                                IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
                        THE STATE OF ARIZONA,
                               Appellee,

                                   v.

                            SHAWNA FORDE,
                               Appellant.

                          No. CR-11-0043-AP
                         Filed January 17, 2014

             Appeal from the Superior Court in Pima County
            The Honorable John S. Leonardo, Presiding Judge
                         No. CR20092300-001

                      AFFIRMED AS MODIFIED

COUNSEL:

Thomas C. Horne, Arizona Attorney General, Robert L. Ellman, Solicitor
General, Jeffrey A. Zick, Chief Counsel, Capital Litigation Section,
Susanne Bartlett Blomo, Assistant Attorney General (argued), Phoenix, for
State of Arizona

Amy Armstrong, Director, Natman Schaye, Julie Hall (argued), Arizona
Capital Representation Project, Tucson, for Shawna Forde

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

JUSTICE TIMMER, opinion of the Court:

¶1           Shawna Forde was sentenced to death after a jury found her
guilty of two counts of first degree felony murder and six other felonies
committed during a home invasion. We have jurisdiction over her
                             STATE V. FORDE
                            Opinion of the Court

automatic appeal under Article 6, Section 5(3) of the Arizona Constitution
and A.R.S. § 13-4031. 1

                             BACKGROUND 2

¶2            Forde was the self-proclaimed leader of a private
“minuteman” border monitoring group. To fund her operation, she
planned to steal from a house in Arivaca owned by victim Raul Flores, a
reputed drug dealer. In May 2009, Forde met with minuteman members
in Colorado, discussed her plan, and sought their help. She also sought
assistance from Arivaca drug dealers Albert Gaxiola and Oin Oakstar,
who had been plotting to kill Flores as a perceived rival in the drug trade.
A few days before the murders, Forde and Jason Bush, her “number two
guy” in the minuteman group, met with Gaxiola and Oakstar and
discussed killing Flores and stealing drugs and money.

¶3           On the morning of May 29, as Oakstar, Forde, and Bush
slowly drove by Flores’s home, Flores’s wife Gina and their nine-year-old
daughter Brisenia were in the front yard. Gaxiola later asked Oakstar to
go with him to “take care” of Flores, but Oakstar declined, saying he was
too drunk.

¶4           That night, Forde and Bush returned to Flores’s home with
Gaxiola and at least one other person. Forde awakened the family by
banging on the front door and shouting. When Flores opened the door,
Forde demanded entry or else, she said, “we’re going to shoot you.”
Flores stepped aside, and Forde and Bush, dressed in camouflage and
Bush with a blackened face, rushed in. While Bush, who was armed,
stood by, Forde ordered Flores to sit near Gina, who was seated on a
couch where Brisenia lay sleeping.




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

2       We view the facts in the light most favorable to sustaining the
jury’s verdicts. State v. Garcia, 224 Ariz. 1, 7 ¶ 2 n.1, 226 P.3d 370, 376 n.1
(2010).


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                          Opinion of the Court

¶5            Flores asked what was occurring, and Bush replied, “don’t
take this personal[ly] but this bullet has your name on it.” Flores jumped
up and wrestled with Bush, and Bush shot him. Bush then shot Gina
twice, and she fell to the floor and pretended to be dead. Flores shouted
for Bush to stop, prompting Bush to shoot Flores several more times,
killing him. During these shootings, Forde did not react or ask Bush to
stop.

¶6           Forde then announced that everything was clear, and two
other intruders entered the house. Forde left the room and began
rummaging through drawers in the master bedroom. Meanwhile, Bush
questioned Brisenia and then shot her twice, killing her. Forde returned to
the living room saying they needed to hurry because someone was
coming. The intruders then broke the lights in the house and ran out.

¶7             Gina called 911. While she was on the telephone, Forde,
who had shed her camouflage jacket and pulled her hair into a ponytail,
came back into the house to retrieve a dropped gun. Forde spotted Gina
and ran outside, shouting for someone to “finish [her] off.” Bush re-
entered the house and began firing at Gina, who returned fire, injuring
Bush and prompting him to flee. Gaxiola then entered the house but
quickly departed after realizing Gina had recognized him. Shortly
thereafter, the intruders left.

¶8             Forde, Bush, and Gaxiola went to Gaxiola’s home. Gaxiola
returned to observe the murder scene and texted Forde saying, “cops on
scene, lay low.” Forde responded, “no worries, all good, just relax,
competition gone.” She then took care of Bush’s wound. A few hours
later, she texted her daughter saying, “whatever goes down, I’m in deep
now. I love you, make me proud, and do something good with your life.”

¶9           After learning of the murders, R.W. and R.C., who had
attended the Colorado minuteman meeting, called the FBI and told them
about Forde’s plans. Police stopped Forde as she was driving on June 12
and arrested her. A belt buckle marked “G” and jewelry taken from
Gina’s bedroom during the home invasion were found in Forde’s purse,
which was in her car.

¶10        The State indicted Forde on two counts of first degree
murder as well as first degree burglary, attempted first degree murder,

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                            Opinion of the Court

aggravated assault causing serious physical injury, aggravated assault
with a deadly weapon, armed robbery, and aggravated robbery. A jury
found her guilty on all counts. During the aggravation phase, the jury
found three aggravating circumstances for Flores’s murder and four
aggravating circumstances for Brisenia’s. After receiving evidence in the
penalty phase, the jury determined that Forde should be sentenced to
death for each murder. The trial court then imposed death sentences for
the murders and prison sentences totaling seventy-five years for the non-
capital counts.

                               DISCUSSION

       I.     PRETRIAL

              A.     Pretrial Publicity

¶11           Forde unsuccessfully moved to change venue from Tucson
based on extensive media coverage of the crimes, some of which was
inaccurate or inflammatory. We review the trial court’s ruling for an
abuse of discretion. State v. Cruz, 218 Ariz. 149, 156 ¶ 12, 181 P.3d 196, 203
(2008).

¶12            Our review entails a two-step inquiry to decide “whether,
under the totality of the circumstances, the publicity attendant to
defendant’s trial was so pervasive that it caused the proceedings to be
fundamentally unfair.” Id. ¶ 13 (internal quotation marks omitted). We
first consider whether the publicity so pervaded the proceedings that the
trial court erred by not presuming prejudice. Id. ¶ 14. If not, we ask
whether the defendant showed actual prejudice. Id. Forde does not assert
the existence of actual prejudice but argues that the trial court erred by
failing to presume prejudice.

¶13           A court presumes prejudice “only if the ‘media coverage
was so extensive or outrageous that it permeated the proceedings or
created a carnival-like atmosphere.’” Id. at 157 ¶ 15, 181 P.3d at 204
(quoting State v. Atwood, 171 Ariz. 576, 631, 832 P.2d 593, 648 (1992))
(internal quotation marks omitted). The publicity must be so unfair,
prejudicial, and pervasive that jurors could not decide the case fairly, even
if they avow otherwise. State v. Bible, 175 Ariz. 549, 565, 858 P.2d 1152,
1168 (1993). The burden to show presumed prejudice is “extremely

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                           Opinion of the Court

heavy.” Id. at 564, 858 P.2d at 1167 (quoting Coleman v. Kemp, 778 F.2d
1487, 1537 (11th Cir. 1985)).

¶14            The publicity surrounding this case was not so pervasive
and prejudicial that the court should have presumed prejudice. Most of
the publicity occurred in the immediate aftermath of the crimes —
approximately eighteen months before trial. Moreover, most news
accounts were essentially factual. We have held that the trial court
properly refused to presume prejudice under similar circumstances. See,
e.g., Cruz, 218 Ariz. at 157 ¶ 18, 181 P.3d at 204 (finding no presumed
prejudice when publicity occurred more than a year before trial and was
almost entirely accurate); State v. Blakley, 204 Ariz. 429, 434 ¶ 15, 65 P.3d
77, 82 (2003) (refusing to presume prejudice when local inflammatory
news stories appeared primarily at the time of the crime or in pretrial
stages); Bible, 175 Ariz. at 563–64, 858 P.2d at 1166–67 (finding news
containing inadmissible or inaccurate evidence did not create presumed
prejudice when the stories of rape and murder of nine-year-old child were
published “months before trial began” and nearly all coverage was based
on factual evidence admitted at trial).

¶15          Forde asserts that the trial court erroneously discounted the
significance of internet news stories because, although they were
published well before her trial began, they remained accessible online.
Forde has not shown, however, that the continuing availability of internet
news equates to continuing coverage and, more importantly, continuing
readership by prospective jurors.

¶16           Forde also argues that a change of venue was warranted by
the extensive publicity surrounding the January 8, 2011 shootings of
Congresswoman Gabrielle Giffords and others in Tucson (the “Giffords
shootings”), which occurred just three days before the originally
scheduled start of trial. Because Forde never asked for a change of venue
on this basis, we review only for fundamental error. State v. Henderson,
210 Ariz. 561, 567 ¶ 19, 115 P.3d 601, 607 (2005). Under this standard of
review, Forde bears the burden of proving that fundamental error
occurred and that it prejudiced her. Id. ¶ 20. “Fundamental error” is
“error going to the foundation of the case, error that takes from the
defendant a right essential to his defense, [or] error of such magnitude
that the defendant could not possibly have received a fair trial.” Id. ¶ 19.


                                     5
                            STATE V. FORDE
                           Opinion of the Court

¶17            We do not find any error, much less fundamental error.
Forde made no showing that publicity about the Giffords shootings had a
spill-over effect on Forde’s trial or created a carnival-like atmosphere in
this case. Although this case and the Giffords shootings each involved the
shooting death of a nine-year-old girl, this common element is insufficient
to justify a presumption that the publicity surrounding the Giffords
shootings deprived Forde of a fair trial. See State v. Lane, 431 S.E.2d 7, 9
(N.C. 1993) (holding that a change of venue was not warranted due to
publicity surrounding an unrelated murder with common features
because the defendant failed to establish any specific prejudice against
him as a result of the publicity).

             B.     Motions to Continue

¶18           Forde argues that the trial court violated her rights to due
process, a fair trial, effective assistance of counsel, and to be free from
cruel and unusual punishment by denying motions to continue the trial
because (1) the State belatedly disclosed evidence that necessitated
investigation, and (2) the Giffords shootings on the eve of trial tainted
potential jurors. A trial court must grant a continuance “only upon a
showing that extraordinary circumstances exist and that delay is
indispensible to the interests of justice.” Ariz. R. Crim. P. 8.5(b). We
review a trial court’s denial of a motion to continue for an abuse of
discretion, State v. Dixon, 226 Ariz. 545, 555 ¶ 53, 250 P.3d 1174, 1184
(2011), which we will find only if the defendant demonstrates prejudice,
State v. VanWinkle, 230 Ariz. 387, 390 ¶ 7, 285 P.3d 308, 311 (2012).

             1.     Late Disclosure

¶19            In the hours after the shootings, a text message was sent
from Forde’s cell phone stating that “Red” had been injured; Bush was
nicknamed “Red.” Less than a week before the January 11, 2011 start of
trial, the State disclosed FBI reports containing a witness’s statement that
Leland “Red” Sprout had been involved in the shootings. Forde moved to
continue the trial so she could investigate, claiming that evidence of
Sprout’s involvement was exculpatory because Forde had no connection
to him and it impeached the witness, who had not mentioned Sprout
during defense interviews. The trial court denied the motion, finding that
the information had only speculative evidentiary value and would not be


                                      6
                            STATE V. FORDE
                           Opinion of the Court

materially exculpatory. But the court permitted Forde to re-interview the
witness, who later testified at trial.

¶20           Forde primarily argues that the trial court erred by
considering whether the evidence was exculpatory rather than
determining whether the late disclosure was harmless beyond a
reasonable doubt, the standard applied in State v. Krone, 182 Ariz. 319, 897
P.2d 621 (1995). Krone did not alter the standard for considering trial
continuances, as Forde suggests. The issue in Krone was whether a new
trial was warranted in light of the introduction of evidence in violation of
disclosure rules. Id. at 321, 897 P.2d at 623. Resolving that issue turned on
whether the state could demonstrate harmless error. In this case, because
the FBI reports were not introduced in evidence, Krone is inapplicable.
The trial court correctly placed the burden on Forde to demonstrate
“extraordinary circumstances” necessitating a continuance. See Ariz. R.
Crim. P. 8.5(b).

¶21          Forde also argues that the belated disclosure constituted
“extraordinary circumstances” justifying a continuance because an
investigation could have revealed evidence of Sprout’s involvement,
which would have created a reasonable doubt about Forde’s guilt or the
appropriateness of death sentences. We disagree. Although Sprout’s
involvement could have cast doubt on Bush’s presence at the shootings, it
would not have shown Forde’s absence or otherwise tended to exculpate
her.

¶22           Forde further fails to show that the denial of her motion
prejudiced her rights. She does not allege that her second interview of the
witness was inadequate, and she does not show that the court’s ruling
hampered her investigation of Sprout’s alleged involvement. Moreover,
because the trial was ultimately continued for eight days for other reasons,
Forde had additional time to investigate.

             2.     Giffords Shootings

¶23           Two days after the Giffords shootings, Forde moved to
continue her trial, which had been scheduled to start the next day, arguing
that trying the case in the immediate aftermath of the Giffords shootings
would be unfair because jurors might transfer their emotional distress to
Forde in light of similarities between the crimes. Although the court

                                     7
                             STATE V. FORDE
                            Opinion of the Court

denied the motion, it nonetheless continued the trial for eight days, in part
because “the events of the past several days along with continuing
developments within the community have created an atmosphere that’s
not conducive to going forward with the trial today.” On the new trial
date, Forde renewed her motion, contending that the publicity and
emotions stemming from the Giffords shootings had not subsided. The
trial court denied the motion.

¶24           Forde argues that the shock and grief experienced by Tucson
residents after the Giffords shootings presented the type of “extraordinary
circumstances” that warranted a trial continuance. She points out that her
lead attorney, Eric Larsen, initially argued he was emotionally incapable
of providing Forde with an adequate defense, which was later evidenced
by inadequate voir dire. But Larsen later told the court that the eight-day
trial continuance alleviated his personal issues. And any inadequacy in
the voir dire should be considered in the context of an ineffective-
assistance-of-counsel claim, which is not before us. See State v. Spreitz, 202
Ariz. 1, 3 ¶ 9, 39 P.3d 525, 527 (2002) (requiring “ineffective assistance of
counsel claims . . . to be brought in Rule 32 proceedings”).

¶25          Forde     additionally      contends       that    “extraordinary
circumstances” existed because it was impossible to seat a jury not deeply
affected by the Giffords shootings. As previously explained, however,
Forde fails to demonstrate that the emotional distress caused by the
Giffords shootings affected the jurors’ ability to fairly reach a verdict.

¶26          The appropriate way to determine the impact of a significant
unrelated event in the community is to question potential jurors during
the voir dire process. Forde’s attorney took that opportunity and
questioned potential jurors about the impact of the Giffords shootings.
Only one person indicated he might not be able to be fair, and the court
excused him.

¶27          Accordingly, the trial court did not err by denying Forde’s
motions to continue.




                                      8
                             STATE V. FORDE
                            Opinion of the Court

              C.     Dessureault Hearing

¶28           Gina was unable to identify Forde in a photo line-up, but
when Gina and Forde both attended a pretrial hearing on September 27,
2010, Gina recognized Forde as the female intruder. Forde moved to
preclude any in-court identification of her based on this pretrial
identification. Following a hearing held pursuant to State v. Dessureault,
104 Ariz. 380, 453 P.2d 951 (1969), the trial court concluded that the
identification was made in suggestive circumstances, but denied the
motion because Gina’s identification was nevertheless reliable. We defer
to the court’s factual findings unless they are clearly erroneous, but we
review the court’s ruling on the constitutionality of a pretrial identification
de novo as a mixed question of law and fact. State v. Moore, 222 Ariz. 1, 7
¶ 17, 213 P.3d 150, 156 (2009).

¶29           Forde contends that the trial court violated her due process
rights by refusing to continue the Dessureault hearing to permit additional
witness interviews, precluding evidence at the hearing, and then ruling
that Gina’s identification was reliable and therefore admissible. We reject
these arguments because the court was not required to conduct a
Dessureault hearing, and therefore any error was harmless.

¶30            In Perry v. New Hampshire, the Supreme Court clarified — as
this Court had previously held — that only state action requires a
Dessureault-type hearing. 132 S. Ct. 716, 730 (2012) (“[T]he Due Process
Clause does not require a preliminary judicial inquiry into the reliability
of an eyewitness identification when the identification was not procured
under unnecessarily suggestive circumstances arranged by law
enforcement.”); see also State v. Williams, 166 Ariz. 132, 137, 800 P.2d 1240,
1245 (1987). The Court reasoned that decisions requiring pretrial judicial
scrutiny “turn on the presence of state action and aim to deter police from
rigging identification procedures, for example, at a lineup, showup, or
photograph array.” 132 S. Ct. at 721. Significantly, the Court concluded
that “[t]he fallibility of eyewitness evidence does not, without the taint of
improper state conduct, warrant a due process rule requiring a trial court
to screen such evidence for reliability before allowing the jury to assess its
creditworthiness.” Id. at 728.

¶31           Forde concedes that the confrontation between Forde and
Gina at the pretrial hearing did not result from state action, and the record

                                      9
                             STATE V. FORDE
                            Opinion of the Court

supports the concession. Gina routinely attended pretrial hearings, but
Forde generally waived her appearance. Nothing suggests that the State
asked Gina to attend the September 27 hearing to see Forde. Indeed, Gina
waited about six weeks to tell the State she had recognized Forde.
Because there was no state action involved in Gina’s pretrial identification
of Forde, there was no due process concern, and the trial court was not
required to hold a Dessureault hearing.

¶32           Forde attempts to avoid Perry and Williams by arguing that
because the Dessureault hearing was held, the court was required to
comply with due process. She cites cases concerning “state-created”
rights, which require due process once invoked. See Conn. Bd. of Pardons v.
Dumschat, 452 U.S. 458, 463 (1981) (“A state-created right can, in some
circumstances, beget yet other rights to procedures essential to the
realization of the parent right.”); Wolff v. McDonnell, 418 U.S. 539, 556–58
(1974) (holding that depriving inmates of state-created right to good-time
credits in prison disciplinary proceedings requires due process). But the
Dessureault hearing was not a state-created right. The fact that the court
granted Forde’s request for the hearing did not resurrect due process
rights deemed inapplicable by Perry and Williams.

¶33           Forde also relies on State v. Nordstrom, 200 Ariz. 229, 241
¶ 26, 25 P.3d 717, 729 (2001), overruled in part on other grounds by State v.
Ferrero, 229 Ariz. 239, 274 P.3d 509 (2012), to argue that due process
concerns can sometimes be implicated “in the absence of state action”
when “evidence lacking in foundation reaches the jury under
circumstances that do not afford a defendant an opportunity to point out
its weaknesses.” The concerns set forth in Nordstrom are not implicated
here, however, because Forde thoroughly cross-examined Gina about the
inconsistencies between her initial description of the female perpetrator
and Forde’s appearance, as well as Gina’s inability to identify Forde in the
photo line-up. Further, Forde presented expert testimony challenging the
identification.

¶34            In a related argument, Forde asserts that the trial court erred
by failing to give a cautionary instruction to the jury regarding eyewitness
identification, as suggested by Perry. Forde waived this issue by not
raising it until her reply brief.



                                     10
                           STATE V. FORDE
                          Opinion of the Court

             D.     Preclusion of Victim Advocate’s Testimony

¶35           When Gina saw Forde at the pretrial hearing, she
commented to her mother and her victim advocate that Forde looked like
the female intruder. Forde subpoenaed the advocate to testify at trial, but
the court granted the State’s motion to quash and prohibited Forde from
interviewing the advocate, reasoning that the advocate was prohibited
from divulging the conversation pursuant to the crime victim advocate
privilege in A.R.S. § 13-4430. Forde contends that Gina waived the
privilege by testifying about the conversation at the Dessureault hearing,
and the court therefore violated her right to confront witnesses and to due
process by allowing Gina to testify about the conversation “yet block[ing]
the defense from disputing that testimony with the testimony of the
advocate herself.” Because Forde raises these arguments for the first time
on appeal, we review for fundamental error. Henderson, 210 Ariz. at 567 ¶
19, 115 P.3d at 607.

¶36           At the time of Forde’s trial, A.R.S. § 13-4430(A) and (C)
(2011) prohibited a crime victim advocate from disclosing “as a witness or
otherwise any communication . . . between himself and the victim” unless
the advocate “knows that the victim will give or has given perjured
testimony or if the communication contains exculpatory evidence.” 3 The
victim waives the privilege only by consenting in writing. A.R.S. § 13-
4430(A) (2011). Because Gina did not provide written consent, she did not
waive the privilege. Also, nothing in the record suggests that the
information the victim advocate might have given was exculpatory.
Indeed, Forde did not move for disclosure of the information, which
would have permitted the court to hold an in camera hearing and order
disclosure if it found “reasonable cause to believe the material [was]
exculpatory.” A.R.S. § 13-4430(D) (2011). The privilege required the
exclusion of the conversation.

¶37          Application of the privilege did not violate Forde’s
confrontation and due process rights by allowing the State to introduce
evidence of the conversation between Gina and the advocate and then
blocking Forde from disputing its content. Forde ― not the State ― asked

3     In 2012, the legislature amended § 13-4430(A) to prohibit the
advocate from disclosing “as a witness or otherwise any communication
made by or with the victim . . . .”
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                            Opinion of the Court

Gina about the pretrial hearing and her conversation with the advocate to
cast doubt on the identification. Moreover, precluding the advocate’s
testimony did not impede Forde from cross-examining Gina or arguing
that Gina’s identification was unreliable. Cf. Pennsylvania v. Richie, 480
U.S. 39, 52–53 (1987) (holding that the right to confrontation is a trial right
and is normally satisfied “if defense counsel receives wide latitude at trial
to question witnesses”).

              E.     Defense Counsel’s Motion to Withdraw

¶38             Attorneys Eric Larsen and Jill Thorpe represented Forde at
trial. An acquaintance of Forde, purporting to act on her behalf, filed
identical bar complaints against both attorneys before trial. Citing advice
imparted by the State Bar’s advisory ethics counsel, Larsen moved to
withdraw to enable the court to decide whether new counsel was
required. Both Larsen and Thorpe stated, however, that the bar
complaints would not substantially interfere with their representation.
Additionally, Forde told the court that she had read one complaint, did
not authorize its filing, and that she was “100 percent” satisfied with her
attorneys. As a result, the court moved on to other pretrial matters,
effectively denying the motion. See State v. Hill, 174 Ariz. 313, 323, 848
P.2d 1375, 1385 (1993) (“A motion that is not ruled on is deemed denied by
operation of law.”). We review the ruling for an abuse of discretion. See
State v. Jones, 185 Ariz. 471, 480, 917 P.2d 200, 209 (1996).

¶39           Forde argues that the bar complaints placed the attorneys
and Forde in adversarial roles that created a conflict of interest in violation
of Ethical Rule (“ER”) 1.7(a)(2), which prohibits representation when
“there is a significant risk that the representation . . . will be materially
limited by the lawyer’s . . . personal interest.” Because Forde did not file
or authorize the bar complaints, however, she did not have an adversarial
relationship with her attorneys. And even if Forde had filed the
complaints, the court was not required to remove her attorneys. See State
v. Henry, 189 Ariz. 542, 549, 944 P.2d 57, 64 (1997) (holding that, for public
policy reasons, the mere filing of a bar complaint by a defendant against
his attorney does not mandate removal of the attorney). Notably, nothing
indicated a significant risk that the attorneys’ representation of Forde
would be materially limited by the bar complaints. Consequently, the
court did not err by denying the motion to withdraw.


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                             STATE V. FORDE
                            Opinion of the Court

              F.     Disclosure of FBI “Source Files”

¶40           Months before trial, Forde moved for disclosure of all FBI
“source files” regarding R.W. and R.C., attendees at the Colorado
minuteman meeting, including files unrelated to this case. The trial court
denied Forde’s motion, finding that the information was not within the
State’s control and directing Forde to make her request to the FBI. When
the trial began, the State received previously requested FBI source files
regarding this case and promptly disclosed them to the defense.

¶41           Forde argues that the trial court violated her rights to due
process, to present a defense, and to confront witnesses by denying her
motion. She contends that disclosure was required by Arizona Rule of
Criminal Procedure 15.1 and Brady v. Maryland, 373 U.S. 83 (1963). But
neither Rule 15.1 nor Brady requires the state to disclose evidence outside
its possession or control. See Ariz. R. Crim. P. 15.1(b) (requiring the state
to disclose material “within the prosecutor’s possession or control”); State
v. Briggs, 112 Ariz. 379, 383, 542 P.2d 804, 808 (1975) (“The prosecutor
cannot be deemed to have concealed information relating to the guilt or
innocence of the accused, or punishment if he does not procure materials
in the custody of the FBI, an agency which is not under the control of the
prosecutor.”).

              G.     Admission of Informants’ Testimony

¶42           Forde argues that the trial court violated Arizona Rules of
Evidence 403 and 404(b) and deprived her of due process by denying her
motion in limine to preclude R.W. and R.C. from testifying about the
Colorado meeting. According to Forde, evidence of the meeting was
improper “other act” evidence and any probative value was substantially
outweighed by a danger of unfair prejudice. We review the court’s ruling
for an abuse of discretion. State v. McGill, 213 Ariz. 147, 156 ¶ 40, 140 P.3d
930, 939 (2006).

¶43          During the Colorado meeting, Forde related her plan to raid
a house in Arivaca in September to steal weapons, drugs, and money. She
said she had the house under surveillance and asked those present to join
the raid. Forde later called R.C. and asked if he could be ready to assist
immediately.


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                           Opinion of the Court

¶44           The meeting demonstrated Forde’s preparation and plan for
the crimes and was therefore admissible under Rule 404(b), Ariz. R. Evid.
And the court properly rejected Forde’s Rule 403 argument because
evidence of the meeting did not “suggest decision on an improper basis,
such as emotion, sympathy, or horror” and did not give rise to any undue
prejudice. State v. Schurz, 176 Ariz. 46, 52, 859 P.2d 156, 162 (1993).

             H.     Destruction of Evidence

¶45            During the Colorado meeting, Forde drew a rudimentary
map of Arivaca to illustrate the locations of houses, roads, and the United
States-Mexico border. R.C. gave the drawing to the FBI, which later
destroyed it. Forde argues that the trial court violated her state and
federal constitutional rights by failing to preclude evidence of the
Colorado meeting because the FBI destroyed the drawing. Because Forde
raises this issue for the first time on appeal, we review for fundamental
error.4 Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d at 607.

¶46           Law enforcement deprives a defendant of due process by
destroying evidence only if (1) the exculpatory nature of the evidence was
apparent before destruction, and the defendant cannot obtain comparable
evidence through reasonably available means, or (2) the potential
usefulness of the evidence is unknown but the state acted in bad faith by
destroying it. State v. Lehr, 227 Ariz. 140, 150 ¶¶ 40–41, 254 P.3d 379, 389
(2011). Forde has not established either of these bases for relief.

¶47           Forde contends that the map was exculpatory because “it
would have demonstrated her intended target was not a family home, but
rather a stash house.” Because R.C. testified that Forde was not targeting
a house occupied by a family, Forde was able to present that information
to the jury. And both R.W. and FBI Agent Chris Anderson, who later saw
the drawing, testified that it was meaningless standing alone. Thus, at
most, the drawing was only potentially useful and not clearly exculpatory.

¶48          Forde argues that the FBI acted in bad faith because the
destruction occurred after the murders “when it was obvious the map had
evidentiary value.” The record, however, demonstrates only that the FBI

4      Forde incorrectly argues that she preserved this issue in her motion
in limine to preclude evidence of the Colorado meeting.
                                    14
                              STATE V. FORDE
                             Opinion of the Court

acted negligently. Upon receiving the drawing from R.C., Agent
Anderson put it “into a chain of custody” in the FBI’s Denver division.
After the Pima County Sheriff’s Department assumed responsibility for
the investigation, the FBI transferred the drawing and other evidence to its
Phoenix division. The FBI later mistakenly closed the case and destroyed
the evidence. Nothing indicates that the FBI sought to deprive Forde of
the drawing, and the trial court therefore did not err by refusing to
preclude all evidence of the Colorado meeting. Cf. State v. Vickers, 180
Ariz. 521, 528, 885 P.2d 1086, 1093 (1994) (holding that state’s inadvertent
or negligent destruction of evidence did not violate defendant’s due
process rights).

¶49             Forde also argues that the trial court erred in failing to give a
Willits 5 instruction concerning the FBI’s destruction of the map. Because

Forde did not request this instruction, we review for fundamental error.

¶50           A court must give a Willits instruction if the defendant
shows “(1) that the state failed to preserve material and reasonably
accessible evidence having a tendency to exonerate him, and (2) that this
failure resulted in prejudice.” State v. Speer, 221 Ariz. 449, 457 ¶ 40, 212
P.3d 787, 795 (2009) (citation and internal quotation marks omitted).
Because Forde has not established that the drawing had a tendency to
exonerate her, a Willits instruction was unnecessary.

              I.      Waiver of Presence at Pretrial Proceedings

¶51           Forde argues that the trial court violated her federal and
state constitutional rights to be present at trial by accepting her counsel’s
waiver of her presence at almost every pretrial hearing without evidence
that these waivers were knowing, voluntary, and intelligent. Because
Forde did not raise this issue to the trial court, we review for fundamental
error.

¶52          A defendant has a Sixth Amendment right to attend pretrial
proceedings critical to the outcome of the criminal proceeding whenever
the defendant’s presence “would contribute to the fairness of the
procedure.” Kentucky v. Stincer, 482 U.S. 730, 745 (1987). But defense
counsel can waive this right on the defendant’s behalf and, absent

5      State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964).
                                       15
                            STATE V. FORDE
                           Opinion of the Court

exceptional circumstances, the waiver is binding. State v. Rose, 231 Ariz.
500, 504 ¶¶ 9–10, 297 P.3d 906, 910 (2013). Forde has not alleged any
exceptional circumstances that call into question the validity of her
waivers. The trial court did not err by conducting the pretrial proceedings
outside Forde’s presence after her attorney waived her presence.

      II.    GUILT PHASE

             A.     Jury Selection

             1.     Large-Group Voir Dire

¶53            After prospective jurors answered written questions, the
trial court conducted voir dire in four sequestered groups of twenty-five.
Forde argues that the court violated her rights to due process, a fair trial,
an impartial jury, and to be free from cruel and unusual punishment by
refusing to question prospective jurors individually or in sequestered
groups of five. We review for an abuse of discretion. State v. Lynch, 225
Ariz. 27, 34 ¶ 22, 234 P.3d 595, 602 (2010).

¶54           The trial court has discretion to conduct voir dire
individually “when the prospective juror might be embarrassed to confess
his true opinion before an audience or when one juror’s statements
concerning the case might color the entire jury’s outlook.” Ariz. R. Crim.
P. 18.5(d), cmt. Such questioning is “most useful in cases involving
massive publicity or unusually sensitive subjects,” Bible, 175 Ariz. at 570,
858 P.2d at 1173 (citation and internal quotation marks omitted), but is not
required in every capital case, Lynch, 225 Ariz. at 34 ¶ 23, 234 P.3d at 602.

¶55           Forde argues that large-group voir dire impeded selection of
an impartial jury because jurors could have been uncomfortable
answering sensitive questions such as whether they had been crime
victims. But such general questions are not so unusually sensitive that
private questioning is required. Additionally, the court took steps to
ensure that jurors would not be asked to reveal sensitive personal
information publically. The written questionnaire addressed topics that
could have embarrassed a juror if raised in a group setting, and it asked
whether the juror wished to discuss anything privately. During voir dire,
the court called five jurors to the bench to discuss personal information
outside the hearing of other prospective jurors.

                                     16
                            STATE V. FORDE
                           Opinion of the Court

¶56           Forde also asserts that the pretrial publicity in her case,
together with the Giffords shootings, required individual or small-group
voir dire so jurors would answer questions candidly. We disagree. The
written questionnaires extensively addressed news coverage of both cases,
allowing jurors to privately answer questions about the effect of pretrial
publicity. Forde does not point to any answers that triggered a need for
individual or small-group voir dire. Indeed, thirteen of the sixteen
members of the jury panel wrote they either had no exposure or very little
exposure to news coverage of this case.

¶57          Although the court could have exercised its discretion to
conduct individual or small-group voir dire, it did not abuse its discretion
by not doing so.

             2.     Scope of Questioning

¶58           The trial court prohibited Forde from asking prospective
jurors both to identify mitigation they would consider sufficient to call for
leniency and to opine on whether specific circumstances would constitute
such mitigation. The court reasoned it would be improper to effectively
ask jurors to pre-commit to whether specific facts constitute mitigation.
Forde argues that the court violated her rights to due process, to effective
assistance of counsel, to an impartial jury, and to be free from cruel and
unusual punishment by limiting her inquiry. Consistent with our past
decisions, we reject Forde’s arguments. Moore, 222 Ariz. at 19 ¶ 105, 213
P.3d at 168.

¶59           Forde further asserts that the trial court erred by disallowing
two questions posed to Juror 163 seeking to probe his opinion that the
death penalty should be imposed in “egregious” cases. Even if the trial
court committed error, however, it was harmless because Juror 163 was
not seated. See id. at 19 ¶ 100, 213 P.3d at 168 (finding any error in voir
dire of prospective jurors harmless because they either were not
empanelled or served as alternates and did not deliberate). We also reject
Forde’s contention that harmless-error review does not apply because the
court’s ruling impeded her ability to ask similar questions of other
prospective jurors. Forde neither made a continuing objection to the
court’s disallowance of such questions nor offered a list of questions she
was precluded from asking.


                                     17
                             STATE V. FORDE
                            Opinion of the Court

              3.     Failure to Strike Jurors 2 and 3

¶60           Forde asserts that Jurors 2 and 3 stated they would not hold
the State to its burden of proof, and the trial court therefore committed
fundamental error by failing to excuse them from the panel. We disagree.
The jurors’ statements during voir dire did not reflect an unwillingness to
hold the State to its burden of proof. And the entire prospective jury
panel, including Jurors 2 and 3, later indicated they would require the
State to prove the charges beyond a reasonable doubt.

              B.     DNA Evidence

¶61            A silver ring belonging to Gina that was stolen during the
home invasion was found in Forde’s purse at the time of her arrest. Scott
Walton, a DNA analyst from a private lab, testified that a partial DNA
profile generated from the ring matched Forde’s DNA profile. He also
related statistical weights reflecting the prevalence of the profile in various
racial populations.

¶62          Forde argues that the trial court erred by permitting
Walton’s testimony because it was irrelevant and violated her
Confrontation Clause rights. Because Forde raises these issues for the first
time on appeal, we review for fundamental error.

              1.     Relevance

¶63           Walton testified he would expect to find the same partial
DNA profile generated from the ring in 1 in 2000 Caucasians, 1 in 1290
African-Americans, and 1 in 791 Hispanics. Walton explained he would
be confident of the accuracy of a match if the profile would be expected in
only 1 in 280 billion people. Forde argues that because Walton assigned a
relatively low statistical weight to the DNA profile, the evidence was
unreliable and therefore irrelevant, and the trial court erred by admitting
it.

¶64           The DNA evidence was relevant because it tended to make a
fact of consequence in the case “more or less probable than it would be
without the evidence.” Ariz. R. Evid. 401. Although Walton could not say
that the DNA generated from the ring came from Forde, the evidence
increased the probability that Forde had handled the ring and was

                                      18
                            STATE V. FORDE
                           Opinion of the Court

involved in the home invasion. It was the jury’s prerogative to assess the
weight of this evidence.

             2.     Confrontation Clause Rights

¶65            The Sixth Amendment prohibits a court from admitting
testimonial hearsay statements made by a non-testifying witness unless
that person is unavailable and the defendant had a prior opportunity for
cross-examination. Crawford v. Washington, 541 U.S. 36, 68 (2004). In State
v. Gomez, 226 Ariz. 165, 244 P.3d 1163 (2010), we addressed Crawford and
its progeny in the context of DNA testing. There, a DNA analyst testified
that several profiles generated by non-testifying technicians matched the
defendant’s profile. Id. at 166 ¶¶ 3–5, 244 P.3d at 1164. We held that the
Sixth Amendment is not violated so long as the testifying expert refrains
from serving as a conduit for another’s opinion. Id. at 169–70 ¶ 22, 244
P.3d at 1167–68. Because the analyst in Gomez did not act as a conduit for
the opinions of the technicians, relied on the type of information
reasonably relied upon by expert analysts, formed her own opinions, and
was subject to cross-examination, the Court held that the defendant’s
confrontation rights were not violated. Id. at 170 ¶¶ 23–24, 244 P.3d at
1168; see also State v. Snelling, 225 Ariz. 182, 187 ¶ 20, 236 P.3d 409, 414
(2010) (finding no Sixth Amendment violation when a testifying medical
examiner offered opinions about cause of death based on review of
photographs of the victim and autopsy report prepared by another
pathologist).

¶66           Unlike the situation in Gomez, it is unclear whether Walton
testified about his own opinions or simply relayed those of a fellow
analyst, Emily Jeskie. Jeskie performed “the DNA work” on the ring and
other evidence, and Walton said he was familiar with her results and
would testify about them. Later, however, he referred to himself as the
person who matched the ring’s partial profile to Forde’s profile and
assigned the statistical weights. But even assuming Walton merely
relayed Jeskie’s expert opinions, thereby depriving Forde of her
confrontation rights, Forde has not demonstrated fundamental error or
prejudice. Even without the DNA evidence, Forde was linked to the ring
as it was found in her purse, which she possessed at the time of her arrest.
Thus, it is unlikely the jury would have reached a different conclusion
absent the DNA evidence.


                                    19
                            STATE V. FORDE
                           Opinion of the Court

             C.     Eyewitness Identification Expert/Prosecutorial
                    Misconduct

¶67            The trial court precluded Dr. Geoffrey Loftus, an expert on
memory and perception, from offering a specific opinion about the
reliability of Gina’s identification of Forde, although it permitted him to
testify about factors affecting the accuracy of eyewitness identification.
The court later sustained the State’s objection to Forde’s hypothetical
question that matched the circumstances surrounding Gina’s
identification of Forde. Forde argues that the court violated her rights to
due process, to present a defense, and to confront witnesses by restricting
Dr. Loftus’s testimony. We review the court’s ruling for an abuse of
discretion. State v. Chapple, 135 Ariz. 281, 297, 660 P.2d 1208, 1224 (1983).

¶68             The court appropriately restricted Dr. Loftus’s testimony.
We have repeatedly held that while an expert may educate a jury by
testifying about behavioral characteristics affecting the accuracy of
eyewitness identification, the expert may not usurp the jury’s role by
offering opinions concerning the accuracy, reliability, or credibility of a
particular witness. See State v. Lindsey, 149 Ariz. 472, 475, 720 P.2d 73, 76
(1986); Chapple, 135 Ariz. at 297, 660 P.2d at 1224. This principle holds
even if an expert offers an opinion about a particular witness under the
guise of a hypothetical situation. See Lindsey, 149 Ariz. at 475, 720 P.2d at
76 (precluding expert from giving “opinions with respect to the accuracy,
reliability or truthfulness of witnesses of the type under consideration”).

¶69           Forde additionally asserts that the prosecutor took unfair
advantage of the court’s ruling and committed misconduct by asking Dr.
Loftus whether he could relate how the principles of eyewitness
identification applied in this case and by later vouching for Gina’s
credibility. Because Forde did not object at trial, we review for
fundamental error.

¶70           Dr. Loftus testified on direct examination that a victim of an
attack involving one armed and two unarmed assailants would focus on
the assailant brandishing the gun. On cross-examination, the prosecutor
asked a series of questions designed to elicit Dr. Loftus’s admission that
he could not be positive how a victim in this circumstance would react.
Because these questions did not insinuate that Dr. Loftus held no opinion
about Gina’s identification of Forde, the prosecutor did not take unfair

                                     20
                            STATE V. FORDE
                           Opinion of the Court

advantage of the court’s ruling and did not commit misconduct. See State
v. Payne, 674 Ariz. Adv. Rep. 5 ¶ 116 (Nov. 21, 2013) (alterations in
original) (“Counsel’s ‘[s]uggestion by question or innuendo of
unfavorable matter which is not in evidence and which would be
irrelevant, or for which no proof exists[,] is improper and can constitute
misconduct’”); State v. Hughes, 193 Ariz. 72, 85 ¶ 59, 969 P.2d 1184, 1197
(1998) (“Counsel’s questioning and argument, however, cannot make
insinuations that are not supported by the evidence.”). The prosecutor
fairly tested the limits of Dr. Loftus’s opinion, and the trial court did not
err by permitting these questions.

¶71            During closing argument, the prosecutor addressed the
credibility of Gina’s identification of Forde as follows:

      What mother would not want to sit up on the stand after
      you have heard the police had arrested a woman accused of
      murdering your daughter and say, absolutely that is the
      woman.

      But she didn’t do that. What she told you was, and I submit
      to you honestly, was, no, I just can’t tell you, I don’t know
      her. I think those were Gina’s words. I don’t know her. I
      can’t tell you that’s the same person, but she looks just like
      that person.

Forde argues that by using the phrase, “I submit to you honestly,” the
prosecutor improperly vouched for Gina by placing the prestige of the
State behind her. See State v. Vincent, 159 Ariz. 418, 423, 768 P.2d 150, 155
(1989) (holding that a prosecutor commits improper vouching by placing
the prestige of the government behind a witness).

¶72          We agree with Forde that the prosecutor improperly
vouched for Gina by conveying his personal belief that she had testified
honestly. See State v. Lamar, 205 Ariz. 431, 441 ¶ 54, 72 P.3d 831, 841
(2003). But the misconduct did not result in fundamental error. Gina’s
honesty was not disputed by Forde. Rather, Forde sought to discredit
Gina’s identification testimony by challenging her memory and
perception of events. Indeed, Forde sought to bolster Gina’s credibility
during closing argument:


                                     21
                              STATE V. FORDE
                             Opinion of the Court

       Gina [] says no, it is not her. She is our best witness for the
       defense. She doesn’t like hearing that, I wouldn’t like it if I
       were in her position; but she is our best witness. Close in
       time, her perceptions, her memories have yet to be changed.
       Yet to be interfered with. Close in time, it was a brown-
       haired woman that was in that home. And at that time [it
       was] uncontradicted [that] Shawna Forde was a bright
       blond[e].

Thus, the prosecutor’s vouching did not strike at the foundation of the
case or adversely impact Forde’s defense. Finally, any taint from the
vouching was minimized by the court’s instruction that nothing said by
the lawyers during closing arguments could be considered evidence. See
Payne, 674 Ariz. Adv. Rep. 5 ¶ 109.

              D.      Admissibility of Text Message

¶73          Forde argues that the trial court erred by admitting into
evidence a text message, sent less than one hour after the murders from
Gaxiola’s phone to Forde’s phone, which stated: “cops on scene, lay low.”

              1.      Authentication

¶74            Forde first asserts that the State failed to authenticate the text
message because insufficient evidence showed it was intended for her. To
authenticate an item of evidence, the “proponent must produce evidence
sufficient to support a finding that the item is what the proponent claims
it is.”    Ariz. R. Evid. 901(a).        We review the court’s ruling on
authentication for an abuse of discretion. State v. Lavers, 168 Ariz. 376, 386,
814 P.2d 333, 343 (1991).

¶75          The State introduced sufficient evidence authenticating the
message as one intended for Forde. A detective testified that the cell
phone from which the message was sent was registered to Gaxiola and
seized from him by the sheriff’s office. The detective examined the
phone’s contents and noted several communications near the time of the
murders to a cell phone number attributed to “White” in the phone’s
address book; the detective then learned from the cell phone provider that
Forde was the registered subscriber for the phone number listed for


                                       22
                             STATE V. FORDE
                            Opinion of the Court

“White.” When arrested, Forde had a cell phone with that same phone
number.

¶76           The evidence permitted the jury to reasonably conclude that
the text message from Gaxiola’s phone was intended for Forde.
Consequently, the trial court did not abuse its discretion in finding that
the State had authenticated the message.

              2.     Hearsay

¶77          Forde next contends that the text message constituted
inadmissible hearsay because it was admitted for the truth of the matter
asserted and was not otherwise admissible as a statement of a co-
conspirator. We review the trial court’s application of the hearsay rule for
an abuse of discretion. State v. Tucker, 205 Ariz. 157, 165 ¶ 41, 68 P.3d 110,
118 (2003).

¶78           The text message was not hearsay because the State did not
introduce it to prove the truth of the matter asserted — that the cops were
on the scene. See Ariz. R. Evid. 801(c) (defining hearsay). Rather, the State
introduced the message to show that Gaxiola was communicating
concerns about police activity at the victims’ home to someone he thought
would share his concerns, thereby constituting circumstantial evidence of
the other person’s involvement. Because the text message was not
hearsay, we need not decide whether the message was admissible as a
statement of a co-conspirator.

              3.     Confrontation Clause

¶79          Forde also argues that admission of the text message
violated her Sixth Amendment Confrontation Clause rights because the
message was used as evidence of her guilt. We review Confrontation
Clause challenges de novo. Snelling, 225 Ariz. at 187 ¶ 18, 236 P.3d at 414.

¶80           The Confrontation Clause prohibits the admission of
testimonial hearsay unless the declarant is unavailable and the defendant
had a prior opportunity for cross-examination. Crawford, 541 U.S. at 68.
As Forde concedes, the message was not testimonial. “Testimony” means
“[a] solemn declaration or affirmation made for the purpose of
establishing or proving some fact.” Id. at 51. The text message reflected

                                     23
                             STATE V. FORDE
                            Opinion of the Court

Gaxiola’s intent to warn Forde of police activity; it did not seek to
establish or prove a fact. Cf. State v. Damper, 223 Ariz. 572, 575–76 ¶ 12,
225 P.3d 1148, 1151–52 (App. 2010) (holding that text message from victim
before murder asking friend to come over and advising that she and
defendant had been fighting was not testimonial because “[nothing]
suggests [victim] intended or believed it might later be used in a
prosecution or at a trial”). The court did not violate Forde’s Confrontation
Clause rights by admitting the text message.

              E.     Jury Instructions

              1.     Felony Murder

¶81           The trial court instructed the jury that first degree murder

       requires proof that the defendant, acting either alone or with
       one or more other persons, committed or attempted to
       commit burglary or robbery or both and, in the course of
       and in furtherance of the offense or immediate flight from
       the offense, the defendant or another person caused the
       death of another person.

The court then instructed the jury on the elements of burglary, armed
robbery, and aggravated robbery. Notably, the court instructed that Forde
committed first degree burglary if, among other things, she “[e]ntered or
remained unlawfully in or on a residential structure” with the intent “to
commit any theft or felony therein.” Forde contends that the court
violated her due process rights because it did not define “theft” or
“felony.” Because Forde did not raise this issue to the trial court, we
review for fundamental error.

¶82           The trial court did not err by failing to define “theft” for the
jury. A trial court need not “define every phrase or word used in the
[jury] instructions, especially when they are used in their ordinary sense
and are commonly understood.” State v. Eastlack, 180 Ariz. 243, 259, 883
P.2d 999, 1015 (1994). In State v. Belyeu, the court of appeals held it was
not fundamental error for the trial court to fail to define “theft” as used in
a burglary instruction. 164 Ariz. 586, 589–90, 795 P.2d 229, 232–33 (App.
1990). Other courts have reached the same conclusion. See, e.g., Ex parte


                                     24
                             STATE V. FORDE
                            Opinion of the Court

Hagood, 777 So. 2d 214, 220 (Ala. 1999); State v. Ng, 750 P.2d 632, 639
(Wash. 1988). We agree.

¶83            This Court’s decision in State v. Schad, 142 Ariz. 619, 691 P.2d
710 (1984), is inapposite. In Schad, we held that the trial court had erred
by giving a felony murder instruction that listed several felonies without
defining their elements. Id. at 620, 691 P.2d at 711. We noted that
“[k]nowledge of the elements of the underlying felonies was vital for the
jurors to properly consider a felony murder theory.” Id. at 620–21, 691
P.2d at 711–12. The court here defined the elements of every charged
felony, including burglary.

¶84            We also reject Forde’s contention that the trial court erred by
failing to define “felony” for the jury. Forde relies on People v. Failla, 414
P.2d 39, 41 (Cal. 1966), in which a trial court instructed the jury that a
person commits burglary by entering an apartment with intent to commit
theft “or any felony” therein. The California Supreme Court reversed,
pointing out that evidence also suggested that the defendant intended to
commit one or more misdemeanors when he entered apartments, and the
court could not assume that the jury understood the “refined statutory
distinctions” between felonies and misdemeanors. Id. at 42. In contrast,
no evidence permitted an inference that Forde or an accomplice
unlawfully entered or remained at the victims’ home with the intent to
commit a misdemeanor. And the trial court here instructed the jury on
the elements of all felonies charged against Forde. See id. at 41 (agreeing
with decision of another court that no error occurred in failing to define
“felony” when court defined rape and murder, the only felonies with
which defendant was charged).

¶85            Forde finally argues that the failure to define “felony”
violated the merger doctrine by erroneously permitting the jury to convict
her of first degree murder if she or Bush entered the home with the intent
to assault or kill the victims. We have repeatedly rejected this argument,
see State v. Kuhs, 223 Ariz. 376, 382 ¶ 23 n.4, 224 P.3d 192, 198 n.4 (2010),
and Forde offers no reasons to reconsider these decisions.




                                      25
                             STATE V. FORDE
                            Opinion of the Court

       2.     Portillo Instruction

¶86          The trial court instructed the jury that the State bore the
burden of proving Forde’s guilt beyond a reasonable doubt, but it also
explained the burden in simpler terms:

       If, based on your consideration of the evidence, you are
       firmly convinced that the defendant is guilty of the crime
       charged, you must find the defendant guilty. If, on the other
       hand, you think there is a real possibility that the defendant
       is not guilty, you must give her the benefit of the doubt and
       find her not guilty.

Forde contends that the phrases “firmly convinced” and “real possibility”
in the instructions unconstitutionally permitted the jury to apply a lower
standard of proof than “beyond a reasonable doubt.” We approved these
instructions in State v. Portillo, 182 Ariz. 592, 596, 898 P.2d 970, 974 (1995),
and have repeatedly rejected challenges to them, see, e.g., State v. Dann
(Dann III), 220 Ariz. 351, 366 ¶ 65, 207 P.3d 604, 618 (2009).

       III.   AGGRAVATION PHASE

              A.     Enmund/Tison Findings

¶87           A defendant convicted of felony murder is eligible for the
death penalty only if the state proves he “himself kill[s], attempt[s] to kill,
or intend[s] that a killing take place or that lethal force will be employed,”
Enmund v. Florida, 458 U.S. 782, 797 (1982), or is a major participant in a
felony and acts “with reckless indifference to human life,” Tison v. Arizona,
481 U.S. 137, 158 (1987). In separate verdict forms concerning each
murder, the jury found that Forde “intended that the killing take place,”
and that she “was a major participant in the robbery or burglary and was
recklessly indifferent regarding a person’s life.” Forde raises several
challenges to the jury’s verdicts, which we address in turn.

              1.     Consideration with Aggravating Circumstances

¶88         Consistent with A.R.S. § 13-752(P), the jury made its
Enmund/Tison findings in the aggravation phase. Forde argues that Eighth
Amendment narrowing and proportionality principles required the jury

                                      26
                             STATE V. FORDE
                            Opinion of the Court

to make the Enmund/Tison findings before it considered aggravating
circumstances. She asserts that bifurcation or a guiding instruction was
required here because nothing prevented the jury from either (1) deciding
that the crimes were aggravated and then using that decision to find
Forde death-eligible under Enmund/Tison, or (2) using the Enmund/Tison
finding or evidence supporting it as a non-statutory aggravator. Because
Forde did not raise this issue at trial, we review for fundamental error.

¶89             No statute or case requires a jury to make the Enmund/Tison
findings before deciding the existence of aggravating circumstances. See
A.R.S. § 13-752(C), (P) (requiring jury to address both issues in
aggravation phase); Cabana v. Bullock, 474 U.S. 376, 386 (1986), abrogated on
other grounds by Pope v. Illinois, 481 U.S. 497 (1987) (“At what precise point
in its criminal process a State chooses to make the Enmund determination
is of little concern from the standpoint of the Constitution.”). Moreover,
simultaneous consideration of the Enmund/Tison and aggravating
circumstances issues did not invite impermissible findings.               The
aggravation phase consisted solely of argument by counsel and
instruction by the court; no evidence was presented. Thus, no risk existed
that the jury would hear new evidence applicable only to one issue to
decide the other. And nothing reflects that the jury was confused about
having to make independent Enmund/Tison and aggravation inquiries.
The court instructed the jury that Forde would be eligible for the death
penalty only if the State proved both that Forde met the Enmund/Tison
threshold and that at least one aggravating circumstance existed. The
court also provided separate verdict forms for the Enmund/Tison findings
and the existence of aggravating circumstances.

              2.     Jury Instruction

                     a.     Requested Narrowing Instruction

¶90            Forde argues that the trial court violated Eighth Amendment
proportionality and narrowing principles by refusing to instruct the jury
as follows: “Every felony that occurs as part of a felony murder brings
with it danger and risk of serious injury or death to potential victims of
the listed felony. To find ‘reckless indifference’ to human life, something
more is required.” We review for an abuse of discretion. State v. Bolton,
182 Ariz. 290, 309, 896 P.2d 830, 849 (1995).


                                     27
                            STATE V. FORDE
                           Opinion of the Court

¶91           Although a party is entitled to an instruction on all theories
reasonably supported by the evidence, “when a jury is properly instructed
on the applicable law, the trial court is not required to provide additional
instructions that do nothing more than reiterate or enlarge the instructions
in defendant’s language.” Id. Here, the court instructed that “something
more” than commission of a felony is required to constitute “reckless
indifference” by telling the jury that “a finding of reckless indifference
cannot be based solely upon a finding that the defendant . . . merely
participated in a crime resulting in a homicide.” Because Forde’s
proposed instruction did nothing more than reiterate the given
instruction, the trial court did not abuse its discretion by not giving the
instruction.

                    b.     Confusion About Threshold

¶92            Forde next argues that because the Enmund/Tison instruction
began with the phrase, “[b]efore determining whether the defendant
should be sentenced to life imprisonment or death, you must determine
whether the State has proved, beyond a reasonable doubt, [the
Enmund/Tison threshold],” the court improperly told the jury it could
impose a death sentence even if that threshold was unmet. Because Forde
did not object at trial, we review for fundamental error, which Forde has
not shown here. In another instruction, the court explicitly told the jury
that if the State did not prove that Forde met the Enmund/Tison threshold,
the court would impose a life sentence. Thus, any confusion stemming
from the introductory language in the Enmund/Tison instruction was
eliminated. See Dann III, 220 Ariz. at 363 ¶ 51, 207 P.3d at 617.

                    c.     Use of the Finding

¶93           Forde also contends that the trial court committed
fundamental error by failing to instruct the jury that an Enmund/Tison
finding cannot serve as an aggravating circumstance. The court instructed
the jury that the State had alleged four statutory aggravators, none of
which duplicated or overlapped with an Enmund/Tison finding. The
verdict form likewise listed only the statutory aggravators. The trial court
did not err by failing to explicitly instruct the jury that an Enmund/Tison
finding cannot constitute an aggravating circumstance. See Dann III, 220
Ariz. at 363 ¶ 51, 207 P.3d at 617.


                                    28
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                            Opinion of the Court

                     d.     Culpable Mental State

¶94          Forde argues that the trial court’s instruction on “reckless
indifference” erroneously communicated objective standards that
eliminated the State’s burden to prove she acted with a subjective mental
state. Because Forde did not object to the instruction, we review for
fundamental error.

¶95           The court instructed the jury as follows:

       A defendant acts with reckless indifference to human life
       when that defendant knowingly engages in criminal
       activities known to carry a grave risk of death to another
       human being. The risk must be of such nature and degree
       that the conscious disregard of such risk constitutes a gross
       deviation from the standard of conduct that a reasonable
       person would observe in the situation.

¶96            This instruction required proof of a subjective mental state in
its direction to the jurors to find that this defendant knowingly engaged in
criminal activities carrying a grave risk of death to another person. The
court’s use of objective language to describe the type of “criminal
activities” and “risk” underlying reckless indifference did not eliminate
the State’s burden to prove Forde’s subjective mental state. Indeed, the
instruction is based on language from Tison and the statutory definition of
“recklessly.” 481 U.S. at 157–58 (“[T]he reckless disregard for human life
implicit in knowingly engaging in criminal activities known to carry a
grave risk of death represents a highly culpable mental state, a mental
state that may be taken into account in making a capital sentencing
judgment . . . .”); A.R.S. § 13-105(10)(c) (using objective language to
describe a disregarded “risk”). The trial court did not commit error.

              3.     Sufficiency of the Evidence

¶97            Forde argues that the evidence was insufficient to support
the jury’s Enmund/Tison findings. “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.” Garcia, 224 Ariz. at 15 ¶ 54, 226 P.3d at 384 (citation and internal
quotation marks omitted).

                                     29
                              STATE V. FORDE
                             Opinion of the Court

¶98            The evidence amply supports the jury’s findings that Forde
was a major participant in the burglary or robbery. She planned to rob the
Arivaca house, scouted the house the day of the shootings, took the lead
in entering the house, directed other participants, and took jewelry from
Gina’s bedroom. Forde notes that no physical evidence links her to the
scene, and she challenges the reliability of Gina’s identification and
Oakstar’s testimony about her participation in events. But the jury was
free to credit that testimony and weigh all the other evidence. See State v.
Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996). Because Forde
actively planned and executed the burglary and robbery, which
culminated in the murders, she was a major participant in these predicate
crimes. See State v. Bearup, 221 Ariz. 163, 170–71 ¶¶ 34–35, 211 P.3d 684,
691–92 (2009) (concluding that a defendant who held a knife and encircled
victim with others was a major participant in kidnapping that ended with
victim’s murder).

¶99           The record also reveals substantial evidence that Forde acted
with reckless indifference to human life. Tison, 481 U.S. at 157–58. She
planned the home invasion with Gaxiola and Oakstar knowing they
wanted to kill Flores because they believed that he competed with their
drug operation. She led a late-night home invasion with armed men,
including Gaxiola, and barged into the victims’ home, threatening
violence. Even if Forde intended only to rob the victims, doing so by
invading their home at night with armed men — at least one of whom was
motivated to kill Flores — demonstrated Forde’s awareness that her
criminal activities carried a grave risk of death to others. See id.; cf. State v.
Robinson, 165 Ariz. 51, 62, 796 P.2d 853, 864 (1990) (holding that
defendant’s presence when victims were tied during home robbery,
terrorized with firearms, and then shot was sufficient to demonstrate
reckless indifference even though defendant did not actually kill).

¶100         Additionally, after Bush killed Flores and shot Gina, Forde
did nothing to stop Bush from shooting Brisenia. Instead, Forde left the
child with armed men and went to search the bedroom. And after re-
entering the house and discovering that Gina was still alive, Forde
shouted for someone to “finish [her] off.” These circumstances further
support the jury’s finding that Forde acted with reckless indifference to
human life.



                                       30
                            STATE V. FORDE
                           Opinion of the Court

¶101          In sum, substantial evidence supports the jury’s finding that
Forde was a major participant in the burglary or robbery and acted with
reckless indifference for the murder victims’ lives. Because this finding
meets the Enmund/Tison threshold, we need not address whether
substantial evidence supports the jury’s additional finding that Forde
intended that the killings take place.

             B.     Denial of Motion for Mistrial

¶102         Forde asserts that, in closing argument, the prosecutor
committed misconduct by suggesting that she was “armed to the teeth”
during the invasion. The prosecutor made the following statements:

      And then as she gets closer in time and recruits these folks
      and gets Mr. Bush down there and they go to the house
      armed with AK-47’s and a .45 caliber handgun, you go into
      somebody’s house under this false pretense at 1:00 in the
      morning, armed to the teeth, I would submit to you that that
      shows a reckless indifference to human life[;] not only is she
      a major participant in the organization of this but she is
      demonstrating by her actions, how she’s armed, telling
      people what to do, barking orders, in the middle of the night
      in someone else’s home armed with these weapons, she has
      demonstrated a reckless indifference to human life.

At the conclusion of the prosecutor’s argument, Forde moved for a
mistrial. The trial court denied the motion, stating Forde would “have an
opportunity to address those things to the jury.”

¶103            We review a trial court’s decision to deny a motion for
mistrial based on prosecutorial misconduct for an abuse of discretion.
State v. Newell, 212 Ariz. 389, 402 ¶ 61, 132 P.3d 833, 846 (2006). We will
reverse if (1) the prosecutor’s statements constituted misconduct, and (2) a
reasonable likelihood exists that those statements could have affected the
jury’s verdict. See State v. Gallardo, 225 Ariz. 560, 568 ¶ 34, 242 P.3d 159,
167 (2010).

¶104         The prosecutor improperly stated that Forde was armed
during the home invasion; no evidence supported this assertion. See State
v. Woods, 141 Ariz. 446, 455, 687 P.2d 1201, 1210 (1984). But these

                                     31
                            STATE V. FORDE
                           Opinion of the Court

statements did not so infect the proceedings with unfairness as to deny
Forde due process. Forde addressed the prosecutor’s “armed to the teeth”
argument during her closing argument and reminded the jury that no
evidence showed she had been armed; the prosecutor did not dispute this
characterization during his rebuttal closing argument. Finally, the trial
court lessened the impact of the prosecutor’s misstatement by instructing
the jury that the lawyers’ arguments were not evidence. See Payne, 674
Ariz. Adv. Rep. 5 ¶ 109. The trial court did not abuse its discretion in
denying Forde’s motion for mistrial based on prosecutorial misconduct.

             C.     Constitutionality of the (F)(2) Aggravator

¶105          A defendant’s prior conviction for a “serious offense”
constitutes an aggravating circumstance under A.R.S. § 13-751(F)(2). In
2003, the legislature amended a prior version of § 13-751(F)(2) to explicitly
provide that a serious offense committed contemporaneously with the
murder satisfies this statutory aggravating circumstance. See State v.
Rutledge, 206 Ariz. 172, 176 ¶ 17 n.3, 76 P.3d 443, 447 n.3 (2003). Forde
argues that the (F)(2) aggravator violates the Eighth Amendment by
failing to genuinely narrow the class of death-eligible defendants because
several offenses fall within the definition of “serious offenses” and the
aggravator      applies   to   convictions    for    offenses    committed
contemporaneously with the murder. See A.R.S. § 13-751(J) (enumerating
“serious offenses”).      We review the constitutionality of statutory
aggravating circumstances de novo. State v. Hargrave, 225 Ariz. 1, 13 ¶ 42,
234 P.3d 569, 581 (2010).

¶106           The Eighth Amendment requires a death penalty sentencing
scheme to “genuinely narrow the class of persons eligible for the death
penalty and must reasonably justify the imposition of a more severe
sentence on the defendant compared to others found guilty of murder.”
Zant v. Stephens, 462 U.S. 862, 877 (1983). Aggravating circumstances
serve this narrowing function by channeling and limiting the sentencer’s
discretion, thereby minimizing “the risk of wholly arbitrary and
capricious action.” State v. Nelson, 229 Ariz. 180, 186 ¶ 26, 273 P.3d 632,
638 (2012) (citation and internal quotation marks omitted). To be valid, an
aggravator must neither apply to every convicted murderer nor be
unconstitutionally vague. Id.



                                     32
                             STATE V. FORDE
                            Opinion of the Court

¶107          The (F)(2) aggravator does not violate the Eighth
Amendment. Section 13-751(J) lists twelve offenses that constitute
“serious offenses” along with “[a]ny dangerous crime against children,”
which applies to twenty-one additional offenses. A.R.S. § 13-705(P)(1).
Consequently, the aggravator appropriately channels and limits the
sentencer’s discretion by explicitly identifying which offenses qualify as
“serious offenses.” See Lewis v. Jeffers, 497 U.S. 764, 774 (1990) (approving
“clear and objective standards that provide specific and detailed
guidance”) (citation and internal quotation marks omitted).

¶108          Forde’s reliance on Rutledge is misplaced. There, we
approved a trial court’s ruling that the pre-2003 version of the (F)(2)
aggravator did not apply to offenses committed contemporaneously with
the murder for a number of reasons, including that a contrary
interpretation “would broaden the class of death eligible defendants,
contrary to the legislative intent to narrow that class of persons.” Rutledge,
206 Ariz. at 176 ¶ 17, 76 P.3d at 447. Contrary to Forde’s implicit
assertion, however, neither the trial court nor this Court in Rutledge
decided that permitting use of convictions for contemporaneously
committed offenses would be unconstitutionally overbroad.

              D.     Constitutionality of the (F)(9) Aggravator

¶109           The (F)(9) aggravator applies when “[t]he defendant was an
adult at the time the offense was committed or was tried as an adult and
the murdered person was under fifteen years of age . . . .” A.R.S. § 13-
751(F)(9). Forde argues that the aggravator as applied here violates Eighth
Amendment narrowing principles by focusing only on Brisenia’s age
rather than whether Forde targeted Brisenia due to her age.

¶110          We have previously held that the (F)(9) aggravator
sufficiently narrows the class of offenders eligible for the death penalty,
and nothing here compels us to reach a different result. See Nelson, 229
Ariz. at 186–87 ¶¶ 26–27, 273 P.3d at 638–39. Regardless whether Forde
targeted Brisenia because of her age, by acting as a major participant in
the home invasion and manifesting reckless indifference to a young
child’s life, Forde demonstrated she falls within a narrow class of
offenders who pose a heightened danger to society. See State v. Smith, 193
Ariz. 452, 462 ¶ 48, 974 P.2d 431, 441 (1999) (“[T]he age of the victim is
relevant to an inquiry into the defendant’s characteristics and

                                     33
                             STATE V. FORDE
                            Opinion of the Court

propensities. Those who prey on the very young or the very old are more
dangerous to society.”).

              E.     Oral Jury Instruction

¶111           When instructing the jury, the trial court mistakenly said
that if the jury finds that an aggravating circumstance exists but decides
life imprisonment is appropriate, the court would “sentence the defendant
to either life imprisonment with the possibility of release or life
imprisonment with the possibility of release after 35 years.” (Emphasis
added.) Forde argues that the trial court’s mistake violated her due
process and Eighth Amendment rights. Because Forde did not object at
trial, we review for fundamental error.

¶112           The court did not commit fundamental error by saying
“with” instead of “without” when reading the instructions. As the judge
recited the instructions, the jury read a written copy, which correctly
stated that a life sentence would be either without the possibility of release
or with the possibility of release after thirty-five years. Also, the court
correctly told the jury twice during the same recitation of instructions that
Forde’s possible sentences were death or life imprisonment either without
the possibility of release or with the possibility of release after thirty-five
years. Consequently, and because the contested oral instruction was
redundant, the court’s mistake was apparent. Moreover, if the jurors were
confused by the oral instruction, they could have referred to the written
instructions, which they possessed during deliberations. Finally, the
verdict form used in the penalty phase stated that a life sentence would be
“with or without the possibility of release.” The trial court’s misreading
of the jury instructions did not cause fundamental, prejudicial error. Cf.
People v. Mills, 48 Cal. 4th 158, 200 (2010) (“The risk of a discrepancy
between the orally delivered and the written instructions exists in every
trial, and verdicts are not undermined by the mere fact that the trial court
misspoke.”).

       IV.    PENALTY PHASE

              A.     Victim Impact Statement

¶113         At the outset of the penalty phase, Gina gave a victim impact
statement in which she noted, “It’s hard for me to understand how this all

                                      34
                            STATE V. FORDE
                           Opinion of the Court

happened. I have so many questions that will remain unanswered. I just
want to know why the defendant chose to exchange my husband and my
daughter’s life and almost my life for some such metal and inexpensive
jewelry.” Forde contends that this statement was an impermissible
comment on the exercise of her Fifth Amendment privilege not to testify.
Because she did not object at trial or move for a mistrial, we review for
fundamental error.

¶114         There was no error, fundamental or otherwise.          The
statements expressed Gina’s inability to comprehend the senselessness of
the murders rather than a comment on Forde’s exercise of her Fifth
Amendment privilege.

             B.     Rebuttal Mitigation Evidence

¶115          In the months immediately preceding the trial, Forde filed a
notice of twenty mitigating factors, including “[h]istory of non-violence”
and “[n]o felony record,” and disclosed expert reports. Two expert
reports reflected that Forde had been sexually assaulted and shot in
separate incidents months before the murders. The State disclosed its
intention to rebut this mitigation with evidence suggesting she had
engaged in other violent criminal activities and had fabricated claims that
she had been sexually assaulted and shot.

¶116          The week before the originally scheduled trial date, Forde
moved to preclude the State’s rebuttal evidence as irrelevant and unduly
prejudicial or, alternatively, to continue the trial to permit investigation.
The trial court refused to preclude any evidence at that time, reasoning
that it must await the presentation of mitigation to determine the
admissibility of the rebuttal mitigation evidence. The court denied the
motion to continue without further comment. Forde later withdrew the
“[h]istory of non-violence” and “[n]o felony record” mitigating factors,
and the State did not present any evidence that Forde had sought to
preclude. We review the court’s rulings for an abuse of discretion. Dixon,
226 Ariz. at 555 ¶ 53, 250 P.3d at 1184 (motion to continue); McGill, 213
Ariz. at 156 ¶ 40, 140 P.3d at 939 (evidentiary rulings).

¶117         Forde argues that the trial court violated her rights to due
process and individualized consideration in sentencing by failing to
preclude the State’s rebuttal evidence as irrelevant, unreliable, and highly

                                     35
                             STATE V. FORDE
                            Opinion of the Court

prejudicial. As a result, Forde asserts, she suffered prejudice by
withdrawing the two mitigating factors rather than risking admission of
the State’s rebuttal evidence.

¶118          The trial court did not abuse its discretion. Admissibility of
the rebuttal evidence turned on whether it was relevant to the existence of
mitigation sufficiently substantial to call for leniency, A.R.S. § 13-752(G),
and, if so, whether the evidence was unfairly prejudicial. State v. Hampton,
213 Ariz. 167, 180 ¶ 51, 140 P.3d 950, 963 (2006). The court acknowledged
these limitations, stating that admissible rebuttal evidence must be reliable
and relevant to the specific thrust of Forde’s mitigation evidence. Because
the record in the motion proceedings was not sufficient for the court to
make these assessments, the court acted within its discretion by denying
the motion as premature.

¶119          Similarly, the court did not err by refusing to continue the
trial because extraordinary circumstances did not exist to justify a
continuance at that late date, and Forde has not demonstrated prejudice.
See Ariz. R. Crim. P. 8.5(b); VanWinkle, 230 Ariz. at 390 ¶ 7, 285 P.3d at 311.
Forde created the tight time frame she complains about by obtaining
extensions of time to disclose her mitigation evidence, knowing the State
would be forced to disclose its rebuttal evidence shortly before trial. See
State v. Maxwell, 103 Ariz. 478, 480–81, 445 P.2d 837, 839–40 (1968) (citing
lack of diligence of a party as one justification for denying motion to
continue trial). Additionally, Forde fails to explain why she lacked time to
adequately investigate. She possessed police reports concerning two of
the criminal incidents for almost two years, and her investigator had
already contacted out-of-state authorities and reviewed police reports
about the remaining incidents. The State had disclosed all rebuttal
mitigation evidence and listed six rebuttal witnesses. Forde had an
additional five weeks to interview these witnesses and otherwise
investigate before commencement of the penalty phase. The trial court
did not commit error.

              C.     Jury Instructions

¶120          Forde challenges the jury instructions on several bases,
asserting that many instructions were constitutionally flawed and that the
court erred by failing to give other instructions. Because Forde neither
objected to the given instructions nor asked the court to give the

                                      36
                             STATE V. FORDE
                            Opinion of the Court

additional instructions, we review for fundamental error. See Bearup, 221
Ariz. at 168 ¶¶ 20–21, 211 P.3d at 689.

              1.     Causal Nexus

¶121         The court instructed the jury that it was “not required to find
that there is a connection between a mitigating circumstance and the
crime committed in order to consider the mitigation evidence.” Forde
argues that by instructing the jury it was “not required” to find a
connection, the court incorrectly implied it was permissible to require a
connection before considering the evidence.

¶122           The trial court did not err. The court correctly told the jury
that “mitigating circumstances may be found from any evidence,” it
“should consider all of the evidence,” and it could consider in mitigation
“anything related to the defendant’s character, propensity, history or
record, or circumstances of the offense.” See Eddings v. Oklahoma, 455 U.S.
104, 110, 114 (1982) (holding that a trial court must not preclude the jury
from considering any aspect of the defendant’s character or circumstances
as a mitigating factor). The court also said that each juror “must decide
individually whether any mitigating circumstance exists.” Nothing in the
contested instruction suggested that the jury should refuse to consider
mitigation evidence if it was unrelated to the crimes.

              2.     Discretionary Consideration of Mitigating Evidence

¶123           The trial court instructed the jury that “[t]he circumstances
proposed as mitigation by the defendant for your consideration in this
case are: [seventeen listed factors].” Forde argues that using the words
“proposed as” erroneously made consideration of her evidence
discretionary, particularly as other instructions told the jury that it “shall
consider” certain statutory mitigating factors.        We disagree. The
instruction appropriately described Forde’s proposed mitigation and did
not purport to make consideration of that evidence discretionary.
Regardless, any confusion was remedied by the court’s explicit instruction
that the jury should “consider all the evidence.”




                                     37
                            STATE V. FORDE
                           Opinion of the Court

             3.     Weighing Mitigation

¶124           Forde contends that the trial court erroneously told the jury
that in determining the appropriate sentence, it “must decide how
compelling or persuasive the totality of the mitigating factors is when
compared against the totality of the aggravating factors and the facts and
circumstances of the case.” She argues that asking the jury to make this
comparison inappropriately dissuaded it from considering any
circumstances of the offense as mitigation, such as the fact that she did not
fire a gun. Because Forde raises this issue for the first time on appeal, we
review for fundamental error, which does not exist. The court also
instructed the jury that it was permitted to “consider anything related to
the . . . circumstances of the offense.” Nothing prevented the jury from
considering any circumstances of the offense as mitigation.

             4.     Victim Impact Statement

¶125          The trial court instructed the jury it could consider Gina’s
victim impact statement “to the extent that it rebuts mitigation.” Forde
asserts that the instruction was erroneous because Gina’s statement did
not rebut any mitigation evidence, and the instruction therefore permitted
the jury to consider the statement as an improper non-statutory
aggravator. Because Forde did not object to this instruction, we review for
fundamental error.

¶126           Victim impact evidence “rebuts” mitigation by informing
the sentencer about the specific harm caused by the defendant. Cf. Payne
v. Tennessee, 501 U.S. 808, 825 (1991) (holding that victim impact evidence
properly “remind[s] the sentencer that just as the murderer should be
considered as an individual, so too the victim is an individual whose
death represents a unique loss to society and in particular to his family”)
(citation and internal quotation marks omitted). The victim is not limited
to addressing mitigation topics presented by the defendant, as Forde
suggests. See State v. Prince, 226 Ariz. 516, 535 ¶ 68, 250 P.3d 1145, 1164
(2011) (rejecting argument that victim impact evidence is irrelevant in the
penalty phase because it focuses on the victim rather than the defendant).
Additionally, no risk existed here that the jury would consider Gina’s
statement as a non-statutory aggravator because the court explicitly
instructed the jury that it could not consider the statement as a new


                                     38
                             STATE V. FORDE
                            Opinion of the Court

aggravating circumstance. The trial court did not commit error by giving
the instruction.

              5.     Sympathy

¶127          The trial court instructed the jury that it was “not to be
swayed by mere sympathy not related to the evidence presented during
the penalty phase.” This Court previously approved use of this
instruction. See Kuhs, 223 Ariz. at 387 ¶ 55, 224 P.3d at 203. But Forde
raises a new challenge, arguing that the instruction incorrectly limited the
jury’s consideration of mitigation to evidence presented during the
penalty phase. The instruction appropriately directed the jury “‘to ignore
only the sort of sympathy that would be totally divorced from the
evidence.’” State v. Carreon, 210 Ariz. 54, 70 ¶ 84, 107 P.3d 900, 916 (2005)
(quoting California v. Brown, 479 U.S. 538, 542 (1987)). Elsewhere, the court
explicitly and repeatedly instructed that the jury should consider all
mitigating evidence, regardless of the phase of trial during which it was
presented.

¶128           Forde also contends that the instruction improperly told the
jury it could be swayed by sympathy for Gina and her family, thereby
inviting the jury to rely on an improper, non-statutory aggravator. But the
instruction did not mention any victim, and the court told the jury it could
not consider Gina’s statement to be an aggravating circumstance. For
these reasons, we reject Forde’s arguments.

              6.     Life Sentence

¶129          Forde argues that the trial court shifted the burden to her to
prove she was entitled to a life sentence, thereby creating a presumption
of death, by failing to tell the jury it could return a life sentence even if it
found that the aggravators were “of greater quality or value than the
mitigation” but that the mitigation was “sufficiently substantial” to justify
a life sentence. Section 13-751(E), A.R.S., requires the jury to impose a
death sentence if it finds the existence of at least one statutory aggravator
“and then determines that there are no mitigating circumstances
sufficiently substantial to call for leniency.” The court’s instruction
tracked this language. Additionally, the court said that even if Forde
presented no mitigation evidence or jurors individually concluded that


                                      39
                           STATE V. FORDE
                          Opinion of the Court

the aggravating and mitigating circumstances had equal strength, they
could vote for a life sentence. The court properly instructed the jury.

             7.     Ability to Distinguish Right from Wrong

¶130          Forde’s two mental health experts testified about her
intelligence, brain functioning, and mental health. Without objection,
jurors asked whether Forde, or someone similarly situated, could tell the
difference between right and wrong or know that killing another human
being is wrong. Both experts answered that someone like Forde could
distinguish right from wrong, and one added that Forde knows that some
behaviors are wrong.

¶131          Forde asserts that the jurors’ questions demonstrated a risk
that at least some jurors would refuse to consider the mental health
mitigation evidence unless it established an inability to distinguish right
from wrong. Therefore, Forde argues, the trial court erred by failing to
sua sponte instruct the jury that her ability to distinguish right from
wrong was irrelevant.

¶132         The court did not commit error. In assessing the strength of
Forde’s mental health evidence, the jurors were entitled to consider
whether her condition impaired her ability to perceive the wrongfulness
of her behavior. See State v. Smith, 215 Ariz. 221, 235 ¶ 67, 159 P.3d 531,
545 (2007) (deciding that weight of defendant’s mental health evidence
was diminished by evidence the defendant “likely knew what he was
doing and that it was wrong”). Moreover, Forde had the opportunity to
make closing arguments to the jury on this point and did so.

             D.     Verdict Forms

¶133           The verdict forms for each murder recited that the jury
unanimously found that Forde should be sentenced to either life or death
and provided a line on which to indicate the chosen option. Forde argues
that the trial court erred by not providing a “not-unanimous” option on
the verdict forms to guide jurors in making individual sentencing
decisions. Because Forde did not object to the verdict forms, we review
for fundamental error, and find none. The jury instructions stated that
each juror must make an “individual assessment” about the appropriate
sentence and cautioned jurors “not [to] surrender [their] honest

                                    40
                            STATE V. FORDE
                           Opinion of the Court

convictions as to the weight or effect of the evidence solely because of the
opinion of the other jurors, or for the mere purpose of returning a
verdict.” Because the court appropriately instructed the jury that each
juror must individually agree on a sentence to return a verdict, it was not
necessary to provide a “not-unanimous” option on the verdict forms.

¶134          Forde also argues that the trial court erred by failing to sua
sponte provide a special verdict form asking jurors to indicate which
mitigating circumstances they found proven by a preponderance of the
evidence. But because jurors “do not have to agree unanimously that a
mitigating circumstance has been proven to exist,” and “[e]ach juror may
consider any mitigating circumstance found by that juror in determining
the appropriate penalty,” A.R.S. § 13-751(C), provision of a special verdict
form would have been inappropriate. See State v. Roseberry, 210 Ariz. 360,
373 ¶ 74 n.12, 111 P.3d 402, 415 n.12 (2005) (“There cannot be a special
verdict on mitigation because the jurors need not agree that a mitigating
factor has been proven to exist.”).

      V.     SENTENCING

             A.     Disproportionate Sentence

¶135         Forde argues that her death sentences violate the Eighth
Amendment because they are disproportionate to the life sentences later
imposed on Gaxiola after his separate trial. Although sentencing disparity
evidence was not before the jury because Gaxiola had not yet been
sentenced when Forde’s penalty phase occurred, Forde contends that we
should either consider the disparity a mitigating circumstance and reduce
her sentences to life imprisonment or remand for a new sentencing
proceeding. We decline to do so.

¶136           This Court is required to determine whether the trier-of-fact
abused its discretion in imposing a death sentence. A.R.S. § 13-756(A).
Although an unexplained sentencing disparity between a defendant and
an accomplice may be a mitigating circumstance, State v. Carlson, 202 Ariz.
570, 586 ¶ 65, 48 P.3d 1180, 1196 (2002), we cannot say the jury abused its
discretion by failing to give weight to the disparity here because one did
not yet exist.



                                    41
                            STATE V. FORDE
                           Opinion of the Court

             B.     Sentencing on Non-Capital Counts

             1.     Propriety of Consecutive Sentences

¶137          Forde’s prison sentence for attempted first degree murder of
Gina (count four) runs consecutively to concurrent prison terms imposed
for two counts of aggravated assault of Gina (counts five and six). Her
sentences for armed robbery (count seven) and aggravated robbery (count
eight) also run consecutively to each other. Forde argues that these
sentences violate A.R.S. § 13-116, which prohibits consecutive sentences
for offenses arising from a single act. Because Forde did not object to the
trial court, we review for fundamental error. An illegal sentence
constitutes fundamental error. See State v. Smith, 219 Ariz. 132, 135–36 ¶¶
18–20, 194 P.3d 399, 402–03 (2008).

¶138           To determine whether Forde’s conduct underlying counts
four through six constitutes a single act under § 13-116, we apply the test
set out in State v. Gordon, 161 Ariz. 308, 315, 778 P.2d 1204, 1211 (1989).
Preliminarily, we isolate the elements of attempted murder, which we
treat as the “ultimate crime,” meaning “the [crime] that is at the essence of
the factual nexus and that will often be the most serious of the charges.”
See id. After doing so, we conclude that the remaining evidence supports
her aggravated assault convictions, making her eligible for consecutive
sentences notwithstanding § 13-116. See id. The attempted murder
conviction was established by evidence that at the conclusion of the home
invasion, Forde discovered Gina on the phone and shouted for someone
to “finish [her] off,” prompting Bush to re-enter the home and shoot at
Gina. See A.R.S. §§ 13-303, -1001(A)(1), -1105(A)(1). The aggravated
assault convictions were established by evidence that Bush shot Gina
twice and seriously injured her soon after he initially entered the home.
See A.R.S. §§ 13-303, -1203(A), -1204(A)(1) and (2).

¶139         Other considerations set forth in Gordon support imposition
of consecutive sentences. Because the attempted murder and aggravated
assaults occurred at different times during the home invasion and
involved separate acts, it was possible for Forde to commit the former
crime without committing the latter ones. Also, the aggravated assaults
caused Gina to suffer physical injuries that were not inherent in the
attempted murder. See Gordon, 161 Ariz. at 315, 778 P.2d at 1211 (holding
that a defendant more likely committed multiple acts if “the defendant’s

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                            Opinion of the Court

conduct in committing the lesser crime caused the victim to suffer an
additional risk of harm beyond that inherent in the ultimate crime”). For
all these reasons, Forde’s conduct underlying the attempted murder count
and the aggravated assault counts did not constitute a single act within
the meaning of § 13-116, and consequently, the trial court did not err by
imposing consecutive sentences.

¶140          We reach a different conclusion regarding the propriety of
consecutive sentences for robbery and aggravated robbery. The State
concedes that the trial court erred because these crimes were based on a
single act by Forde — taking Gina’s personal belongings. We agree and
therefore modify the sentences on counts seven and eight to run
concurrently. See Ariz. R. Crim. P. 31.17(b) (authorizing appellate court to
modify trial court action as necessary and appropriate).

              2.     Consideration of Mitigation Evidence

¶141           Although Forde argued for the existence of seventeen
mitigating circumstances, the trial court found that only her lack of prior
felony convictions and her parental responsibilities served as mitigation.
Forde argues that by failing to find the existence of other mitigating
circumstances, the court necessarily violated A.R.S. § 13-701(E), which
required it to consider mitigation evidence concerning Forde’s character
and background and the circumstances of the crime. But the court’s
failure to find other mitigating circumstances does not signal non-
compliance with § 13-701(E); it simply indicates that the court did not find
other evidence to be proved, or, if proved, the court did not find it
sufficient to call for reduced sentences. See State v. Gonzales, 181 Ariz. 502,
515, 892 P.2d 838, 851 (1995) (“Although the court must consider relevant
evidence offered in mitigation, it is not required to find that evidence to be
mitigating.”). Additionally, the court stated at the time of sentencing that
it had “read and considered the pre-sentence report, its recommendation
and all the evidence presented at trial.” The court did not commit error.

       VI.    ABUSE OF DISCRETION REVIEW

¶142         Because the murders occurred after August 1, 2002, we
review the propriety of Forde’s death sentences for an abuse of discretion.
A.R.S. § 13-756(A). The jury did not abuse its discretion if reasonable
evidence supports the aggravating circumstances found and the

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                            Opinion of the Court

appropriateness of the sentences. State v. Benson, 232 Ariz. 452, 467 ¶ 65,
307 P.3d 19, 34 (2013). The evidence sufficiently supports an aggravating
circumstance if reasonable persons could find its existence beyond a
reasonable doubt. Id. “We must uphold a jury’s decision that death is
appropriate if any ‘reasonable juror could conclude that the mitigation
presented was not sufficiently substantial to call for leniency.’” Id.
(citation omitted).

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

¶143         Forde argues that the abuse-of-discretion review required by
A.R.S § 13-756(A) violates her rights to due process and to be free from
cruel and unusual punishment by failing to provide for meaningful
independent review. We have repeatedly rejected this argument. See, e.g.,
Benson, 232 Ariz. at 467 ¶ 67, 307 P.3d at 34.

¶144        Forde also asserts that the legislature improperly encroached
on this Court’s rulemaking authority by prescribing a standard for
reviewing death penalty sentences. She urges us to independently review
her sentence as we did with death sentences imposed for murders
committed before the effective date of § 13-756(A).

¶145           The Arizona Constitution vests this Court with the power to
make procedural court rules. Ariz. Const. art. 6, § 5(5) (“The Supreme
Court shall have: . . . [p]ower to make rules relative to all procedural
matters in any court.”). Additionally, the constitution prohibits one
branch from exercising another branch’s powers. Id. art. 3. But statutes
that supplement our rules are valid. Seisinger v. Siebel, 220 Ariz. 85, 89 ¶ 8,
203 P.3d 483, 487 (2009). “[I]t is more accurate to say that the legislature
and this Court both have rulemaking power, but that in the event of
irreconcilable conflict between a procedural statute and a rule, the rule
prevails.” Id.

¶146           A standard of appellate review is a matter of procedural,
rather than substantive, law as it provides a method for obtaining redress
for the invasion of rights and does not create, define, or regulate rights.
See id. at 92–93 ¶ 29, 203 P.3d at 490–91; see also Pima Cnty. v. Pima Cnty.
Law Enforcement Merit Sys. Council, 211 Ariz. 224, 228 ¶ 16, 119 P.3d 1027,
1031 (2005) (characterizing the standard of review as a procedural matter).
But because neither our rules of criminal appellate procedure nor our

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                            Opinion of the Court

cases independently fixes a standard of review, § 13-756(A) supplements
rather than conflicts with our procedures.

              B.     Aggravating Circumstances

¶147          The jury unanimously found the following aggravating
circumstances for both murders beyond a reasonable doubt: (1) Forde
was previously convicted of another serious offense, A.R.S. § 13-751(F)(2);
(2) she committed the murders in expectation of pecuniary gain, § 13-
751(F)(5); and (3) she committed multiple homicides, § 13-751(F)(8). The
jury also found the § 13-751(F)(9) age-of-the-victim aggravator proven
beyond a reasonable doubt as to Brisenia’s murder.

              1.     A.R.S. § 13-751(F)(2)

¶148         Although Forde challenges the constitutionality of the (F)(2)
aggravator, see supra ¶¶ 105–08, she does not contest that sufficient
evidence supports its application. Forde’s convictions for first degree
burglary, aggravated assault, and robbery established this aggravating
circumstance. See A.R.S. §§ 13-751(J)(4), (8), (9). The jury did not abuse its
discretion by finding the (F)(2) aggravator proven beyond a reasonable
doubt.

              2.     A.R.S. § 13-751(F)(5)

¶149           Forde argues that insufficient evidence shows that she
“committed the offense as consideration for the receipt, or in expectation
of the receipt, of anything of pecuniary value.” A.R.S. § 13-751(F)(5). We
will uphold the jury’s finding if it is supported by substantial evidence.
State v. Roque, 213 Ariz. 193, 218 ¶ 93, 141 P.3d 368, 393 (2006).

¶150          The (F)(5) aggravator does not automatically apply to felony
murder convictions predicated on robbery or burglary. Lynch, 225 Ariz. at
40 ¶ 70, 234 P.3d at 608. Rather, the state must prove that pecuniary gain
was a “motive, cause, or impetus for the murder and not merely the
result.” State v. Canez, 202 Ariz. 133, 159 ¶ 91, 42 P.3d 564, 590 (2002)
(citation and internal quotation marks omitted); see also Lynch, 225 Ariz. at
40 ¶ 70, 234 P.3d at 608.




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                           Opinion of the Court

¶151           Substantial evidence shows that Forde’s desire for pecuniary
gain was a motive for the murders. She planned and participated in the
robbery to fund her minuteman operation. She involved people she knew
wanted to kill Flores to facilitate the robbery and burglary. Forde’s lack of
surprise that Bush shot Flores and Gina, Forde’s later call to “finish off”
Gina, and her text message to Gaxiola after the murders emphasizing
“competition gone” demonstrate, at a minimum, she was willing to
facilitate the murders to accomplish the robbery. The jury did not abuse
its discretion by finding the (F)(5) aggravator.

             3.     A.R.S. § 13-751(F)(8)

¶152           The (F)(8) aggravator exists if “[t]he defendant has been
convicted of one or more other homicides . . . that were committed during
the commission of the offense.” To prove this aggravator, the state must
show that the homicides were “temporally, spatially, and motivationally
related, taking place during one continuous course of criminal conduct.”
State v. Prasertphong, 206 Ariz. 167, 170 ¶ 15, 76 P.3d 438, 441 (2003)
(citation and internal quotation marks omitted). Forde does not contest
that the murders were temporally and spatially related. She argues,
however, that insufficient evidence shows she shared Bush’s motivation to
kill Brisenia, and the jury therefore necessarily and incorrectly imputed
Bush’s motives to her.

¶153          As explained in paragraph 151, Forde was motivated by
pecuniary gain to facilitate the murders to fund her minuteman group.
Substantial evidence showed that Bush shared this motive. Bush served
as Forde’s subordinate, participated in the home invasion, and hid with
Forde at Gaxiola’s house. In contrast, nothing suggests Bush had any
involvement with the drug trade or Arivaca, desired to remove Flores
from competing in the drug trade, or even knew Flores or his family
before the murders. Forde’s relationship with Bush supports a conclusion
that they shared the same motive. The jury did not abuse its discretion by
finding the (F)(8) aggravator.

             4.     A.R.S. § 13-751(F)(9)

¶154          Although Forde challenges the constitutionality of the (F)(9)
aggravator as applied to her, see supra ¶¶ 109–10, she does not contest, and
sufficient evidence shows, that Forde was an adult at the time of the

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                           Opinion of the Court

murders, and Brisenia was under the age of fifteen. See A.R.S. § 13-
751(F)(9). Consequently, the jury did not abuse its discretion by finding
the existence of this aggravator.

             C.     Propriety of Death Sentences

¶155           A death sentence is appropriate if the jury does not find
“mitigating circumstances sufficiently substantial to call for leniency.”
A.R.S. § 13-751(E). Forde argues that the following mitigation evidence
called for leniency: (1) she was a relatively minor participant in the
murders, see A.R.S. § 13-751(G)(3); (2) Gaxiola and Oakstar manipulated
her involvement in the murders, which she did not foresee; (3) she
suffered a very troubled childhood marked by sexual and physical abuse,
abandonment, and teenage prostitution; and (4) she suffers from
neuropsychological impairments, which stemmed from her traumatic
childhood and a stroke suffered in 1996. 6 In effect, she disagrees with the
jury’s factual findings and assessment of the mitigation.

¶156           The jury’s Enmund/Tison findings show that Forde did not
prove the initial two categories of mitigation. See A.R.S. § 13-751(C)
(providing that the defendant bears the burden of proving mitigators by a
preponderance of the evidence). Forde presented evidence that she had a
very troubled childhood and suffers neuropsychological impairments.
But even if jurors found those matters proven, they did not abuse their
discretion in finding this mitigation insufficient to call for leniency.

¶157          A reasonable juror could have concluded that the mitigation
evidence was not sufficiently substantial to call for leniency. Because the
jury properly found the existence of more than one aggravating
circumstance for each murder, the jury did not abuse its discretion in
finding that death sentences were appropriate.




6       Forde proposed the following additional mitigating circumstances
to the jury: (1) polysubstance abuse; (2) family support; (3) public service
promoting women’s issues; (4) volunteer work; (5) compassion for
victims; (6) disparity of treatment; (7) mercy; and (8) “morally reasoned
response.”
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                           STATE V. FORDE
                          Opinion of the Court

             D.    Other Constitutional Claims

¶158          Forde lists seventeen other constitutional claims that she
acknowledges this Court has previously rejected but that she seeks to
preserve for federal review. We decline to revisit these claims.

                            CONCLUSION

¶159          We affirm Forde’s convictions and sentences, but order that
her sentences for armed robbery (count seven) and aggravated robbery
(count eight) run concurrently.




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