

       Sometimes in life there are people who have done so much
       evil they give up their right to live. This defendant has done
       just that. You have the attack on [Maria]. And there’s some
       other evidence you can consider that has been presented to
       rebut any mitigation that you may find in this case. And those
       are the incidents that were described to you by Cecilia Banda.



                                      37
                     STATE V. ESCALANTE-OROZCO
                          Opinion of the Court

       The defendant, according to Cecilia Banda, she told you, he
       attacked her on two different occasions armed with a knife.
       On at least one of those occasions, her hair was pulled.

       One incident occurred in Mexico, one incident occurred in the
       United States. You also heard of another incident that was
       witnessed by her sister, Patricia, where the defendant was
       choking her. You also heard about another incident in Mexico
       where the defendant came home after having gotten into a
       fight with someone, he came home with a person’s finger.

       This defendant has done so much evil that he has given up his
       right to live. He has forfeited his right to live based on the
       crime that he committed March 10th of 2001.

The other-act evidence and the prosecutor’s arguments, like those at issue
in Kelly, put Escalante-Orozco’s future dangerousness at issue.

¶123           The State argues it did not place future dangerousness at issue
because the evidence of other acts of violence was offered to rebut
mitigation evidence. The Kelly Court rejected a similar argument:
“Evidence of future dangerousness under Simmons is evidence with a
tendency to prove dangerousness in the future; its relevance to that point
does not disappear merely because it might support other inferences or be
described in other terms.” Id. at 254. Although the purpose of introducing
the evidence may have been to rebut Escalante-Orozco’s mitigation
evidence, the State used that evidence, together with the attack on Maria,
as examples of the evil Escalante-Orozco committed that “forfeited his right
to live,” thereby putting Escalante-Orozco’s future dangerousness at issue.

¶124             The State also argues that it did not place future
dangerousness at issue because the prosecutor focused exclusively on
Escalante-Orozco’s past actions. Past instances of violent behavior,
however, can “raise a strong implication of ‘generalized. . . future
dangerousness.’” See id. at 253 (quoting Simmons, 512 U.S. at 171). As
recognized by the Court in Kelly, “[a] jury hearing evidence of a defendant’s
demonstrated propensity for violence reasonably will conclude that he
presents a risk of violent behavior, whether locked up or free, and whether
free . . . as a parolee.” Id. at 253–54.


                                     38
                     STATE V. ESCALANTE-OROZCO
                          Opinion of the Court

¶125           The State finally argues that any error was harmless. It is not
clear whether Simmons error is subject to harmless error review. The
Supreme Court has stated that “most constitutional errors can be
harmless.” Neder v. United States, 527 U.S. 1, 8, (1999) (quoting Arizona v.
Fulminante, 499 U.S. 279, 306 (1991)). But it did not perform a harmless error
analysis or mention harmless error in any of its cases considering a Simmons
error. See Lynch v. Arizona, 136 S. Ct. at 1818–20; Kelly, 534 U.S. at 257–58;
Shafer v. South Carolina, 532 U.S. 36, 54–55 (2001); Simmons, 512 U.S. at 171.

¶126           We do not have to decide whether a Simmons error can ever
be harmless. Here, even if we assume such errors can be harmless, the State
has not proven “beyond a reasonable doubt that the error did not contribute
to or affect the verdict or sentence.” Henderson, 210 Ariz. at 567 ¶ 18, 115
P.3d at 607. Only one aggravator was found and a great deal of mitigating
evidence was introduced. Escalante-Orozco is in his forties, and the jury
could have believed he would live to see release. The jury deliberated for
about thirteen hours, which suggests it gave careful consideration to the
sentencing options. We cannot know what role the possibility of release
played in the jurors’ minds as they decided the propriety of the death
penalty. Cf. Andres v. United States, 333 U.S. 740, 752 (1948) (“In death cases,
doubts with regard to the prejudicial effect of trial error should be resolved
in favor of the accused.”); Andrews v. Shulsen, 802 F.2d 1256, 1263–64 (10th
Cir. 1986) (“[B]ecause there is a qualitative difference between death and
any other permissible form of punishment, ‘there is a corresponding
difference in the need for reliability in the determination that death is the
appropriate punishment in a specific case.’” (quoting Zant v. Stephens, 462
U.S. 862, 884–85 (1983))).

¶127           For all these reasons, the State placed Escalante-Orozco’s
future dangerousness at issue. In light of the Supreme Court’s decision in
Lynch, the trial court erred by refusing to tell the jury that Escalante-Orozco
was ineligible for parole. The error was not harmless. Unless our
independent review reveals that the death penalty is unwarranted, the trial
court must conduct new penalty phase proceedings.

              2.     Matters preserved for review and likely to arise on
                     remand

                     (a)     Jury determination of intellectual disability


                                      39
                     STATE V. ESCALANTE-OROZCO
                          Opinion of the Court

¶128          During the penalty phase, the court instructed the jury that if
it found that Escalante-Orozco had an intellectual disability by a
preponderance of the evidence, it “must vote for a life sentence.” If the jury
did not find an intellectual disability, it could still consider the evidence as
a mitigating circumstance.

¶129           Escalante-Orozco argues that the trial court abused its
discretion by denying his request for a bifurcated penalty-phase proceeding
whereby the jury would first render a verdict on intellectual disability as a
bar to a death sentence before deliberating on whether the mitigation was
sufficiently substantial to call for leniency. He asserts that failing to
bifurcate “unconstitutionally conflated the jury’s factual determination of
[intellectual disability] with the jury’s moral sentencing decision” and that
there was a significant probability that once the jury found that he did not
have an intellectual disability, it would fail to view that evidence as
mitigating.

¶130          Relying primarily on this Court’s decision in Grell II, the State
responds, and asserts in its cross-appeal, that Arizona law prohibits a jury
from deciding whether a defendant has proven intellectual disability as a
bar to a death sentence. It contends that the court erred by instructing the
jury otherwise, making the bifurcation issue moot.

¶131           We take up the cross-appeal first. When Grell II was decided,
the trial court was required to appoint a prescreening psychological expert
in a capital case to determine the defendant’s IQ and then, depending on
the score, either allow the death penalty to remain a sentencing option or
decide, after an Atkins hearing, whether the defendant had proven an
intellectual disability that bars a death sentence. See A.R.S. § 13-703.02(B)–
(H) (2002). If the trial court did not find an intellectual disability, “the
court’s finding [did] not prevent the defendant from introducing evidence
of the defendant’s mental retardation or diminished mental capacity as a
mitigating factor at the penalty phase of the sentencing proceeding.” Id. §
13-703.02(H) (2002).

¶132           Grell argued that the trial court erred by not permitting the
jury to decide whether intellectual disability serves as a bar to execution,
even though the trial judge had made a pretrial determination on the issue.
Grell II, 212 Ariz. at 527 ¶ 48, 135 P.3d at 707. This Court disagreed. Id. at
¶¶ 48–49. We acknowledged that a jury determination would be

                                      40
                     STATE V. ESCALANTE-OROZCO
                          Opinion of the Court

permissible but found that the legislature had enacted a system in § 13-
703.02 in which “[t]he judge hears [intellectual disability] evidence as a
legal bar to execution and the jury hears it for mitigation purposes.” Id.

¶133           While Grell II was pending, the legislature amended § 13-
703.02 to permit a capital defendant to opt out of the pretrial Atkins
determination. See A.R.S. § 13-703.02(B) (2006) (requiring the pretrial
assessment and determination “unless the defendant objects” to
appointment of the prescreening psychological expert to determine the
defendant’s IQ). In that circumstance, “the defendant waives the right to a
pretrial determination of [intellectual disability] status,” but “[t]he waiver
does not preclude the defendant from offering evidence of the defendant’s
[intellectual disability] in the penalty phase.” Id. The legislature also
deleted “as a mitigating factor” from subsection H so that if the trial court
finds that the defendant is not intellectually disabled, that finding “does not
prevent the defendant from introducing evidence of the defendant’s
[intellectual disability] or diminished mental capacity at the penalty phase.”
Id. § 13-703.02(H) (2006).

¶134           The amendments to § 13-703.02 (renumbered § 13-753) reflect
the legislature’s intent to permit a jury to decide whether a defendant has
proven an intellectual disability that bars a death sentence.               The
consequence for opting out of pretrial Atkins procedures is waiver of a
“pretrial determination of status”—not any determination of status. See id.
§ 13-753(B). The only remaining recourse for making that determination is
during the penalty phase, where the trier-of-fact (typically a jury) is charged
with making “all factual determinations required by this section or the
Constitution of the United States or this state.” See id. §§ 13-752(P), -753(H);
see also id. § 13-752(H) (“The trier of fact shall determine unanimously
whether death is the appropriate sentence.”). The legislature further
demonstrated its intent by deleting language that arguably limited the trier-
of-fact’s consideration of intellectual disability evidence to being “a
mitigating factor.” See § 13-753(H).

¶135           Our interpretation is not limited to defendants who opt out of
pretrial Atkins determinations. A defendant’s presentation of evidence may
strengthen between the Atkins hearing and the penalty phase. Cf. Grell III,
231 Ariz. at 155 ¶ 11, 291 P.3d at 352 (“Grell presented substantially more—
and more convincing—evidence of adaptive skill deficits in his 2009
resentencing hearing than he presented in 2005.”). No reason exists to

                                      41
                     STATE V. ESCALANTE-OROZCO
                          Opinion of the Court

conclude that the legislature intended to preclude consideration of
intellectual disability as a bar merely because the defendant did not carry
the burden of proof in pretrial proceedings.

¶136          Also, § 13-753’s pretrial procedures do not necessarily permit
a complete presentation of intellectual disability evidence. For example, if
the prescreening psychological expert concludes that a defendant’s IQ is
greater than seventy-five, the court cannot dismiss the notice of intent to
seek the death penalty. See id. § 13-753(C). In that scenario, the defense is
not entitled to contest the score, present contrary evidence, or present
adaptive behavior evidence. The only time to permit such evidence and
argument is during the penalty phase.

¶137           Permitting the trier-of-fact in the penalty phase to determine
intellectual disability as a bar to the death penalty also fulfills the
legislature’s intent to avoid executing intellectually disabled individuals.
See 2001 Ariz. Legis. Serv. Ch. 260, § 3 (West) (“It is the intent of the
legislature that in any case in which this state files a notice of intent to seek
the death penalty . . . a defendant with [intellectual disability] shall not be
executed in this state.”). If we adopt the State’s position, a jury could
impose the death penalty in light of the strength of aggravating
circumstances even though it concluded that a defendant has an intellectual
disability. This result, which would contradict legislative intent and violate
the Eighth Amendment, is avoided by our interpretation of § 13-753.

¶138          In sum, the trial court did not err by instructing the jury that
it must impose a life sentence if it found by a preponderance of the evidence
that Escalante-Orozco is intellectually disabled. See Grell III, 231 Ariz. at 160
¶ 35, 291 P.3d at 357 (using the preponderance of the evidence standard to
decide whether Grell proved an intellectual disability).

¶139           We next turn to Escalante-Orozco’s argument that the court
erred by refusing to conduct a bifurcated penalty phase. Nothing requires
a bifurcated proceeding, and here, nothing would have been gained. The
court instructed the jury that if it finds an intellectual disability by a
preponderance, it must impose a life sentence. The court further instructed
that if the jury did not find an intellectual disability, it should consider the
disability evidence as a mitigating circumstance that alone or with other
mitigating circumstances may be substantial enough to call for a life


                                       42
                     STATE V. ESCALANTE-OROZCO
                          Opinion of the Court

sentence. The court did not err by conducting a single penalty phase
proceeding.

              (b)     Admission of other-act evidence

¶140           Escalante-Orozco’s ex-wife and her sister testified in rebuttal
about acts of violence he had perpetrated against the ex-wife and another
person. For example, the jury heard that Escalante-Orozco had put a knife
against his then-pregnant wife’s throat and threatened to kill her. The trial
court ruled that this evidence was relevant to rebut Escalante-Orozco’s
intellectual disability claim because “[p]art of adaptive behavior includes
social responsibility.” Escalante-Orozco contends that the court violated
his due process rights because the evidence was irrelevant, highly
prejudicial, and served as a non-statutory aggravator.

¶141           Our rules of evidence do not govern the admission of
evidence during the penalty phase. State v. Chappell, 225 Ariz. 229, 239 ¶ 35,
236 P.3d 1176, 1186 (2010). As long as rebuttal evidence is relevant to the
thrust of a defendant’s mitigation and is not unduly prejudicial, we defer
to the trial court’s ruling. State v. Burns, 237 Ariz. 1, 28 ¶ 127, 344 P.3d 303,
330 (2015); A.R.S. § 13-751(C). We review that ruling for an abuse of
discretion. State v. Nordstrom, 230 Ariz. 110, 114 ¶ 8, 280 P.3d 1244, 1248
(2012).

¶142           The “thrust” of Escalante-Orozco’s mitigating evidence was
that he had an intellectual disability, which required proof, among other
things, that he had a significant impairment in adaptive behavior. See
A.R.S. § 13-753(K)(3). Dr. Sergio Martinez, the State’s expert, testified that
maladaptive behaviorsdrug use, excessive drinking, and the like – must
be considered in deciding whether a person’s ability to function stems from
a significant impairment in adaptive behavior. The State asserts that
evidence that Escalante-Orozco was controlling and drank alcohol during
at least two of his violent episodes demonstrated maladaptive behavior and
was therefore relevant. But the State does not point to any evidence linking
Escalante-Orozco’s violent acts to a maladaptive behavior disorder that
should be considered in deciding whether his adaptive behavior skills are
impaired by an intellectual disability.

¶143        Permitting the other-act evidence without linking it to
maladaptive behavior also unfairly prejudiced Escalante-Orozco. See State

                                       43
                     STATE V. ESCALANTE-OROZCO
                          Opinion of the Court

v. Smith, 215 Ariz. 221, 232 ¶ 54, 159 P.3d 531, 542 (2007) (stating that unduly
prejudicial rebuttal evidence must be excluded if it would make the
proceeding “fundamentally unfair”). A real risk existed that the jury
treated this evidence as a non-statutory aggravator without a sufficient
connection to the adaptive behavior issue. Cf. State v. Gulbrandson, 184 Ariz.
46, 66, 906 P.2d 579, 599 (1995) (“In capital cases, the [jury] can give
aggravating weight only to evidence that tends to establish an aggravating
circumstance enumerated in A.R.S. § 13-[751](F) . . . .”). On remand, the
court should not permit the other-act evidence absent evidence linking
Escalante-Orozco’s violent acts to maladaptive behaviors.

                     (c)     Jury Instruction – “significant impairment” of
                             adaptive behavior

¶144          As part of its instruction defining “intellectual disability,” the
court properly told the jury that Escalante-Orozco must show “a significant
impairment in adaptive behavior.” See § 13-753(K)(1), (3), (5). Escalante-
Orozco argues that the court erred by refusing to additionally define
“significant impairment” as meaning “performance on a standardized
assessment instrument that is approximately two standard deviations
below the mean.” He asserts that the American Association on Intellectual
and Developmental Disorders recognizes this definition, and the
instruction was necessary to give meaning to the term “significant.” The
trial court declined to give the instruction, reasoning that there was
disputed testimony on the issue, and the parties could argue the matter to
the jury based on the experts’ testimony.

¶145           A court is not required to define every phrase or word used
in jury instructions, and the trial court did not err by failing to define
“significant” for the jury. See Forde, 233 Ariz. at 564 ¶ 82, 315 P.3d at 1221.
Neither § 13-753 nor any Arizona opinion adopts the Association’s
definition, and the experts presented conflicting testimony on the
usefulness of standardized tests to assess adaptive behavior. The court
properly left the issue to argument based on the experts’ testimony.

                     (d)     Motion for acquittal

¶146          After submission of evidence in the penalty phase, Escalante-
Orozco unsuccessfully moved the court to reconsider its pretrial Atkins
ruling that he did not suffer from an intellectual disability or, alternatively,

                                      44
                      STATE V. ESCALANTE-OROZCO
                           Opinion of the Court

to apply criminal procedure Rule 20 to find he suffers from an intellectual
disability that precludes imposition of the death penalty. The court denied
the motion as contested issues of fact existed regarding intellectual
disability and also ruled that Rule 20 did not apply.

¶147           Escalante-Orozco challenges the trial court’s ruling that Rule
20 does not apply to deciding whether a defendant has an intellectual
disability that bars imposition of the death penalty. Rule 20 applies to
“offenses charged in an indictment, information or complaint” or “an
aggravating circumstance.” Ariz. R. Crim. P. 20. Essentially, Rule 20 tests
the sufficiency of the state's evidence. State v. Neal, 143 Ariz. 93, 98, 692 P.2d
272, 277 (1984). Because the defendant bears the burden of proving
intellectual disability, see A.R.S. § 13-753(G), Rule 20 does not apply. Also,
intellectual disability is not like an aggravating factor, as Escalante-Orozco
argues, because it serves to exclude a defendant from death penalty
eligibility, and its absence does not increase an available penalty. See Grell
II, 212 Ariz. at 526–27 ¶¶ 44, 46, 135 P.3d at 706–07.

¶148         Escalante-Orozco is correct that the court wrongly applied a
civil summary judgment standard to deny the motion for reconsideration.
Should such a motion be filed on remand, the court can consider it upon a
showing of good cause pursuant to Arizona Rule of Criminal Procedure
16.1. See Grell III, 231 Ariz. at 161 ¶ 39, 291 P.3d at 358 (Bales, V.C.J,,
concurring).

       II.    Independent Review

¶149          Because Escalante-Orozco murdered Maria before August 1,
2002, we independently review the aggravation and mitigation findings
and the propriety of the death sentence. A.R.S. § 13-755(A); Grell III, 231
Ariz. at 154 ¶ 3, 291 P.3d at 351. We review the record de novo without
deference to the jury’s findings or decisions. State v. Prince, 226 Ariz. 516,
539 ¶ 93, 250 P.3d 1145, 1168 (2011).

              A.      Intellectual disability

¶150          Escalante-Orozco bore the burden of proving intellectual
disability and did so if he showed by a preponderance of the evidence that
(1) he has significantly subaverage general intellectual functioning, (2)
existing concurrently with significant impairment in adaptive behavior,

                                       45
                      STATE V. ESCALANTE-OROZCO
                           Opinion of the Court

and (3) the onset of these conditions occurred before he turned eighteen.
A.R.S. § 13-753(K)(3); Grell III, 231 Ariz. at 154 ¶ 3, 291 P.3d at 351. To decide
whether Escalante-Orozco met this burden, we review the evidence
presented during the Atkins hearing and the penalty phase. Cf. State v.
Blazak, 131 Ariz. 598, 602–03, 643 P.2d 694, 698–99 (1982) (reviewing entire
record, including evidence presented in post-conviction review, to decide
propriety of death sentence).

              1.      General intellectual functioning

¶151          Escalante-Orozco proved that he has a significantly
subaverage general intellectual functioning by showing that it was more
likely than not that he has an IQ of seventy or below. See A.R.S. § 13-
753(K)(5) (defining “subaverage general intellectual functioning”); Pima
Cnty. v. Pima Cnty. Law Enforcement Merit Sys. Council, 211 Ariz. 224, 228 ¶
21, 119 P.3d 1027, 1031 (2005) (acknowledging that “preponderance of the
evidence” means “more likely than not”). Three experts administered a
total of four IQ tests to Escalante-Orozco. The experts used a 95%
confidence interval as the margin of error, which means we can be confident
that 95% of the time Escalante-Orozco would have scored within the
identified range of scores. Each expert scored tests “normed” to different
cultural groups to determine how Escalante-Orozco’s scores compared to
the average range of test scores (85 to 115) in that group.

¶152          Escalante-Orozco scored seventy or below on tests
administered by all three experts. Dr. Julio Ramirez, the court-appointed,
prescreen expert, administered the WAIS-III test using United States norms
and scored a full-scale IQ score of seventy, with a 95% confidence interval
of sixty-seven to seventy-five. Dr. Francisco Gomez, the defense expert,
administered the WAIS-III using Mexican norms and scored a full-scale IQ
score of sixty-six, with a 95% confidence interval of sixty-three to seventy-
one. Dr. Sergio Martinez, the State’s expert, administered the WAIS-IV test
using United States norms and scored a full-scale IQ score of sixty-five, with
a 95% confidence interval of sixty-two to seventy.

¶153          Although Escalante-Orozco scored a full-scale IQ of seventy-
seven on the Bateria-III instrument administered by Dr. Martinez, who
identified a 95% confidence interval from seventy-five to seventy-nine, we
are not persuaded that this score diminishes the likelihood that Escalante-
Orozco’s IQ is seventy or below. Three other tests placed his IQ at seventy

                                       46
                    STATE V. ESCALANTE-OROZCO
                         Opinion of the Court

or below, and the median IQ scores for all tests was sixty-six and seventy.
Also, as Dr. Gomez pointed out, the Bateria-III is normed only to age
twenty-nine. For older test subjects, like Escalante-Orozco, scores are based
on a statistical prediction.

¶154          Escalante-Orozco also proved that his significantly
subaverage general intellectual functioning started before he turned
eighteen. Because Escalante-Orozco was never tested as a child, and his
school records are few and unrevealing, we must rely only on anecdotal
accounts of his childhood. But that is enough. According to Martha Cano
Muñoz, his first-and-second-grade teacher, she tutored Escalante-Orozco
after school because he had a difficult time in class and even with the extra
tutoring, he never caught up. Escalante-Orozco failed and repeated second
grade, did not pass the second time, and dropped out of school.

¶155          Other people confirmed Escalante-Orozco’s intellectual
difficulties during childhood. A brother reported that Escalante-Orozco
would let horses out and miscount them so he would fail to put them all
back. A nephew testified that when they sold gum at baseball games as
children, Escalante-Orozco was not permitted to do so alone because he
would not give the correct change. The same nephew said Escalante-
Orozco had trouble measuring things because of his difficulties in math. A
childhood neighbor remembered that Escalante-Orozco had difficulties
counting and “couldn’t learn” when she tried to help him with homework.

¶156        In sum, Escalante-Orozco proved that he had significantly
subaverage general intellectual functioning that started before he turned
eighteen.

             2.     Adaptive behavior

¶157           Conflicting evidence exists as to whether Escalante-Orozco
has a significant impairment in adaptive behavior.

¶158          Dr. Martinez and Dr. Gomez each administered adaptive
behavior skills tests and conducted clinical interviews with Escalante-
Orozco, his friends, family, and acquaintances. (As the prescreen expert,
Dr. Ramirez only evaluated IQ and did not address adaptive behavior.) Dr.
Martinez testified that while Escalante-Orozco has a weakness in
academics, specifically math, he does not have significant adaptive

                                     47
                    STATE V. ESCALANTE-OROZCO
                         Opinion of the Court

behavior limitations.     Dr. Martinez concluded that “maladaptive
behaviors” (substance abuse and a character flaw) and a lack of an
opportunity for academic advancement, rather than an adaptive behavior
limitation, adversely impacts Escalante-Orozco’s functioning.

¶159           Dr. Gomez diagnosed Escalante-Orozco as mildly
intellectually disabled. He concluded that Escalante-Orozco has significant
deficits in at least two skill areas—functional academic skills and
communication—which meets the DSM-IV-TR definition of significant
adaptive functioning deficits. He disagreed with Dr. Martinez that
Escalante-Orozco’s academic weakness was due to a lack of opportunity,
pointing out that Escalante-Orozco repeatedly failed to learn when friends
and family tried to teach him.

¶160          Accounts from friends, family, and acquaintances supported
each expert’s opinion. For example, Banda testified that during their
marriage, Escalante-Orozco got up, dressed, showered, brushed his teeth,
and made coffee on his own during the week. Escalante-Orozco bought his
own clothes, went to get his hair cut when needed, fixed things around the
house, took the correct dosage of medicine when ill, and paid the rent. See
A.R.S. § 13-753(K)(1) (defining “adaptive behavior” in part as the degree to
which a defendant meets standards of personal independence).

¶161          Robert Anderson, Escalante-Orozco’s supervisor at the
apartments, testified that Escalante-Orozco started as an unskilled worker,
but he did a good job, caught on quickly, and had no trouble completing
his assigned tasks. Anderson considered him capable of doing skilled work
and so kept “adding on to his plate.” He worked on drywall, laid subfloors
and tile, changed light fixtures, replaced shower heads and drains, and
completed other construction and remodeling work. He also got along with
his coworkers and showed up for work on time. See id. (defining “adaptive
behavior” in part as the degree to which a defendant meets standards of
social responsibility).

¶162          On the other hand, Escalante-Orozco had trouble calculating
the amount of materials needed for construction jobs and how much to
charge because he did not understand math. Although a relative tried to
teach him, he was not able to learn. Escalante-Orozco sometimes
accidentally left his tools at job sites, ran out of gas, and lent money when
he needed it himself.

                                     48
                     STATE V. ESCALANTE-OROZCO
                          Opinion of the Court


¶163           We need not decide whether Escalante-Orozco proved that he
has a significant impairment in adaptive behavior. Even if he does, he did
not prove that the condition started before he turned eighteen. See A.R.S. §
13-753(K)(3).

¶164          Escalante-Orozco had an unenviable childhood. He was
raised as the youngest of twelve children in an extremely poor family in
rural Mexico. As previously recounted, Escalante-Orozco struggled in
school and dropped out in second grade. Similarly, only two of his siblings
advanced beyond third grade and no one attended high school. The
children worked to earn money and the family “never had enough to eat.”
The family lacked sufficient money to send the children to school.
Escalante-Orozco also suffered from chronic ear infections, which were
painful.

¶165            Despite his circumstances, Escalante-Orozco was quite social
as a child and consistently exhibited an ability to meet societal expectations.
See Grell II, 212 Ariz. at 529 ¶ 62, 135 P.3d at 709. He was well-behaved and
possessed a good work ethic. He showed interpersonal skills by being
affectionate and playful; for example, he often teased others by covering
their eyes and asking, “guess who?” He played tops, marbles, organized
baseball, soccer, and other games with friends, which demonstrated an
ability to relate to others, form friendships, and interact in social settings.
As he aged, he would go out dancing with friends. He was well-liked by
the girls in town, and took them horseback riding. He had girlfriends by
the time he was thirteen or fourteen, which indicates he could establish
romantic relationships. There is no evidence he was victimized, as
commonly occurs with intellectually disabled individuals. Indeed, he stood
up to older cousins who looked for fights and helped others who got into
fights. All but one witness who knew him as a child described Escalante-
Orozco as a normal, friendly, and social child.

¶166          Escalante-Orozco was also able as a child to manage daily
tasks that did not involve reading and arithmetic. He kept himself clean
and took pride in his personal appearance. As a four-to-five-year-old child,
he took care of chickens, ducks, pigs, and other farm animals. He also
gathered firewood from the woods. His father taught him how to care for
sick horses and how to plaster. At age fifteen he moved to another city to
live with family members and work at an assembly plant performing some

                                      49
                    STATE V. ESCALANTE-OROZCO
                         Opinion of the Court

type of electrical wiring work. There is no evidence that Escalante-Orozco
needed extra supervision or support with daily tasks.

¶167          Dr. Gomez based his conclusion that Escalante-Orozco had
the onset of mild mental retardation before age eighteen on the fact that he
did not progress in school, despite the extra help given him by his teacher,
and that everyone noted his difficulties with reading, writing, and math.
While this evidence shows Escalante-Orozco’s significant deficit in
functional academic skills before age eighteen, it does not demonstrate a
significant impairment in adaptive functioning before that age. And
although Dr. Gomez identified risk factors for a mild intellectual disability
(for example, malnutrition and lack of stimulation), he did not say that
these factors actually impaired Escalante-Orozco’s adaptive functioning or
otherwise caused an intellectual disability.

¶168         Escalante-Orozco points to a childhood neighbor’s
description of him as not “normal,” “kind of lost,” and “daydreaming”
when at play as evidence of a significant impairment of adaptive
functioning in childhood. In light of the many people who described
Escalante-Orozco as a normal, social child, we are not persuaded by this
contrary description to conclude otherwise.

¶169          In sum, Escalante-Orozco failed to show he had significantly
impaired adaptive functioning before age eighteen. Consequently, he did
not prove that he has an intellectual disability, and the Eighth Amendment
does not bar imposition of the death penalty.

             B.     Aggravating circumstances

¶170           The jury found that Escalante-Orozco murdered Maria in an
especially cruel manner. A.R.S. § 13-751(F)(6). Escalante-Orozco argues
that the State failed to prove the (F)(6) aggravating circumstance,
emphasizing that there were no witnesses able to testify about what
happened and postulating that the killer could have approached Maria
silently to slash her neck, thereby rendering her immediately unconscious.
He also contends that because of his “mental impairments and his
statement that he ‘blacked out’ after drinking two beers and woke up in [the
victim’s apartment] without knowing how he got there,” the State failed to
prove that Escalante-Orozco knew or should have known that Maria was
suffering as he stabbed her.

                                     50
                      STATE V. ESCALANTE-OROZCO
                           Opinion of the Court


¶171            To decide whether the State proved the (F)(6) circumstance,
we review “[t]he entire murder transaction,” not simply the final act that
killed the victim. State v. McCray, 218 Ariz. 252, 259 ¶ 31, 183 P.3d 503, 510
(2008). “Mental anguish includes a victim’s uncertainty about her ultimate
fate.” State v. Hargrave, 225 Ariz. 1, 17 ¶ 70, 234 P.3d 569, 585 (2010) (internal
quotation omitted). Evidence of a victim's defensive injuries can establish
mental pain. Naranjo, 234 Ariz. at 249 ¶ 83, 321 P.3d at 414. Furthermore,
the victim is not required to be conscious for every wound inflicted and the
victim’s suffering is not required to last for any specific period of time. Id.
This Court held in State v. Herrera that a period of suffering from eighteen
seconds to two to three minutes can be enough to warrant application of
the cruelty aggravator. 176 Ariz. 21, 34, 859 P.2d 131, 144 (1993).

¶172          The evidence established beyond a reasonable doubt that
Maria consciously suffered both physical pain and mental anguish, and that
Escalante-Orozco knew or should have known she was suffering. As
previously related, Dr. Ross testified that it could have taken up to an hour
for Maria to die. There is no testimony from Dr. Ross that the wound would
have immediately killed Maria or rendered her unconscious. Indeed, he
said she would have had to lose a significant amount of blood before her
fatal neck wound would have caused unconsciousness, and she would have
had “purposeful movement” anywhere from several minutes to almost an
hour after Escalante-Orozco inflicted that wound.

¶173           Dr. Ross’s testimony about Maria’s other wounds also
supports an (F)(6) finding. Maria suffered fourteen stab wounds on her
face, neck, left shoulder, arms, and hands, many of which Dr. Ross
described as antemortem (before death), non-fatal, and defensive. She also
had bruises on her face; areas of bleeding—potentially hemorrhages—on
her scalp; and scrape marks on her arms and legs. Dr. Ross stated that
several of these injuries were consistent with defensive wounds, including
several of the stab wounds on Maria’s forearm, left palm, and right wrist,
and a laceration on her tongue likely caused by her biting it. As previously
recounted, Maria also had lacerations in her genital area. Her left-hand
fingernail clippings bore a mixture of blood consistent with a combination
of her blood and Escalante-Orozco’s, which indicates she fought him.

¶174           Detective Jack Ballentine, one of the crime scene investigators,
testified that a large blood clot in Maria’s apartment was likely from her

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                    STATE V. ESCALANTE-OROZCO
                         Opinion of the Court

coughing up the heavy accumulation of blood that had pooled in her lungs
or throat after it was slashed. He testified that blood spatter on the walls
and carpet was also consistent with coughing up blood. He further testified
that the crime scene evidenced a struggle and “movement where that blood
was then being transferred to the wall – across the carpet.” Chunks of
Maria’s hair were scattered throughout her apartment, which also indicates
a struggle.

¶175          Escalante-Orozco asserts that because Dr. Ross could not
establish the order in which Escalante-Orozco inflicted Maria’s wounds or
the specific amount of time she suffered, her murder was not especially
cruel. We rejected a similar argument in State v. Cañez, 202 Ariz. 133,
161 ¶ 104, 42 P.3d 564, 592 (2002), abrogated on other grounds by State v.
Valenzuela, 239 Ariz. 299, 302–03 ¶ 11 n.1, 371 P.3d 627, 630–31 (2016), and
do so again. The evidence of defensive wounds and a struggle proved that
Maria was not immediately rendered unconscious by Escalante-Orozco’s
attack.

¶176          Collectively, this evidence proves beyond a reasonable doubt
that Maria suffered physical pain and mental anguish for a significant
period of time, likely more than the eighteen seconds to two to three
minutes that was sufficient to support the especial cruelty finding in State
v. Herrera. 176 Ariz. at 34, 859 P.2d at 144.

¶177         The State also proved that Escalante-Orozco knew or should
have known of Maria’s physical pain and mental anguish before she died.
The violence and duration of the struggle suggest Escalante-Orozco
possessed this knowledge. Cf. Benson, 232 Ariz. at 464 ¶ 47, 307 P.3d at 31
(“Because [the defendant] witnessed the injuries and [the victim’s]
conscious struggles, he knew or should have known that [the victim]
suffered pain and mental anguish.”). The evidence also suggests that
Escalante-Orozco attacked Maria from the front so, contrary to his current
supposition, he knew she saw her attacker.

¶178          This case is unlike Moody, in which we concluded that a
reasonable jury may not have been persuaded that Moody knew or should
have known that his victims suffered because he suffered from a
“dissociated state” caused by psychosis or drug impairment. 208 Ariz. at
472 ¶ 226, 94 P.3d at 1167. No expert opined that Escalante-Orozco’s
cognitive functioning was at such a low or impaired level that he could not

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                    STATE V. ESCALANTE-OROZCO
                         Opinion of the Court

understand physical and mental pain. Because the evidence suggests that
Escalante-Orozco possessed awareness of his actions—for example, he
quickly formulated a plan to run from authorities—we reject his argument.

¶179          Finally, finding the (F)(6) especial cruelty circumstance here
aligns with other cases decided by this Court. See Boyston, 231 Ariz. at 555
¶¶ 83–84, 298 P.3d at 903 (The (F)(6) aggravator was proven where (1) the
victim had nine stab wounds and abrasions on several parts of the body; (2)
the medical examiner testified that stab wound to the pericardium and
heart wound likely would have been ”fatal within a few seconds to minutes,
but could possibly have taken up to twenty minutes to cause . . . death,
depending on how quickly he lost blood”; and (3) the victim was heard
screaming.); State v. Kuhs, 223 Ariz. 376, 388, 224 P.3d 192, 204 (2010) (The
(F)(6) aggravator was found where defendant stabbed his victim several
times and the victim ultimately died by bleeding to death while choking on
his own blood.).

¶180         For these reasons, the State proved the (F)(6) aggravating
circumstance beyond a reasonable doubt.

             C.     Propriety of death sentence

¶181           A death sentence is appropriate if mitigating circumstances
are insufficiently substantial to call for leniency. A.R.S. § 13-751(E). To
make this determination, we consider the quality and strength of
aggravating and mitigating circumstances, and not their number. See
Prince, 226 Ariz. at 539 ¶ 94, 250 P.3d at 1168. “[W]e do not require a nexus
between the mitigating factors and the crime, [but] the defendant’s failure
to establish a causal connection ‘may be considered in assessing the quality
and strength of the mitigation evidence.’” Id. (quoting Newell, 212 Ariz. at
405 ¶ 82, 132 P.3d at 849).

¶182         Escalante-Orozco was required to prove any mitigating
circumstances by a preponderance of the evidence. A.R.S. § 13-751(C). He
argues he did so by introducing evidence of an intellectual disability, his
impoverished childhood, and physical abuse by his father.

¶183         Escalante-Orozco’s significantly subaverage intellectual
functioning and his extremely underprivileged childhood are non-statutory
mitigating circumstances.     See A.R.S. § 13-751(G) (listing statutory

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                     STATE V. ESCALANTE-OROZCO
                          Opinion of the Court

mitigating circumstances). The family lived in over-crowded conditions,
worked hard, and continuously labored under the threat of going hungry.
For example, the family typically ate once a day, primarily eating beans,
potatoes, and tortillas. Escalante-Orozco’s father “was strict, ill tempered,”
and would discipline his children by hitting them with a switch, belt, or
other object. Escalante-Orozco’s low IQ and lack of formal education
exacerbated his poor start in life. But Escalante-Orozco did not establish a
connection between his intellectual functioning level and poor upbringing
and the crimes, and so we give these circumstances little weight. See Prince,
226 Ariz. at 543 ¶¶ 119–20, 250 P.3d at 1172. His underprivileged
background is made even less weighty by the fact that he was twenty-six at
the time of the murder and had long lived away from his family. Cf. id. at
541–42 ¶¶ 109–11, 250 P.3d at 1170–71 (giving little weight to a very difficult
childhood that included abuse and poverty when defendant failed to
establish a connection between difficult childhood and the murder).

¶184          The mitigating circumstances are not sufficiently substantial
to warrant leniency. This was a brutal crime, ample evidence supported
the jury’s finding that the murder was cruel, and none of the mitigating
circumstances are weighty.

              D.     Other Constitutional Claims

¶185          Escalante-Orozco lists twenty-nine other constitutional
claims that he acknowledges this Court has previously rejected but that he
seeks to preserve for federal review. We decline to revisit these claims.

                              CONCLUSION

¶186         We affirm Escalante-Orozco’s convictions and non-death
sentences. In light of the United States Supreme Court’s opinion in Lynch,
we reverse the death sentence and remand for a new penalty phase
proceeding.




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