                                IN THE

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

                                   v.

                      ERICK ANTONIO ESCALANTE,
                              Appellant.



                           No. CR-17-0251-PR
                        Filed September 14, 2018


           Appeal from the Superior Court in Yavapai County
                The Honorable Michael R. Bluff, Judge
                           No. CR201580042
              REVERSED IN PART AND REMANDED

             Opinion of the Court of Appeals, Division One
                       242 Ariz. 375 (App. 2017)
                         VACATED IN PART



COUNSEL:

Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor
General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section, Eric
Knobloch (argued), Assistant Attorney General, Phoenix, Attorneys for
State of Arizona

Kennedy Klagge, Yavapai County Public Defender, Michelle L.
DeWaelsche (argued), Deputy Public Defender, Prescott, Attorneys for
Erick Antonio Escalante

David J. Euchner (argued), Tucson, Attorney for Amici Curiae Arizona
Attorneys for Criminal Justice and Pima County Public Defender’s Office
                            State v. Escalante
                           Opinion of the Court


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

JUSTICE TIMMER, opinion of the Court:

¶1            When a defendant fails to object to trial error, he forfeits
appellate relief absent a showing of fundamental error. Faced with
conflicting decisions, we today clarify what that showing entails. A
defendant must demonstrate that the error goes to the foundation of the
defendant’s case, takes away a right essential to the defense, or is of such
magnitude that it denied the defendant a fair trial. To warrant reversal, the
defendant must then show prejudice. But if the trial is found to have been
unfair, prejudice is automatically established, and no further showing is
required.

¶2            Here, the admission and pervasive use of drug-courier profile
evidence during the defendant’s trial on drug-related charges constituted
fundamental error and prejudiced his ability to receive a fair trial. We
therefore reverse and remand for a new trial.

                             BACKGROUND

¶3             Detectives in multi-agency task forces suspected Erick
Escalante of selling methamphetamine in the Verde Valley area. After
receiving several tips and surveilling Escalante, detectives obtained a
search warrant and placed a GPS tracking device on his truck. On the
evening of January 21, 2015, detectives saw that Escalante’s truck was in
Phoenix and suspected he might be picking up methamphetamine to sell.
Anticipating the truck’s return to Escalante’s home outside Cottonwood, a
detective called the Yavapai County Sheriff’s Office and asked that deputies
attempt to conduct a civil traffic stop.

¶4            Two deputies in patrol cars identified the truck near
Cottonwood and followed as it exited Highway 260 at Prairie Lane and
eventually turned onto Cliff View Drive, a two-lane residential road. The
truck veered as if to make a U-turn and stopped perpendicular to the
roadway. The deputies blocked the road with their cars and activated their
lights to make a civil traffic stop. As a deputy approached the truck,
Escalante shifted into reverse and started to back up. The deputy told him
to stop, but Escalante shifted into drive saying he intended to “pull to the
side of the road.” The deputy pulled his gun and repeated his instruction
                                     2
                             State v. Escalante
                            Opinion of the Court


to stop and turn off the truck. Escalante seemed agitated but eventually
complied. Later, at a police station, Escalante told officers he had traveled
from Camp Verde.

¶5            The deputies searched the truck and found a semi-automatic
handgun, several knives, and a machete. They also discovered a digital
scale, dryer sheets, coffee beans, a flip cellphone with limited data and no
provider subscription (a “throw phone”), and $200 (another $150 was found
in Escalante’s wallet). A K-9 officer came to the scene, and his dog “alerted”
on the truck, but no drugs were found.

¶6           Within a few hours after Escalante’s arrest and removal of the
truck, a deputy returned to the scene. He found a sandwich-size plastic
baggie containing a white crystalized substance in the middle of Prairie
Lane near Highway 260. The bag appeared to have been run over, and
some of the contents had spilled onto the roadway. A criminologist later
determined that the bag contained 47.8 grams of methamphetamine (about
one-tenth of a pound) and that the digital scale found in Escante’s truck
contained methamphetamine residue.

¶7           The State charged Escalante with four drug-related offenses:
count one: sale or transport of a dangerous drug (methamphetamine);
count two: possession or use of drug paraphernalia (the digital scale); count
three: tampering with physical evidence (throwing the bag of
methamphetamine out the truck window); and count five: possessing a
deadly weapon while committing a felony (transportation of a dangerous
drug for sale). He was also charged with four counts of misconduct
involving weapons for possessing the handgun, the machete, and two
knives as a convicted felon (counts four, six, seven, and eight). The trial
court severed the four drug-related counts from the remaining counts.

¶8            Before trial, the State moved in limine to introduce evidence
that Escalante had engaged in behaviors “indicative of and consistent with
drug trafficking,” such as driving in a manner designed to avoid police
scrutiny (“heat runs”), using surveillance cameras at home, and traveling
to areas of “known drug activity.” Escalante’s counsel did not object. At
an evidentiary hearing on this and other motions, he stated only that “I
think they’re going to be allowed to testify as to in their training and
experience what they believe that information means.” The trial court ruled
that the evidence was admissible as either intrinsic to the charged crimes or
as “other act” evidence. See Ariz. R. Evid. 404(b).


                                      3
                             State v. Escalante
                            Opinion of the Court


¶9             At the trial on the drug-related charges, multiple law
enforcement officers testified, without objection, about their specialized
drug interdiction training and described common drug-trafficking methods
and drug-courier habits that were consistent with Escalante’s behaviors.
Officers also testified about what they were told by third parties concerning
Escalante’s suspected illegal drug activities. The jury found Escalante
guilty on all counts. He waived his right to a jury trial on the remaining
weapons charges, and the trial court found him guilty on those counts. The
court sentenced Escalante to multiple, concurrent prison terms, the longest
of which is fourteen years.

¶10          Escalante appealed the drug-related convictions and
sentences, and the court of appeals affirmed. See State v. Escalante, 242 Ariz.
375 (App. 2017). In doing so, the court reviewed for fundamental error
whether the trial court incorrectly admitted drug-courier profile evidence
and hearsay statements. See id. at 379 ¶11, 386 ¶ 54.

¶11          We granted review to clarify what a defendant must show to
establish fundamental, prejudicial error, a recurring issue of statewide
importance. We have jurisdiction pursuant to article 6, section 5(3) of the
Arizona Constitution and A.R.S. § 12-120.24.

                               DISCUSSION

              I. Fundamental error review

¶12           Escalante argues that the trial court committed reversible
error by permitting the State to introduce drug-courier profile and hearsay
evidence as substantive evidence of guilt. Because Escalante did not object
to this evidence, we will not reverse unless the court committed error that
was both fundamental and prejudicial. See State v. Henderson, 210 Ariz. 561,
567 ¶ 20 (2005). Some confusion about what fundamental error review
entails — much of it our own making — has arisen since this Court decided
Henderson. Thus, we clarify that standard before applying it here.

¶13           In Henderson, this Court noted that prior appellate decisions
had inconsistently described what is necessary to establish fundamental
error. Id. at 568 ¶ 21. It set forth a single standard and disapproved
inconsistent decisions. Id. The Court described fundamental error review
as follows:



                                      4
                              State v. Escalante
                             Opinion of the Court


       A defendant who fails to object at trial forfeits the right to
       obtain appellate relief except in those rare cases that involve
       “[prong 1] error going to the foundation of the case, [prong 2]
       error that takes from the defendant a right essential to his
       defense, and [prong 3] error of such magnitude that the
       defendant could not possibly have received a fair trial.” . . . In
       addition, we place the burden of persuasion in fundamental
       error review on the defendant. . . .

              To prevail under this standard of review, a defendant
       must establish both that fundamental error exists and that the
       error in his case caused him prejudice.

Id. at 567 ¶¶ 19–20 (emphasis added) (quoting State v. Hunter, 142 Ariz. 88,
90 (1984) (citing State v. Gendron, 168 Ariz. 153, 155 (1991) (holding that
fundamental error is that which is “clear, egregious, and curable only via a
new trial”))).

¶14            Unfortunately, the word “and” in Henderson’s three-prong
test for fundamental error muddies its application. The Court may have
used the term to mean that all three prongs must be shown (a conjunctive
standard). Or the Court may have used the term in listing the “rare” types
of error that are fundamental error, meaning only one prong must be shown
(a disjunctive standard), as Hunter implied. 142 Ariz. at 90. The Henderson
Court itself applied a disjunctive standard, finding fundamental error when
only one prong was shown. See 210 Ariz. at 568 ¶ 25.

¶15            Since Henderson, this Court has exacerbated the confusion by
variously treating the fundamental error standard as both conjunctive and
disjunctive. Compare State v. Escalante-Orozco, 241 Ariz. 254, 272 ¶ 40 (2017)
(conjunctive); State v. Dalton, 241 Ariz. 182, 186 ¶ 12 (2016) (same); State v.
Valverde, 220 Ariz. 582, 585 ¶ 12 (2009) (same), with State v. Naranjo, 234 Ariz.
233, 246 ¶ 58 (2014) (disjunctive); State v. Forde, 233 Ariz. 543, 554 ¶ 16 (2014)
(same); State v. Hargrave, 225 Ariz. 1, 8 ¶ 13 (2010) (same); State v. Bearup,
221 Ariz. 163, 168 ¶ 21 (2009) (same). Here, the court of appeals applied a
conjunctive standard. See Escalante, 242 Ariz. at 383 ¶ 35.

¶16           We now clarify that the appropriate standard for
fundamental error under Henderson is disjunctive. Simply put, requiring a
defendant to establish all three prongs is overkill. For example, no purpose
is served by requiring a defendant to establish the first two prongs if the
third prong is established. An “error of such a magnitude that a defendant
                                        5
                               State v. Escalante
                              Opinion of the Court


could not possibly have received a fair trial” is always prejudicial and
requires a new trial. See Henderson, 210 Ariz. at 567 ¶ 20 (equating prejudice
with an unfair trial) (citing Hunter, 142 Ariz. at 90 (holding that defendant
must prove fundamental error exists, and is of such magnitude that he could
not have received a fair trial)); see also State v. Bible, 175 Ariz. 549, 567 (1993)
(“A fair trial is a fundamental liberty secured by the United States and
Arizona Constitutions.” (citing Ariz. Const. art. 2, §§ 4, 24)). The only way
to give meaning to the first two prongs is to apply the Henderson test
disjunctively.

¶17          Courts and parties have understandably grappled with the
meaning of each Henderson prong and how they differ from each other.
Precise definitions are elusive, as the prongs often overlap, and their
application depends on fact-intensive inquiries. See Henderson, 210 Ariz. at
568 ¶ 26. A bright-line standard is inadvisable as it risks excluding a case
that warrants relief. Nevertheless, we provide guidance that should cover
most circumstances.

¶18              Prong one: An error generally goes to the “foundation of a
case” if it relieves the prosecution of its burden to prove a crime’s elements,
directly impacts a key factual dispute, or deprives the defendant of
constitutionally guaranteed procedures. See, e.g., Henderson, 210 Ariz. at 568
¶ 25 (“Because the sentencing procedure followed denied Henderson the
right to have certain facts decided by a jury beyond a reasonable doubt, we
conclude that the procedure utilized went to the foundation of Henderson’s
case.”); State v. McGann, 132 Ariz. 296, 299 (1982) (finding that erroneous
admission of fifty-seven allegedly forged receipts went to foundation of
state’s case that defendant’s prior forgeries evidenced his guilt there); State
v. Juarez-Orci, 236 Ariz. 520, 525 ¶ 17 (App. 2015) (“[T]he instruction at issue
here potentially ‘improperly relieved the State of its burden of proving an
element of the offense,’ an error which goes to the foundation of the case,
and therefore is fundamental.” (citations omitted)); State v. Stevens, 228
Ariz. 411, 417 ¶ 16 (App. 2012) (concluding that the state’s use of
defendant’s invocation of her Fourth Amendment rights as evidence of
guilt went to the foundation of the case—whether the defendant was
merely present or was the person who possessed drugs and drug
paraphernalia).

¶19           Prong two: An error takes away an “essential right” if it
deprives the defendant of a constitutional or statutory right necessary to
establish a viable defense or rebut the prosecution’s case. See, e.g., State v.
Valenzuela, 194 Ariz. 404, 407–08 ¶ 16 (1999) (“By failing to give the [lesser
                                         6
                              State v. Escalante
                             Opinion of the Court


included offense instruction], the trial court denied appellant ‘a right
essential to his defense’ and affected the ‘very foundation of [his] theory of
defense.’” (alteration in original)); State v. Ramos, 235 Ariz. 230, 235 ¶ 15
(App. 2014) (“In light of [the prosecutor commenting on defendant’s failure
to testify], fundamental error occurred because Ramos was deprived of a
right essential to his defense.”); State v. Trujillo, 227 Ariz. 314, 318 ¶ 15 (App.
2011) (concluding that sentencing judge’s consideration of defendant’s lack
of remorse and failure to admit guilt to aggravate sentences deprived him
of a right essential to his defense).

¶20           Prong three: An error so egregious that a defendant could not
possibly have received a fair trial encompasses either or both prongs one
and two. But to satisfy prong three, the error must so profoundly distort
the trial that injustice is obvious without the need to further consider
prejudice. See, e.g., Sheppard v. Maxwell, 384 U.S. 333, 355–57 (1966)
(reversing murder conviction because “bedlam reigned” when about
twenty reporters sat “inside the bar” “staring at [the defendant] and taking
notes,” “hounding most of the participants in the trial,” and printing
sensationalized stories); Rideau v. Louisiana, 373 U.S. 723, 724, 726–27 (1963)
(concluding that defendant, whose twenty-minute taped confession to
robbery, kidnapping, and murder was televised three times in a parish of
around 150,000 people, could not possibly have received a fair trial as, even
without considering voir dire, “subsequent court proceedings in a
community so pervasively exposed to such a spectacle could be but a
hollow formality”).

¶21            To summarize, the first step in fundamental error review is
determining whether trial error exists. Henderson, 210 Ariz. at 568 ¶ 23 (“To
obtain relief under the fundamental error standard of review, [a defendant]
must first prove error.”). If it does, an appellate court must decide whether
the error is fundamental. In doing so, the court should consider the totality
of the circumstances. See Gendron, 168 Ariz. at 155 (requiring an appellate
court to analyze the entire record to determine whether “reasons clearly
demonstrat[e] that the case falls within our definition of fundamental
error”). A defendant establishes fundamental error by showing that (1) the
error went to the foundation of the case, (2) the error took from the
defendant a right essential to his defense, or (3) the error was so egregious
that he could not possibly have received a fair trial. If the defendant
establishes fundamental error under prongs one or two, he must make a
separate showing of prejudice, which also “involves a fact-intensive
inquiry.” Henderson, 210 Ariz. at 568 ¶ 26. If the defendant establishes the
third prong, he has shown both fundamental error and prejudice, and a new
                                        7
                             State v. Escalante
                            Opinion of the Court


trial must be granted. The defendant bears the burden of persuasion at each
step. Id. at 567 ¶ 19.
               II. Admission of drug-courier profile evidence

                     A. Error

¶22            Drug-courier profile evidence suggests that a defendant
possesses one or more behavioral characteristics typically displayed by
persons trafficking in illegal drugs. See State v. Haskie, 242 Ariz. 582, 585
¶ 14 (2017); State v. Lee, 191 Ariz. 542, 544 ¶ 10 (1998). Such evidence has
legitimate uses, for instance when the justification for a police stop or arrest
is contested at a suppression or probable cause hearing. State v. Ketchner,
236 Ariz. 262, 264 ¶ 15 (2014). It can also be used to assist a jury in
understanding the modus operandi of a drug-trafficking organization. See
Lee, 191 Ariz. at 547 ¶ 26 (Jones, J., dissenting). But profile evidence cannot
be used as substantive proof of guilt because of the “risk that a defendant
will be convicted not for what he did but for what others are doing.” Id. at
545 ¶ 12 (internal quotation marks omitted) (quoting State v. Cifuentes, 171
Ariz. 257, 257 (App. 1991)); see also Haskie, 242 Ariz. at 586 ¶ 15 (to same
effect).

¶23           The prosecutor here introduced drug-courier profile
evidence. He elicited testimony from officers who, after relating their
training and experience in drug interdiction, described typical behaviors of
drug-traffickers, thereby suggesting that because Escalante also engaged in
such behaviors, he too was a drug-trafficker. See Lee, 191 Ariz. at 544 ¶ 10.
For example, jurors heard testimony that drug-traffickers often use
surveillance cameras outside their homes; make “heat runs”; carry dryer
sheets and coffee beans to mask the smell of drugs from police dogs; create
secret compartments in vehicle dashboards to hide drugs; generally travel
at night to conceal their movements and provide cover for surreptitiously
throwing drugs out a vehicle window to avoid law enforcement detection;
carry firearms; use “throw phones” for easy disposal; travel along drug
“pipelines,” like I-17; and measure drugs with small electronic scales.
Officers also testified that Escalante traveled to an “active drug area” in
Phoenix, which they described as a “major hub” for methamphetamine and
the source for most illegal drugs sold in the Verde Valley.

¶24           We agree with Escalante and the court of appeals that
admission of this testimony constituted error because the evidence was
used as substantive proof of guilt. See Escalante, 242 Ariz. at 383 ¶ 32; see
also Ketchner, 236 Ariz. at 264 ¶ 15. The testimony was only relevant to

                                       8
                             State v. Escalante
                            Opinion of the Court


demonstrate that Escalante’s behaviors were consistent with drug
trafficking. Indeed, the prosecutor told the jury in opening statement that
Escalante’s observed “counter-surveillance techniques” were “consistent
with people who are involved in drug trafficking activities.” And in closing
argument, the prosecutor said “people who deal drugs have certain ways
of behaving” and reminded jurors that the testifying officers possessed
“detailed knowledge” about drug-traffickers and had related “indicators of
drug activity.”

¶25            Expert testimony about general behaviors is permitted if
helpful to a jury’s understanding of the evidence. See State v. Salazar-
Mercado, 234 Ariz. 590, 594 ¶ 15 (2014). Here, for example, a qualified officer
could have explained that dryer sheets and coffee beans, like the ones found
in Escalante’s truck, can be used to mask the smell of illegal drugs from
police dogs. But officers could not permissibly testify that possession of
dryer sheets and coffee beans, together with other behaviors, was
“consistent with drug trafficking” because doing so served only to invite
the jury to find that Escalante, too, was a drug-trafficker.

                     B. Fundamental error

¶26           The admission of drug-courier profile evidence here went to
the foundation of the case and therefore constitutes fundamental error. The
pivotal factual issue in the case was whether Escalante had possessed the
methamphetamine found on Prairie Lane with an intent to sell it (count
one). (Proof of counts three and five also depended on resolution of that
issue.) The evidence tying Escalante to the baggie of methamphetamine
was circumstantial and not overwhelming. Methamphetamine residue was
present on the scale found inside Escalante’s truck. Two incoming text
messages on the “throw phone” suggested Escalante was selling something
(“Hey, bro. Give me a call. Need to place an order.” and “If you’ve got any,
let me know.”). In the months before the arrest, multiple people made
short-term visits to Escalante’s apartment. Escalante lied about traveling
from Phoenix when he was stopped. But the baggie was found in the
middle of the road hours after Escalante’s arrest, casting doubt on whether
he had discarded the drug. Notably, jurors posed several questions about
the drug’s discovery and origins: “Do you think it is unusual that the white
substance in the road was not spotted by all the law enforcement who went
up and down the road that night of the arrest? Explain conditions that
might have made this possible that it wasn’t seen”; “Was the baggie from
the road tested for fingerprints? Would it have been possible to find
fingerprints on the bag?” Fingerprint analysis was not done, and DNA
                                      9
                             State v. Escalante
                            Opinion of the Court


testing “revealed nothing” to indicate that Escalante had possessed the
baggie.

¶27            Evidence that Escalante fit the profile of a drug trafficker
greatly increased the likelihood the jury would find that he possessed the
drug with the intent to sell it before discarding it to prevent detection. See
Stevens, 228 Ariz. at 417 ¶ 16. The evidence was not a brief hiccup but
permeated the trial, being elicited from eight officers over three days and
referred to by the prosecutor in both the opening statement and closing
argument. Cf. State v. Hulsey, 243 Ariz. 367, 433 ¶ 114 (2018) (finding that
the “brevity and inconsequential nature” of the erroneous reference to
defendant’s identity did not constitute fundamental error); State v. Valdez,
160 Ariz. 9, 14 (1989) (concluding no fundamental error when prosecutor’s
improper closing argument reference to defendant seeking a plea
agreement was “an isolated evidentiary matter”). In short, the linchpin of
the State’s case against Escalante “was to suggest that because [Escalante’s]
behavior was consistent with that of [a] known drug courier[], [he] likewise
must have been [a] courier[].” Lee, 191 Ariz. at 546 ¶ 18. Admission of this
evidence went to the foundation of the case and constituted fundamental
error.

¶28            The court of appeals reached the opposite conclusion because
“the jury had substantial evidence to convict Escalante on count 1.” See
Escalante, 242 Ariz. at 384 ¶ 36. But that is not a proper consideration in
deciding whether the error went to the foundation of the case. Instead, the
impact of the error on the jury’s verdict is appropriately considered when
addressing prejudice. The court also found that because Escalante failed to
show all three Henderson prongs, he did not establish fundamental error.
See id. at 383–84 ¶¶ 35–38. As clarified today, a defendant need only show
one prong to establish fundamental error, and Escalante made that
showing.
                      C. Prejudice

¶29              Establishing prejudice from fundamental error varies
depending on the nature of the error and the unique case facts. See Dalton,
241 Ariz. at 186 ¶ 13; Henderson, 210 Ariz. at 568 ¶ 26. The error here
deprived Escalante of the opportunity for the jury to render a verdict free
of the taint of drug-courier profile evidence. Escalante therefore must show
that without this evidence and attendant argument, “a reasonable
jury . . . could have reached a different [verdict].” See Henderson, 210 Ariz.
at 569 ¶ 27 (emphasis added); see also State v. Martin, 225 Ariz. 162, 166
¶¶ 14–15 (App. 2010) (applying this standard in finding that even if it was
                                     10
                             State v. Escalante
                            Opinion of the Court


fundamental error to admit videotape in evidence, it did not prejudice the
defendant).

¶30           The State urges us to require a defendant to show that a
reasonable jury would have reached a different result but offers no
compelling reason or authority for doing so. Henderson’s “could have”
standard is well-accepted and complements the state’s burden in harmless-
error review to prove “beyond a reasonable doubt that the error did not
contribute to or affect the verdict or sentence.” See Escalante-Orozco, 241
Ariz. at 286 ¶ 126 (citation and internal quotation marks omitted).

¶31            This is not to say that the “could have” standard is easily
satisfied. In keeping with Henderson’s pronouncement that appellate relief
for fundamental error occurs in “rare cases” and such error is “curable only
via a new trial,” the “could have” inquiry necessarily excludes imaginative
guesswork. The standard is an objective one, and requires a showing that
without the error, a reasonable jury could have plausibly and intelligently
returned a different verdict. A “reasonable jury” is “composed of persons
of average intelligence and judgment” who “use[] common sense in
considering the evidence presented in connection with the instructions
given by the court.” Citizens Utils. Co. v. Firemen’s Ins., 73 Ariz. 299, 302
(1952). In applying the “could have” standard, an appellate court should
examine the entire record, including the parties’ theories and arguments as
well as the trial evidence. See Gendron, 168 Ariz. at 155; State v. Gulli, 242
Ariz. 18, 21 ¶ 13 (App. 2017).

¶32           We decline to adopt Amicus’s suggestion that we apply a
subjective standard to determine whether the jury that rendered the verdict
could have reached a different result without the error. An appellate court
cannot know what did or did not guide a particular jury’s determination.
Because that jury and a hypothetical “reasonable jury” share the same
presumptive traits, however, any questions posed by jurors during trial or
deliberation may be pertinent in applying the standard objectively.

¶33           The court of appeals concluded, without citation to authority,
that “[a] defendant cannot show prejudice, and thus cannot obtain reversal
under fundamental error review . . . where the record suggests the
defendant did not object to the impermissible evidence as part of his
defense strategy, and there is otherwise substantial evidence of his guilt.”
See Escalante, 242 Ariz. at 385 ¶ 45. Because an “apparent probability”
existed that defense counsel here deliberately failed to object to the profile
evidence “because he wanted to show that the state did not proffer
                                     11
                              State v. Escalante
                             Opinion of the Court


sufficient ‘real evidence’ to support a conviction,” the court found that
Escalante failed to show prejudice. Id. ¶¶ 42–45. It suggested that any
remedy must be secured by asserting an ineffective assistance of counsel
claim in post-conviction relief proceedings. Id. ¶ 45 n.7.

¶34             We disagree with the court of appeals for two reasons. First,
whether “substantial evidence of guilt” exists is not the standard for
deciding prejudice. As just explained, the proper inquiry is whether,
without the error, a reasonable jury could have reached a different result,
even if substantial evidence of guilt exists. Of course, the amount of error-
free evidence supporting a guilty verdict is pertinent to that inquiry. See,
e.g., State v. Ramos, 235 Ariz. 230, 237 ¶ 20 (App. 2014) (“Given the strength
of the State’s evidence . . . we hold that even without the prosecutor’s
impermissible statements . . . no reasonable jury could have acquitted
Ramos . . . .”).

¶35             Second, putting aside the practical problems associated with
divining whether defense counsel’s silence was strategic or neglectful,
tactical reasons for remaining silent in the face of trial error do not preclude
a finding of prejudice. The consequence for strategically failing to object to
trial error is bearing the formidable burden of showing that the error was
fundamental and warrants the “rare case” remedy of reversal and a new
trial. See Henderson, 210 Ariz. at 567 ¶ 19 (imposing the burden of
persuasion on the defendant “to discourage a defendant from taking his
chances on a favorable verdict, reserving the ‘hole card’ of a later appeal on
a matter that was curable at trial, and then seeking appellate reversal”)
(internal interlineations and citation omitted). And eliminating the
availability of appellate relief would be contrary to the purpose of
fundamental error review: granting relief when issues are “so important
that overriding considerations concerning the integrity of the system will
excuse a party’s failure to raise the issue in the trial court.” See Gendron,
168 Ariz. at 155.

¶36             Prior decisions from this Court cited by the State do not
persuade us to reach a different decision. None of these cases suggests that
a defendant necessarily loses the ability to obtain appellate relief for
fundamental, prejudicial error if defense counsel strategically failed to
object to trial error. See State v. Miller, 234 Ariz. 31 passim (2013) (finding no
fundamental error based on multiple factors, including defense counsel’s
professed “strategic choice” not to object to inadmissible testimony);
Gendron, 168 Ariz. at 155 (emphasizing the limited circumstances in which
fundamental error occurs and noting that “[a] claim of fundamental error
                                       12
                             State v. Escalante
                            Opinion of the Court


is not a springboard to reversal where present counsel is simply second-
guessing trial counsel.” (quoting State v. Smith, 114 Ariz. 415, 420 (1977)));
State v. Perez, 141 Ariz. 459, 464 n.6 (1984) (finding no error from the trial
court’s refusal to give a requested Willits instruction and noting that
defense counsel could not claim prejudice anyway because he could have
argued the substance of the instruction but “made a tactical decision” to
forego it).

¶37            The State also cites cases from other jurisdictions that
conclude or suggest that when a failure to object could have been strategic,
it is more appropriate to consider the issue in post-conviction relief
proceedings than in fundamental error review. See Johnson v. State, 765 A.2d
926, 929 (Del. 2000); State v. Perry, 245 P.3d 961, 981 (Idaho 2010); Ryan v.
State, 9 N.E.3d 663, 668 & n.4 (Ind. 2014). (State v. Foxen, 29 P.3d 1071, 1075
(N.M. 2001), also cited by the State, is inapposite as it equated strategic
decisions to submit erroneous jury instructions with invited error.) We
decline to follow these cases. If fundamental, prejudicial error necessitates
a new trial, no reason exists to await post-conviction relief proceedings to
grant that remedy. And doing so would only delay justice and waste
judicial resources.

¶38            Importantly, if defense counsel invited trial error,
strategically or carelessly, the defendant cannot obtain appellate relief even
if the error was fundamental and prejudicial. See State v. Logan, 200 Ariz.
564, 566 ¶ 15 (2001). “Invited error” occurs when the defendant is the
source of that error. See id. ¶ 11 (i.e., “the party urging the error”). Failing
to object to error, as occurred here, even if done strategically, forfeits
appellate review—absent fundamental, prejudicial error—but does not
foreclose appellate review by inviting error. See State v. Rushing, 243 Ariz.
212, 217 ¶ 14 (2017).

¶39           The court of appeals also concluded that Escalante failed to
show that without the profile evidence a reasonable jury could have
reached a different verdict. See Escalante, 242 Ariz. at 384–85 ¶¶ 40–41. In
doing so, it rejected Escalante’s argument that juror questions
demonstrated the prejudicial impact of the profile evidence but did not
address his contention that without that evidence, “very little evidence of
guilt” existed. Id. ¶ 41.

¶40           We disagree with the court of appeals and instead conclude
that Escalante has demonstrated that the erroneous admission of drug-
courier profile evidence prejudiced his trial on counts one, three, and five.
                                      13
                             State v. Escalante
                            Opinion of the Court


Guilty verdicts on those counts depended on the jury finding that Escalante
possessed the methamphetamine found in the road with the intent to sell it.
See A.R.S. §§ 13-2809, -3102, -3407. As previously explained, the admissible
evidence supporting the prosecution’s case on these counts was
circumstantial and prompted several questions from the jury about the
baggie’s ownership. See supra ¶ 26. That Escalante’s behaviors fit the drug-
courier profile laid out by law enforcement officers trained in illegal drug
interdiction greatly enhanced the likelihood that jurors would conclude
that Escalante had possessed the methamphetamine with the intention of
selling it. Also, the profile evidence permeated the trial from start to finish.
See supra ¶ 23; see also Escalante, 242 Ariz. at 384 ¶ 38 (describing the
prosecution as “run[ning] amok with the drug courier profile evidence”).
Without the drug-courier profile evidence, a reasonable jury considering
the remaining evidence could plausibly and intelligently find him not
guilty on counts one, three and five.

¶41            The State points out that defense counsel used the profile
evidence to support his theory that law enforcement officers targeted
Escalante with no “real evidence.” Specifically, defense counsel argued in
closing that the State “spent three days blowing a lot of smoke from a lot of
law enforcement officers” and “a parade of police officers” was convinced
Escalante was a drug dealer with “no hard evidence that he really is.” It is
appropriate to consider how inadmissible evidence impacted a defense
theory when considering prejudice. Cf. Escalante-Orozco, 241 Ariz. at 278–
79 ¶ 83 (concluding that even if evidence was inadmissible, defendant’s use
of the testimony to fit his defense theory precluded a finding of prejudice).
But here, defense counsel’s lemons-into-lemonade argument did not
dissipate the prejudice caused by introducing profile evidence. Indeed,
without that evidence, Escalante had an even stronger argument that the
evidence against him was insufficient to support a guilty verdict.

¶42            Escalante did not prove that the admission of profile evidence
prejudiced his defense or rendered the trial unfair on count two, possession
of drug paraphernalia. A person commits that crime if he knowingly
possessed drug paraphernalia with the intent to use it. See A.R.S. § 13-
3415(A). “Drug paraphernalia” includes a digital scale if used to weigh
illegal drugs. Id. § 13-3415(F)(2)(e). The evidence here was that a scale with
methamphetamine residue was found in Escalante’s truck. Even without
the profile evidence a reasonable jury could not have reached a different
verdict on this count.



                                      14
                           State v. Escalante
                          Opinion of the Court




                             CONCLUSION

¶43           Escalante’s trial was infected with fundamental, prejudicial
error that deprived him of a fair trial on counts one, three, and five. We
therefore reverse his convictions and sentences on those counts and remand
for a new trial. Because the error did not prejudice him on the remaining
counts, we affirm Escalante’s convictions and sentences on those counts.
We vacate paragraphs 11, 25, 33-53 and 57 of the court of appeals’ opinion.
In light of our decision, we do not address Escalante’s hearsay challenges,
none of which concern count two.




                                    15
