                                     IN THE
 SUPREME COURT OF THE STATE OF ARIZONA
                       __________________________________________



                          STATE OF ARIZONA,
                              Appellee,

                                          v.

                       JOHN MICHAEL ALLEN,
                            Appellant.

                       _____________________
                          No. CR-17-0556-AP
                          Filed April 14, 2020
                        ________________________________________


         Appeal from the Superior Court in Maricopa County
              The Honorable Erin O’Brien Otis, Judge
                      No. CR2011-138856-001

CONVICTIONS AFFIRMED, REMANDED FOR RESENTENCING IN
                       PART

                     ________________________




COUNSEL:

Mark Brnovich, Arizona Attorney General, Lacey Stover Gard, Chief
Counsel, Jason Lewis (argued), Assistant Attorney General, Capital
Litigation Section, Phoenix, Attorneys for State of Arizona

Rosemarie Peña-Lynch, Office of the Legal Advocate, Colin F. Stearns
(argued), Kerri L. Chamberlin, Deputy Legal Advocates, Phoenix,
Attorneys for John Michael Allen
                             STATE V. ALLEN
                           Opinion of the Court




VICE CHIEF JUSTICE TIMMER authored the opinion of the Court, in
which CHIEF JUSTICE BRUTINEL and JUSTICES BOLICK, GOULD,
LOPEZ, BEENE and PELANDER (Retired)* joined.
                      ____________________

VICE CHIEF JUSTICE TIMMER, Opinion of the Court:

¶1             John Michael Allen was convicted of first degree murder and
sentenced to death for locking ten-year-old A.D. in a box overnight, causing
her to suffocate and die. The trial court imposed prison terms for related
child abuse convictions. We affirm Allen’s convictions, his death sentence,
and the sentence imposed for count 3. We vacate the sentences imposed for
counts 2, 4, and 5 and remand for resentencing on those counts.

                             BACKGROUND

¶2             Allen lived with his wife, Sammantha, and her extended
family, including her cousin, A.D., in Phoenix. Sammantha’s mother, who
also lived in the same house, was A.D.’s legal guardian. Allen and other
adults in the home extensively abused A.D. when imposing punishments.
Among other things, they had confined her in a small, plastic box for hours
on approximately ten occasions before the night she died in that box.

¶3            On the night of July 11, 2011, Allen and Sammantha punished
A.D. in multiple ways for purportedly stealing a popsicle. They forced A.D.
to stand with her hands above her head facing (but not touching) a wall
with her head tipped back; perform jumping jacks and run around the yard;
and remain in a backbend position with her feet and head on the floor for
about three hours. Around 1:00 a.m. on July 12, Allen told A.D. to retrieve
the box from outside, ordered her to get inside the box, locked the lid shut,
took the only key with him, and went to bed. The family found A.D. locked
in the box and unresponsive later that morning and called police after they
removed A.D. and attempted to revive her. A.D. died from suffocation
while inside the box.



          Justice William G. Montgomery has recused himself from this
case. Pursuant to article 6, section 3 of the Arizona Constitution, Honorable
John Pelander, Justice of the Arizona Supreme Court (Retired), was
designated to sit in this matter.
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                            Opinion of the Court


¶4            When questioned by police, Allen initially speculated A.D.
was accidentally locked in the box as part of a hide-and-seek game gone
wrong. After learning A.D. had been previously punished by being placed
in the box, police re-questioned Allen, who confessed to abusing A.D. over
the preceding year and locking her in the box on July 12, leaving her to
suffocate.

¶5            A grand jury indicted Allen for first degree felony murder
(count 1), conspiracy to commit child abuse (count 2), and three counts of
child abuse (counts 3–5), and the State sought the death penalty. (Other
family members, including Sammantha, were also charged with crimes
relating to A.D.’s abuse and death. None were tried with Allen.) At trial,
the jury found Allen guilty on all counts.

¶6            During the trial’s aggravation phase, the jury found Allen
eligible for the death penalty because he either killed or was a major
participant in the commission of child abuse and was recklessly indifferent
regarding a person’s life. See Tison v. Arizona, 481 U.S. 137, 158 (1987);
Enmund v. Florida, 458 U.S. 782, 801 (1982). It then found three aggravating
circumstances: Allen had previously been convicted of a serious offense,
A.R.S. § 13-751(F)(2); the murder was both especially cruel and especially
heinous or depraved, § 13-751(F)(6); and A.D. was under age fifteen when
Allen, an adult, killed her, § 13-751(F)(9).1 During the penalty phase, Allen
offered as mitigation only that he had offered to plead guilty to all counts
in exchange for a natural life sentence. He also took responsibility for A.D.’s
death, apologized, and asked the jury to spare his life.

¶7            The jury unanimously found that Allen should receive the
death penalty, and the court imposed that sentence. On the non-capital
counts, the court sentenced Allen to aggravated (counts 2–4) and maximum
(count 5) prison sentences. Count 2 runs concurrently with the death
sentence with the remaining sentences running consecutively. This
automatic appeal followed.




1           We refer to all statutory provisions in this Opinion as they
existed at the time of trial. Currently, the (F)(6) aggravator is set forth in §
13-751(F)(4), and the (F)(9) aggravator is set forth in § 13-751(F)(7).


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                             Opinion of the Court


                                 DISCUSSION

               I. Aggravation Phase Issues

               A. The Enmund/Tison finding


¶8            The Eighth Amendment prohibits “all punishments which by
their excessive length or severity are greatly disproportioned to the offenses
charged.” Tison, 481 U.S. at 148 (quoting Weems v. United States, 217 U.S.
349, 371 (1910)). Thus, a jury cannot impose a death sentence on a defendant
convicted of first degree felony murder unless it first ensures that a death
sentence is proportionate to the defendant’s “personal responsibility and
moral guilt.” State v. Miles, 243 Ariz. 511, 514 ¶ 13 (2018) (quoting Enmund,
458 U.S. at 801).

¶9             To justify imposition of a death sentence on a person
convicted of felony murder, the jury must find that the defendant either: (1)
“kill[s], attempt[s] to kill, or intend[s] that a killing take place or that lethal
force will be employed,” Enmund, 458 U.S. at 797, or (2) is a major
participant in the underlying felony and acts with reckless indifference to
human life, Tison, 481 U.S. at 158. “The Enmund/Tison inquiry does not
concern the guilt or innocence of the defendant but acts as an Eighth
Amendment sentencing restraint.” Miles, 243 Ariz. at 514 ¶ 13.

¶10           For different reasons, the jurors unanimously found that
Allen’s actions satisfied Enmund/Tison. Eleven jurors found that Allen
killed A.D., and eleven jurors found that Allen was a major participant in
committing the child abuse that resulted in A.D.’s death and acted with
reckless indifference towards her life.

¶11             Allen argues that insufficient evidence supports the jury’s
Enmund/Tison finding. We review that finding for “substantial evidence,
‘viewing the facts in the light most favorable to sustaining the jury verdict.’”
State v. Garcia, 224 Ariz. 1, 15 ¶ 54 (2010) (quoting State v. Roseberry, 210 Ariz.
360, 368–69 ¶ 45 (2005)). “Substantial evidence exists when there is such
proof that reasonable persons could accept as adequate and sufficient to
support a conclusion of defendant’s guilt beyond a reasonable doubt.” Id.
(internal quotation marks omitted) (quoting State v. Mathers, 165 Ariz. 64,
67 (1990)).      Because the jury was not unanimous regarding how




                                        4
                              STATE V. ALLEN
                            Opinion of the Court


Enmund/Tison was satisfied, substantial evidence must exist for both
findings.

¶12           Allen argues there was insufficient evidence that he actually
killed A.D. per Enmund because nothing suggests he knew that shutting her
in the box could kill her, and her death was “an unfortunate accident, not a
purposeful killing.” But Enmund is satisfied if Allen actually killed A.D.,
regardless of his intent. See Enmund, 458 U.S. at 797; see also State v. Joseph,
230 Ariz. 296, 300 ¶ 17 (2012) (“A defendant convicted of felony murder
may receive a death sentence regardless of his intent if he actually kills a
victim during the course of a felony . . . .”). Sufficient evidence exists that
A.D. died as a direct result of Allen’s actions. He told her to get inside a
plastic box that was twenty-one inches shorter than her, shut the lid, placed
a lock on it to prevent her escape, kept the only key, and left her there
unsupervised while he went to bed. Dr. Philip Keen, the chief medical
examiner, testified that A.D. died from “being stuffed inside this box,”
which had decreased air availability and, given the size of the box, also
restricted her “ability to have air exchange” by pushing her chin down
against her chest.

¶13           Turning to the Tison finding, Allen does not dispute he was a
major participant in committing the child abuse that resulted in A.D.’s
death but argues that insufficient evidence shows he acted with reckless
indifference to human life. See Tison, 481 U.S. at 158. He points out that
because A.D. had been placed in the box at least ten times before without
suffering injury, he “never contemplated” that A.D. could suffer serious
physical injury or die.

¶14            Under Tison’s “reckless indifference” inquiry, the state must
prove the defendant “subjectively appreciated that [his] acts were likely to
result in the taking of innocent life.” State v. Lynch, 225 Ariz. 27, 36 ¶ 43
(2010) (quoting Tison, 481 U.S. at 152). That likelihood exists when the
defendant “knowingly engag[es] in criminal activities known to carry a
grave risk of death.” See Tison, 481 U.S. at 157. Locking a child in a plastic
box that, according to a police detective, was “not perfectly air tight but []
fairly tight” and twenty-one inches shorter than she is for more than six
hours without supervision and with no way to escape carries a significant
risk of death. That A.D. had previously been confined in the box and had
not been seriously injured did not lessen the risk of death, just as playing
Russian Roulette without injury does not lessen the risk of death attendant
to that “game.” See id. at 157–58 (stating that reckless disregard for human


                                       5
                             STATE V. ALLEN
                           Opinion of the Court


life can exist when “conduct causes its natural, though also not inevitable,
lethal result”). Also, on those occasions, A.D. had only been inside the box
for a couple hours. Even then, she would emerge from the box sweaty. On
the day she died, Allen left her in the box for more than six hours in a room
“significantly warmer” than other rooms in the house, creating an even
greater risk of death. Unlike on prior occasions, A.D. was also unable to
escape if in distress because the box was locked.

¶15           Allen’s indifference towards A.D.’s life is further evidenced
by his decision to leave her unsupervised and go to bed, which risked his
falling asleep and rendering him incapable of checking on A.D.’s welfare.
And upon awakening, rather than immediately unlocking the box, he took
the time to dress while giving the lock key to Sammantha. Substantial
evidence supports the Tison finding that Allen was a major participant in
commission of the child abuse that resulted in A.D.’s death and that he
subjectively appreciated that his acts would likely kill A.D., making him
recklessly indifferent regarding her life.

¶16          In sum, sufficient evidence supports the Enmund/Tison
finding.

             B. The (F)(6) Aggravator

             1. Cruelty

                        a. Jury instruction

¶17          A murder is especially cruel if the jury finds “the victim
consciously suffered physical or mental pain and that the defendant knew
or should have known that the victim would suffer.” See State v. Sanders,
245 Ariz. 113, 126 ¶ 43 (2018). The trial court instructed the jury to that
effect:

      The term “cruel” focuses on the victim’s pain and suffering.
      To find that the murder was committed in an “especially
      cruel” manner you must find that the victim consciously
      suffered physical or mental pain, distress or anguish prior to
      death. The defendant must know or should have known that
      the victim would suffer.




                                     6
                              STATE V. ALLEN
                            Opinion of the Court


Allen argues that because the evidence supports a conclusion he was an
accomplice to A.D.’s murder rather than the perpetrator, as reflected by the
non-unanimous Enmund finding, the court erred by failing to instruct the
jury it could only find especial cruelty if Allen intended that A.D. suffer
mental anguish or physical pain before death or it was subjectively
foreseeable such suffering would occur.

¶18            Because Allen did not raise this objection to the trial court, we
review for fundamental error. See State v. Henderson, 210 Ariz. 561, 567 ¶ 19
(2005). To demonstrate that fundamental error occurred, a defendant must
show: “(1) the error went to the foundation of the case, (2) the error took
from the defendant a right essential to his defense, or (3) the error was so
egregious that he could not possibly have received a fair trial.” State v.
Escalante, 245 Ariz. 135, 142 ¶ 21 (2018). If the error is under prongs one or
two, the defendant must also demonstrate that the error caused prejudice,
which is a fact-intensive inquiry. Id. If error occurs under the third prong,
no separate showing of prejudice is necessary, and a new trial must be
granted. Id.

¶19            Allen bases his claim on State v. Carlson, 202 Ariz. 570 (2002).
There, the defendant hired two men to kill her mother-in-law but neither
specified the method for doing so nor participated in the killing. Id. at 574–
75 ¶¶ 5–6, 8, 10. The hired killers stabbed the victim multiple times, but she
initially survived the attack, dying approximately six months later after
several operations. Id. at 575 ¶¶ 8–9. At sentencing, the trial court found
that the defendant committed the murder in a cruel, heinous and depraved
manner and was responsible for the victim’s pain and suffering despite the
fact she might not have foreseen that the hired killers would bungle the
murder and doom the victim to months of suffering. Id. at 581–82 ¶¶ 42–
43.

¶20           This Court disagreed. We reasoned that to sufficiently
narrow the class of first degree murderers eligible for a death sentence, a
convicted accomplice must have “intended that the murder be committed
in such a manner as to cause the victim to suffer or, absent intent, knew it
would be so.” Id. at 583 ¶ 47. Thus, if the defendant is neither the actual
killer nor witness to the murder, cruelty cannot be found “absent a plan
intended or reasonably certain to cause suffering.” Id. ¶ 49. Because the
Carlson defendant was not involved in planning how the victim would be
killed, did not supply the weapon, and was not present for the murder, she



                                       7
                             STATE V. ALLEN
                           Opinion of the Court


could not be held responsible for the victim’s pain and suffering. Id. ¶¶ 48–
50.

¶21           Allen contends that like the Carlson defendant, he was an
accomplice to the murder and, therefore, the trial court erred by not
instructing the jury it could only find especial cruelty if he subjectively
intended that A.D. suffer or was reasonably certain that would occur. We
disagree. As we observed in State v. Payne, 233 Ariz. 484, 516 ¶ 143 (2013),
Carlson analyzed the mental state of an accomplice who did not witness the
murder. Here, as with the defendant in Payne, Allen directly participated
in the murder. Allen locked A.D. in the box himself and ensured she
remained inside by padlocking the box shut, keeping the only key, and
leaving A.D. unsupervised while he went to bed. This case does not involve
acts unwitnessed by an accomplice, and therefore Carlson is inapposite. See
id. at 516–17 ¶¶ 143–44 (concluding Carlson did not apply where a father
locked his children inside a closet without feeding them for about a month
until they died). The trial court correctly instructed the jury on especial
cruelty. See Sanders, 245 Ariz. at 126 ¶ 43.

                        b. Sufficiency of the evidence

¶22           Allen argues the State failed to prove the especially cruel
aggravator beyond a reasonable doubt. We review the jury’s finding for an
abuse of discretion and will uphold it if substantial supporting evidence
exists. State v. Gunches, 225 Ariz. 22, 25 ¶¶ 13–14 (2010). We view the
evidence in the light most favorable to upholding the jury’s finding. Id.
¶ 14.

¶23           Allen first argues that the jury necessarily speculated to
conclude A.D. was conscious long enough to experience physical or mental
pain, distress, or anguish before dying. We disagree. Although Dr. Keen
testified he had no way of knowing how long A.D. remained conscious,
evidence showed she remained conscious long enough to suffer. See State
v. Goudeau, 239 Ariz. 421, 463 ¶ 184 (2016) (stating that the cruelty
aggravator does not require “the victim’s suffering [to] have lasted for any
specific length of time”). She was conscious when placed inside the box.
Allen admitted that A.D. had been confined in the box multiple times before
for “a couple of hours” at a time and she was conscious and alert when
released. A.D.’s sister testified that on one occasion when A.D. was
confined inside the box, Allen tossed it around with her in it, and she
emerged conscious. Thus, although some evidence suggests A.D. fell


                                     8
                              STATE V. ALLEN
                            Opinion of the Court


asleep soon after being locked in the box, a reasonable jury could find she
remained conscious and alert for enough time to suffer physically and/or
mentally before she died.

¶24            Next, Allen argues that insufficient evidence supports a
conclusion A.D. suffered extreme physical pain. Before examining the
evidence, we reject Allen’s unsupported assertion that the State was
required to show that A.D. suffered “extreme” physical pain to prove the
cruelty aggravator. See State v. Andriano, 215 Ariz. 497, 511 ¶ 67 (2007)
(rejecting the same argument), abrogated on other grounds by State v. Ferrero,
229 Ariz. 239, 243 ¶ 20 (2012). It is enough that A.D. suffered physical pain.
Id.

¶25           Substantial evidence exists that A.D. experienced physical
pain while confined inside the box. She died from asphyxia compounded
by dehydration. Allen correctly notes that “death by asphyxiation is not
per se especially cruel.” See State v. Snelling, 225 Ariz. 182, 189 ¶ 33 (2010).
But Snelling does not preclude such a finding, and the evidence here
supports one.

¶26            A.D. was forced into a box that was twenty-one inches shorter
than her height. This occurred after she was forced to engage in hours of
rigorous physical acts, including backbends that made her cry and
complain of pain, which Dr. Keen attributed to muscle fatigue. See Goudeau,
239 Ariz. at 464 ¶ 184 (“We consider the entire murder transaction, not
merely the fatal act, in evaluating whether a murder was committed in an
especially cruel manner.”). She had bruises and abrasions on both her legs,
including abrasions on her right knee consistent with being pressed against
the box lid. According to Dr. Keen, A.D. asphyxiated due to decreased air
availability in the box together with being in a chin-down position that
restricted her “ability to have air exchange.” It was also at least 97 degrees
inside the box, and A.D. was covered in sweat when she was removed from
it. Based on this evidence, a reasonable jury could find A.D. suffered
physical pain by being stuffed inside a hot, cramped box in an
uncomfortable position that restricted her movements and breathing after
already suffering muscle fatigue from her prior punishments.

¶27          Although the cruelty aggravator is justified solely by
evidence that A.D. suffered physical pain before death, the aggravator is
also supported by evidence that A.D. experienced mental pain, distress, or
anguish while confined inside the box. Dr. Keen testified that A.D.’s


                                       9
                              STATE V. ALLEN
                            Opinion of the Court


restricted ability to have air exchange would have caused her to work
harder to breathe. A reasonable jury could find she tried to ease her
breathing by escaping the box, as she had done in the past, and panicked
when she could not do so. See id. (“Mental anguish includes the victim’s
uncertainty as to her ultimate fate . . . .” (quoting State v. Lavers, 168 Ariz.
376, 392 (1991)); see also State v. Lynch, 238 Ariz. 84, 106 ¶ 83 (2015)
(concluding cruelty aggravator shown by evidence that victim was
conscious and secured to chair, indicating he had “ample time to
contemplate his fate”), rev’d on other grounds by Lynch v. Arizona, 136 S. Ct.
1818 (2016).

¶28           Allen also argues the State failed to prove he intended that
A.D. suffer or knew she would do so. For the reasons explained, see supra
¶¶ 19–21, the State was not required to prove that Allen intended A.D.’s
suffering. Instead, it was required to show that he knew or should have
known that A.D. would suffer physical or mental pain, distress, or anguish.
See Sanders, 245 Ariz. at 126 ¶ 43.

¶29           Echoing his Tison argument, Allen alternately argues the State
did not prove he should have known A.D. would suffer physical or mental
pain because she had been shut inside the box many times previously
without injury. Just as we rejected Allen’s Tison argument, we reject this
one. See supra ¶ 15. Whether Allen should have known A.D. would suffer
based on the information at hand is an objective inquiry. See Carlson, 202
Ariz. at 582 ¶ 44 (“Foreseeability in connection with the cruelty factor has
been based on an objective rather than subjective standard.”). A reasonable
person would know that locking a ten-year-old child inside a box, which is
twenty-one inches shorter than she is and contains few air holes, overnight
in a hot room with no means of escape would cause the child to suffer
physical or mental pain. Even if Allen did not intend to fall asleep and leave
A.D. inside the box for more than six hours, he should have known that
placing her there for any length of time would cause A.D. physical pain and
mental anguish.

¶30         In sum, substantial evidence supports a finding that Allen
committed the murder in an especially cruel manner.




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                              STATE V. ALLEN
                            Opinion of the Court


              2. Especially heinous or depraved

¶31            Although the cruelty finding is sufficient alone to support the
(F)(6) aggravator, we nevertheless address Allen’s challenge to the jury’s
finding that the murder was especially heinous or depraved. See State v.
Djerf, 191 Ariz. 583, 597 ¶ 54 (1998) (stating that because the (F)(6)
aggravator is worded in the disjunctive, “a finding of either especial cruelty
or heinousness/depravity will suffice to establish this aggravating factor”).
The especially heinous or depraved inquiry focuses on the killer’s state of
mind at the time of the murder, as evidenced by his actions. State v. Gretzler,
135 Ariz. 42, 51 (1983).

                         a. Jury instruction

¶32           After defining “especially heinous” and “especially
depraved” and telling the jury that the terms focus on the defendant’s
mental state at the time of the murder, the trial court instructed the jury as
follows:

              To determine whether a murder was “especially
              heinous or depraved” you must find that the
              State proved beyond a reasonable doubt that
              the Defendant exhibited such a mental state at
              the time of the killing by determining that the
              following circumstances were all proven:
                 1. The murder victim was a child and there
                    was a special caregiver relationship of
                    trust between the victim and the
                    Defendant; and
                 2. The murder was senseless; and
                 3. The victim was helpless.
              All murders are “senseless” because of their
              brutality and finality. Yet not all are senseless
              as the term is used to distinguish those first
              degree murders that warrant a death sentence
              from those that do not. Rather, a “senseless”
              murder is one that is unnecessary to achieve the
              Defendant’s objective.




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                            Opinion of the Court


              “Helplessness” means the victim is unable to
              resist.
              You may not consider the age of the victim in any
              way in deciding whether the murder was committed
              in an especially heinous or depraved manner.


(Emphasis added).         Allen argues that the italicized language is
contradictory and made it impossible for the jury to both ignore A.D.’s age
and find she was a child, thereby rendering the verdict void. Because Allen
did not object to the jury instruction, we review for fundamental error. See
Henderson, 210 Ariz. at 567 ¶ 19.
¶33            The jury instruction is facially contradictory because the jury
had to consider A.D.’s age to decide whether she was a child.2 But “we will
not reverse a conviction unless the instructions, taken as a whole, misled
the jurors.” State v. Leteve, 237 Ariz. 516, 526–27 ¶ 35 (2015) (quoting State
v. Kuhs, 223 Ariz. 376, 384 ¶ 37 (2010)); see also State v. Bass, 198 Ariz. 571,
576–77 ¶ 17 (2000) (“[E]rror in a jury instruction is reversible if the
instruction, taken as a whole, supports a reasonable presumption that the
jurors would be misled.”).

¶34            The record does not reflect that jurors were confused by this
instruction. See Bass, 198 Ariz. at 577 ¶ 17 (“[M]ere speculation that the jury
was confused is insufficient to establish actual jury confusion.” (quoting
State v. Gallegos, 178 Ariz. 1, 11 (1994)). That A.D. was a child was not
disputed at trial. Instead, the focus of the parties’ arguments to the jury
regarding this aggravator was whether Allen had a caregiver relationship
with A.D. See State v. Johnson, 205 Ariz. 413, 417 ¶ 11 (App. 2003) (“[I]n
evaluating the jury instructions, we consider the instructions in context and
in conjunction with the closing arguments of counsel.”). Also, the
prosecutor in closing argument referred to the instruction and told the jury
it could not consider A.D.’s age when determining whether she was
helpless. Thus, in context, the most natural reading of the instruction was
that the jury had to determine whether: (1) Allen had a caregiver

2
            The trial court and the parties may have believed that the jury
could not consider A.D.’s age in finding both the heinous, cruel, or
depraved aggravator and the age-of-victim aggravator. This is incorrect.
See State v. Velazquez, 216 Ariz. 300, 307 ¶ 22 (2007) (permitting the use of
one fact to find multiple aggravators).


                                      12
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                             Opinion of the Court


relationship with A.D., a child; (2) the murder was senseless; and (3) A.D.
was helpless. In making the third determination, the jury was prohibited
from considering A.D.’s age. Although the instruction could have been
worded better, the trial court did not commit reversible error, much less
fundamental error, by giving it.

                         b. Sufficiency of the evidence

¶35            Allen argues the State failed to prove that A.D.’s murder was
especially heinous or depraved. Because Allen did not raise this objection
to the trial court, we review only for fundamental error. See Henderson, 210
Ariz. at 567 ¶ 19.

¶36            The State alleged the murder was especially heinous or
depraved because the murder was senseless and A.D. was helpless. See
Gretzler, 135 Ariz. at 52 (listing these factors among three others that can
support an especially heinous or depraved finding). Allen does not contest
the existence of these factors. But “[s]enselessness and helplessness,
without more, are ordinarily insufficient to prove heinousness or
depravity,” State v. Schackart, 190 Ariz. 238, 250 (1997), because they are
“less probative of the defendant’s state of mind” than are the other factors,
State v. Hyde, 186 Ariz. 252, 281 (1996). Something “more” exists when the
victim is a child with whom the defendant maintained a parental or
caregiver relationship, as the State asserts here. See State v. Villalobos, 225
Ariz. 74, 84 ¶ 44 (2010); State v. Prince, 206 Ariz. 24, 27 ¶ 10 (2003). Allen
argues the State failed to prove he had a caregiver relationship with A.D.

¶37           Allen relies on State v. Styers, 177 Ariz. 104 (1993). Styers lived
with a woman and her four-year-old son, Christopher, whom he babysat
when his mother went to work during the week. Id. at 108. One December
Saturday, Styers announced he was going to a shopping mall and agreed to
take Christopher along after the child said he wanted to see Santa Claus. Id.
After picking up a friend and getting lunch, Styers told Christopher they
were going to the desert to look for snakes. Id. Instead, after traveling to a
remote area in the desert, Christopher was shot in the head three times, and
his body was left in a wash. Id. Styers was convicted of first degree murder
and sentenced to die. Id. at 109. Among other aggravating factors, the trial
court found that the murder was committed in an especially heinous or
depraved manner. Id. at 115.




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                              Opinion of the Court


¶38          This Court agreed with the trial court’s finding, concluding
Christopher was helpless and the murder was senseless. Id. We explained:

                 The victim, a four-year-old child, trusted
                 defendant, his baby-sitter. Defendant used this
                 trust and played upon the child’s favorite
                 things—Santa Claus and hunting for snakes—
                 to lure him into a desolate desert wash so he
                 could execute him. Christopher was dependent
                 upon defendant for care while he was away
                 from his mother. He was helpless when
                 defendant and [the friend] took him and killed
                 him.

                 Although there was no legal “parent/child”
                 relationship, defendant and victim did share a
                 special relationship in that defendant was the
                 child’s full-time caregiver for several months
                 before he killed him. This fact illustrates the
                 depravity of defendant and makes the crime
                 even more senseless and the victim especially
                 helpless as to this defendant.

Id. at 115–16.

¶39           Allen argues that unlike Styers’ role as fulltime babysitter for
Christopher, he was only A.D.’s “some-time caregiver,” thus distinguishing
Styers. But this Court’s analysis did not depend on the amount of time
Styers babysat Christopher. Rather, Christopher’s trust in Styers due to
their relationship—caregiver and child—and the betrayal of that trust
formed the basis for the Court’s finding that the murder was especially
depraved and thus separate from the “norm” of first degree murders. See
id.

¶40           Sufficient evidence shows that Allen had a caregiver
relationship with A.D. adequate to cause A.D. to trust that Allen would care
for her well-being and making her murder during the exercise of that
caregiver role something “more” than the senseless murder of a helpless
child. See Villalobos, 225 Ariz. at 84 ¶ 44. Allen and A.D. lived in the same
house. He, along with the other adults living in the house, shared in caring
for A.D. and the other children, and he considered A.D. a family member.


                                       14
                               STATE V. ALLEN
                             Opinion of the Court


Allen took part in decisions regarding A.D.’s welfare, such as deciding
whether she should be seen by a therapist for habits attributed to an abusive
background. Allen was also routinely involved in disciplining A.D., and
when he did so by having her spend “time outs” in the box, she obeyed his
directives. According to Allen, she initially tried to escape the box but
eventually quit because “she knew [Allen and Sammantha] would
eventually let her out” of the box.

¶41            At the time A.D. was murdered, Allen and Sammantha were
responsible for supervising A.D. She got into the box at Allen’s direction
and without protest, trusting she would be released unharmed. By locking
the box to prevent A.D.’s escape and then leaving her there unsupervised
while he went to bed, Allen betrayed that trust, thus demonstrating his
depravity and separating this murder from the “norm” of other murders.
See Styers, 177 Ariz. at 116.

¶42           Allen also argues that the “happenstance” of a caregiver
relationship is insufficient to demonstrate a depraved mental state at the
time of the murder. See Carlson, 202 Ariz. at 584–85 ¶¶ 53–55 (finding
mother-in-law/daughter-in-law relationship coupled with helplessness
was insufficient to prove depravity and cautioning against “expand[ing]
the concept of relationship as an aggravating factor”). But as described,
Allen was not merely an occasional babysitter; his relationship with A.D.
was more akin to the one in Styers and other cases where the defendants
murdered their live-in partners’ children and heinousness or depravity was
found. See Villalobos, 225 Ariz. at 84 ¶ 44; State v. Wallace, 151 Ariz. 362, 368
(1986).

¶43         In sum, substantial evidence supports a finding that Allen
committed the murder in an especially heinous or depraved manner.

              II. Penalty phase issues
              A. Double weighing A.D.’s age

¶44           Allen argues that the “especially heinous or depraved” jury
instruction given during the aggravation phase permitted the jury to
illegally double weigh the victim’s age during the penalty phase. Because
Allen did not argue this to the trial court, we review only for fundamental
error. See Henderson, 210 Ariz. at 567 ¶ 19.




                                       15
                              STATE V. ALLEN
                            Opinion of the Court


¶45            Allen builds on his aggravation-phase argument. See supra
¶¶ 32–34. He asserts that because the heinous or depraved instruction
necessarily required jurors to consider A.D.’s age in determining she was a
child but told them they could not do so, “the jury was under the mistaken
belief that they had not considered the victim’s age when finding that the
victim was a child.” Consequently, Allen contends, the jury was misled to
believe it could weigh both the heinous-or-depraved ((F)(6)) and the age-
of-victim ((F)(9)) aggravators in deciding whether to impose the death
penalty.

¶46            Although the jury could consider A.D.’s age in finding more
than one aggravator, it could not do so in the penalty phase when deciding
whether to sentence Allen to death. See Velazquez, 216 Ariz. at 307 ¶ 22 (“A
jury . . . may use one fact to find multiple aggravators, so long as the fact is
not weighed twice when the jury assesses aggravation and mitigation.”); see
also Styers, 177 Ariz. at 116 (stating age cannot be weighed twice at the
penalty phase consideration of aggravating and mitigating factors). The
trial court instructed the jury to that effect during the penalty phase:

              If you have found that two or more of the
              aggravating circumstances were proved
              beyond a reasonable doubt by a single fact or
              aspect of the offense, you are to consider that
              fact or aspect of the offense only once. In other
              words, you shall not consider twice any fact or
              aspect of the offense.

¶47           We disagree with Allen that the heinous-or-depraved jury
instruction given in the aggravation phase misled the jury to believe it had
not considered A.D.’s age when finding the existence of that aggravator.
As previously explained, the heinous-or-depraved jury instruction did not
instruct jurors to disregard A.D.’s age in deciding whether she was a child
but instead instructed them to ignore her age when assessing helplessness.
See supra ¶ 34. A reasonable jury following the aggravation-phase
instruction would knowingly consider A.D.’s age when determining
whether she was a child. It would also know it had considered her age in
finding both the heinous-or-depraved aggravator and the age-of-victim
aggravator. Because nothing indicates the jury disregarded the court’s
penalty-phase instruction and double weighed A.D.’s age, we do not find
error.



                                      16
                              STATE V. ALLEN
                            Opinion of the Court


              B. Prosecutorial misconduct

¶48           Allen argues for the first time that the prosecutor engaged in
misconduct during her closing argument by making a “comparative life”
argument: “The defendant said yesterday that [A.D.] didn’t deserve to die.
Tell him by your verdict that his life is not more valuable than [A.D.’s].” A
prosecutor’s conduct warrants reversal of a conviction or sentence 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 (2013). We review for fundamental
error. See Henderson, 210 Ariz. at 567 ¶ 19.

¶49            Allen argues that the prosecutor misstated the law and
improperly inflamed the jurors’ emotions by effectively telling them to
weigh the value of Allen’s life against A.D.’s in deciding whether to impose
the death penalty. It is improper for a prosecutor to misstate the law in
closing arguments, see State v. Serna, 163 Ariz. 260, 266 (1990), or make
remarks “to inflame the minds of jurors with passion or prejudice or
influence the verdict in any degree,” see State v. Herrera, 174 Ariz. 387, 396
(1993) (quoting State v. Merryman, 79 Ariz. 73, 75 (1955)). Courts in other
states have found that comparative life arguments are improper and
constitute grounds for reversal. See, e.g., State v. Storey, 901 S.W.2d 886, 902
(Mo. 1995) (stating that prosecutor “seriously misstate[d] the law” by telling
jurors that whether to impose the death penalty “comes down to one basic
thing. Whose life is more important to you? Whose life has more value?
The Defendant’s or [the Victim’s]?”); Hall v. Catoe, 601 S.E.2d 335, 341 (S.C.
2004) (finding comparative life argument so emotionally inflammatory that
it became a “material part of the jury’s deliberation process” and
“unquestionably directed the jurors to conduct an arbitrary balancing of
worth, which required that [defendant] be sentenced to death if the jury
found [his] life was worth less than the lives of his victims”).

¶50           Here, the prosecutor skirted the line and arguably crossed it
by asking jurors to tell Allen that his life is not more valuable than A.D.’s
life. Regardless, there is not a reasonable likelihood that the statement
affected the verdict. The remark was fleeting, did not directly urge jurors
to determine the propriety of a death sentence based on a weighing of lives,
and was made in the midst of more developed and lengthy arguments that
properly focused on Allen’s character and the circumstances of A.D.’s
murder. See State v. Martinez, 230 Ariz. 208, 214 ¶ 23 (2012) (stating jurors
must make an individualized decision whether a defendant deserves the


                                      17
                              STATE V. ALLEN
                            Opinion of the Court


death penalty “based on the ‘character and record of the individual
offender and the circumstances of the particular offense’” (quoting Romano
v. Oklahoma, 512 U.S. 1, 7 (1994)). And the trial court properly instructed
jurors they were to determine whether to impose the death penalty by
“determin[ing] whether in [their] individual assessment the mitigation is of
such quality or value that it warrants leniency in this case.” See State v.
Carlson, 237 Ariz. 381, 396 ¶ 54 n.6 (2015). The prosecutor’s statement does
not constitute reversible error, much less fundamental error.

              C. Abuse of discretion review

¶51          Allen argues the jury abused its discretion by imposing the
death penalty. He asserts the jury erred by considering the (F)(6)
aggravator because it was not supported by sufficient evidence and by
double counting A.D.’s age. For the reasons previously explained, we reject
this argument. See supra ¶¶ 22–30, 35–47.

¶52            We “review the jury’s finding of aggravating circumstances
and the imposition of a death sentence for abuse of discretion,” and view
the facts in the light most favorable to upholding the sentence. State v.
Acuna Valenzuela, 245 Ariz. 197, 224 ¶ 122 (2018) (citing State v. Gunches, 240
Ariz. 198, 207 ¶ 41 (2016); see also A.R.S. § 13-756(A) (requiring this abuse-
of-discretion review). “We must uphold a death sentence ‘if any reasonable
juror could conclude that the mitigation presented was not sufficiently
substantial to call for leniency.’” State v. Rushing, 243 Ariz. 212, 223 ¶ 45
(2017) (quoting State v. Naranjo, 234 Ariz. 233, 250 ¶ 89 (2014)).

¶53            The jury did not abuse its discretion by finding the existence
of aggravating circumstances. As previously explained, sufficient evidence
supports finding the (F)(6) aggravator. See supra ¶¶ 22–30, 35–43. Sufficient
evidence also supports the jury’s finding of the (F)(2) aggravator, that Allen
had been previously convicted of a serious offense. Child abuse is a serious
offense for purposes of the (F)(2) aggravator.               A.R.S. §§ 13-
705(P)(1)(h), -751(J)(6). Allen’s uncontested conviction in count 3 for
intentional or knowing child abuse establishes that aggravator. See
Gunches, 240 Ariz. at 207 ¶ 41. Finally, sufficient evidence supports the
(F)(9) aggravator, that Allen was an adult and A.D. was a minor under the
age of fifteen when the offense was committed. Allen told police his
birthday is July 19, 1988, which made him twenty-two years old when he
committed the offense. A.D.’s birth certificate establishes her birthday as
July 24, 2000, which made her ten years old when she was killed. The jury


                                      18
                              STATE V. ALLEN
                            Opinion of the Court


did not abuse its discretion in finding the (F)(2), (F)(6), and (F)(9)
aggravating circumstances.

¶54            As mitigation, Allen admitted he killed A.D. and asked the
jury to spare his life. He also introduced his offer to plead guilty to all
charges and serve a natural life term in prison. During closing arguments,
his counsel emphasized that Allen took responsibility for his actions, felt
remorseful, did not intend for A.D. to die, would never be released from
prison if sentenced to life without the possibility of release, and had already
been deprived of his children by the State. This evidence was not powerful.
A reasonable juror could have concluded that this evidence, even if
mitigating, was not sufficiently substantial to warrant leniency when
weighed against the aggravating circumstances. See Acuna Valenzuela, 245
Ariz. at 224 ¶ 124.

¶55          For these reasons, the jury did not abuse its discretion in
sentencing Allen to death.

              III. Constitutionality of Arizona’s death penalty scheme

¶56           Allen argues that Arizona’s capital sentencing structure fails
to adequately narrow the class of defendants eligible for the death penalty,
resulting in a violation of the Eighth and Fourteenth Amendments to the
United States Constitution and article 2, sections 3, 4, 15, 23, and 32 of the
Arizona Constitution. We rejected this argument in State v. Hidalgo, 241
Ariz. 543, 548 ¶ 7, 549–52 ¶¶ 14–29 (2017), cert. denied 138 S. Ct. 1054 (2018).
For the reasons explained there, we again reject this argument. See also
Acuna Valenzuela, 245 Ariz. at 224 ¶ 121 (rejecting same argument).

              IV. Non-death sentences

¶57        Allen was convicted of four non-capital crimes, and he appeals
the sentences imposed for three of them: count 2, conspiracy to commit
child abuse; count 4, intentional or knowing child abuse; and count 5,
reckless child abuse. Count 5 involved Allen’s conduct before A.D.’s
murder, and counts 2 and 4 involved the events on the date of her death.
The jury found aggravating factors with respect to each count: for count 2,
that the victim was under fifteen years of age; for count 4, the presence of
an accomplice; and for count 5, the offense was committed in an especially
cruel manner. The trial court then imposed prison terms exceeding the



                                      19
                              STATE V. ALLEN
                            Opinion of the Court


presumptive sentences for these convictions. In doing so, the court
considered only count 4 to be a repetitive offense.

¶58            Allen argues the trial court committed fundamental error by
imposing greater than presumptive sentences on counts 2, 4, and 5 because
they were not supported by sufficient aggravating factors. (He does not
challenge the sentence imposed for count 3.) Allen contends these
sentences violated his state and federal due process rights. Additionally,
he argues the court improperly applied the dangerous crime against
children enhancement to count 2. Because he did not raise these arguments
to the trial court, we review for fundamental error. Henderson, 210 Ariz. at
567 ¶ 19. “An illegal sentence constitutes fundamental error.” State v. Forde,
233 Ariz. 543, 574 ¶ 137 (2014).

              A. Count 2: dangerous crimes against children
                 enhancement

¶59            Allen argues he was incorrectly sentenced on count 2
(conspiracy to commit child abuse) as a dangerous crime against children
in the first degree under § 13-705(D). He contends he should have been
sentenced under § 13-705(J) as a dangerous crime against children in the
second degree. We agree. Section 13-705(O) provides that “[a] dangerous
crime against children is in the first degree if it is a completed offense and
is in the second degree if it is a preparatory offense.” We have stated that
“[b]ecause § 13-705 does not itself define ‘preparatory offense,’ the phrase
is best understood as referencing the offenses identified in Title 13, chapter
10 (‘Preparatory Offenses’) of the criminal code—attempt, solicitation,
conspiracy, and facilitation.” Wright v. Gates, 243 Ariz. 118, 120 ¶ 10 (2017).

¶60           Allen was convicted on count 2 for conspiracy, a preparatory
offense under A.R.S. § 13-1003, to commit child abuse, an enumerated
dangerous crime against children under § 13-705(P)(1)(h). Allen’s offense
was therefore a dangerous crime against children in the second degree,
§ 13-705(O), and he should have been sentenced under § 13-705(J). The
maximum sentence under that section is fifteen years’ imprisonment, and
Allen was sentenced to twenty-four years’ imprisonment. The trial court
must resentence Allen on count 2 under the proper subsection.




                                      20
                               STATE V. ALLEN
                             Opinion of the Court


              B. Counts 2, 4–5: propriety of aggravated sentences

¶61            The trial court imposed the maximum prison term on count 5
and imposed aggravated prison terms on counts 2 and 4. Allen argues that
insufficient aggravating factors supported these sentences.

¶62            A trial court may impose a maximum prison term only if one
or more statutory aggravating factors are found by a jury or admitted by
the defendant. A.R.S. § 13-701(C). The court may impose an aggravated
sentence only if two or more statutory aggravated factors are found by a
jury or admitted by the defendant. A.R.S. §§ 13-702(C) (first time
offenders), -703(E), (F), (K) (repetitive offenders). Section 13-701(D)
provides a list of specific aggravators and one “catch-all” aggravator, § 13-
701(D)(27). The “catch-all” aggravator is “[a]ny other factor that the state
alleges is relevant to the defendant’s character or background or to the
nature or circumstances of the crime.” Id.

¶63           A maximum or aggravated sentence cannot be based solely
on one or more “catch-all” aggravators because doing so would violate due
process. The “catch-all” aggravator is “patently vague” and would “give[]
the sentencing court virtually unlimited post hoc discretion to determine
whether the defendant’s prior conduct is the functional equivalent of an
element of the aggravated offense.” State v. Schmidt, 220 Ariz. 563, 566
¶¶ 9–10 (2009). But the “catch-all” aggravator may be used to guide the
sentencing judge’s discretion in deciding whether to impose a sentence
“within a properly determined maximum range” established by specific
aggravators found consistently with Apprendi v. New Jersey, 530 U.S. 466,
490 (2000). Id. ¶ 11; see also State v. Bonfiglio, 231 Ariz. 371, 373 ¶ 9 (2013).

                      1. Count 2

¶64          On count 2, conspiracy to commit child abuse, the jury found
that A.D. was a child under the age of fifteen. The presumptive sentence
under § 13-705(D) for dangerous crimes against children in the first degree
was seventeen years, but the trial judge imposed a maximum sentence of
twenty-four years’ imprisonment. (And, as stated above, the court should
have sentenced Allen for a dangerous crime against children in the second
degree.) Allen argues the court illegally imposed a maximum sentence
because the victim’s age is not a specific aggravator under § 13-701(D).
Therefore, he asserts, A.D.’s age can only be considered a “catch-all”



                                       21
                              STATE V. ALLEN
                            Opinion of the Court


aggravator, which is insufficient alone to support a sentence greater than
the presumptive sentence.

¶65            The State makes two arguments supporting imposition of a
maximum sentence. First, it asserts Allen had a prior conviction (count 5),
which is a specific aggravator, § 13-701(D)(11), sufficient to support the
sentence. Although the trial court did not refer to the prior conviction as a
basis for imposing a maximum sentence, it was not required to do so to
properly use A.D.’s age as a “catch-all” aggravator. See Bonfiglio, 231 Ariz.
at 373 ¶ 10. And Apprendi allows the judge, rather than the jury, to find the
existence of a prior conviction. 530 U.S. at 490. But Allen’s conviction on
count 5 does not constitute an aggravator under § 13-701(D)(11). That
provision applies to felony convictions entered “within the ten years
immediately preceding the date of the offense.” Allen was not convicted
on count 5 before he committed the offense underlying count 2, and § 13-
701(D)(11) is therefore inapplicable.

¶66           The State also notes the trial court found that the crime
underlying count 2 was “heinous” and argues this established the
aggravator listed in § 13-701(D)(5) sufficient to support the sentence. The
court’s statement during sentencing on count 2 that the crime was a
“heinous act” did not constitute a finding that the crime was “especially
heinous” as provided in § 13-701(D)(5). And even if the court made such a
finding, it would violate Apprendi to use it to impose the maximum sentence
because the jury did not make the finding. 530 U.S. at 490; see also Bonfiglio,
231 Ariz. at 373 ¶ 9; Schmidt, 220 Ariz. at 566 ¶ 11. We disagree with the
State that no reasonable jury could fail to find that the aggravator exists.
Allen’s count 2 conviction was conspiracy to commit child abuse. Although
the jury determined that the first degree murder, count 1, was especially
heinous or depraved, it does not necessarily follow it would also find
conspiracy, an inchoate crime, to be especially heinous or depraved. For all
these reasons, the trial court could not have correctly based a maximum
sentence on the heinousness aggravator, § 13-701(D)(5).

¶67           We vacate Allen’s sentence on count 2 and remand for
resentencing.
                   2. Count 4

¶68           The trial court sentenced Allen to an aggravated sentence of
3.75 years’ imprisonment on count 4, intentional child abuse, as a class 4
felony with one prior conviction, non-dangerous and repetitive. The


                                      22
                             STATE V. ALLEN
                           Opinion of the Court


presumptive sentence was 2.5 years’ imprisonment. § 13-703(H). The jury
found one aggravating circumstance—that the crime was committed in the
presence of an accomplice—which is an aggravator listed in § 13-701(D)(4).
But the court could not impose an aggravated sentence unless “at least two
aggravating circumstances listed in § 13-701, subsection D apply.” § 13-
703(E). The State contends a prior conviction under § 13-701(D)(11)
constitutes the second aggravator. But as discussed in conjunction with
count 2, Allen’s conviction under count 5 does not qualify as an aggravating
factor for a prior conviction. See supra ¶ 65.

¶69           We vacate Allen’s sentence on count 4 and remand for
resentencing.
                   3. Count 5

¶70            Allen was convicted of reckless child abuse, a class 3 felony,
for conduct that occurred in the months leading up to A.D.’s murder. The
jury found that the crime was “especially cruel,” which is an aggravator
listed in § 13-701(D)(5). The trial court sentenced Allen to an aggravated
sentence of 8.75 years’ imprisonment pursuant to § 13-702(D) for first-time
offenders.

¶71          The State argues that an aggravated sentence is proper
because the court also found as two “catch-all” aggravating factors that
A.D. was only 10 years old and that Allen subsequently repeated his actions
by confining A.D. in the box, which ultimately led to her death. An
aggravated sentence requires two specific aggravators. See § 13-702(C).
Because the jury did not find a second specific aggravator, we vacate the
sentence on count 5 and remand for resentencing.

              V. Issues raised to avoid preclusion

¶72           Allen lists twelve other claims he acknowledges this Court
has previously rejected but that he seeks to preserve for federal review. We
decline to revisit these claims.

                              CONCLUSION

¶73          We affirm Allen’s convictions. We also affirm the death
sentence and the sentence imposed on count 3. We vacate the sentences
imposed on counts 2, 4, and 5 and remand the case to the trial court for
resentencing in accordance with this opinion.


                                     23
