                      SUPREME COURT OF ARIZONA
                              En Banc

STATE OF ARIZONA,                 )      Arizona Supreme Court
                                  )      No. CR-10-0052-AP
                        Appellee, )
                                  )      Maricopa County
                 v.               )      Superior Court
                                  )      No. CR2004-007442-001
ERIC BOYSTON,                     )
                                  )
                       Appellant. )
                                  )      O P I N I O N
__________________________________)


          Appeal from the Superior Court in Maricopa County
                The Honorable John R. Ditsworth, Judge
                 The Honorable Joseph C. Welty, Judge

                            AFFIRMED
________________________________________________________________


THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL                            Phoenix
     By   Kent E. Cattani, Chief Counsel, Criminal
          Appeals/Capital Litigation
          Laura Chiasson, Assistant Attorney General                  Tucson
Attorneys for State of Arizona

DAVID GOLDBERG ATTORNEY AT LAW                  Fort Collins, CO
     By   David Goldberg
Attorney for Eric Boyston
________________________________________________________________

P E L A N D E R, Justice

¶1          A jury found Eric Boyston guilty of three first degree

murders and one count each of attempted first and second degree

murder.    He was sentenced to death for the murders and to prison

terms on the attempt convictions.             We have jurisdiction over

this   automatic   appeal   under   Article    6,   Section   5(3)   of   the
Arizona Constitution and A.R.S. § 13-4031.1

                  I.     FACTUAL AND PROCEDURAL BACKGROUND

¶2           On    the   evening     of   February      1,    2004,      Boyston    was

staying with his cousin, Shante.2               Boyston was unemployed and

living     alternately      with     Shante    and   his       grandmother,        Mary

Boyston.     He argued that night with Shante and another cousin,

Tonisha, about his living situation and was “very mad” that he

had to live with his grandmother.               The next morning, Boyston’s

girlfriend,       Alexandria       Kelley,    dropped        him   off     at   Mary’s

apartment.        Boyston saw Tonisha there and told her, “I’m hurt.

I can’t believe you did me like this.                You all going to regret

this.”

¶3           Alexandria returned to Mary’s apartment complex later

that day.     While sitting in Alexandria’s car in a nearby parking

lot, Boyston received a phone call, argued with the caller, and,

after ending the call, told Alexandria to take him to meet the

caller.      When she refused, Boyston said he should shoot her,

pulled out a revolver, and shot at her but missed.                         Alexandria

got out of the car and asked him “what was going on, what was

wrong with him.          And he just told [her] that he was going to


1
     We cite the current version of statutes                        that    have    not
materially changed since the events at issue.
2
     The facts are presented in the light most favorable to
sustaining the jury’s verdicts. State v. Hardy, 230 Ariz. 281,
284 ¶ 2 n.2, 283 P.3d 12, 15 n.2 (2012).

                                          2
kill [her].”       She tried to run away, but Boyston pulled out a

different handgun and shot her in the chest, back, and side.

She survived but is paralyzed from the waist down.

¶4          Boyston then jogged to Mary’s apartment.                Announcing

that it was “time to take care of everyone who did me wrong,”

Boyston entered and shot Mary’s son, Alexander Boyston, in the

arm.     After Alexander came out of the apartment and fell face

down, Boyston fired two more shots into his back, killing him.

Boyston also shot Mary three times inside the apartment, once in

the side and twice in the back, killing her.

¶5          Boyston’s great-aunt, Shirley Jones, came out of her

nearby apartment unit and asked Boyston what he was doing.                    He

responded, “Oh, I better get you, too,” and then said, “You

mother   f***ers    crossed   me   too    many    times.”       Boyston    chased

Shirley inside her apartment and shot her in the back.                        She

eventually recovered from the gunshot wound.

¶6          After using his last bullet to shoot Shirley, Boyston

returned    to   Mary’s   apartment       and    began   fist   fighting     with

Timothy Wright, a family friend.                Just outside the apartment,

Boyston took out a knife and stabbed Timothy nine times, one a

fatal chest wound.        Boyston fled but was arrested later that

night.

¶7          Boyston was charged with three counts of first degree

murder and two counts of attempted first degree murder.                   A jury


                                      3
returned guilty verdicts on the first degree murder counts and

on the charge of attempted first degree murder of Shirley.                  The

jury found him not guilty of attempted first degree murder of

Alexandria,    but    guilty     of    the   lesser-included     offense    of

attempted second degree murder.

¶8          The State alleged the serious offense conviction and

multiple homicides aggravators, A.R.S. § 13-751(F)(2), (8), for

the murders of Mary, Alexander, and Timothy, and the especial

cruelty aggravator for the latter two, id. § 13-751(F)(6).                  The

jury found each of those aggravators and determined that Boyston

should be sentenced to death for each murder.                The trial court

also   sentenced     Boyston    to    consecutive   prison   terms   for   the

attempted murder convictions.

                          II.    ISSUES ON APPEAL

A.     Mental retardation3

¶9          “Arizona law defines mental retardation as a condition

bearing three hallmarks:         ‘[1] significantly subaverage general

intellectual       functioning,          existing     concurrently         with

[2] significant impairment in adaptive behavior, [3] where the

onset of the foregoing conditions occurred before the defendant


3
     After   Boyston’s  trial,   the   legislature   amended   the
pertinent    statute,   A.R.S.    § 13-753,    changing    “mental
retardation” to “intellectual disability.” See 2011 Ariz. Sess.
Laws, ch. 89, § 5 (1st Reg. Sess.). We use “mental retardation”
in this opinion because that is the term employed by the parties
and doctors in this case.

                                        4
reached the age of eighteen.’”                State v. Grell (Grell III), 231

Ariz. 153, 154-55 ¶ 5, 291 P.3d 350, 351-52 (2013) (alterations

in    original)    (quoting     A.R.S.    § 13-753(K)(3)).                Under    A.R.S.

§ 13-753(G), Boyston was required to prove all three aspects of

mental retardation by “clear and convincing evidence.”

¶10          Before    trial,    Boyston’s       mitigation         expert,      Dr.   Myla

Young, administered the Wechsler Adult Intelligence Scale III

(WAIS-III) and measured Boyston’s intelligence quotient (IQ) at

65.    On Boyston’s motion, the superior court appointed Dr. D.J.

Gaughan as a mental retardation prescreening expert pursuant to

§ 13-753(B).       Dr. Gaughan administered the WAIS-III and measured

Boyston’s IQ at 59.         Because the prescreen IQ was 75 or lower,

the court, pursuant to § 13-753(D), appointed Dr. Denis Keyes as

Boyston’s expert and Dr. James Seward as the State’s expert.

¶11          Dr.    Keyes      administered          the     Reynolds      Intelligence

Assessment    Scales     and    measured       Boyston’s       IQ    at    64,    in   the

“mentally    defective      range.”       Dr.        Keyes    made    no    finding      on

Boyston’s adaptive skills “due to [Boyston’s] fruitless attempts

to malinger.”         Dr. Seward did not personally administer an IQ

test, but relied on other assessments and collateral information

to conclude that Boyston was “malingering intellectual deficit.”

Dr. Seward also determined that Boyston’s adaptive functioning

was    not   impaired    and     opined       that    he     did    not    have    mental

retardation.


                                          5
¶12          After    holding     a     two-day     evidentiary       hearing     and

reviewing the parties’ memoranda, the superior court accepted as

credible   Dr.   Seward’s       opinions      on   both   points    and   expressly

determined that Boyston had “failed to satisfy his burden of

proving by clear and convincing evidence that he has significant

impairment in adaptive behavior with an onset prior to age 18.”

The court thus concluded that Boyston had not established mental

retardation.

¶13          In challenging that determination, Boyston argues the

superior     court     abused     its     discretion      in    three     respects.

Specifically,        Boyston    contends:           (1)   the      State’s     mental

retardation expert, Dr. Seward, was not qualified under § 13-

753(K)(2);    (2)     Dr.    Seward     failed     to   use   currently      accepted

intellectual testing procedures, as required by § 13-753(E); and

(3) Boyston proved by clear and convincing evidence that he is

mentally retarded, and is thus ineligible for the death penalty

under Atkins v. Virginia, 536 U.S. 304 (2002), and § 13-753(H).

      1.     Qualifications of State’s expert

¶14          Boyston argues the superior court erred in admitting

the testimony of the State’s expert, Dr. Seward, because he did

not meet § 13-753(K)(2)’s requirements.                   This Court interprets

statutes de novo.           State v. Arellano, 213 Ariz. 474, 477 ¶ 9,

143 P.3d 1015, 1018 (2006).             “We review the decision to admit or

exclude [expert testimonial] evidence for abuse of discretion.”


                                          6
State v. Grell (Grell II), 212 Ariz. 516, 528 ¶ 55, 135 P.3d

696, 708 (2006).

¶15          After a prescreening evaluation indicates a need for

further   assessment       of   mental    retardation,           § 13-753(D)      directs

the   trial      court     to   “appoint        one    expert       in     intellectual

disabilities      nominated       by     the     state       and     one     expert    in

intellectual      disabilities         nominated      by    the     defendant.”        An

“expert     in    intellectual         disabilities”         is      defined      as   “a

psychologist or physician licensed pursuant to title 32, chapter

13, 17 or 19.1 with at least five years’ experience in the

testing     or   testing    assessment,         evaluation         and     diagnosis   of

intellectual      disabilities.”          A.R.S.       §   13-753(K)(2)         (footnote

omitted).

¶16          Boyston does not contest that Dr. Seward was properly

licensed, but contends that he lacked the requisite experience.

The record, however, rebuts this contention:

           [PROSECUTOR]: So during the time you have been in
      Arizona, have you been doing testing and assessments
      and diagnoses of retardation?

           [DR. SEWARD]: Yes.  It came up -- it would come
      up occasionally with my employment in the county for
      the Rule 11 process.

      . . . .

           [PROSECUTOR]: How long have you been doing
      testing, testing/assessment, evaluation, diagnosis of
      mental retardation?

           [DR. SEWARD]:        Well,      on    and       off     since    I    was
      licensed in 1991.


                                           7
       . . . .

            [DEFENSE COUNSEL]: So what you said on direct is,
       that in your capacity as an appointed psychologist to
       determine competency and even state of mind of an
       accused at the time of the offense, you have, as part
       of   that   evaluation,  considered  possible   mental
       retardation as an Axis II diagnosis. Is that what your
       testimony is?

            [DR. SEWARD]: That’s             correct.   Although more
       competency than state of              mind at the time of the
       offense.

       . . . .

            [DEFENSE COUNSEL]: The only experience . . . you
       have with evaluating children . . . with mental
       retardation was when you were doing consulting work
       with the St. Edmond’s home for children in 1991 [to
       2002]?

              [DR. SEWARD]:     Correct.

¶17           Viewed in the light most favorable to upholding the

superior court’s ruling, the record supports a finding that Dr.

Seward had at least five years’ experience not only in testing,

but    also      in    evaluation       and     diagnosis       of    intellectual

disabilities.         See State v. Keener, 110 Ariz. 462, 465-66, 520

P.2d 510, 513-14 (1974) (“Whether a witness is qualified as an

expert witness rests in the sound discretion of the trial court,

and that decision will not be reviewed unless there is a showing

of abuse of discretion.”).

¶18           Boyston suggests that § 13-753(K)(2) requires not only

five   years’     experience,     but    also    regular    —    as   opposed   to

occasional — testing, evaluation, and diagnosis during the five-



                                         8
year    period.          But    the    statute       only       requires         “five    years’

experience” and does not specify any additional requirements for

establishing a minimum level of expertise.                            Consistent with the

general standard for admissibility of expert testimony, we find

that the extent of Dr. Seward’s experience goes to the weight of

his    testimony,     not      its    admissibility.             State      v.    Davolt,      207

Ariz. 191, 210 ¶ 70, 84 P.3d 456, 475 (2004); see also Ariz. R.

Evid. 702 (2009).4

¶19            Dr.    Seward         indicated       that        he    had        occasionally

performed       testing,        evaluation,              and    diagnoses          of     mental

retardation for at least fifteen years, and on average did so at

least once a week from 1991 to 2002.                           Although he acknowledged

that    this    was   his      first    mental       retardation           evaluation         in    a

capital case, the statute does not require prior experience in

capital cases.        Dr. Seward’s level of experience satisfies § 13-

753(K)(2).

       2.      Evaluation methods used by State’s expert

¶20            Boyston     next       argues       the     superior        court    erred          in

admitting       Dr.   Seward’s        testimony          because      he    failed       to    use

currently       accepted        intellectual             testing       procedures.                 We

disagree.


4
     We express no opinion on what procedural or substantive
effect, if any, current Evidence Rule 702, as amended effective
January 1, 2012, might have had on Dr. Seward’s qualifications
or permissible testimony.

                                               9
¶21          Section 13-753(B) requires a prescreening expert “to

determine    the       defendant’s      intelligence        quotient     using     current

community,       nationally       and     culturally          accepted     intelligence

testing procedures.”            See State ex rel. Thomas v. Duncan, 222

Ariz. 448, 451 ¶ 17, 216 P.3d 1194, 1197 (App. 2009) (holding

that § 13-753(B) requires a prescreening expert to personally

conduct    an    IQ     test    and    not     solely    rely     on   one   previously

administered).         In contrast, later-appointed experts such as Dr.

Seward    must     “examine     the     defendant       using     current    community,

nationally       and     culturally      accepted        physical,       developmental,

psychological         and    intelligence         testing      procedures,       for   the

purpose of determining whether the defendant has an intellectual

disability,” and then submit to the trial court a written report

“that includes the expert’s opinion as to whether the defendant

has an intellectual disability.”                  A.R.S. § 13-753(E).

¶22          Boyston        concedes    that      no   statute    expressly       required

Dr. Seward to administer an IQ test, but argues that currently

accepted     testing        procedures       required       Dr.   Seward     to     either

personally conduct a valid IQ test or, at a minimum, rely on a

valid IQ test.           He asserts that the only IQ test Dr. Seward

relied on was the discredited Culture Fair test that Boyston

took in 2000.

¶23          Dr.       Seward    acknowledged          that     the    Diagnostic      and

Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)


                                             10
states that individualized testing is always required “to make

the diagnosis of mental retardation.”                    But he testified that he

did    not    need   to    personally      administer      additional       IQ    testing

because Boyston had recently been given three individualized IQ

tests.       Dr. Seward further opined that “interpret[ing] the tests

that others had given . . . [was] satisfactory with respect to

the requirement of individualized testing.”                       Boyston did not

introduce any evidence to rebut Dr. Seward’s testimony that he

had followed currently accepted testing procedures related to IQ

testing.

¶24            Regarding       the   results      of     the    various      IQ     tests

administered by others, Dr. Seward gave the most credence to the

Culture Fair test, which Boyston argues is not a valid IQ test.

On that test, Boyston obtained a weighted IQ score of 85, “a

level of functioning” described in the testing notes as “dull

normal intelligence.”             Dr. Seward considered the results of the

Culture Fair test “noteworthy” because Boyston “did not have the

same     incentive        to     appear    impaired”       when   that       test      was

administered in 2000, before he committed the crimes at issue

here.

¶25            Dr.   Seward      acknowledged     that     he   did   not    know      the

details of the Culture Fair testing and that he was unable to

review       any   raw    data   from     that   test.      But   Boyston        did   not

introduce any evidence below to show that the Culture Fair test


                                            11
deviated    from    currently       accepted      tests    or   that    Dr.    Seward

inappropriately relied on it.              On appeal, Boyston cites several

cases in which courts gave minimal weight to that test and other

similar tests, but those cases do not hold that an expert falls

below currently accepted standards by relying on such tests.5

Moreover, the records in those cases, unlike this one, contained

expert    testimony   that    generally      explained      the   limitations      of

such tests.

¶26         Although Dr. Seward relied on the Culture Fair test,

he also referred to and analyzed the underlying data from the IQ

tests    administered   by    Dr.    Young     and   Dr.    Gaughan,    with    whose

opinions he disagreed.            Given his conclusions that Boyston was

malingering    on   those    IQ    tests    and    that    no   other   information


5
     Boyston quotes from Goetsch v. State, 172 N.W.2d 688, 692
(Wis. 1969), which recites an expert’s description of the
Culture Fair test.     Boyston also inappropriately quotes an
unreported federal district court case in which the experts who
testified had agreed that the Culture Fair test was not a
reliable measure of intellectual function.   But Boyston cannot
establish through case law matters on which no expert testimony
was offered below.

     Boyston also quotes from Rivera v. Quarterman, 505 F.3d
349, 362 (5th Cir. 2007), which explained that the lower court
had rejected screening tests used in the prison system. But the
weighing of evidence by the trial court in that case is
irrelevant to our review of whether the trial court in this case
abused its discretion, as “[t]he trial judge has broad
discretion in determining the weight and credibility given to
mental health evidence.”   Grell II, 212 Ariz. at 528 ¶ 58, 135
P.3d at 708 (quoting State v. Doerr, 193 Ariz. 56, 69 ¶ 64, 969
P.2d 1168, 1181 (1998)).



                                        12
revealed that Boyston had subaverage intellectual functioning,

Dr.    Seward     determined    that        no     additional      IQ    testing     was

necessary.         Boyston     failed        to      show     that      Dr.    Seward’s

determination was invalid or suspect because he did not adhere

to    currently    accepted    testing       procedures.           Accordingly,      the

superior court did not abuse its discretion by admitting and

relying    on     Dr.   Seward’s     testimony            that    Boyston     did   not

demonstrate     significantly      subaverage         intellectual        functioning.

See A.R.S. § 13-753(K)(5).

¶27          Boyston also argues that Dr. Seward failed to follow

currently accepted testing procedures by not performing formal

evaluations of Boyston’s adaptive functioning and by focusing on

his strengths rather than his deficits.                       As with intellectual

functioning, however, Boyston introduced no evidence to rebut

Dr.    Seward’s    testimony    that        he     followed      currently     accepted

testing    procedures      related     to        adaptive     behavior.        Although

Boyston’s mental retardation expert, Dr. Keyes, administered the

Adaptive   Behavior     Assessment      System,       Second      Edition     (ABAS-II)

test to Boyston, Dr. Seward explained that it is difficult to

measure      adaptive      functioning             when     the      individual       is

incarcerated, and pointed to the testing criteria in the ABAS-II

manual, which requires that the examiner have frequent, long-

term contact with the individual.                  Dr. Seward instead relied on

school    and   criminal     records,       interviews      with     those    who   knew


                                        13
Boyston, and recorded jail telephone conversations.

¶28         In    challenging     Dr.     Seward’s      opinion      on     adaptive

behavior, Boyston relies heavily on information in the DSM-IV

and the American Association on Intellectual and Developmental

Disabilities      (AAIDD,    formerly     AAMR)     manual.       Both       manuals

suggest the examiner should investigate numerous sources over an

extended     time     frame,     and      the      DSM-IV     also        recommends

consideration of adaptive functioning measures.                But Boyston did

not present this evidence below or argue that it established

currently        accepted      procedures         for    assessing          adaptive

functioning; and Dr. Seward considered information from a wide

variety of sources.

¶29         Boyston also points to various authorities, including

the DSM-IV, the AAIDD manual, and medical journal articles, that

indicate that those with mental disabilities have both strengths

and deficits, and that an evaluating expert should focus on the

presence of deficits.        He takes issue with the weight Dr. Seward

gave to Boyston’s jail conversations and on his own interviews

with Alexandria and her father, arguing that Dr. Seward violated

current     standards   by     focusing      on   strengths    while        ignoring

Boyston’s deficits.         As with adaptive behavior testing, however,

Boyston did not introduce below the information to which he now

points as evidence of current standards; and again, Dr. Seward

analyzed Boyston’s adaptive behavior in many areas and from many


                                        14
sources.

¶30          In       sum,     although     Dr.       Seward       did     not    personally

administer an IQ test or an adaptive functioning assessment, he

testified       without        contradiction          that     he        followed       current

standards.         No    evidence       showed       that    his     evaluation         methods

violated “current community, nationally and culturally accepted

physical, developmental, psychological and intelligence testing

procedures.”           A.R.S. § 13-753(E).             The superior court did not

abuse its discretion in admitting and relying on Dr. Seward’s

testimony.

       3.    Trial court’s ruling on mental retardation

¶31          Finally,         Boyston      challenges          the       superior       court’s

ruling that he did not prove mental retardation, arguing that it

was proven by clear and convincing evidence.                             We have no basis

for    overturning       the     court’s    ruling,         however,      because       Boyston

failed to establish mental retardation by even a preponderance

of the evidence.             Cf. Grell III, 231 Ariz. at 160 ¶¶ 35-36, 291

P.3d    at   357      (holding    that     Atkins      barred      the     execution      of   a

defendant       who     established       at    the     penalty      phase        his   mental

retardation by a preponderance of the evidence).

             a.        Intellectual functioning

¶32          “Significantly              subaverage           general            intellectual

functioning” is defined as “a full scale intelligence quotient

of    seventy     or    lower.”      A.R.S.         § 13-753(K)(5).          A     rebuttable


                                               15
presumption    of    intellectual      disability            arises    when      the   trial

court determines that the defendant’s IQ is 65 or lower.                                  Id.

§ 13-753(G).       Boyston contends for the first time on appeal that

because the IQ tests administered by Drs. Young, Gaughan, and

Keyes all indicated his IQ was 65 or lower, he was entitled to

the    rebuttable    presumption.          But    even       if    such    a    presumption

arose, “[t]he presumption of mental retardation based on the IQ

scores vanishes . . . if the State presents evidence that calls

into    question    the    validity        of    the    IQ        scores   or     tends    to

establish    that    [the]     defendant        does     not       otherwise      meet    the

statutory    definition      of   mental        retardation.”              Arellano,      213

Ariz. at 478 ¶ 13, 143 P.3d at 1019 (internal quotation marks

omitted).     “At that point, the IQ scores serve as evidence of

mental retardation, to be considered by the trial court with all

other evidence presented.”           Id.

¶33         The     evidence      relating        to      Boyston’s            intellectual

functioning was conflicting.               Dr. Seward’s opinion that Boyston

was    malingering,       Boyston’s    school          and     prison      records,       and

testimony    from    his   third-grade          teacher      (Merilee       Wortham)      and

maternal aunt (Romla Robinson) arguably “call[ed] into question

the validity of the IQ scores” on which Boyston relies.                                   Id.

But even if Boyston established the intellectual deficit element

of mental retardation, it would not change the result unless he

also    satisfied    the     other    statutory         prerequisites,            discussed


                                           16
below.

            b.     Adaptive behavior

¶34         “Adaptive behavior” is defined 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.”        A.R.S.    § 13-753(K)(1).

Although the DSM-IV defines impairments in adaptive functioning

based on deficits in two areas, the DSM-IV definition is not the

same as the statutory definition.                   Grell II, 212 Ariz. at 529

¶ 62, 135 P.3d at 709.              The statute, by contrast, “requires an

overall assessment of the defendant’s ability to meet society’s

expectations of him.”             Id.; see also Grell III, 231 Ariz. at 155

¶ 7, 291 P.3d at 352.

¶35         Boyston       contends        that     the    superior    court       ignored

academic    records       and     adaptive       functioning     measurements            that

showed    impairments        in    adaptive      behavior    and     instead      “cherry

picked”    evidence      that     showed    his    strengths.        The    court        gave

significant      weight      to    jail    telephone      conversations        in    which

Boyston    set    up     fraudulent        “burn     line”    accounts      for      other

inmates, allowing callers to make collect calls without the call

recipient being charged.             In other conversations, Boyston helped

his   daughter    with     math     homework,      told    his   girlfriend         he    was

reading The Autobiography of Miss Jane Pitman, explained how to

do certain home repairs, and talked about keeping himself and


                                            17
his cell clean.           The court found that the phone conversations

“represent[ed]       a    true     day      to     day    picture         of   [Boyston’s]

cognitive abilities and behaviors,” and determined that “there

was    no   credible     evidence      in    the       record    to   establish      mental

retardation.”        Boyston cites a district court case that found

jail    telephone        calls    largely         irrelevant       to     a    defendant’s

adaptive functioning.            See United States v. Davis, 611 F. Supp.

2d 472, 494 (D. Md. 2009).                   But, as the finder of fact, the

trial court “has broad discretion in determining the weight and

credibility given to mental health evidence.”                              Grell II, 212

Ariz. at 528 ¶ 58, 135 P.3d at 708 (internal quotation marks

omitted).

¶36          The record here supports the conclusion that Boyston

did not prove substantial impairment in adaptive functioning by

even a preponderance of the evidence, let alone by clear and

convincing     evidence,         the     statutory        standard        of     proof    the

superior     court   applied.          Dr.    Seward’s          opinion    was    based    on

Boyston’s school, health, and prison records, jail phone calls,

interviews of Boyston’s acquaintances, and other sources, and he

opined that Boyston “demonstrates an intact ability to adapt to

his current environment.”              Significantly, Boyston’s own mental-

retardation expert, Dr. Keyes, declined to make a finding on

Boyston’s     adaptive     skills      “due       to    his   fruitless        attempts    to

malinger,” and the prescreening expert, Dr. Gaughan, did not


                                             18
evaluate Boyston’s adaptive behavior.

¶37          Boyston relies heavily on portions of the testimony of

his aunt and third-grade teacher (Robinson and Wortham), but the

trial court determines how much weight and credibility to give

conflicting testimony.             Because the record supports the superior

court’s factual findings, we defer to them.                       Given the paucity

of evidence, by expert testimony or otherwise, that Boyston had

significant impairments in adaptive behavior, we have no basis

for overturning the court’s determination that Boyston failed to

establish that prerequisite.

             c.      Onset before age eighteen

¶38          Boyston argues the superior court ignored the evidence

that    Boyston’s        mental    retardation      began     before    age    eighteen,

pointing again to the testimony of Wortham and Robinson.                             But

sufficient        evidence        supported       the   court’s    conclusion       that

Boyston did not have substantial deficits in either intellectual

functioning         or     adaptive      behavior        before        age     eighteen.

Accordingly, the court did not abuse its discretion in rejecting

Boyston’s mental-retardation claim.

B.      Exclusion of jurors for cause

¶39          Over        Boyston’s    objection,        the    trial    court     struck

Jurors 51 and 54 for cause.                   Boyston argues the trial court

erred in excluding those jurors because of their views on the

death     penalty,       violating     his    Sixth,     Eighth,       and    Fourteenth


                                             19
Amendment rights.           This Court reviews a trial court’s decision

to strike a potential juror for cause for abuse of discretion,

State v. Jones, 197 Ariz. 290, 302 ¶ 24, 4 P.3d 345, 357 (2000),

because trial judges are in the best position to “assess the

demeanor of the venire, and of the individuals who compose it,”

Uttecht v. Brown, 551 U.S. 1, 9, 20 (2007).

¶40            “Under   the   Sixth   and      Fourteenth   Amendments     to   the

United States Constitution, a criminal defendant is entitled to

an impartial jury.”            State v. Velazquez, 216 Ariz. 300, 306

¶ 14,    166    P.3d    91,   97   (2007).       Jurors   who   merely    “voice[]

general        objections     to    the      death   penalty     or      express[]

conscientious or religious scruples against its infliction” may

not be struck for cause.           Witherspoon v. Illinois, 391 U.S. 510,

522 (1968) (finding Sixth Amendment violation).                   A trial court

may remove a prospective juror for cause when his or her views

about capital punishment “would prevent or substantially impair

the performance of his duties as a juror in accordance with his

instructions and his oath.”            Wainwright v. Witt, 469 U.S. 412,

433 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45 (1980)).

        1.     Juror 51

¶41            Juror 51 indicated on the initial questionnaire that

she was a Catholic who was “generally not for the death penalty”

and wrote that “[m]orally it is tough to execute or be part of a

process that kills a human soul.”                But she also wrote that she


                                          20
was “not strongly opinionated about it” and would be able to

consider the evidence and follow the law.

¶42         During    voir      dire,   Juror     51    indicated     that    she   was

“pretty    strongly      tied    to   church”     and    acknowledged        that   the

“Catholic Church is against the death penalty.”                       In describing

the extent to which her religious beliefs would influence her

ability to assess mitigation evidence, she stated, “I will be

influenced by the belief of having sanctity and reverence for

life.”     She also acknowledged that it would be a “big struggle”

to    disregard      her     religious         beliefs        in   determining      the

appropriate penalty.

¶43         Although Juror 51 indicated at times that she could

set aside her religious beliefs about the death penalty, the

judge must consider “the entirety of [the juror’s] answers.”

State v. Lynch, 225 Ariz. 27, 35 ¶ 28, 234 P.3d 595, 603 (2010).

The entirety of Juror 51’s answers indicates that she was highly

conflicted about imposing the death penalty.                        We have upheld

strikes    for   cause     of   similar    jurors       who    “equivocat[e]     about

whether [they] would take [their] personal biases in the jury

room sufficient to substantially impair [their] duties.”                         State

v. Ellison, 213 Ariz. 116, 137 ¶ 89, 140 P.3d 899, 920 (2006)

(internal quotation marks omitted).                    The trial court did not

abuse its discretion in striking Juror 51 for cause.

      2.    Juror 54


                                          21
¶44           When asked on the initial questionnaire to list any

time she had been arrested, charged, or convicted of any crime

other than minor traffic violations, Juror 54 responded that she

had   been    convicted      of   counterfeiting.       The     prosecutor   later

informed the court and Boyston’s counsel that a criminal records

check on Juror 54 revealed she had additional, and more recent,

arrests for drug possession and aggravated assault that she had

not disclosed.

¶45           The trial court granted the State’s motion to strike,

pointing to all the discrepancies in her disclosure and accounts

of her criminal history and stating that “[a]ll of this causes

the Court substantial concern about her credibility, her ability

to abide by the court’s instructions, and frankly my ability to

assess any of the answers she has provided in the voir dire

process in order that I and the parties may evaluate her as an

adequate juror.”        In so ruling, the court did not mention Juror

54’s personal views on the death penalty.

¶46           Boyston contends the court “decided by inference that

her answers . . . on the death penalty . . . were not truthful

because she forgot to put down an arrest from 24 years earlier,”

and   thus    asserts      that   Juror   54   “was   excused    based   upon   the

court’s      belief   of    her   views   on   the    death   penalty.”      Trial

courts, however, “are permitted to determine a potential juror’s

credibility when deciding whether to strike a juror for cause.”


                                          22
State v. Glassel, 211 Ariz. 33, 48 ¶ 50, 116 P.3d 1193, 1208

(2005).

¶47           The trial court’s concern with Juror 54’s credibility,

and more broadly her ability to follow the court’s instructions,

created doubt that the juror could render a fair and impartial

verdict.      See State v. Cota, 229 Ariz. 136, 147 ¶ 40, 272 P.3d

1027,      1038   (2012)    (“The    trial      court       should   excuse     a   juror

‘[w]hen     there   is     reasonable     ground       to    believe    that    a   juror

cannot render a fair and impartial verdict.’” (alteration in

original) (quoting Ariz. R. Crim. P. 18.4(b))).                        The trial court

did not abuse its discretion in striking Juror 54 for cause.

C.      Precluding evidence of intoxication to rebut premeditation

¶48           Boyston contends the trial court erred by not allowing

him   to    present      evidence    of   his       alleged    phencyclidine        (PCP)

intoxication at the time of the murders to rebut the State’s

evidence of premeditation.             He argues that A.R.S. § 13-503 does

not apply to premeditation or, to the extent it applies, it is

unconstitutional.           We   review        de     novo    issues     of    statutory

interpretation and constitutionality.                   State v. Dann (Dann II),

220 Ariz. 351, 369 ¶ 96, 207 P.3d 604, 622 (2009).

¶49           Section 13-503        states     that    “[t]emporary       intoxication

. . . does not constitute insanity and is not a defense for any

criminal act or requisite state of mind.”                       Boyston argues that

premeditation is neither a “criminal act” nor a “requisite state


                                          23
of    mind”   under    § 13-503,    and     therefore       the    statute   does   not

preclude consideration of voluntary intoxication on the issue of

premeditation.        He points to A.R.S. § 13-105(10), which defines

“culpable mental state” as including “intentionally, knowingly,

recklessly or with criminal negligence,” but not premeditation.

Premeditation is defined separately in A.R.S. § 13-1101(1):

       “Premeditation” means that the defendant acts with
       either the intention or the knowledge that he will kill
       another human being, when such intention or knowledge
       precedes the killing by any length of time to permit
       reflection.     Proof of actual reflection is not
       required, but an act is not done with premeditation if
       it is the instant effect of a sudden quarrel or heat of
       passion.

See also State v. Thompson, 204 Ariz. 471, 478-80 ¶¶ 26-33, 65

P.3d 420, 427-29 (2003).

¶50           Although      premeditation        is     not       included    in    the

statutory enumeration of “culpable” mental states under § 13-

105(10), it is a required element of first degree murder under

§ 13-1105(A)(1) and is part of the requisite mens rea of that

offense.      See Schad v. Arizona, 501 U.S. 624, 637 (1991) (noting

that “under [Arizona] law, premeditation and the commission of a

felony are not independent elements of the crime, but rather are

mere means of satisfying a single mens rea element”); see also

A.R.S. § 13-101 (stating that one of the general purposes of the

criminal      code    is   “[t]o   define      the    act   or    omission   and    the

accompanying mental state which constitute each offense”).




                                          24
¶51         Consistent with that view, several of our cases have

referred to premeditation as a mental state.                   In Thompson, we

stated     that   premeditation       “is    [the]      mental     state      that

distinguishes     between    first   and    second    degree     murder.”     204

Ariz. at 478 ¶ 27 n.6, 65 P.3d at 427 n.6 (emphasis added); see

also Evanchyk v. Stewart, 202 Ariz. 476, 479 ¶ 10, 47 P.3d 1114,

1117 (2002) (“Any agreement with another to kill a third person

constitutes premeditation, the mental state that exists under

Arizona law whenever the intention to kill precedes the killing

by a length of time to permit reflection.” (internal quotation

marks omitted)); State v. Wood, 180 Ariz. 53, 62, 881 P.2d 1158,

1167 (1994) (“The disputed trial issues were Defendant’s motive

and mental state — whether Defendant acted with premeditation or

as a result of a sudden impulse.”).

¶52         Because premeditation is a mental state and part of

the mens rea element of premeditated first degree murder under

§ 13-1105(A)(1), it is thus a “requisite state of mind” of that

offense.      Section       13-503   therefore       precludes     evidence    of

voluntary    intoxication     when   considering       premeditation.6        Cf.

State v. Kiles, 222 Ariz. 25, 33 ¶ 29, 213 P.3d 174, 182 (2009)

(rejecting argument under former § 13-503 that defendant “may


6
     Boyston also argues, in a footnote, that the trial court
erred in precluding evidence of his voluntary intoxication
during the aggravation phase.    But he never sought to present
evidence of his intoxication during that phase.

                                      25
not have reflected on his decision to [kill the victim] because

he was voluntarily intoxicated”).

¶53              Just as Boyston’s statutory analysis is flawed, so is

his reliance on State v. Christensen, 129 Ariz. 32, 628 P.2d 580

(1981).      In that case, we held that the trial court erred by not

admitting under Evidence Rule 404(a)(1) relevant character-trait

testimony         that    the    defendant       reacted     impulsively          to     stress,

evidence proffered to rebut the premeditation element of first

degree murder.            Id. at 34-35, 628 P.2d at 582-83; see State v.

Mott,       187     Ariz.       536,     544,     931      P.2d     1046,        1054     (1997)

(“[Christensen] attempted to show that he possessed a character

trait       of     acting        reflexively          in    response        to        stress.”).

Christensen is inapposite because no such character trait is at

issue here.

¶54              Boyston    also       asserts    three     reasons    why       § 13-503      is

unconstitutional           if    interpreted          to   preclude    consideration          of

voluntary intoxication on the issue of premeditation.                                   We find

none persuasive.

¶55              First,    Boyston       argues       § 13-503    deprives        him    of   his

fundamental         right       to   present      a    complete     defense.            “Whether

rooted      directly       in    the    Due    Process     Clause     of    the       Fourteenth

Amendment, or in the Compulsory Process or Confrontation clauses

of    the   Sixth        Amendment,      the     Constitution       guarantees          criminal

defendants         a     meaningful       opportunity        to   present         a     complete


                                                 26
defense.”       Crane     v.     Kentucky,       476     U.S.     683,    690     (1986)

(citations and internal quotation marks omitted).

¶56         But in Montana v. Egelhoff, the United States Supreme

Court squarely rejected the argument that a state law violated

due process by providing that voluntary intoxication “may not be

taken    into   consideration      in     determining       the    existence       of   a

mental state which is an element of [a criminal] offense,” Mont.

Code Ann. § 45-2-203 (1995).              518 U.S. 37, 51 (1996) (Scalia,

J.,     plurality    opinion);     see     id.     at     58-59     (Ginsburg,       J.,

concurring in judgment) (“Defining mens rea to eliminate the

exculpatory value of voluntary intoxication does not offend a

‘fundamental principle of justice,’ given the lengthy common-law

tradition [prohibiting the voluntary intoxication defense], and

the adherence of a significant minority of the States to that

position    today.”).       Like       Montana’s       legislature,       the    Arizona

Legislature has defined the mens rea element of first degree

premeditated murder such that voluntary intoxication is not a

defense.     That legislative decision does not violate Boyston’s

constitutional right to present a complete defense.

¶57         Second, Boyston asserts that excluding consideration

of    voluntary      intoxication        violates        his      right     to     equal

protection.         He   seems    to    argue    that     applying        § 13-503      to

premeditation eviscerates the distinction in the classifications

of those facing the “most severe punishment” of premeditated


                                          27
first    degree       murder       and    those        charged   with     lesser      offenses.

This    argument          lacks    merit,       as    § 13-503    does    not       relieve    the

state of the burden to prove premeditation in premeditated first

degree murder cases, see Thompson, 204 Ariz. at 478-80 ¶¶ 26-33,

65 P.3d at 427-29, and there is a rational basis for imposing a

greater punishment on those who have reflected before committing

a murder, see United States v. LaFleur, 971 F.2d 200, 212 (9th

Cir.     1991)        (rejecting          equal        protection       challenge          because

“[t]here       clearly        exist       rational           reasons     for    Congress        to

prescribe different penalties” under two federal statutes that

each     punish       murder,       as     the       statutes     “address      crimes        with

different elements and different ranges of culpability”).

¶58            Finally, Boyston argues § 13-503 violates the Eighth

Amendment       to    the     extent       it    precludes       evidence       of    voluntary

intoxication.              But     the     Eighth       Amendment       generally          imposes

limitations          on    sentencing          and     the    imposition       of    the     death

penalty, not the determination of guilt.                         See McCleskey v. Kemp,

481 U.S. 279, 305-06 (1987).                         The notable exception is that a

jury, in determining guilt in a capital case, must be given the

option of convicting the defendant of a lesser offense than the

death-eligible offense.                  See Beck v. Alabama, 447 U.S. 625, 642-

43    (1980).         Here,       that    option       existed    because      the    jury     was

instructed on second degree murder.                           Beck’s reasoning does not

extend    to     this      context,       as     precluding      evidence       of    voluntary


                                                  28
intoxication does not raise concerns that a jury will improperly

find     a     defendant       guilty       of      a     death-eligible         offense.         In

addition,           Boyston     could       and         did    present      evidence      of     his

intoxication in the penalty phase.                            Therefore, the preclusion in

the guilt phase of voluntary intoxication evidence, as directed

by § 13-503, does not violate the Eighth Amendment.

D.      Sufficiency of evidence of premeditation

¶59             Boyston argues that the trial court erroneously denied

his motion for a judgment of acquittal under Arizona Rule of

Criminal        Procedure       20     because           the     State    failed     to     present

substantial          evidence        that     he        killed     Mary    and     Timothy      with

premeditation.             Boyston concedes there was sufficient evidence

that he killed Alexander with premeditation.                                We review de novo

a trial court’s ruling on a Rule 20 motion.                                State v. West, 226

Ariz. 559, 562 ¶ 15, 250 P.3d 1188, 1191 (2011).

¶60             A conviction for premeditated first degree murder must

be supported by substantial evidence of premeditation, State v.

Murray, 184 Ariz. 9, 32, 906 P.2d 542, 565 (1995), and this

Court        views    all     evidence        “in        the     light    most     favorable      to

sustaining           the      conviction           and        [resolves]      all     reasonable

inferences . . . against                the      defendant,”          State   v.    Guerra,      161

Ariz.        289,     293,     778    P.2d         1185,       1189      (1989).       To      prove

premeditation, the state must establish actual reflection and

more than mere passage of time, but it may do so with “all the


                                                   29
circumstantial evidence at its disposal in a case.”                               Thompson,

204 Ariz. at 478-80 ¶¶ 29, 31, 33, 65 P.3d at 427-29.

¶61            Boyston asserts that “no one testified exactly what

occurred in the apartment or what they heard before or during

the shooting,” other than hearing the gunshots, thus leaving the

jury     to    speculate        whether      he     killed     his     grandmother        with

premeditation.             The      record,         however,        contains     sufficient

evidence to support a finding of premeditation.                                 Boyston was

upset the night before the murders because his cousin, Tonisha,

would not let him stay with her and he had to live with Mary.

While at Mary’s apartment the following morning, Boyston told

Tonisha, “I can’t believe you did me like this.                             You all going

to regret this.”

¶62            On this record, the jury reasonably could find that

Boyston       formed     his    intent       to    kill    Mary     when   he    threatened

Tonisha personally and, by reference, others.                              His actions in

carrying       weapons    to     the    crime      scene    and     jogging     directly    to

Mary’s     apartment       immediately            after    shooting     Alexandria        also

support an inference that he had decided to kill Mary.                                     See

State v. Ovante, 231 Ariz. 180, 185 ¶ 16, 291 P.3d 974, 979

(2013)        (carrying        of   a    loaded       gun      to     murder      scene     is

circumstantial         evidence         of    premeditation).               Finally,       his

statement that “[i]t’s time to take care of everyone who did me

wrong” as he walked into Mary’s apartment supports a conclusion


                                              30
that he reflected on his decision to kill.7

¶63           As   for   Timothy’s     murder,     Boyston      contends    that    the

evidence supports only a conclusion that a fist fight escalated

to the point of his stabbing Timothy in the heat of the moment.

Viewed   in    the   light      most   favorable    to       sustaining    the   jury’s

verdict,      however,    the    record   supports       a    reasonable    inference

that Boyston intended, and had reflected on his decision, to

kill all those “who did [him] wrong.”                Given that Timothy lived

with Alexander and Mary, where Boyston also at times stayed, and

that Boyston was unhappy about his living situation, the jury

could reasonably infer that Timothy was one of those Boyston

thought “did him wrong.”

¶64           Boyston counters that if that were true, he would have

killed Timothy when he killed Alexander and Mary, before he left

to shoot Shirley.         But rather than relying on such speculation,

we must view the record and any reasonable inferences in the

light most favorable to sustaining the jury’s verdict.                           Given


7
     Boyston’s reliance on State v. Moore, 222 Ariz. 1, 15 ¶ 70,
213 P.3d 150, 164 (2009), and State v. Dann (Dann I), 205 Ariz.
557, 566 ¶ 20, 74 P.3d 231, 240 (2003), is misplaced.      Those
cases reversed convictions not because there was insufficient
evidence of reflection, but because the jury was improperly
instructed that premeditation could be shown by mere passage of
time and the evidence of premeditation was not so overwhelming
that we could find the error harmless. Moore, 222 Ariz. at 14-
15 ¶¶ 66-67, 70, 213 P.3d at 163-64; Dann I, 205 Ariz. 565-66
¶¶ 17, 20, 74 P.3d at 239-40.      Here, the jury was properly
instructed on premeditation.



                                          31
that     Boyston          returned     to     Mary’s      apartment       after    shooting

Shirley, the jury could reasonably find that Boyston had planned

to kill Timothy, but was briefly interrupted when he saw and

chased Shirley.            In sum, sufficient evidence supports the jury’s

finding that Boyston killed Timothy with premeditation.

E.      Failure to give manslaughter instruction

¶65            For each of the three first degree murder counts, the

trial    court          also    instructed    the     jury    on    the   lesser-included

offense       of    second       degree     murder.       Regarding       the    killing   of

Timothy, Boyston argues the court erred by not also instructing

the    jury        on    the    lesser-included        offense      of    manslaughter     by

sudden quarrel or heat of passion.                        Boyston did not request a

manslaughter instruction, nor did he object to the absence of

one     in    the       trial     court’s    proposed        jury   instructions.          We

therefore review this issue for fundamental, prejudicial error.

State v. Bearup, 221 Ariz. 163, 168 ¶ 21, 211 P.3d 684, 689

(2009).

¶66            “When a jury is given a choice between first-degree

murder       and    second-degree         murder    and    convicts       on    first-degree

murder,       it    has        necessarily    rejected       manslaughter,”        and   “any

purported error in failing to give a manslaughter instruction

was harmless.”             State v. Nelson, 229 Ariz. 180, 186 ¶ 24, 273

P.3d 632, 638 (2012); see also Cota, 229 Ariz. at 150 ¶ 66, 272

P.3d at 1041.             Given the jury’s finding of guilt on the first


                                               32
degree     murder    charges,      no     error,      fundamental        or     otherwise,

resulted from the lack of an instruction on manslaughter.

F.    Refusal to instruct on ineligibility for parole

¶67          Boyston requested a jury instruction that if sentenced

to life, he would be sentenced to natural life and would “never

be eligible to be released from prison for any reason for the

rest of his life.”            The trial court denied that request and

instead instructed the jury that, if sentenced to life, Boyston

could either be sentenced to “natural life” or “life without the

possibility of release until 25 calendar years in prison are

served.”

¶68          Citing Simmons v. South Carolina, 512 U.S. 154 (1994),

Boyston argues the trial court violated his due process rights

by not instructing the jury that Arizona law precluded him from

being considered for parole after serving twenty-five years if

sentenced     to     life     in     prison.              But    Boyston’s      proffered

instruction    referred       more      broadly      to    any   form    of   release    or

commutation     of    sentence,         and     we    have       previously      rejected

arguments similar to his.            Cota, 229 Ariz. at 151 ¶ 75, 272 P.3d

at 1042 (“[The defendant’s] argument . . . conflates parole and

release.      [He]    would    have      been     eligible       for    other    forms   of

release, such as executive clemency, if sentenced to life with

the   possibility      of     release.”).                 The    court’s      instruction

accurately stated the law.              State v. Hargrave, 225 Ariz. 1, 14-


                                           33
15    ¶ 53,    234    P.3d    569,       582-83    (2010)     (“[The     defendant’s]

argument that he is not likely to actually be released does not

render the instruction legally incorrect.”).

                        III. REVIEW OF DEATH SENTENCES

¶69           We     review        the    jury’s       finding     of        aggravating

circumstances and the imposition of a death sentence for abuse

of discretion.        A.R.S. § 13-756(A).              “A finding of aggravating

circumstances or the imposition of a death sentence is not an

abuse of discretion if ‘there is any reasonable evidence in the

record to sustain it.’”             State v. Delahanty, 226 Ariz. 502, 508

¶ 36, 250 P.3d 1131, 1137 (2011) (quoting State v. Morris, 215

Ariz. 324, 341 ¶ 77, 160 P.3d 203, 220 (2007)).

A.    Applicable standard of review

¶70           Boyston    first      argues      that   we    should     apply    a   less

deferential abuse of discretion standard as set forth in State

v. Chapple, 135 Ariz. 281, 297 n.18, 660 P.2d 1208, 1224 n.18

(1983).       We recently rejected the same argument in Cota, 229

Ariz. at 153 ¶ 91, 272 P.3d at 1044.

B.    Constitutionality of A.R.S. § 13-756(A)

¶71           Boyston    also      contends     that   the    abuse     of    discretion

standard under § 13-756(A) violates the Eighth and Fourteenth

Amendments     because       the    United    States     Supreme      Court     mandates

“meaningful” appellate review of death sentences.                            See Clemons

v. Mississippi, 494 U.S. 738, 749 (1990).                        We have previously


                                           34
rejected     similar       constitutional        challenges      to     the   statute.

Nelson, 229 Ariz. at 191 ¶ 50, 273 P.3d at 643.

C.    Aggravating circumstances

¶72          The jury found as to each first degree murder that

Boyston had been convicted of a serious offense, A.R.S. § 13-

751(F)(2), and was convicted of one or more other homicides that

were committed during the commission of the offense, id. § 13-

751(F)(8).        The jury also found, as to the murders of Alexander

and   Timothy,       that    Boyston      committed       the    offenses      in     an

especially cruel manner.           Id. § 13-751(F)(6).              Boyston does not

contest     the     (F)(2)    finding,         which    was     supported     by     his

convictions of attempted second degree murder of Alexandria and

attempted first degree murder of Shirley, but he challenges the

(F)(8) and (F)(6) findings.

      1.     (F)(8) Aggravator

¶73          To    prove     the   (F)(8)       aggravator,       the    state      must

establish    beyond    a     reasonable     doubt      that   the     homicides     took

place during a “continuous course of criminal conduct” and were

“temporally, spatially, and motivationally related.”                          State v.

Armstrong (Armstrong III), 218 Ariz. 451, 464 ¶ 67, 189 P.3d

378, 391 (2008) (quoting State v. Prasertphong, 206 Ariz. 167,

170 ¶ 15, 76 P.3d 438, 441 (2003)).

¶74          The murders all occurred within minutes of each other

in or just outside Mary’s apartment; thus, they are temporally


                                          35
and spatially related.            Boyston, however, contends that there is

no evidence from which the jury could conclude the three murders

were motivationally related.              We disagree.

¶75            The     jury    could     reasonably       conclude       that     Boyston

committed all three murders for the reason he expressed when he

entered Mary’s apartment immediately before the killings:                                “to

take care of everyone who did [him] wrong.”                        He also mentioned

this motivation earlier that day, exclaiming that all those he

thought had mistreated him would regret it.                       When he later saw

Shirley, he said, “Oh, I better get you, too,” and as he chased

and    shot    her,     he    further    expressed       his    motivation        for    the

offenses,        stating,     “You   mother        f***ers     crossed    me     too    many

times.”

¶76            Boyston then returned to Mary’s apartment and stabbed

Timothy     to    death.       The     jury    could    reasonably       conclude       that

Boyston       killed    Timothy      because       he   was    among     those    Boyston

thought “did him wrong.”                Boyston argues Timothy’s murder was

motivated by defending himself from Timothy, who was fighting

him.    But the jury found Boyston guilty of premeditated first

degree murder, and thus necessarily rejected the theory that

Boyston was defending himself or acting in the heat of passion.

As such, the jury did not abuse its discretion in finding the

(F)(8) aggravator.

       2.      (F)(6) Aggravator


                                              36
¶77         To show that a murder is especially cruel, the state

must     “prove[]     beyond     a   reasonable    doubt      that     ‘the     victim

consciously experienced physical or mental pain prior to death,

and the defendant knew or should have known that suffering would

occur.’”     State v. Snelling, 225 Ariz. 182, 188 ¶ 25, 236 P.3d

409, 415 (2010) (quoting State v. Trostle, 191 Ariz. 4, 18, 951

P.2d 869, 883 (1997)).           “The entire murder transaction, not just

the final act, may be considered.”                State v. McCray, 218 Ariz.

252, 259 ¶¶ 31, 33, 183 P.2d 503, 510 (2008).

            a.      Boyston’s alleged PCP intoxication

¶78         As to both Alexander and Timothy, Boyston argues that

their suffering was not objectively foreseeable because he was

in a “PCP blackout” and a “dissociative state which resulted in

delusions, hallucinations and psychosis.”                  In support, Boyston

cites evidence of PCP intoxication introduced in the penalty

phase.      But     Boyston    did   not    introduce   any    evidence       of   PCP

intoxication        during     the   aggravation    phase.           Although      some

evidence presented in the guilt phase suggested that Boyston was

“super high” from smoking PCP the night before the murders, and

the jury could properly consider that evidence in reaching its

aggravation-phase verdicts, see A.R.S. § 13-752(E), (I), several

witnesses testified that he seemed normal at the time of the

murders.     We cannot conclude the jury abused its discretion in

finding the (F)(6) aggravator.


                                           37
               b.     Murder of Alexander

¶79            George Newton testified that, after he heard gunshots

in    Mary’s    apartment,         Alexander         came   outside    and   said     of    his

first gunshot wound, “George, it hurts.”                       Alexander walked about

ten feet from the door before falling on his face.                                  Boyston

followed him outside and, saying “I might as well finish you

right now,” fired two shots into Alexander’s back.

¶80            The medical examiner, Dr. Vladimir Shvarts, testified

that    Alexander          had   three    through-and-through           gunshot     wounds:

two in the back that exited through the chest, and one through

the arm near the elbow.                  Each of the gunshot wounds was in an

area    where       there    were     pain   receptors.            Detective    Olson,       an

expert in bloodstain patterns, testified that blood drops found

inside the apartment and leading to bloodstains outside were

“consistent with [Alexander] dropping the blood from his right

arm.”

¶81            The    jury       could    reasonably        find    that     Boyston       shot

Alexander in the arm at close range inside the apartment and

that    Alexander          suffered      significant        physical    pain    from       that

wound.     See State v. Herrera, 176 Ariz. 21, 34, 859 P.2d 131,

144 (1993) (finding victim endured physical pain when he lay on

the ground with a gash in his head for at least eighteen seconds

and    possibly       as    long    as    two    to    three    minutes      before    being

killed).       The jury could also reasonably conclude that Boyston


                                                38
knew or should have known that he had caused such pain, as he

followed the wounded and staggering victim outside, where he

shot him twice more in the back.8          Thus, the jury did not abuse

its discretion in finding the (F)(6) aggravator established for

the murder of Alexander.

           c.    Murder of Timothy

¶82        Witnesses    described     Boyston     coming     out   of   Mary’s

apartment fighting with Timothy, then pulling out a knife and

stabbing him several times.          Two witnesses testified that they

heard Timothy yelling for help.

¶83        Dr. Shvarts testified that Timothy received nine stab

wounds and several abrasions in various parts of the body, each

of which would have caused pain.          Three stab wounds to Timothy’s

chin and neck were non-fatal, as were two to the upper back.

Four stab wounds were to the chest, one of which was fatal.                The

fatal   wound   was   almost   3.5   inches     deep   and   penetrated    the

pericardium and the heart.      Dr. Shvarts testified that the wound

likely would have been fatal within a few seconds to minutes,

but could possibly have taken up to twenty minutes to cause

Timothy’s death, depending on how quickly he lost blood.                   Dr.


8
     Boyston’s argument that the state must present evidence
that the defendant actually knew the victims would suffer pain
misstates the law, as the state must prove merely that the
defendant “knew or should have known that the victim would
suffer.”   McCray, 218 Ariz. at 259 ¶¶ 31, 33, 183 P.2d at 510
(emphasis added).

                                     39
Shvarts could not opine how long it would have taken Timothy to

become    unconscious.         But      Timothy’s    hands     were     covered    with

blood, which, as Dr. Shvarts testified, indicated he likely used

his hands to try to stop the bleeding.

¶84            From the evidence, the jury could reasonably conclude

that Timothy suffered physical pain while being stabbed to death

and that Boyston knew or should have known of that.                           Timothy

“had    ample    opportunity      not    only   to    feel    pain,     but   also   to

contemplate his impending death.”               State v. Kuhs, 223 Ariz. 376,

388 ¶ 62, 224 P.3d 192, 204 (2010).                 Indeed, Timothy’s cries for

help and his attempts to stop his own bleeding show that he was

not only experiencing physical pain, but also mental anguish.

See id. (concluding that the jury did not abuse its discretion

in finding especial cruelty when the victim was stabbed twenty-

one times and died by bleeding to death while choking on his

blood).       Thus, the jury did not abuse its discretion in finding

the (F)(6) aggravator established for Timothy’s murder.

D.     Mitigation

¶85            Boyston alleged thirty-four mitigating circumstances,

including        diminished       mental        capacity,       troubled         family

background, PCP intoxication, love and support of his family,

impact    of    execution    on   his     family,    and     remorse.      The    State

presented evidence to rebut many of those mitigating factors.

The    jury    did   not   find   the     proffered    mitigation       sufficiently


                                           40
substantial to call for leniency.                See A.R.S. § 13-751(C), (E).

E.      Evaluating penalty phase for abuse of discretion

¶86           We   will   overturn      a    jury’s      imposition     of   a    death

sentence only if “no reasonable jury could have concluded that

the mitigation established by the defendant was not sufficiently

substantial to call for leniency.”                 Cota, 229 Ariz. at 153 ¶ 95,

272 P.3d at 1044 (quoting Morris, 215 Ariz. at 341 ¶ 81, 160

P.3d at 220) (internal quotation marks omitted).                   In the context

of independent review, we have said that “[t]he (F)(8) multiple

homicides     aggravator    is    extraordinarily          weighty.”         State   v.

Hampton, 213 Ariz. 167, 184 ¶ 81, 140 P.3d 950, 967 (2006).                          In

light    of   that   aggravator        as   well    as   the   (F)(2)    and     (F)(6)

findings, even if we assume Boyston proved each of his alleged

mitigating circumstances, the jury did not abuse its discretion

in finding the mitigation insufficient to warrant leniency.                          See

A.R.S. § 13-751(C).

                                 IV.    CONCLUSION

¶87           We affirm Boyston’s convictions and sentences.9




                                 __________________________________
                                 John Pelander, Justice


9
     Boyston also raised in an appendix to his opening brief
twenty-four claims to avoid federal preclusion.   We do not
address those here.



                                            41
CONCURRING:


__________________________________
Rebecca White Berch, Chief Justice


__________________________________
Scott Bales, Vice Chief Justice


__________________________________
Robert M. Brutinel, Justice


__________________________________
Diane M. Johnsen, Judge*




*
     Pursuant   to  Article  6,   Section  3   of  the   Arizona
Constitution, the Honorable Diane M. Johnsen, Vice Chief Judge
of the Arizona Court of Appeals, Division One, was designated to
sit in this matter.

                               42
