                                  IN THE

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

                                     v.

                      CHRISTOPHER MATHEW PAYNE,
                               Appellant.

                            No. CR-09-0081-AP
                           Filed August 21, 2013

             Appeal from the Superior Court in Pima County
                 The Honorable Richard S. Fields, Judge
                           No. CR20070973
                              AFFIRMED

COUNSEL:

Thomas C. Horne, Arizona Attorney General, Kent E. Cattani (argued),
former Chief Counsel, Criminal Appeals/Capital Litigation, Jeffrey A.
Zick, Chief Counsel, Criminal Appeals/Capital Litigation, Amy Pignatella
Cain, Assistant Attorney General, Tucson, for State of Arizona

Lori J. Lefferts, Pima County Public Defender, Robert J. Hirsh, former
Pima County Public Defender, Frank P. Leto (argued), Deputy Public
Defender, Kristine Maish, Deputy Public Defender, Tucson, for
Christopher Mathew Payne

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

CHIEF JUSTICE BERCH, opinion of the Court:

¶1     Christopher Mathew Payne was convicted of two counts of first
degree murder, three counts of child abuse, and two counts of concealing
a dead body, and was sentenced to death for each murder. We have
jurisdiction of this automatic appeal pursuant to Article 6, Section 5(3) of
                           STATE V. PAYNE
                          Opinion of the Court

the Arizona Constitution and A.R.S. § 13-4031.

         I. FACTUAL AND PROCEDURAL BACKGROUND1

¶2     Christopher Mathew Payne and his girlfriend, Reina Gonzales,
starved and abused Payne’s children, Ariana, age 3, and Tyler, age 4, until
they died.

¶3     Payne left Ariana and Tyler with Gonzales while he worked, first
driving for a medical transportation company and later selling heroin.
Gonzales called Payne at work several times a day to complain about the
children, even purportedly threatening to kill them if Payne did not make
them behave.

¶4     Payne began punishing Ariana and Tyler by locking them in a
closet while he was away. By late June 2006, the children were kept in the
closet permanently. Payne initially fed them sandwiches once a day, but
after about a month, he stopped feeding them at all. Payne checked on the
children perhaps once a day, but he did not bathe them or let them out to
use the bathroom or get fresh air.

¶5    Sometime in August 2006, Payne discovered that Ariana had died.
He nonetheless left her in the closet with Tyler, who was still alive. The
next day, Payne stuffed Ariana’s body into a duffel bag, which he
eventually put back in the closet with Tyler. Payne found Tyler dead
approximately one week later.

¶6     In mid-September, Payne put the children’s bodies in a blue tote
box, which he placed in a rented storage unit. After Payne failed to pay
the rental fee, staff opened the unit. They found only the tote inside,
which they said smelled “really bad,” so they threw it in a dumpster. A
staff member became concerned about the smell and called the police two
days later.

¶7     The police found Ariana’s partially decomposed body inside the
tote. She had twelve broken ribs, a broken spine, and a broken shoulder.

1       “We view the facts in the light most favorable to sustaining the
verdict.” State v. Dann (Dann I), 205 Ariz. 557, 562 ¶ 2, 74 P.3d 231, 236
(2003).
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                           Opinion of the Court

After finding Ariana’s body, the police did not search the dumpster
further. The investigation led police to Payne and Gonzales, whom they
located at a motel. The officers asked Payne to accompany them to the
station to answer questions, but he refused to go without his attorney.
They then arrested him on an unrelated warrant.

¶8     At the station, Payne confessed to not obtaining help for the
children and allowing them to die in his care. Police never found Tyler’s
body. In searching Payne’s former apartment, police found blood on the
walls inside the closet, an opening in the closet wall stuffed with feces and
human hair, and several patches of body fluids on the carpet.

¶9     The State charged Payne and Gonzales with first degree murder
and other crimes. In exchange for testifying, the State allowed Gonzales to
plead guilty to two counts of second degree murder, for which she was
given concurrent 22-year prison sentences. The jury found Payne guilty of
three counts of child abuse, two counts of concealing a dead body, and
two counts of first degree murder. The jury also found three aggravating
factors: especial cruelty, heinousness, or depravity, A.R.S. § 13-751(F)(6);
multiple homicides, id. § 13-751(F)(8); and young age of the victims, id.
§ 13-751(F)(9). This automatic appeal followed the imposition of death
sentences for the two murders.

                            II. DISCUSSION2

      A.     Jury Selection

¶10 The Sixth Amendment to the United States Constitution entitles a
defendant to an impartial jury. State v. Velazquez, 216 Ariz. 300, 306 ¶ 14,
166 P.3d 91, 97 (2007). Payne argues that the trial court erred by
dismissing some jurors improperly and failing to dismiss others.




2      Payne cites state and federal constitutional provisions and raises
several claims in passing without developing arguments. We consider
issues not argued to be waived and therefore do not address them. See
Ariz. R. Crim. P. 31.13(c)(1)(vi) (requiring appellate briefs to “contain the
contentions . . . with respect to the issues presented, and the reasons
therefor”).
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                           Opinion of the Court

             1.     Juror 49

¶11 Based on Juror 49’s responses to the juror questionnaire, the trial
court excused that juror because serving on the jury would interfere with
her school schedule. Prospective jurors “shall” be excused if serving on a
jury would cause “undue or extreme physical or financial hardship,”
A.R.S. § 21-202(B)(4), or “undue or extreme hardship under the
circumstances,” id. § 21-202(B)(6). Payne initially expressed concern about
dismissing Juror 49 “without more questioning,” but did not object to her
dismissal after the court explained the reasons for dismissing her. We
thus review the decision to strike Juror 49 for fundamental error. See State
v. Moody, 208 Ariz. 424, 449-50 ¶ 85, 94 P.3d 1119, 1144-45 (2004); State v.
Cañez (Cañez I), 202 Ariz. 133, 147 ¶ 30, 42 P.3d 564, 578 (2002).

¶12 In her questionnaire, Juror 49 said that service would pose a
substantial hardship because she was a student and had classes on trial
days. Payne claims there was discriminatory intent in her dismissal, but
points to no evidence of such intent. Given the student’s school-related
conflict and lack of evidence of discriminatory intent, the judge did not
commit fundamental error by excusing her.

             2.     Juror 74

¶13 The trial court dismissed Juror 74 for cause based on hardship and
her opposition to the death penalty. Juror 74’s questionnaire stated that
she belonged to a group advocating the abolition of the death penalty,
would never vote to impose it under any circumstances, and was
personally, morally, or religiously opposed to capital punishment. She
also indicated that serving would cause undue hardship because she
planned to accompany her elderly parents to the east coast twice during
the scheduled trial period. Over Payne’s objection, the trial court
dismissed the juror without affording Payne an opportunity to rehabilitate
her. We review this ruling for an abuse of discretion. See State v. Dann
(Dann III), 220 Ariz. 351, 362 ¶ 35, 207 P.3d 604, 615 (2009).

¶14 A week after dismissing Juror 74, the court informed counsel that it
wanted to bring her in for questioning in light of State v. Anderson
(Anderson I), 197 Ariz. 314, 324 ¶ 23, 4 P.3d 369, 379 (2000). The court
arranged a conference call with Juror 74. She was not under oath for the
call, which occurred while she was in an Alabama airport between flights.

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                           Opinion of the Court

When asked if she could set aside her feelings about the death penalty, she
responded, “I cannot, I cannot participate in a process that allows the State
to initiate death.” She reiterated this view several times in response to
questions from the court and counsel. She also affirmed that she planned
to be out of town twice during trial to accompany her parents while they
traveled. She had also accepted a job in Florida after being dismissed
from the jury panel. Over Payne’s objection, the court again dismissed
Juror 74.

¶15 A prospective juror who will automatically vote for or against the
death penalty or will suffer a hardship may be removed for cause. A.R.S.
§ 21-202(B)(4)(c); State v. Speer, 221 Ariz. 449, 454-55 ¶ 23, 212 P.3d 787,
792-93 (2009). We find no error in the court’s dismissal.

¶16 Despite Juror 74’s seemingly settled position on the death penalty
and her travel plans, the trial court erred by failing to afford Payne an
opportunity to rehabilitate her under oath. See Ariz. R. Crim. P. 18.5(d)
(providing that upon request, the court “shall permit that party a
reasonable time to conduct a further oral examination of the prospective
jurors”). Although defense counsel was able to ask rehabilitating
questions during the telephonic conference, Juror 74 was not then under
oath. Citing Anderson I, Payne argues that this constituted fundamental or
structural error.

¶17 But while Anderson I found the dismissal of jurors without
adequate questioning to be structural error, the jurors there had expressed
only equivocal objections to the death penalty and the defendant was not
afforded any opportunity to rehabilitate them. 197 Ariz. at 319 ¶ 10, 324
¶ 23, 4 P.3d at 374, 379. Here, in contrast, defense counsel was permitted
to telephonically question the single juror who stated her unequivocal
opposition to the death penalty.

¶18 Juror 74’s objections to the death penalty remained definite and
unshakable, and her telephonic responses remained consistent with those
on her questionnaire. That questionnaire states that the responses “have
the effect of a statement given to the Court under oath.” Given these
circumstances, the error was not fundamental or structural, nor did it
prejudice Payne.



                                     5
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                            Opinion of the Court

              3.     Juror 146

¶19 Payne argues that the trial court erred by dismissing Juror 146 for
cause based on her objections to the death penalty because, in response to
another question, she indicated that she could follow the law. Juror 146’s
questionnaire indicated that she was personally, morally, or religiously
opposed to the death penalty and would never vote for it under any
circumstances. She also stated that she could not vote for a death sentence
even if she felt it appropriate after hearing the evidence, instructions, and
deliberating. Yet in response to other questions, she indicated that she
would follow instructions and keep an open mind regarding aggravating
and mitigating circumstances.

¶20 After the process was explained, she said, “I cannot be responsible
for putting a person to death even if they met [the] qualifications.” When
asked if she could vote to impose death if the law required, she said that
she would follow instructions, but would not like it and would not “be
okay with it emotionally.” The judge noted that while Juror 146 said she
would follow the law, he was concerned about her ability to be fair. The
court granted the State’s motion to strike her for cause.

¶21 Although a “general objection to the death penalty is not sufficient
to create a presumption that a prospective juror is unfit because of bias to
sit on the panel,” Anderson I, 197 Ariz. at 318 ¶ 6, 4 P.3d at 373 (discussing
Witherspoon v. Illinois, 391 U.S. 510 (1968)), if a prospective juror’s views
would “prevent or substantially impair the performance of [her] duties,”
the court should strike the juror for cause, Wainwright v. Witt, 469 U.S. 412,
424 (1985).

¶22 Juror 146’s responses were sufficient to permit the judge to
conclude that she could not be fair and impartial. See State v. Glassel, 211
Ariz. 33, 49-50 ¶¶ 53-55, 116 P.3d 1193, 1209-10 (2005) (affirming decision
to strike a juror for cause who stated she could not make the decision to
put someone to death despite her attestation that she would be “fair and
impartial”). Therefore, the decision to dismiss Juror 146 was not an abuse
of discretion.

              4.     Refusing to strike jurors

¶23    Payne claims that the trial court abused its discretion by refusing to

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                           Opinion of the Court

strike Jurors 18, 28, 100, and 103, who were impaneled and deliberated,
and Juror 94, who was designated an alternate. Although these jurors’
questionnaires expressed pro-death penalty views or acknowledged
media exposure or special feelings about child victims, the State
rehabilitated them, with each stating that he or she would disregard
personal feelings and follow the law and would not impose the death
penalty if not appropriate. Thus, the trial judge did not abuse his
discretion in refusing to strike these jurors.

             5.      Peremptory challenges

¶24 Payne claims that the trial court abused its discretion by refusing to
strike Jurors 66, 71, 138, 152, and 153 for cause, requiring Payne to use
peremptory challenges to remove them. Payne has failed to show that any
of these jurors was so biased that it was an abuse of discretion to deny his
motions to strike. See State v. Dickens, 187 Ariz. 1, 11, 926 P.2d 468, 478
(1996) (defendant must show juror “was biased and could not reasonably
render a fair or impartial verdict”), abrogated on other grounds by State v.
Ferrero, 229 Ariz. 239, 242-43 ¶¶ 15, 20, 274 P.3d 509, 512-13 (2012). The
responses given by each juror provided the trial court a reasonable basis
for concluding that each could remain impartial. Moreover, none of these
jurors actually sat on the jury panel, making any error harmless. See State
v. Hickman, 205 Ariz. 192, 198 ¶ 28, 68 P.3d 418, 424 (2003) (finding
curative use of peremptory challenge subject to harmless error review).

      B.     Venue

¶25 Payne asserts that the trial court erred by denying his request for a
change of venue based on presumed and actual prejudice.

             1.      Presumed prejudice

¶26 Payne first claims that the trial court erred by denying his request
for a change of venue based on pre-trial publicity. We review a trial
court’s ruling on a motion for change of venue for an abuse of discretion.
State v. Cruz, 218 Ariz. 149, 156 ¶ 12, 181 P.3d 196, 203 (2008).

¶27 Approximately two months before the trial, Payne requested a
change of venue based on adverse and excessive media coverage. He filed
more than 200 newspaper and broadcast reports that mentioned his case.

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                           Opinion of the Court

The trial court denied the motion, noting that much of the publicity
criticized CPS and most articles about the facts had appeared long before
trial. Payne did not renew his motion during trial.

¶28 A defendant is entitled to change the venue for his trial “if a fair
and impartial trial cannot be had.” Ariz. R. Crim. P. 10.3(a). To show
presumed prejudice, a defendant must show that the publicity “was so
extensive or outrageous that it permeated the proceedings or created a
carnival-like atmosphere.” State v. Blakley, 204 Ariz. 429, 434 ¶ 14, 65 P.3d
77, 82 (2003) (internal quotation marks omitted) (quoting State v. Atwood,
171 Ariz. 576, 631, 832 P.2d 593, 648 (1992)). The publicity must be so
prejudicial that the jurors could not decide the case fairly. State v.
Nordstrom, 200 Ariz. 229, 239 ¶ 15, 25 P.3d 717, 727 (2001), abrogated on
other grounds by Ferrero, 229 Ariz. at 243 ¶ 20, 274 Ariz. at 513. We examine
whether the publicity was chiefly factual and non-inflammatory and the
amount of time between the coverage and trial. See State v. Davolt, 207
Ariz. 191, 206 ¶ 46, 84 P.3d 456, 471 (2004).

¶29 Media coverage of Payne’s case was substantial. Several reports
included prejudicial information, including Payne’s criminal history,
allegations that Payne victimized Gonzales, and graphic descriptions of
Ariana’s remains. Furthermore, several comments in internet news
articles proclaimed Payne’s guilt and advocated extra-judicial
punishment. But most of the coverage appeared more than a year before
trial, contained facts later substantiated by evidence at trial, and repeated
a basic description of the crime that mirrored indictment allegations. See
Nordstrom, 200 Ariz. at 240 ¶ 17, 25 P.3d at 728 (no presumed prejudice
despite “troubling publicity” that appeared “many months before trial”
where “much of the information” was “presented . . . as evidence” at
trial). And the court exercised discretion and gave instructions to prevent
potentially harmful coverage from infecting the venire.

¶30 Payne has failed to meet the “’very heavy’ burden” of proof
necessary to show presumed prejudice. Cruz, 218 Ariz. at 157 ¶¶ 17, 20,
181 P.3d at 204.

             2.     Actual prejudice

¶31 Payne alternatively claims that even if prejudice is not presumed,
he has shown actual prejudice. Actual prejudice is established by

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                            STATE V. PAYNE
                           Opinion of the Court

showing that sitting jurors “formed preconceived notions concerning the
defendant’s guilt.” State v. Chaney, 141 Ariz. 295, 302, 686 P.2d 1265, 1272
(1984). Mere knowledge of or opinions about the case do not disqualify a
juror who can set them aside and decide based on the evidence presented
at trial. Cruz, 218 Ariz. at 156-57 ¶ 14, 181 P.3d at 203-04. Payne has not
shown actual prejudice among the sitting jurors.

¶32 Of the twelve jurors who deliberated, seven reported exposure to
media reports. Five of the seven reported “very little” exposure, and all
seven assured the court they could disregard it. See Atwood, 171 Ariz. at
632, 832 P.2d at 649 (no prejudice where half of jurors had “minimal”
media exposure, but indicated it would not interfere), disapproved of on
other grounds by Nordstrom, 200 Ariz. at 241 ¶ 25, 25 P.3d at 729.
Throughout voir dire and after the jury was sworn, the trial court
admonished the jury to avoid coverage and report any exposure.

¶33 Payne attempts to show that events at trial tainted the objectivity of
the jurors. He highlights several allegedly prejudicial events: a
spectator’s statement, which occurred in a hallway with no jurors present,
that Payne was a “monster” who should “fry”; a cameraman’s utterance
of “what the f***” in response to a camera problem, an utterance heard
only by Payne’s counsel and a deputy; and blogging by two witnesses
during the trial, mostly discussing the victims’ mother. Payne fails to
connect these isolated events to actual prejudice or bias of any jury
member.

¶34 Finally, Payne argues that actual prejudice was shown by the
court’s directive to jurors that they remain on one floor to avoid the media
and witnesses. Such admonitions, however, are precisely the type of
prophylactic measures courts should take to avoid tainting the jury. See
Nordstrom, 200 Ariz. at 240 ¶¶ 18-19, 25 P.3d at 728 (finding insufficient
evidence of actual prejudice to justify a change of venue and noting
admonition to jurors to avoid media exposure). Thus, Payne has failed to
show actual prejudice.

      C.     Post-Arrest Statements

¶35 Payne argues that the trial court erred by refusing to suppress his
post-arrest statements, which he claims violated Miranda and were
involuntary. We review rulings admitting a defendant’s statements for an

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                            Opinion of the Court

abuse of discretion. State v. Newell, 212 Ariz. 389, 396 ¶ 22 & n.6, 132 P.3d
833, 840 & n.6 (2006).

¶36 When the police officers first encountered Payne at a motel, they
told him they were investigating a crime and asked if he would
accompany them to the station to answer questions. Payne refused to go
without his lawyer. The police then arrested him on an unrelated
misdemeanor warrant. Once at the station, they put Payne in an
interrogation room. He waited approximately thirty minutes, during
which time he yelled, banged his handcuffs on the table, kicked the wall,
and asked to use the restroom, which he was allowed to do. In response
to the noise, Detective Walker opened the door to check on Payne. He did
not intend to interrogate Payne then, but Payne insisted that questioning
begin immediately. So Detective Walker read Payne his Miranda rights,
which Payne waived. Eventually, Payne admitted that the victims died in
his care and that he concealed their bodies in the storage facility.

              1.     Right to counsel

¶37 Payne claims that he clearly and unambiguously invoked his right
to counsel when police first encountered him outside of the motel. Citing
Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), he asserts that once a
suspect in custody invokes his Miranda right to counsel, police may not
interrogate him until he has counsel or he reinitiates the contact.

¶38 Assuming that Payne did request counsel outside the motel, the
question arises whether his invocation was effective. Miranda rights
generally cannot be invoked unless the suspect is in police custody. See
McNeil v. Wisconsin, 501 U.S. 171, 182 n.3 (1991). In McNeil, the Court
noted that it had “in fact never held that a person can invoke his Miranda
rights anticipatorily, in a context other than ‘custodial interrogation.’” Id.
Although Arizona courts have never had occasion to address the issue,
other jurisdictions have relied on this language from McNeil to conclude
that a non-custodial, anticipatory invocation of rights is not effective. See,
e.g., United States v. LaGrone, 43 F.3d 332, 339 (7th Cir. 1994); Alston v.
Redman, 34 F.3d 1237, 1249 (3d Cir. 1994); United States v. Wright, 962 F.2d
953, 955 (9th Cir. 1992) (“The [Supreme] Court has never held that Miranda
rights may be invoked anticipatorily outside the context of custodial
interrogation; we see no reason, apart from those already rejected in
McNeil, to do so here.”). We reach a similar conclusion.

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                             STATE V. PAYNE
                            Opinion of the Court

¶39 Payne was not in custody when he attempted to invoke his right to
counsel because, other than the presence of police, he had no reason to
“feel deprived of his freedom of action.” See State v. Stanley, 167 Ariz. 519,
523, 809 P.2d 944, 948 (1991); see also State v. Carter, 145 Ariz. 101, 105-06,
700 P.2d 488, 492-93 (1985) (inherently coercive nature of speaking to
police is insufficient). The police had not indicated that he was suspected
of committing a crime, had not told him he was under arrest, and had not
drawn their guns. Moreover, Payne felt free to refuse to accompany them.
Thus, Payne’s initial invocation was ineffective.

              2.     Right to silence

¶40 Payne also claims that he invoked his right to silence during the
interrogation. An invocation of the right to silence must be unequivocal
and unambiguous, as judged from the perspective of a reasonable officer
under the totality of the circumstances. State v. Cota, 229 Ariz. 136, 144-45
¶ 26, 272 P.3d 1027, 1035-36 (2012). If an invocation is ambiguous or
equivocal, “the police are not required to end the interrogation . . . or ask
questions to clarify whether the accused wants to invoke his or her
Miranda rights.” Berghuis v. Thompkins, 130 S. Ct. 2250, 2259-60 (2010).
During the interrogation, the following exchange occurred:

       PAYNE:      . . . you know what man, I don’t wanna talk
       anymore[.] [C]an I call my father[;] can I get my one phone
       call?

       WALKER:       Your father is still in [a] plane.

       PAYNE:          Well let me call my sister, and then my step-
       sister, just to let them know that, what the f*** is goin’ on,
       and then I’ll talk, man. I don’t know what the f*** you
       wanna get outta me, but I’ll talk.

¶41 A reasonable officer in these circumstances could find Payne’s
request ambiguous or equivocal because he indicated that he would talk
after he spoke with a family member. Therefore, the trial court did not
abuse its discretion in finding no violation of Miranda and admitting
Payne’s statements.



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                           Opinion of the Court

             3.     Voluntariness

¶42 Payne argues that his statements were involuntary because he
relied on promises made by the police and was suffering from heroin
withdrawal when he confessed. Trial courts presume confessions to be
involuntary, State v. Ross, 180 Ariz. 598, 603, 886 P.2d 1354, 1359 (1994),
but we review a trial court’s ruling on a motion to suppress for an abuse
of discretion, State v. Hausner, 230 Ariz. 60, 70 ¶ 23, 280 P.3d 604, 614
(2012).

¶43 The effect of withdrawal from drugs does not render a confession
involuntary unless the suspect “is unable to understand the meaning of
his statements” or cannot reason or comprehend what is happening. State
v. Laffoon, 125 Ariz. 484, 487, 610 P.2d 1045, 1048 (1980) (citing State v.
Arredondo, 111 Ariz. 141, 145, 526 P.2d 163, 167 (1974)). Payne reported
being cold and sick, asked for methadone, and vomited at the end of the
interrogation. EMTs evaluated Payne, however, and concluded that his
vital signs were normal. He clearly understood and followed the
questioning, consistently denied police assertions, and presented facts in a
light favorable to himself.

¶44 Payne also argues that he confessed because police said they would
let him speak with Gonzales. See State v. Ellison, 213 Ariz. 116, 127 ¶ 30,
140 P.3d 899, 910 (2006) (noting that promises and coercion may render
statements involuntary). Courts examine the totality of the circumstances
to determine whether the suspect’s will was overborne by police conduct.
Stanley, 167 Ariz. at 523-24, 809 P.2d at 948-49. Although police did tell
Payne he could talk with Gonzales, he did not show that this was a
promise or quid pro quo for talking, that he relied upon the statement, or
that the police overbore his will. The circumstances indicate otherwise:
Payne made his admissions at times far removed from any promises
regarding Gonzales, and after Payne’s initial incriminatory statements,
Payne denied disposing of Tyler’s body in a different location, denied
abusing the children, and denied murdering the children to avoid paying
child support. See Newell, 212 Ariz. at 400 ¶ 50, 132 P.3d at 844 (noting
that continued denials were evidence that defendant’s will was not
overborne).

¶45 For these reasons, we conclude that the trial court did not abuse its
discretion by finding that Payne’s statements were voluntary.

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                           Opinion of the Court

      D.     Exclusion of Hearsay

¶46 Payne contends that the trial court erroneously prevented him from
presenting evidence regarding Gonzales’s threats to “kill” the children if
he did not do something about their behavior. The statements he wished
to introduce were: “You got to do something about these f***ing kids.
You got to shut these f***ing kids up or I’m going to f***ing kill them.”
Payne sought to introduce these statements through the testimony of
Debra Reyes, who sold heroin with Payne and overheard phone calls in
which Gonzales screamed at Payne and threatened to kill the children.

¶47 The State moved to preclude these statements on hearsay grounds
and because they would open the door to testimony that Gonzales wanted
to help the children but feared reprisals from Payne. At Payne’s request,
the court had previously precluded evidence about threats and domestic
abuse between Payne and Gonzales.

¶48 Payne argues that Gonzales’s statements qualify as present sense
impressions under Arizona Rule of Evidence 803(1) and excited utterances
under Rule 803(2). Payne asserts for the first time that they also qualify as
party admissions under Rule 801(d)(2), statements of existing mental,
emotional, or physical condition under Rule 803(3), and statements
against interest under Rule 804(b)(3). The court precluded the statements
“on the basis of the record,” ruling that Payne could call Gonzales and
Reyes, but could not ask Reyes about Gonzales’s threats to kill the
children.

¶49 Out of court statements offered to prove the truth of the matter
asserted are hearsay and are inadmissible unless they fall within an
exception to the hearsay rule. Ariz. R. Evid. 801(c)-(d), 802. We review
the rulings on those grounds that Payne raised at trial for an abuse of
discretion, State v. Chappell, 225 Ariz. 229, 238 ¶ 28, 236 P.3d 1176, 1185
(2010), and review de novo constitutional issues and the meaning of the
rules of evidence, State v. Hansen, 215 Ariz. 287, 289 ¶ 6, 160 P.3d 166, 168
(2007). We review those issues that Payne did not raise at trial for
fundamental error. See State v. Henderson, 210 Ariz. 561, 567 ¶ 19, 115 P.3d
601, 607 (2005).

¶50 To qualify as a present sense impression under Rule 803(1), a
statement must “describ[e] or explain[] an event or condition” while the

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                          Opinion of the Court

viewer is perceiving it or immediately thereafter. Payne argues that Reyes
was perceiving Gonzales’s frustration with the children.          But the
statement at issue — Gonzales’s threat to kill the children — was not the
sense impression. Nor did the statement qualify as an excited utterance
under Rule 803(2). That rule requires that the statement “relate[] to a
startling event or condition.” The trial court did not abuse its discretion
by finding that the statement did not qualify as an excited utterance
because no startling event or condition had occurred.

¶51 Under Rule 801(d)(1)(A), a statement is not hearsay if the
“declarant testifies and is subject to cross-examination about a prior
statement, and the statement . . . is inconsistent with the declarant’s
testimony.” Gonzales testified at trial, and Payne made an offer of proof
in which Gonzales denied making the statements. Reyes’s testimony
about Gonzales’s prior statement qualified under this rule.

¶52 But trial courts have discretion to exclude otherwise admissible
evidence “if its probative value is substantially outweighed by a danger
of . . . unfair prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative evidence.” Ariz.
R. Evid. 403. Introducing Gonzales’s statements through Reyes would
have raised collateral issues, such as whether the threats actually
evidenced any intent to harm the children, and implicated even more
peripheral issues such as Gonzales’s fear of Payne and evidence of past
abusive incidents between Payne and Gonzales. The trial court had
previously granted Payne’s motion to preclude evidence of any abuse of
Gonzales. The trial court acted within its discretion in precluding the
admission of Gonzales’s statements through Reyes because they might
have caused confusion and wasted time. Moreover, other evidence
presented at trial amply showed Gonzales’s exasperation with the
children, including Gonzales’s testimony that she often called Payne to
yell about the children and Reyes’s testimony about witnessing similar
frustrations. Furthermore, the jury knew that Gonzales was incarcerated
for her involvement in the murders. Therefore, the precluded testimony
was cumulative, and for this additional reason, the trial court did not
abuse its discretion by excluding it.

¶53 Furthermore, the record contained substantial evidence that the
children were malnourished, abused, kept in a closet, and ultimately died
in Payne’s care. Even if the jury had heard and believed that Gonzales

                                    14
                            STATE V. PAYNE
                           Opinion of the Court

threatened to kill the children, there was ample evidence that Payne
abused and premeditatedly murdered them by failing to help them.

¶54 Because we find no abuse of discretion in excluding Reyes’s
testimony regarding Gonzales’s statements, we do not address the
hearsay exceptions not raised at trial, which would be subject to
fundamental error review.

¶55 Payne also contends that excluding this testimony violated his
constitutional rights to due process and compulsory process. But the
analysis for these claims parallels our Rule 403 analysis, focusing on the
probative value and prejudicial effect of the evidence. See United States v.
Cruz-Escoto, 476 F.3d 1081, 1088 (9th Cir. 2007). As such, the exclusion of
this evidence did not violate due process or compulsory process rights.

      E.     Admission of Evidence of Heroin Sales

¶56 Payne asserts that the trial court inappropriately admitted evidence
that he sold heroin. He claims that this was unduly prejudicial because it
encouraged the jury to convict him for uncharged bad acts. We review the
admission of evidence for abuse of discretion. State v. Robinson, 165 Ariz.
51, 56, 796 P.2d 853, 858 (1990).

¶57 The court found the nature of Payne’s job required that he remain
away from home for long hours. This motivated him to lock his children
in the closet to appease Gonzales. Thus the court found the evidence
probative of motive. To attempt to minimize prejudice, the court
admonished the State “to limit the number of times . . . the issue [was]
brought up, and not use racy words.” The State mentioned in its opening
statement and closing argument that Payne “started dealing drugs” and
was “working with” a heroin dealer. Payne himself also mentioned
several times in his opening statement and closing argument that he sold
heroin. In its final instructions, the court instructed the jury not to
consider evidence of drug use or sales for character purposes or as a basis
for determining that the defendant committed the charged offenses.

¶58 Evidence of uncharged acts may not be admitted to prove bad
character or that, because a defendant did one bad act, he likely engaged
in other bad acts. Ariz. R. Evid. 404(b). But such evidence may be
admitted to prove other issues, such as motive, opportunity, or lack of

                                    15
                             STATE V. PAYNE
                            Opinion of the Court

mistake or accident. Id.; see Ferrero, 229 Ariz. at 241 ¶ 5, 274 P.3d at 511.
When other act evidence is admissible but prejudicial, the trial court must
“limit the evidence to its probative essence (motive) by excluding
irrelevant or inflammatory detail.” State v. Hughes, 189 Ariz. 62, 70, 938
P.2d 457, 465 (1997).

¶59 The trial court did attempt to limit the prejudice here and did not
abuse its discretion. Each time the State mentioned the heroin sales, it did
so to explain why Payne was away from home for long periods.3 The
evidence was relevant to the State’s theory that Payne locked the children
in the closet so he could stay away from home without interruption from
Gonzales’s calls.

¶60 Finally, the trial court did find that the probative value of the
evidence was not substantially outweighed by its prejudicial effect. The
jury heard evidence that Gonzales and Payne used heroin, marginalizing
any prejudicial effect from evidence that Payne was absent because he was
out selling it.

       F.    Jurors Seeing Payne in Restraints

¶61 Relying on Deck v. Missouri’s holding that routine use of visible
shackles on a defendant is “inherently prejudicial,” see 544 U.S. 622, 628
(2005), Payne contends that the trial court erred by denying his motion for
a mistrial or to designate jurors as alternates after they saw Payne in
restraints outside the courtroom. Mistrial is an extraordinary remedy for
trial error “and should be granted only when it appears that justice will be
thwarted unless the jury is discharged and a new trial granted.” Speer, 221
Ariz. at 462 ¶ 72, 212 P.3d at 800 (quoting Dann I, 205 Ariz. at 570 ¶ 43, 74
P.3d at 244). We review the trial court’s rulings for abuse of discretion.
State v. Adamson, 136 Ariz. 250, 260, 665 P.2d 972, 982 (1983) (mistrial);
State v. Bible, 175 Ariz. 549, 574, 858 P.2d 1152, 1177 (1993) (designation of

3       Prosecutors and courts should tread carefully in areas that may
affect the fairness of a criminal trial. A defendant might also spend long
hours away from home while working as a lawyer or stockbroker. For
that reason, trial judges should carefully scrutinize requests to admit
prejudicial evidence. In this case, we cannot say that the judge’s ruling
was an abuse of discretion, but the issue is close. The judge’s limiting
instructions helped prevent an abuse.
                                     16
                           STATE V. PAYNE
                          Opinion of the Court

jurors).

¶62 During trial, Juror E told the court that, while in a restricted-access
hallway, he saw Payne in an elevator with three officers and a “cage.”
The jurors had been wondering what the elevator was used for, so Juror E
told Juror F that the elevator was used to transport “prisoners.” Upon
questioning, Juror E assured the court that the incident would not affect
his ability to remain fair and impartial. Juror F gave similar assurances.
The court denied Payne’s motion for a mistrial or to designate Jurors E
and F as alternate jurors, noting that jurors would not be “surprise[d]” to
know that Payne was in custody, in part because they were to see a video
of him wearing restraints the next trial day.

¶63 Several days later, another juror, Juror W, passed the same elevator
when Payne and deputies were inside and the doors were open. When
the trial court asked Juror W whether he saw anything he was not
supposed to see, Juror W said he did not think so. The court did not
question him further because it did not want to suggest an answer. Payne
renewed his motions, which the court again denied.             The court
nonetheless admonished the deputies to exercise more caution when
transporting Payne. Before the court selected alternates, Payne renewed
his motion to designate Jurors E, F, and W as alternates, but the court
again denied the motion.

¶64 A third incident occurred when the deputies opened the door of the
elevator as two jurors walked by. Juror N1 was dismissed randomly as an
alternate. The deputies believed that the other juror, Juror N2, was not
looking in their direction, but even if so, would not have seen Payne’s
shackles because Payne was standing behind the officers. Payne pointed
out that he was taller than the deputies and so could easily have been
seen. The trial court declined to designate Juror N2 an alternate, noting
that Payne was not “wear[ing] shackles on his head.”

¶65 Payne relies on cases holding that routine use of visible shackles is
“inherently prejudicial” and obviates the need for a showing of prejudice.
See Deck, 544 U.S. at 635. But brief, inadvertent juror exposure to the
defendant in shackles outside the courtroom does not rise to the same
level. See Speer, 221 Ariz. at 462-63 ¶ 74, 212 P.3d at 800-01. Payne must
therefore show actual prejudice, see id. ¶ 72, which the record does not
reflect.

                                    17
                             STATE V. PAYNE
                            Opinion of the Court

¶66 During voir dire by Payne, Jurors E and F, who deliberated after
seeing Payne in restraints, assured the court that the incident would not
affect their ability to be fair and impartial. Their “brief and inadvertent
exposure” outside the courtroom was not inherently prejudicial. See State
v. Apelt, 176 Ariz. 349, 361, 861 P.2d 634, 646 (1993) (affirming denial of
new trial where four jurors saw defendant in shackles and handcuffs
being escorted from courthouse). Payne has not pointed to any evidence
that jurors were prejudiced. And, as the trial court observed, it is highly
unlikely that any juror would have been surprised that Payne was in
custody. Thus, Payne has not established actual prejudice.

       G.     Child Abuse Charges

¶67 Payne makes four claims related to his child abuse convictions,
which are addressed in turn below.

              1.     Mens rea of “circumstances”

¶68 Payne asserts that the trial court erroneously prohibited him from
arguing to the jury that the State must prove that he abused the children
“under circumstances [that he intended or knew were] likely to cause
death or serious physical injury.” This, he claims, turned child abuse into
a strict liability offense and, as a result, the court erred in instructing the
jury on the elements of child abuse. We review de novo statutory
interpretation issues, State v. Armstrong (Armstrong III), 218 Ariz. 451, 463
¶ 54, 189 P.3d 378, 390 (2008), and whether jury instructions properly state
the law, State v. Johnson, 212 Ariz. 425, 431 ¶ 15, 133 P.3d 735, 741 (2006).

¶69 Section 13-3623(A) makes it crime, “[u]nder circumstances likely to
produce death or serious injury,” for a person to cause physical injury to a
child or to permit the injury of a child in the person’s care or custody.
This offense is a class 2 felony “[i]f done intentionally or knowingly.” Id.
§ 13-3623(A)(1). Payne contends that, in order to convict him of child
abuse as a class 2 felony, in addition to showing that he intended to cause
or knew that he would cause (or permit) injury, the State had to show that
he intended or knew that the “circumstances were likely to produce death
or serious injury.” Payne thus contends that the intentional or knowing
mens rea requirement applicable to the other elements of child abuse also
applies to the circumstances component. The trial court rejected Payne’s
construction and instructed the jury that the State must prove “that the

                                      18
                             STATE V. PAYNE
                            Opinion of the Court

defendant committed child abuse in at least one of the three possible
manners . . . , and that [his actions occurred] under circumstances likely to
cause death or serious physical injury” to the children.

¶70 If a statute requires a mental state, it applies to each element of the
offense unless it “plainly appears” that the legislature intended otherwise.
A.R.S. § 13-202(A).      The questioned portion of § 13-3623(A) (the
“circumstances clause”) provides that abuse must occur “[u]nder
circumstances likely to produce death or serious physical injury.” We
have not addressed whether any mens rea requirement applies to this
phrase, but our court of appeals has upheld convictions based solely on
objective evidence of the existence of such circumstances, without
requiring the state to prove the defendant’s intent that the circumstances
be such that death or serious injury might occur. See State v. Johnson, 181
Ariz. 346, 350, 890 P.2d 641, 645 (App. 1995); State v. Greene, 168 Ariz. 104,
105-06, 811 P.2d 356, 357-58 (App. 1991). Other jurisdictions have
similarly interpreted such clauses. See People v. Sargent, 970 P.2d 409, 418
(Cal. 1999) (California’s circumstances clause “does not provide that a
defendant must ‘know or reasonably should know that his or her actions
occur under circumstances or conditions likely to produce great bodily
harm or death.’” (quoting Cal. Penal Code § 273a)); cf. Williams v. State, 641
A.2d 990, 992-93 (Md. Ct. Spec. App. 1994) (whether circumstances in
reckless endangerment are likely to result in serious physical injury or
death is an objective inquiry). “[C]ircumstances likely to produce death or
serious physical injury,” unlike the abuse itself, either exist or do not exist.
This Court has similarly found the “care and custody” element of § 13-
3623(A) to be an objective factual inquiry rather than an element for which
mens rea must be proven. See State v. Jones, 188 Ariz. 388, 393-94, 937 P.2d
310, 315-16 (1997).

¶71 Moreover, the statute increases the offense level based on the
actor’s intent: If the offense is “done intentionally or knowingly,” it
becomes a class 2 felony. A.R.S. § 13-3623(A)(1). It is a lesser offense if
done negligently or recklessly. See id. § (A)(2). The structure of the statute
thus suggests that the mens rea refers to the act that the defendant “does,”
and not to the background circumstances. Because we find that the
circumstances clause is more like the “care and custody” provision, we
decline to apply the means rea to the circumstances clause.

¶72    Payne argues that such an interpretation turns child abuse into a

                                      19
                              STATE V. PAYNE
                             Opinion of the Court

strict liability crime. But a statute creates a strict liability crime only if it
does not require any mental state. Williams, 144 Ariz. at 488, 698 P.2d at
733. That is not the case here, as § 13-3623(A) requires at least criminal
negligence for the act itself, and the section under which Payne was
charged, § 13-3623(A)(1), requires knowledge or intent.

¶73 Finally, Payne claims that because the circumstances clause is an
element of the crime that enhances punishment and appears in the text
defining the offense, the legislature must have intended for it to have a
mens rea requirement. We disagree. It is the level of intent that enhances
the offense level, not the existence of “circumstances.” See A.R.S. § 13-
3623(A). As such, the court’s instructions were correct.

              2.      Count 2: insufficiency of evidence of Ariana’s broken
                      bones

¶74 Payne argues that the State presented insufficient evidence to prove
that he “knowingly or intentionally . . . caus[ed] or permitt[ed] [Ariana’s]
bones to be broken under circumstances likely to cause serious injury or
death.” He argues that broken bones are not themselves serious physical
injuries, but rather, quoting State v. George, 206 Ariz. 436, 441 ¶ 9, 79 P.3d
1055, 1062 (App. 2003), asserts that the injuries must be “more than the
usual temporary impairment caused by the fracture of a body part.”
Therefore, he claims that the State failed to show that Ariana’s broken
bones occurred in circumstances likely to result in serious injury or death.

¶75 Payne’s argument rests on the assumption that, to prove a violation
of § 13-3623(A)(1), the State had to prove that broken bones are serious
injuries or that breaking bones or permitting bones to be broken caused
serious physical injury or death to Ariana. That is not the case. Instead,
the State had to prove only that Payne caused or permitted abuse or
injuries — here, broken bones — to occur in circumstances likely to cause
serious injury or death. In § 13-3623(A), “serious physical injury” is used
only to describe circumstances that must exist when the abuse occurs. See
Johnson, 181 Ariz. at 350, 890 P.2d at 645 (interpreting “likely” as
“probable,” upholding conviction under § 13-3623(A)(1) based on
circumstances that may cause serious injury, rather than actual serious
injury); State v. Styers, 177 Ariz. 104, 110, 865 P.2d 765, 771 (1993) (noting
that a “person commits child abuse if ‘under circumstances likely to
produce death or serious physical injury,’ he causes a child to suffer

                                       20
                               STATE V. PAYNE
                              Opinion of the Court

physical injury or abuse”).

¶76 Payne secondarily asserts that the State presented insufficient
evidence to show that he intentionally or knowingly broke Ariana’s bones
or permitted them to be broken while she was in his care because the
breakages could have occurred before he started caring for her or after her
death. We review the sufficiency of evidence to determine whether
“substantial evidence exists to support the jury verdict.” State v. Stroud,
209 Ariz. 410, 411 ¶ 6, 103 P.3d 912, 913 (2005). Substantial evidence is
proof, viewed in the light most favorable to sustaining the verdict, that
would allow reasonable persons to find a defendant guilty beyond a
reasonable doubt. State v. Bearup, 221 Ariz. 163, 167 ¶ 16, 211 P.3d 684, 688
(2009); see State v. Roque, 213 Ariz. 193, 218 ¶ 93, 141 P.3d 368, 393 (2006)
(viewing facts favorably).

¶77 Substantial evidence shows that Payne broke or permitted bones to
be broken. Evidence was presented that the children were seen outside,
playing and seemingly well, when they first came to stay with Payne. At
trial, three experts testified that Ariana’s bones, given their differing states
of healing, had likely been broken when Ariana was in Payne’s care,
although the experts could not establish the precise time of any injury.
Moreover, Gonzales testified that Payne stated that he did not seek help
for the children because he feared being arrested for abuse. This Court
has found knowledge or intent where the defendant knew that the victim
needed medical attention, but chose not to act. See State v. Mott, 187 Ariz.
536, 543, 931 P.2d 1046, 1053 (1997); see also State v. Poehnelt, 150 Ariz. 136,
141, 722 P.2d 304, 309 (App. 1985) (upholding child abuse conviction,
relying partly on victim’s malnourishment).4

¶78 Sufficient evidence was also presented that the circumstances
existing when the abuse occurred were likely to cause serious injury or

4      Because sufficient evidence supports the conviction for Count 2, we
do not address Payne’s argument that his conviction for felony murder
must be overturned because it would be unclear whether the jury was
unanimous on felony murder if the evidence did not support Count 2.
Moreover, the jury unanimously found felony murder as to Tyler based
upon its finding of guilt on Count 6, suggesting that it would have
similarly unanimously found felony murder as to Ariana based solely
upon Payne’s conviction on Count 3, discussed below.
                                      21
                             STATE V. PAYNE
                            Opinion of the Court

death. Ariana’s multiple and serious injuries occurred while she was
being punished by being locked in the closet and not being fed or cared
for. This evidence is sufficient to support the jury’s finding that the
injuries occurred under circumstances likely to cause serious injury or
death.

              3.     Potential for non-unanimous verdicts

¶79 Payne next argues that he was deprived of a unanimous verdict
regarding the child abuse charges because the jury was not required to
agree on which act caused each type of abuse.

¶80 The State charged Payne with three counts of child abuse. Count 2
charged Payne with knowingly or intentionally causing or permitting
Ariana’s bones to be broken under circumstances likely to cause death or
serious physical injury. Count 3 alleged that Payne knowingly or
intentionally caused or permitted Ariana’s health to be endangered under
circumstances likely to cause death or serious physical injury by failing to
seek medical attention for Ariana or allowing her to starve to death.
Count 6 alleged the same as Count 3 with respect to Tyler. Payne did not
seek clarification of the indictment or object to any count in the indictment
on grounds that the indictment itself was duplicitous, but did argue, after
the close of the evidence, that the State should have been required to
specify which act it relied upon to prove each count because permitting
evidence of multiple acts to satisfy a single charge presented duplicity
issues. Because the objection came too late to permit correction of the
alleged defects, we review for fundamental error. See Dann III, 220 Ariz.
at 367 ¶ 76, 207 P.3d at 620.

¶81 A criminal defendant is entitled to a unanimous verdict. Id. at 367
¶ 79, 207 P.3d at 620 (quoting Ariz. Const. art. 2, § 23). If an indictment is
facially valid, but the state introduces evidence of several acts, each of
which might satisfy the charge, the risk of a non-unanimous verdict is
presented. See State v. Davis, 206 Ariz. 377, 390 ¶ 61, 79 P.3d 64, 77 (2003).
As we observed in Dann III, however, as long as only one charge is alleged
in a count of an indictment, jurors may “reach a verdict based on a
combination of alternative findings.” 220 Ariz. at 367 ¶ 79, 207 P.3d at
620; cf. State v. Gomez, 211 Ariz. 494, 498 ¶ 16 n.3, 123 P.3d 1131, 1135 n.3
(2005) (noting that a “jury need not be unanimous as to the theory of first
degree murder as long as all agree that the murder was committed”); State

                                     22
                             STATE V. PAYNE
                            Opinion of the Court

v. Tucker, 205 Ariz. 157, 166-67 ¶¶ 48-51, 68 P.3d 110, 119-20 (2003) (to
same effect).

                     a.     Count 2

¶82 Count 2 charged Payne with knowingly or intentionally causing or
permitting Ariana’s bones to be broken in circumstances likely to cause
death or physical injury. Payne argues that Count 2 was duplicitous as
presented at trial because it permitted the jury to find him guilty if he
either broke Ariana’s bones or permitted someone else to break them.

¶83 We disagree that this rendered the charge duplicitous. Count 2 did
not charge multiple crimes in a single count; rather it charged a single
crime — abusing Ariana by breaking her bones or permitting them to be
broken — that could be committed in multiple ways.

¶84 Payne argues that Count 2 nonetheless subjected him to the danger
of a non-unanimous verdict by allowing jurors to find him guilty despite
potential disagreement regarding his responsibility for individual acts.
But Payne was aware of the existence of multiple fractures and yet did not
request that the State be required to elect one to rely upon until after
evidence had closed.

¶85 Indictments need not specify the precise act constituting the crime
if “there is no reasonable basis” for distinguishing multiple acts. State v.
Klokic, 219 Ariz. 241, 246 ¶ 25, 196 P.3d 844, 849 (2008). In such a case, “the
defendant is not entitled to a unanimous verdict on the precise manner” in
which an act is committed. State v. Encinas, 132 Ariz. 493, 496, 647 P.2d
624, 627 (1982); see also State v. Counterman, 8 Ariz. App. 526, 531-32, 448
P.2d 96, 101-02 (1968) (upholding assault conviction where two assaults
occurring as part of a continuous course of conduct were charged in one
count). Thus, the jury here was not required to unanimously agree on the
manner of committing child abuse.

¶86 Payne was charged with a count of child abuse by causing or
permitting bones to be broken. This is a discrete method of committing
child abuse under § 13-3623(A). Payne had notice of the charge and
defended against all acts by claiming that he did not break or permit
breakage of any bones. The charge and acts constituting it were
sufficiently specific that he could later assert double jeopardy. See State v.

                                      23
                            STATE V. PAYNE
                           Opinion of the Court

Ramsey, 211 Ariz. 529, 533-34 ¶ 9, 124 P.3d 756, 760-61 (App. 2005).

¶87   Count 2 was thus not duplicitous.

                    b.     Counts 3 and 6

¶88 Counts 3 and 6 alleged that Payne caused or permitted Ariana and
Tyler’s health to be endangered by failing to seek medical attention for
them or allowing them to starve to death. Payne argues that those counts
were duplicitous because he could be found guilty based on two separate
acts: failing to seek medical attention “and/or” starving the children to
death.

¶89 Payne argues that failing to feed and failing to seek medical
attention are separate acts that should have been charged separately
because one is active and one is passive, citing State v. Leal, 723 P.2d 977
(N.M. App. 1986). We find this unpersuasive because both involve the
failure to do something and are thus passive.

¶90 Moreover, each count of the indictment charges only one crime of
child abuse, essentially by neglect. Thus, even if the jury believed Payne’s
argument that he tried to feed the children but they did not wish to eat or
were not able to eat, his failure to seek medical attention also constituted
abuse under the statute. Payne admitted to police that he did not seek
medical care for the children because he was afraid he would be charged
with child abuse, and he presented no evidence or argument at trial that
he attempted to seek such help. Because he was not entitled to a
unanimous verdict on the manner in which the act was performed,
Encinas, 132 Ariz. at 496, 647 P.2d at 627, Counts 3 and 6 were not
duplicitous. Even if an error did occur, Payne was not prejudiced — the
failure to seek medical care itself satisfied the charge, and no reasonable
jury could have found that Payne was not guilty of child abuse under this
theory.

             4.     Jury instructions and verdict forms

¶91 Payne argues that the trial court erred by instructing on the child
abuse theory of causing physical injury because the State did not allege
that type of abuse. At the close of evidence in the guilt phase, over
Payne’s objection, the trial court combined the instructions for all three

                                     24
                           STATE V. PAYNE
                          Opinion of the Court

counts of child abuse:

      The crime of intentional or knowing child abuse requires
      proof that, under circumstance[s] likely to produce death or
      serious physical injury, the defendant did one of the
      following:

      One, intentionally or knowingly causing the child to suffer
      physical injury; or

      Two, having the care or custody of a child[,] intentionally or
      knowingly causes or permits the person or health of the
      child to be injured; or

      Three, having the care or custody of a child[,] intentionally
      or knowingly causes or permits the child to be placed in a
      situation where the person or health of the child is in danger.

      In order to determine that the defendant committed the
      crime of intentional or knowing child abuse[,] it is not
      necessary that all 12 of you agree on the particular manner in
      which the crime was committed. However, it is necessary
      that each of you determine that the defendant committed
      child abuse in at least one of the three possible manners set
      forth above, and that it was under circumstances likely to
      cause death or serious physical injury.

When explaining the verdict forms, the court also combined all three
methods of child abuse in each count. For example, the verdict form for
the child abuse counts for breaking Ariana’s bones included all three
methods of committing child abuse under the statute, even though the
indictment only alleged the “cause or permit the person or health of the
child to be injured” variation. The jury found Payne guilty of all three
counts.

¶92 But the instructions here were followed by verdict forms specifying
the allegations satisfying each count. Because these forms properly
instructed the jury on the required findings, the jurors were not misled
and there was no reversible error.


                                    25
                           STATE V. PAYNE
                          Opinion of the Court

      H.     Sufficiency of Evidence for First Degree Murder

¶93 Payne argues that the evidence was insufficient to prove that he
murdered his children with premeditation. We review the sufficiency of
evidence to determine whether “substantial evidence exists to support the
jury verdict,” viewing the facts in the light most favorable to sustaining
the verdict. Stroud, 209 Ariz. at 411 ¶ 6, 103 P.3d at 913.

¶94 A person commits first degree premeditated murder if,
“[i]ntending or knowing that the person’s conduct will cause death, the
person causes the death of another person . . . with premeditation.” A.R.S.
§ 13-1105(A)(1). “‘Premeditation’ means that the defendant acts with
either the intention or knowledge that he will kill another human being,
when such intention or knowledge precedes the killing by any length of
time to permit reflection.” State v. Thompson, 204 Ariz. 471, 475 ¶ 12, 65
P.3d 420, 424 (2003) (quoting A.R.S. § 13-1101(1)).

¶95 Sufficient evidence in this case supports the jury’s finding that
Payne intentionally abused his children and later decided to take their
lives. Gonzales testified that while Ariana and Tyler were initially placed
in the closet only while Payne was away from home and for disciplinary
purposes, after about a month, Payne left them in the closet permanently,
feeding them irregularly, then not at all. They died soon after. Thus, it
was reasonable for jurors to infer that Payne’s intentions changed.
Therefore, there was sufficient evidence to support the jury’s finding of
premeditated murder.

      I.     Juror Question During Deliberations

¶96 During deliberations in the guilt phase, the jury sent the judge a
note asking whether there was an “advantage to having a unanimous
decision on guilt” on both felony murder and premeditated murder
theories. Payne argues that the trial court committed reversible error by
not granting his mistrial motion following this question, asserting that it
suggested that the jurors had viewed extraneous information. We review
a trial court’s rulings on motions for mistrial based on juror misconduct
for abuse of discretion. Cruz, 218 Ariz. at 163 ¶ 67-68, 181 P.3d at 210.

¶97 After the question was relayed to the judge, Payne was consulted
and asked the court to instruct the jurors to resolve that question

                                    26
                             STATE V. PAYNE
                            Opinion of the Court

themselves. The court adopted part of Payne’s requested instruction,
telling the jurors to resolve the question themselves, “based upon the
instructions, evidence, and arguments you have heard and received.”
Before so instructing the jury, the court asked whether the defense
objected. The defense responded “no.” The next day, Payne moved for a
mistrial, arguing that the question showed that the jury considered extra-
judicial information because it suggested that the jurors were split on the
theory and traded votes to ensure a “solid” conviction. The trial court
denied the motion.

¶98 Payne does not point to any indication, apart from the question
itself, that the jurors received extraneous information or that any other
misconduct occurred. Our cases ordering a new trial have focused on
stronger reasons to believe that jurors received extrinsic evidence. See,
e.g., State v. Glover, 159 Ariz. 291, 293, 295, 767 P.2d 12, 14, 16 (1988) (jury
foreman submitted affidavit and testified that two jurors consulted
outside sources and shared information); State v. McLoughlin, 133 Ariz.
458, 460-61, 652 P.2d 531, 533-34 (1982) (during deliberations “one juror
was told by an unidentified third party that if appellant was found not
guilty by reason of insanity, he would go free”).

¶99 Nor did the trial court err in responding to the jury’s question. The
court consulted both parties and both agreed to the proposed response.
Payne further argues that the instruction to consider evidence “received”
did not explicitly limit the jurors to considering only evidence admitted.
We do not believe a reasonable juror would have inferred any distinction
between “received” and “admitted” in this context. The trial court did not
abuse its discretion.

       J.     Juror Bias

¶100 Payne argues that the trial court abused its discretion by denying
his motion to strike Juror 28 for bias or, in the alternative, to designate her
as an alternate. “The trial court, which has the opportunity to observe the
prospective juror’s demeanor and the tenor of his answers, is in a position
to determine first hand whether a juror can render a fair and impartial
verdict.” Chaney, 141 Ariz. at 303, 686 P.2d at 1273 (internal quotation
marks and citations omitted). Thus, we review a trial court’s ruling on
juror misconduct and the decision on whether to strike for an abuse of
discretion. State v. Moore, 222 Ariz. 1, 10 ¶ 37, 213 P.3d 150, 159 (2009);

                                      27
                            STATE V. PAYNE
                           Opinion of the Court

Dann III, 220 Ariz. at 370 ¶ 106, 207 P.3d at 623. We presume that jurors
are impartial absent evidence to the contrary. See Lockhard v. McCree, 476
U.S. 162, 184 (1986).

¶101 Payne alleges that Juror 28 made several statements during trial
that raised questions about her impartiality. In a conference in chambers,
another juror said that Juror 28 mocked witnesses and complained about
defense witnesses. The juror was concerned because, while Juror 28 made
the comments “[u]nder her breath,” the reporting juror thought they were
“loud enough to where there’s the possibility of the prosecution” or a
detective at counsel table hearing her. Counsel for the State denied
hearing more than “exasperated sighs, from both sides,” and stated the
detective had not heard anything either.

¶102 Although he did not ask to question Juror 28, Payne asked the court
to designate her as an alternate and excuse her, citing concerns that she
was disruptive and inappropriately sharing opinions. The court denied
these requests and instead reread the admonition to the jury.

¶103 Judges must respond to a claim of juror misconduct in a manner
“commensurate with [its] severity.” State v. Miller, 178 Ariz. 555, 557, 875
P.2d 788, 790 (1994). Here, the complaining juror said that Juror 28’s
comments were annoying, but they did not reveal that she was biased or
had made up her mind before hearing all the evidence. Neither the State
nor the defense heard the comments, and no evidence shows that other
members of the jury heard them. In these circumstances, the rereading of
the admonition was a response commensurate with the severity of the
alleged misconduct. Therefore, the trial judge did not abuse his discretion
by refusing to strike Juror 28 or designate her as an alternate.

¶104 Payne now argues that a mistrial should have been granted. We
review this decision for fundamental error. See Henderson, 210 Ariz. at 567
¶ 19, 115 P.3d at 607. As it was not an abuse of discretion to refuse to
strike Juror 28, it was not fundamental error to not order a mistrial based
on her conduct.

      K.     Prosecutorial Misconduct

¶105 Payne contends that the prosecutor committed misconduct by
vouching for a witness, suggesting through facts not in evidence that

                                    28
                             STATE V. PAYNE
                            Opinion of the Court

Payne was a “bad man,” improperly leading witnesses, improperly
extracting a diagnosis from a defense expert, and commenting on Payne’s
invocation of his right to remain silent. Payne claims these acts
constituted individual and cumulative prosecutorial misconduct.

¶106 In reviewing prosecutorial misconduct claims, we first review each
allegation individually for error. See Roque, 213 Ariz. at 228 ¶ 154, 141
P.3d at 403. We will find an error harmless if we can say beyond a
reasonable doubt that it did not affect the verdict. See, e.g., State v. Nelson,
229 Ariz. 180, 189 ¶ 36, 273 P.3d 632, 641, cert. denied, 133 S. Ct. 131 (2012).
We then consider whether the cumulative effect of individual allegations
“so infected the trial with unfairness as to make the resulting conviction a
denial of due process.” State v. Hughes, 193 Ariz. 72, 79 ¶ 26, 969 P.2d
1184, 1191 (1998) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974)).

              1.     Vouching

¶107 In closing argument, Payne’s counsel argued that Gonzales was
more culpable than Payne, yet she was allowed to plead guilty to second
degree murder. Payne argued this showed that he was guilty of, at most,
second degree murder. In rebuttal, the State argued that it was
inappropriate to use Gonzales’s plea agreement as a basis for comparing
culpability:

       Reina Gonzales was given a plea agreement in this case so
       the State could provide you with testimony about what
       happened to those children, what really happened to those
       children.

       The Judge is not going to give you an instruction saying if
       you find Reina Gonzales was given a second degree plea,
       therefore you can assign the defendant the same culpability
       that Reina Gonzales was given through the plea.

       The only thing that you get to consider that plea agreement
       for is whether or not it impacts Reina Gonzales’[s] credibility
       or bias in this case. Not to compare guilt, not [to] compare
       culpability, and not to somehow use it as a measure of this
       man’s responsibility in the deaths of his children.

                                      29
                             STATE V. PAYNE
                            Opinion of the Court

¶108 Payne claims that the State’s argument improperly vouched for
Gonzales’s testimony by referring to “what really happened.” Because
Payne objected at trial, we review to determine whether the prosecutor’s
conduct was improper and for harmless error.

¶109 Prosecutorial vouching occurs if, among other things, “the
prosecutor suggests that information not presented to the jury supports”
the evidence, testimony, or witness. State v. Vincent, 159 Ariz. 418, 423,
768 P.2d 150, 155 (1989). When improper vouching occurs, the trial court
can cure the error by instructing the jury not to consider attorneys’
arguments as evidence. See Newell, 212 Ariz. at 403 ¶¶ 67-68, 132 P.3d at
847; State v. Lamar, 205 Ariz. 431, 441 ¶ 54, 72 P.3d 831, 841 (2003).

¶110 The prosecutor’s comment that Gonzales would testify about “what
really happened,” considered alone, could be interpreted to suggest the
prosecutor’s knowledge that Gonzales was telling the truth, thereby
improperly bolstering Gonzales’s testimony by lending the “prestige” of
the government. See Vincent, 159 Ariz. at 423, 768 P.2d at 155. But the
prosecutor immediately followed these three words by discussing the
jurors’ duty to evaluate Gonzales’s truthfulness.

¶111 A prosecutor may elicit testimony that a witness agreed to testify
truthfully as part of a plea. See Lamar, 205 Ariz. at 441 ¶ 52, 72 P.3d at 841;
State v. McCall, 139 Ariz. 147, 159, 677 P.2d 920, 932 (1983). Moreover, in a
fact situation much like this one, we found no error in a prosecutor’s
passing statement that the witness told police “exactly what happened.”
State v. King, 180 Ariz. 268, 276-77, 883 P.2d 1024, 1032-33 (1994).

¶112 Here, Payne referenced Gonzales’s plea agreement to encourage
the jurors to compare her culpability to Payne’s. The prosecutor’s
response attempted to clarify that the jurors should not compare
culpability based on Gonzales’s plea agreement, but could consider the
plea in determining Gonzales’s credibility and assessing her veracity.
This was a reasonable response to Payne’s argument.

¶113 Additionally, the trial court instructed the jurors that the lawyers’
arguments were not evidence and that they should consider each
witness’s motive or prejudice. These instructions were sufficient to dispel
any taint if vouching occurred. See Newell, 212 Ariz. at 403 ¶ 68, 132 P.3d
at 847. We find any vouching error harmless.

                                      30
                            STATE V. PAYNE
                           Opinion of the Court

             2.     Innuendo

¶114 Payne claims that the trial court erred by denying his motion for a
mistrial after the prosecutor improperly implied that he filed a CPS report
that triggered an investigation of the children’s mother, Jamie Hallam.
We review the trial court’s ruling for abuse of discretion. Id. at 402 ¶ 61,
132 P.3d at 846.

¶115 In 2005, CPS investigated Hallam for substance abuse. During re-
direct, the prosecutor asked Hallam if she knew who had reported her
drug use to CPS. When she replied that she did not, the prosecutor asked:
“For all you know, that could have been Chris Payne?” She replied that
she did not know. Payne objected and moved for a mistrial because he
claimed that “not a shred of evidence” suggested that he made the report.
The State responded that Payne’s statement to police that he got involved
with the children because of Hallam’s drug use provided a good faith
basis for the question. The trial court denied the motion.

¶116 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.” Pool
v. Superior Court (Fahringer), 139 Ariz. 98, 103, 677 P.2d 261, 266 (1984).

¶117 The prosecutor did not commit misconduct by asking if Payne filed
the report with CPS because in his post-arrest statement, Payne said
several times that the children were malnourished when they arrived at
his home and that he suspected Hallam of leaving them with strangers
while she was high on methamphetamine. Based on these statements, and
absent other information to the contrary, the State had a good-faith basis
for the question. Moreover, we fail to see how possibly reporting Hallam
constitutes evidence “unfavorable” to Payne. Thus, the trial court did not
abuse its discretion by denying Payne’s mistrial motion.

             3.     Improper questioning

¶118 During the prosecutor’s direct examination of witnesses, Payne
objected to several questions as leading or assuming facts not in evidence.
He asserts, with little analysis, that the prosecution’s questioning violated
his due process rights, deprived him of a fair trial, and constituted
prosecutorial misconduct. We ordinarily begin by reviewing the trial

                                     31
                             STATE V. PAYNE
                            Opinion of the Court

court’s ruling on the objections for abuse of discretion. See State v. (Joseph
W.) King, 66 Ariz. 42, 49, 182 P.2d 915, 919 (1947). But Payne does not
analyze the questions individually, instead suggesting a pattern of
prosecutorial misconduct that denied him due process. Thus, we analyze
this line of questioning as a whole.

¶119 Leading questions suggest an answer. State v. Simoneau, 98 Ariz. 2,
5, 401 P.2d 404, 407 (1965). Ordinarily, courts should not permit leading
questions on direct examination, Ariz. R. Evid. 611(c), although such
questions may be permitted when doing so will serve “the ends of
justice,” Joseph W. King, 66 Ariz. at 49, 182 P.2d at 919. No error occurs,
however, when the answer suggested “had already been received as the
result of proper questioning.” State v. Garcia, 141 Ariz. 97, 101, 685 P.2d
734, 738 (1984).

¶120 The questions that Payne complains of here took various forms.
Some were leading; others, although not leading, suggested facts not in
evidence. But the facts assumed in these questions could have been, and
many were, elicited through proper questioning or were otherwise
inconsequential. Other questions were not improper for any reason Payne
raises on appeal. Payne presented no evidence that the prosecutor
deliberately misframed questions, and many of Payne’s objections were
sustained, after which the prosecutor rephrased the question.
Furthermore, the trial court instructed the jurors not to consider responses
to any question for which it had sustained an objection. The trial court
sustained several objections and issued curative instructions. We assume
the jurors followed those instructions, see State v. Prince, 204 Ariz. 156, 158
¶ 9, 61 P.3d 450, 452 (2003), and did not consider the questions to which
objections were sustained. In light of these circumstances, and in the
absence of any showing of intentional misconduct, no reversible error
occurred.

              4.     ASPD “diagnosis” in penalty phase

¶121 In the mitigation portion of the trial, Payne called Dr. Thomas
Reidy to testify that Payne had risk factors for irregular psychological
development, which might have made him more apt to abuse children.
Payne claims that, on cross-examination, the State improperly elicited a
diagnosis of Anti-Social Personality Disorder (“ASPD”) from Dr. Reidy.


                                      32
                             STATE V. PAYNE
                            Opinion of the Court

¶122 To prepare to testify, Dr. Reidy reviewed records and transcripts of
interviews, but he did not evaluate Payne or interview anyone familiar
with him. After Payne’s direct examination of Dr. Reidy, the trial court
denied Payne’s objection to the State questioning Dr. Reidy about the
criteria for ASPD or whether Payne met these criteria. The court,
however, warned the State not to reference a “diagnosis” of ASPD. On
cross-examination, the State asked Dr. Reidy whether Payne satisfied the
criteria for ASPD to prove an alternative explanation for Payne’s behavior.

¶123 The prosecution may introduce any evidence in the penalty phase
“that is relevant to any of the mitigating circumstances . . . , regardless of
its admissibility under the rules governing admission of evidence at
criminal trials.” A.R.S. § 13-751(C); see also State v. VanWinkle, 230 Ariz.
387, 394 ¶ 28, 285 P.3d 308, 315 (2012). The prosecutor’s questioning here
rebutted Payne’s claims that he had a number of risk factors for being an
abusive parent, which might have caused him to be abusive, by showing
alternative explanations for Payne’s conduct.

¶124 Payne relies on State v. Lundstrom, 161 Ariz. 141, 146, 776 P.2d 1067,
1072 (1989), and State v. Moody, 208 Ariz. 424, 461-62 ¶¶ 157-64, 94 P.3d
1119, 1156-57 (2004), for the proposition that the prosecution may not elicit
a diagnosis that is not in evidence. Payne’s reliance is misplaced. In
Lundstrom, we held it improper for experts to testify to “facts or data” if
merely acting “as a conduit for another non-testifying expert’s opinion.”
161 Ariz. at 148, 776 P.2d at 1074; see also Moody, 208 Ariz. at 462 ¶ 165, 94
P.3d at 1157 (to same effect). But the prosecutor did not use Dr. Reidy as a
conduit through which to present another expert’s opinion. Instead, she
sought to elicit Dr. Reidy’s opinion that Payne showed factors consistent
with the criteria for ASPD. Moreover, Dr. Reidy did not give a
“diagnosis” of ASPD.          Thus, the questioning did not constitute
misconduct. Because we find no error in the prosecutor’s cross-
examination, Payne’s Eighth Amendment arguments also fail.

              5.     Comment on Payne’s right to silence in opening
                     statement

¶125 Payne claims that the prosecutor improperly commented on his
right to silence by referring, in her opening statement, to what Payne “is
going to tell you.” At the conclusion of the opening statement, Payne
moved for a mistrial, which the court denied.

                                     33
                            STATE V. PAYNE
                           Opinion of the Court

¶126 We review a trial court’s ruling on a motion for mistrial for abuse of
discretion because the trial court is in the best position to determine the
effect of any inappropriate statements. Newell, 212 Ariz. at 402 ¶ 61, 132
P.3d at 846. But because “the protection against self-incrimination
includes freedom from adverse consequences flowing from defendant’s
exercise of his right,” it is reversible error to refer to a defendant’s
“protected silence,” State v. Carrillo, 156 Ariz. 125, 128, 750 P.2d 883, 886
(1988), if jurors would “naturally and necessarily perceive it to be a
comment on the defendant’s failure to testify,” State v. Rutledge, 205 Ariz.
7, 13 ¶ 33, 66 P.3d 50, 56 (2003).

¶127 In her opening statement during the guilt phase, the prosecutor
told the jury, “you are going to hear from the defendant himself. The
interview that he gave to the police officers on March 1, 2007. And you
are going to hear that he lied, too, in the beginning.” In the next several
sentences, the prosecutor referred to things the defendant said
“throughout the interview.” But then she started discussing what Payne
is “going to tell you.” Payne argues that each of these comments
improperly directed the jury’s attention to his exercise of his right not to
testify.

¶128 The State did not err in its opening statement by referring to
comments Payne made in the taped interview. See Rutledge, 205 Ariz. at
14 ¶ 38, 66 P.3d at 57. The prosecutor’s comments about what Payne “is
going to tell you” are a closer call. Taken in context, however, they were
not “calculated to direct the jurors’ attention to [Payne’s] exercise of his
fifth amendment privilege” because they too referred to evidence from the
taped interview. See State v. McCutcheon, 159 Ariz. 44, 45, 764 P.2d 1103,
1104 (1988). As such, the prosecutor’s comments did not constitute
reversible error and the trial court did not abuse its discretion in denying
Payne’s mistrial motion.

             6.     Comment on Payne’s lack of emotion during trial

¶129 Payne argues that, in closing arguments, the prosecutor improperly
referred to Payne’s lack of emotion during trial. Because he did not object,
we review for fundamental error.5

5      Payne claims that he preserved this issue by objecting to comments
the State made in its opening statement about his taped interview. But
                                     34
                             STATE V. PAYNE
                            Opinion of the Court

¶130 In its guilt-phase closing arguments, the State compared Payne’s
lack of emotion at trial to the excessive emotion he displayed during his
interrogation. We have not confronted directly whether a prosecutor may
ask jurors to consider a defendant’s affect at trial, but most courts that
have addressed this issue have found such comments improper. See, e.g.,
United States v. Mendoza, 522 F.3d 482, 491 (5th Cir. 2008) (stating that
“courtroom demeanor of a non-testifying criminal defendant is an
improper subject for comment”); United States v. Schuler, 813 F.2d 978, 981
(9th Cir. 1987) (holding that, “in the absence of a curative instruction,” a
comment on “off-the-stand behavior” violates the due process clause);
United States v. Pearson, 746 F.2d 787, 796 (11th Cir. 1984) (to same effect);
United States v. Carroll, 678 F.2d 1208, 1209-10 (4th Cir. 1982) (to same
effect). But see Cunningham v. Perini, 655 F.2d 98 (6th Cir. 1981) (per
curiam) (upholding comments because they referred to conduct and
demeanor rather than failure to testify).

¶131 The differing results in these cases turn on the courts’ views of the
legitimate arguments on each side. We urge courts and prosecutors to
proceed cautiously in this area, given its dubious relevance and potential
to implicate a defendant’s right not to testify. We decline to set forth an
absolute rule that such statements are always improper, however,
preferring to let trial courts assess the totality of the circumstances in each
case. We caution that while the jury may observe a defendant’s
demeanor, a prosecutor’s reference to the demeanor of a non-testifying
defendant may draw attention to the defendant’s failure to testify and is
based on evidence not presented at trial and not covered by any jury
instruction. See Mendoza, 522 F.3d at 491. Although we conclude that the
State’s comment here was improper, we do not find fundamental error.

              7.     Question re lack of remorse in penalty phase

¶132 Payne claims that it was improper for the prosecutor to ask Dr.
Reidy whether lack of remorse is a characteristic of ASPD. Payne objected
and moved for a mistrial. The court overruled the objection and denied
the motion. We review the trial court’s ruling for abuse of discretion.
Newell, 212 Ariz. at 402 ¶ 61, 132 P.3d at 846.



this objection was unrelated to the as yet unmade references to his
demeanor at trial. Payne’s objection thus did not preserve this issue.
                                      35
                             STATE V. PAYNE
                            Opinion of the Court

¶133 The prosecutor’s question here did not ask about Payne’s remorse,
but rather asked whether lack of remorse was a factor in determining
ASPD. It was one of several questions rebutting Payne’s suggestion that
risk factors in his background led Payne to abuse his children. Thus,
although Payne did not raise remorse as a mitigating factor, the
questioning was relevant and not unduly prejudicial. It therefore was not
improper.

              8.     Cumulative error

¶134 Payne claims that the prosecutor’s comments gave rise to reversible
cumulative error. In analyzing such issues, we examine whether the
cumulative effect of individual allegations “so infected the trial with
unfairness as to make the resulting conviction a denial of due process.”
Hughes, 193 Ariz. at 79 ¶ 26, 969 P.2d at 1191 (quoting Donnelly, 416 U.S. at
637). Cumulative error warrants reversal only if misconduct was “so
pronounced and persistent that it permeate[d] the entire atmosphere of
the trial,” id. (quoting State v. Atwood, 171 Ariz. 576, 611, 832 P.2d 593, 628
(1992)), indicating that “the prosecutor intentionally engaged in improper
conduct and did so with indifference, if not a specific intent, to prejudice
the defendant,” Roque, 213 Ariz. at 228 ¶ 155, 141 P.3d at 403 (internal
quotation marks omitted).

¶135 Payne has not shown misconduct that permeated the trial and
infected it with unfairness, and so we reject his claim of cumulative error.

       L.     Aggravation Phase Jury Instructions

¶136 Payne challenges several sentencing instructions. We review the
trial court’s decision to refuse a requested instruction for an abuse of
discretion, Johnson, 212 Ariz. at 431 ¶ 15, 133 P.3d at 741, and review de
novo whether the trial instructions as a whole correctly state the law, State
v. Bocharski, 218 Ariz. 476, 487 ¶ 47, 189 P.3d 403, 414 (2008).

              1.     § 13-751(F)(8): “one or more other homicides”

¶137 Payne argues that the trial court erred by failing to detail the
elements required for the jury to find the (F)(8) aggravating circumstance.
The instruction given stated: “the defendant has been convicted of one or
more other homicides, and those homicides were committed during the

                                      36
                            STATE V. PAYNE
                           Opinion of the Court

commission of the offense.” Payne correctly notes that this instruction
was insufficient because it fails to inform the jurors that they must find a
temporal, spatial, and motivational relationship between the homicides.
See Dann III, 220 Ariz. at 364 ¶ 57, 207 P.3d at 617. Because Payne neither
requested further instructions nor objected at trial, however, we review
for fundamental error. See State v. Hargrave, 225 Ariz. 1, 14 ¶47, 234 P.3d
569, 582 (2010). We have previously found harmless error when the
temporal, spatial, and motivational relationship requirements were not
submitted to a jury if no jury could have found them unsatisfied. See State
v. Dann (Dann II), 206 Ariz. 371, 374 ¶ 11, 79 P.3d 58, 61 (2003).

¶138 A conviction for multiple homicides, by itself, does not satisfy the
(F)(8) aggravator. Ellison, 213 Ariz. at 143 ¶ 128, 140 P.3d at 926. “[T]he
State must establish beyond a reasonable doubt that the murders took
place during a ‘continuous course of criminal conduct’ and were
‘temporally, spatially, and motivationally related.’” Moore, 222 Ariz. at 16
¶ 86, 213 P.3d at 165 (quoting Armstrong III, 218 Ariz. at 464 ¶ 67, 189 P.3d
at 391).

¶139 Payne does not dispute that the murders were spatially related, but
argues that the State failed to prove temporal proximity and motivational
relationship.

¶140 Payne asserts that as much as a week might have passed between
the deaths of Ariana and Tyler, and thus the temporal proximity
requirement is not met. We begin by clarifying that the focus is on the
temporal relationship of the conduct causing the deaths rather than the
deaths themselves. For example, if a defendant shoots two victims during
a robbery, but one survives for a week, the temporal proximity
requirement is satisfied. Substantial evidence showed that Payne locked
his children in a closet and starved them to death over several months.
No reasonable jury could fail to find the temporal requirement satisfied.

¶141 Payne also argues that the motivational element is not satisfied
because “a motive was never established.” But the State presented
evidence that the children were locked in a closet and starved — the acts
that eventually killed them — because they bothered Gonzales, hindered
Payne’s work, and were otherwise “inconvenient.”            No evidence
suggested that Payne killed each child for a different reason. See Ellison,
213 Ariz. at 144 ¶ 130, 140 P.3d 927 (motivational element satisfied when

                                     37
                            STATE V. PAYNE
                           Opinion of the Court

defendant did not claim killing victims for different reasons); see also
Armstrong III, 218 Ariz. at 464 ¶¶ 68-70, 189 P.3d at 391 (“[t]he motives for
killing each victim need not be identical”; motivationally related when
defendant “hated” second victim and hate arose from motive in killing
first victim). Although the (F)(8) instruction given was deficient, Payne
has failed to show fundamental error because no rational jury would have
failed to find a temporal, spatial, and motivational relationship between
the murders of Ariana and Tyler.

             2.     § 13-751(F)(6): “especially heinous, cruel or depraved
                    manner”

¶142 Payne claims that the instruction given for the (F)(6) aggravator
was overbroad and insufficient because it led the jury to believe a
negligent state of mind was sufficient to establish the (F)(6) factor. The
court instructed that, to find the especially cruel aggravating factor, the
jury must find that “the defendant intended, knew, or should have
foreseen” that the victims would suffer mental anguish or physical pain.
Payne did not object at trial, so we review for fundamental error. See
Hargrave, 225 Ariz. at 14 ¶ 47, 234 P.3d at 582.

¶143 We note initially that the expression “should have foreseen” seems
simply to have been used in lieu of the proper phrase “should have
known.” Nonetheless, Payne correctly observes that we held in State v.
Carlson, 202 Ariz. 570, 582 ¶ 44, 48 P.3d 1180, 1192 (2002), that the tort
concept of “foreseeability” is insufficient to support the finding of the
aggravating circumstance. But Carlson was analyzing the mental state for
the unobserved acts of an accomplice and is therefore inapposite. Id. at
581-82 ¶ 43, 48 P.3d at 1191-92.

¶144 In this case, the State presented substantial evidence that Payne
locked his children in a closet to live in darkness and filth, suffering from
injuries while they slowly starved to death, which he either knew or
should have known would cause them to suffer mental anguish and
physical pain. This type of involvement differs from the accomplice in
Carlson who had no reason to believe her victim would suffer. No
reasonable jury could find that Payne would not have known that the
children would suffer as they starved to death in the dark closet. Thus,
although the instruction was erroneous, no fundamental error occurred.


                                     38
                             STATE V. PAYNE
                            Opinion of the Court

              3.     Enmund and Tison findings

¶145 Payne argues that the trial court deprived him of his constitutional
rights by failing to require the jurors to make an explicit finding that he
“kill[ed], attempt[ed] to kill, or intend[ed] that a killing [would] take place
or that lethal force [would] be employed” under Enmund v. Florida, 458
U.S. 782, 797 (1982), or that he was a major participant in a crime and
acted with reckless indifference to human life under Tison v. Arizona, 481
U.S. 137, 158 (1987). The trial court did not instruct the jury to make this
determination in the aggravation phase, and Payne did not object or ask
for the findings to be made. But he now claims this omission constituted
fundamental error.

¶146 By statute, the jury must make all factual determinations necessary
to impose a death sentence. See A.R.S. § 13-752(P). Payne argues that this
includes explicit Enmund/Tison findings.

¶147 The jurors unanimously convicted Payne of premeditated murder,
meaning that they found that he personally intended to cause or knew his
conduct would cause the deaths of the children. Thus, there was no need
for a separate finding that he was a major participant in the crimes. There
was no fundamental error. Cf. State v. Joseph, 230 Ariz. 296, 300 ¶ 18, 283
P.3d 27, 31 (2012) (failure to instruct on Enmund/Tison was not an abuse of
discretion where defendant was sole participant in murder).6

              4.     Voluntary intoxication consideration

¶148 Payne argues that the jury was unconstitutionally prevented from
considering his drug use as a defense to the culpable mental state
necessary for the (F)(6) aggravating circumstance. In his closing argument
in the aggravation phase, Payne argued that his drug use prevented him
from having sufficient mental ability to intend to cause physical pain or
mental anguish. The State responded that voluntary intoxication is not a
defense to a culpable mental state. The final instructions submitted to the
jury noted that instructions from previous phases still applied, which
included an instruction that voluntary intoxication is not a defense to a
crime involving a culpable mental state such as knowledge or intent, but

6       In cases involving felony murder where an accomplice is involved,
trial courts should give the Enmond/Tison instruction.
                                      39
                             STATE V. PAYNE
                            Opinion of the Court

did not specifically address voluntary intoxication from drug use in
connection with the (F)(6) “heinous, cruel or depraved” aggravator.
Payne did not object to the instruction or the State’s argument. We thus
review for fundamental error. See Hargrave, 225 Ariz. at 14 ¶ 47, 234 P.3d
at 582.

¶149 Section 13-503 provides that “[t]emporary intoxication . . . is not a
defense for any criminal act or requisite state of mind.” The focus of the
heinous and depraved aggravator is the defendant’s state of mind. See
State v. Womble, 225 Ariz. 91, 100 ¶ 34, 235 P.3d 244, 253 (2010). The statute
therefore prohibits the jury from using voluntary intoxication to negate
intent — that is, the jury could not consider voluntary intoxication as a
basis for concluding that the defendant lacked the state of mind for the
(F)(6) aggravating circumstance. Cf. State v. Boyston, 231 Ariz. 539, 550
¶¶ 52, 54, 298 P.3d 887, 898 (2013) (concluding court did not err by
excluding evidence of voluntary intoxication on the issue of
premeditation).

¶150 Payne claims, however, that he has a constitutional right to rebut
the (F)(6) aggravator with evidence of intoxication. The Supreme Court
has held that in the guilt phase there is no due process violation when a
state prohibits juries from considering voluntary intoxication. Montana v.
Egelhoff, 518 U.S. 37, 56 (1996). Furthermore, the Eighth Amendment
ensures that defendants have the opportunity to argue that the
intoxication warranted leniency, which Payne was permitted to do in the
penalty phase. The trial court’s instructions correctly stated the law; thus,
there was no fundamental error.

       M.     Consideration of Age of Victims

¶151 Payne argues that the jury twice considered the victims’ ages, once
when finding the “heinous, cruel or depraved” factor and again when
considering the “age of the victim” aggravator. But we have held that “[a]
jury, like a sentencing judge, may use one fact to find multiple
aggravators, so long as the fact is not weighed twice when the jury
assesses aggravation and mitigation.” State v. Velasquez, 216 Ariz. 300, 307
¶ 22, 166 P.3d 91, 98 (2007). In its final instructions, the court admonished
the jury that “you may only consider the age of the children once” in
assessing aggravation and mitigation. Absent evidence to the contrary,
we presume the jury followed the instructions. Id. ¶ 24.

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                           STATE V. PAYNE
                          Opinion of the Court

¶152 Payne argues that there was insufficient evidence to establish the
factors that can make a murder cruel, heinous, or depraved, leaving the
age as the sole basis for proving the aggravator. We have concluded,
however, that substantial evidence supported the jury’s finding that the
murders were especially cruel. See supra ¶¶ 142-44. Thus age was not the
sole factor supporting the jury’s finding of that factor.

      N.     Mitigating Evidence

¶153 Payne argues that the trial court deprived him of a fair trial by
precluding some of his mitigation evidence during the penalty phase. We
review evidentiary rulings and discovery sanctions for abuse of discretion.
Armstrong III, 218 Ariz. at 458 ¶ 20, 189 P.3d at 385; State v. Towery, 186
Ariz. 168, 186, 920 P.2d 290, 308 (1996).

             1.     Dr. Biggan

¶154 Payne argues that the trial court erred by precluding Dr. Biggan
from testifying after Payne failed to timely disclose her. Dr. Biggan is a
psychologist who evaluated Payne in November 2008. The defense did
not disclose her report, but the State discovered it after trial had begun.
About two weeks later, less than two days before the penalty phase began,
the defense disclosed Dr. Biggan as a mitigation witness. On the State’s
motion, the trial court precluded Dr. Biggan’s testimony.

¶155 Rule 15.7 of the Arizona Rules of Criminal Procedure permits the
court to sanction a party who fails to timely disclose evidence. But any
sanction must be proportional to the violation and must have “a minimal
effect on the evidence and merits.” Towery, 186 Ariz. at 186, 920 P.2d at
308. Factors to consider include importance of the witness or evidence,
the degree of surprise, and bad faith. See id.

¶156 Given these factors, the court did not abuse its discretion by
precluding Dr. Biggan from testifying. Payne sought to call her to show
that he could not conform his conduct to the law because of executive
functioning deficiencies. Although such evidence would be relevant to a
statutory mitigating circumstance, because he did not make an offer of
proof, Payne has not established the importance of Dr. Biggan’s evidence.
Indeed, most of Dr. Biggan’s report showed that Payne had relatively
normal functioning. And the surprise was substantial as the disclosure

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                            STATE V. PAYNE
                           Opinion of the Court

two days before the penalty phase deprived the State of the opportunity to
interview Dr. Biggan or obtain a rebuttal witness.

             2.     “Good inmate” evidence

¶157 Payne disclosed as a mitigating factor that he was a “good inmate.”
Finding good behavior in jail irrelevant, the trial court prevented Payne
from introducing such evidence. Payne did not object. We have
recognized that good inmate evidence is relevant, see, e.g., Anderson II, 210
Ariz. at 357 ¶¶ 134, 137, 111 P.3d at 399, and thus the trial court erred.
The error, however, was not fundamental, considering the strength of the
aggravators proved, see State v. Hampton, 213 Ariz. 167, 185 ¶ 90, 140 P.3d
950, 968 (2006) (“multiple homicides aggravator is of extraordinary
weight”), and the weakness of the good inmate mitigator, see State v.
Andriano, 215 Ariz. 497, 512 ¶ 74, 161 P.3d 540, 555 (2007) (weak
mitigator), abrogated on other grounds by Ferrero, 229 Ariz. at 243 ¶ 20, 274
P.3d at 513; see also Roque, 213 Ariz. at 222 ¶ 117, 141 P.3d at 397 (“To
warrant reversal, any error [in excluding mitigating evidence] must also
have prejudiced [the defendant].”).

      O.     Penalty Phase Rebuttal Evidence

¶158 Payne contends that the trial court committed reversible error in
the penalty phase by permitting the State to elicit information about his
criminal history and admitting a DVD of Payne’s jail visit with his father.
This Court reviews evidentiary rulings for abuse of discretion. Armstrong
III, 218 Ariz. at 458 ¶ 20, 189 P.3d at 385. Evidence is admissible in the
penalty phase if it is relevant to rebut the primary thrust of mitigating
evidence and it is not unduly prejudicial. See Hampton, 213 Ariz. at 180
¶ 51, 140 P.3d at 963.

             1.     Payne’s criminal history

¶159 Payne’s criminal history was relevant to rebut Payne’s assertion
that “risk factors” made him a poor parent. Recognizing the potential
prejudice that may arise from criminal history, the trial court directed the
State not to elicit details that would cause undue prejudice. The State
elicited reports of domestic violence, threats of violence, and deceit to
police. A summary was admitted into evidence. In light of the limits it
imposed, the trial court did not abuse its discretion.

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                             STATE V. PAYNE
                            Opinion of the Court

              2.     Jailhouse DVD

¶160 The State introduced a DVD of Payne’s father’s visit with Payne at
the jail to rebut Payne’s claim that he was a caring person when not on
drugs. Payne objected on grounds of prejudice and irrelevance. The
video focuses on a discussion regarding Payne’s son, Christopher Jr. It
shows Payne berating his father and demeaning family members for not
doing enough to ensure that Christopher is properly cared for. Although
the DVD was only marginally probative, playing it did not unfairly
prejudice Payne because, while it showed Payne yelling at his father, it
also showed that he cared about his son. See Ariz. R. Evid. 403 (balancing
probative value and danger of unfair prejudice). Therefore, the court did
not abuse its discretion in allowing it to be played.

                   III. ABUSE OF DISCRETION REVIEW

¶161 Because the murders occurred after August 1, 2002, we review the
jury’s finding of aggravating factors and the imposition of a death
sentence for abuse of discretion. A.R.S. § 13-756(A). Evidence is sufficient
to support the finding of an aggravating circumstance if reasonable
persons could conclude it establishes the circumstance beyond a
reasonable doubt. See State v. Gallardo, 225 Ariz. 560, 565 ¶ 15, 242 P.3d
159, 164 (2010). We must uphold a jury’s decision that death is
appropriate if any “reasonable jury could have concluded that the
mitigation established by the defendant was not sufficiently substantial to
call for leniency.” Id. at 570 ¶ 51, 242 P.3d at 169 (quoting State v. Morris,
215 Ariz. 324, 341 ¶ 81, 160 P.3d 203, 220 (2007)).

       A.     Aggravating Circumstances

¶162 The jury found three aggravating factors: (1) the murders were
committed in an especially cruel, heinous, or depraved manner, A.R.S.
§ 13-751(F)(6); (2) one other homicide was committed during the
commission of the offense, id. § 13-751(F)(8); and (3) the victims were
under the age of fifteen and the defendant was over the age of eighteen, id.
§ 13-751(F)(9). Payne does not dispute the third aggravator, but does
dispute the first two. Because we have earlier set forth our reasoning
supporting the jury’s finding of the (F)(6) factor based on cruelty, see supra
¶¶ 142-44, we do not address heinousness or depravity. State v. Gretzler
(Gretzler II), 135 Ariz. 42, 51, 659 P.2d 1, 10 (1983) (noting that the (F)(6)

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                             STATE V. PAYNE
                            Opinion of the Court

aggravator is established if the jury finds that the State proved cruelty,
heinousness, or depravity). Regarding the (F)(8) factor, because we found
that the jury instructions did not constitute fundamental error and that no
reasonable jury could have found the additional elements not satisfied, see
supra ¶¶ 137-41, we reject these arguments. The jury did not abuse its
discretion in finding all three aggravating circumstances.

       B.     Death Sentences

¶163 We will overturn a jury’s imposition of a death sentence only if “no
reasonable jury could have concluded that the mitigation established by
the defendant was not sufficiently substantial to call for leniency.” Cota,
229 Ariz. at 153 ¶ 95, 272 P.3d at 1044 (citation and internal quotation
marks omitted). Payne alleged a variety of mitigating factors, including a
substantial number of “risk factors” for becoming an abusive and
neglectful parent, “insufficient protective factors” to guide him in the right
direction, a difficult childhood, lack of family support, substance abuse,
lack of a felony criminal history, and the inability to appreciate the
wrongfulness of his conduct. The State presented some rebuttal evidence
and argued that the jury should give many of Payne’s mitigating factors
little weight.

¶164 Even if we assume Payne proved each mitigating factor he alleged,
the jury did not abuse its discretion by finding them insufficient to
warrant leniency.

                            IV. CONCLUSION

¶165 For the foregoing reasons, we affirm Payne’s convictions and
sentences.7




7     Payne listed fourteen claims “to avoid preclusion” and the previous
opinions rejecting those claims, which we decline to revisit.
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