State of Arizona v. Johnathan Ian Burns , 237 Ariz. 1 ( 2015 )


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  •                                   IN THE
    SUPREME COURT OF THE STATE OF ARIZONA
    THE STATE OF ARIZONA,
    Appellee,
    v.
    JOHNATHAN IAN BURNS,
    Appellant.
    No. CR-11-0060-AP
    Filed March 10, 2015
    Appeal from the Superior Court in Maricopa County
    The Honorable Karen L. O’Connor, Judge
    No. CR2007-106833
    AFFIRMED
    COUNSEL:
    Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor
    General, Jeffrey A. Zick, Chief Counsel, Jeffrey L. Sparks (argued), Assistant
    Attorney General, Capital Litigation Section, Phoenix, for State of Arizona
    David Goldberg (argued), Attorney at Law, Fort Collins, CO, for Johnathan
    Ian Burns
    JUSTICE BRUTINEL authored the opinion of the Court, in which CHIEF
    JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES
    BERCH and TIMMER joined.
    JUSTICE BRUTINEL, opinion of the Court:
    STATE V. BURNS
    Opinion of the Court
    ¶1            This automatic appeal arises from Johnathan Ian Burns’
    conviction and death sentence for the murder of Jackie H. We have
    jurisdiction under Article 6, Section 5(3) of the Arizona Constitution and
    A.R.S. § 13-4031.
    I.   FACTUAL BACKGROUND1
    ¶2             On January 27, 2007, Jackie and Burns met at a gas station and
    went out on a date. Later that evening, Jackie called her sister Randi. Jackie
    sounded “a little off” and “nervous” and asked Randi to meet her at the gas
    station as quickly as possible. Randi promptly went to the gas station and
    waited for Jackie. Two hours later, Jackie called Randi and said she was
    lost. Jackie sounded confused and could not describe where she was. Burns
    eventually took the phone and told Randi he was lost, but said he and Jackie
    would arrive within fifteen minutes. Randi waited for several hours, but
    Jackie never arrived. Later that day, Randi told her parents that Jackie was
    missing.
    ¶3            The next day, a maintenance worker found, in an apartment
    complex dumpster, Jackie’s purse and the blouse, bra, panties, and sandals
    she was wearing the previous evening. The blouse and bra were torn, and
    the blouse was stained with Jackie’s blood and had two bullet holes from a
    close-range firearm discharge. Semen on the panties matched Burns’ DNA.
    ¶4            Police arrested Burns and searched his home and vehicles. In
    the trunk of Burns’ Honda Civic, police found a pair of men’s jeans stained
    with Jackie’s blood. In Burns’ truck, which he was driving the night Jackie
    disappeared, officers discovered Jackie’s blood and an earring she had
    worn. Inside Burns’ home, police found a case for a Springfield 9mm
    handgun, but no gun. Mandi Smith, Burns’ fiancée at the time, had
    purchased the gun for Burns, who was a prohibited possessor (Smith later
    pleaded guilty to misconduct involving a weapon based on her purchase of
    the gun).
    ¶5           Almost three weeks later, Jackie’s body was discovered in the
    Sycamore Creek area. Jackie had suffered two fatal gunshot wounds to her
    head and several skull fractures from blunt force impacts on her left temple,
    1      The facts are presented in the light most favorable to sustaining the
    verdict. State v. Garza, 
    216 Ariz. 56
    , 61 n.1, 
    163 P.3d 1006
    , 1011 n.1 (2007).
    2
    STATE V. BURNS
    Opinion of the Court
    on top of her head, and under her right eye. She also had vaginal bruising
    likely caused by blunt force. Sperm on an anal swab taken from Jackie’s
    body matched Burns’ DNA. The medical examiner determined that wild
    animals had severed Jackie’s head postmortem. Burns’ cellphone records
    indicated that he drove to the Sycamore Creek area the night Jackie
    disappeared and stayed there for several hours.
    ¶6            Shortly before his arrest, Burns had disposed of the
    Springfield 9mm handgun Mandi had purchased for him. Police later
    located the handgun. A ballistics expert determined that it had fired a
    bullet found in the sand beneath where Jackie’s head had been.
    ¶7           The State charged Burns with sexual assault, kidnapping,
    first-degree murder, and misconduct involving weapons; a jury found
    Burns guilty on all counts.
    ¶8             During the aggravation phase of the trial, the jury found two
    aggravating circumstances: (1) Burns had a prior or contemporaneous
    felony conviction under A.R.S. § 13-751(F)(2); and (2) the murder was
    especially cruel, heinous, or depraved under A.R.S. § 13-751(F)(6). After the
    penalty phase, the jury determined that Burns should be sentenced to
    death. In addition to imposing the death sentence for the murder, the trial
    court sentenced Burns to consecutive prison terms totaling sixty-eight years
    for the other three convictions.
    II.     ISSUES ON APPEAL
    ¶9            Burns raises twenty-six issues on appeal. For the reasons
    stated below, we affirm his convictions and sentences.
    Continuance
    ¶10           Burns contends the trial court abused its discretion by
    denying his motions to continue the guilt and penalty phases of his trial.
    We will not find that a trial court abused its discretion in denying a
    continuance unless the defendant shows prejudice. State v. Barreras, 
    181 Ariz. 516
    , 520, 
    892 P.2d 852
    , 856 (1995); see also State v. Lamar, 
    205 Ariz. 431
    ,
    437 ¶ 32, 
    72 P.3d 831
    , 837 (2003). Burns argues he was prejudiced because
    (1) he could not produce the results of a functional MRI exam; (2) Dr. Wu,
    Burns’ neuropsychiatrist, could not analyze Burns’ PET scan; (3) Dr.
    Cunningham, Burns’ expert on developmental psychology and prison
    3
    STATE V. BURNS
    Opinion of the Court
    violence, could not present Burns’ risk assessment for violence in prison;
    and (4) Burns could not rebut the testimony of Dr. Kirkley, the State’s
    psychological expert.
    ¶11           At Burns’ request, the superior court continued the guilt
    phase of the trial three times, adding more than a year to counsel’s
    preparation time. One of these continuances was due to Burns’ refusal to
    cooperate with counsel’s efforts to prepare mitigation evidence, while the
    other two were granted because Burns’ counsel needed additional time to
    prepare. Burns moved to continue the guilt phase three more times, but the
    trial court denied those motions. After the jury found Burns guilty, Burns
    asked for a month-long recess, which the court also denied.
    ¶12            Continuances “shall be granted only upon a showing that
    extraordinary circumstances exist and that delay is indispensable to the
    interests of justice.” Ariz. R. Crim. P. 8.5(b). In considering such a request,
    a trial court must “consider the rights of the defendant and any victim to a
    speedy disposition of the case.” 
    Id. ¶13 Although
    denying counsel adequate time to prepare a case for
    trial may deny the defendant a substantial right, State v. Narten, 
    99 Ariz. 116
    , 120, 
    407 P.2d 81
    , 83 (1965), time constraints by themselves do not create
    prejudice. See State v. Salinas, 
    129 Ariz. 364
    , 367, 
    631 P.2d 519
    , 522 (1981). In
    determining whether a defendant’s rights were violated, this Court looks
    to the totality of the circumstances. See 
    Barreras, 181 Ariz. at 520
    , 892 P.2d
    at 856.
    ¶14            Because Burns has failed to show prejudice, we cannot
    conclude that the trial court abused its discretion. The court gave defense
    counsel more than another year to prepare, and Burns’ trial did not begin
    for three-and-a-half years after indictment. Further, all of the evidence
    Burns claims he was unable to present pertains to the mitigation stage of
    the trial, which did not commence until four years after indictment. Despite
    the trial court’s refusal to grant additional continuances, Burns was able to
    present twelve days’ worth of mitigation that included much of the
    information he alleges he could not offer because of time constraints.
    ¶15           For example, Dr. Wu testified at length about Burns’ low
    frontal-lobe activity and showed Burns’ PET scans to the jury. The court
    precluded only a few portions of Dr. Wu’s testimony relating to the analysis
    4
    STATE V. BURNS
    Opinion of the Court
    Dr. Wu failed to disclose during a pre-trial interview that took place after
    his report was complete and that was disclosed mere days before he
    testified. Similarly, Dr. Cunningham’s rebuttal testimony was not timely
    disclosed and was therefore precluded, but was also irrelevant for the
    purpose offered.2
    ¶16           Additionally, Burns fails to explain how a functional MRI
    scan would have aided his mitigation.3 Because Burns has not provided
    any basis for this argument, he has failed to demonstrate prejudice.4 State
    v. VanWinkle, 
    230 Ariz. 387
    , 391 ¶¶ 10–13, 
    285 P.3d 308
    , 312 (2012).
    Similarly, Burns was able to meaningfully rebut Dr. Kirkley’s testimony
    through his own experts, and thus was not prejudiced.
    ¶17             Notably, Jackie’s family repeatedly voiced frustration at the
    delays in the trial. Under Rule 8.5(b), the trial court must consider the
    victims’ right to a timely resolution of the charges and did not err by
    proceeding with the trial after three-and-a-half years. Ariz. R. Crim. P.
    8.5(b); State v. Dixon, 
    226 Ariz. 545
    , 555 ¶ 56, 
    250 P.3d 1174
    , 1184 (2011).
    ¶18         The trial court did not abuse its discretion in denying the
    continuance motions.
    Limitation of Defense Counsel’s Voir Dire
    ¶19          Burns contends the trial court erred in preventing defense
    counsel from asking prospective jurors if they would consider a life
    sentence for a defendant convicted of sexual assault and kidnapping in
    addition to murder. “We review a trial court’s ruling on voir dire for an
    2      The preclusion of Dr. Wu’s and Dr. Cunningham’s testimony is fully
    discussed in our analysis of a different issue in Section P, infra.
    3      We found only one reference to the functional MRI in the more than
    10,000-page record. Defense counsel indicated only that, due to time
    constraints, a functional MRI could not be completed.
    4      Burns argues that, because it is unknown what the functional MRI
    would have shown, he was prejudiced because he lost his chance to show
    the jury whatever the MRI might have shown. But to demonstrate
    prejudice, a defendant must do more than merely speculate that relevant
    mitigation may have been uncovered with more time. See State v.
    VanWinkle, 
    230 Ariz. 387
    , 392 ¶ 12, 
    285 P.3d 308
    , 312 (2012).
    5
    STATE V. BURNS
    Opinion of the Court
    abuse of discretion.” State v. Patterson, 
    230 Ariz. 270
    , 273 ¶ 5, 
    283 P.3d 1
    , 4
    (2012).
    ¶20            In capital cases, a trial court must permit a defendant to ask
    potential jurors whether they would automatically vote for the death
    penalty. Morgan v. Illinois, 
    504 U.S. 719
    , 729–33 (1992). But we have rejected
    the argument that Morgan entitles a defendant to ask prospective jurors
    whether they will vote for death based on specific aggravating factors. State
    v. (Joe C.) Smith, 
    215 Ariz. 221
    , 231 ¶ 42, 
    159 P.3d 531
    , 541 (2007).
    ¶21           The trial court’s rulings complied with Morgan. Burns was
    permitted to ask prospective jurors in both the juror questionnaires and
    during voir dire whether they would automatically vote for the death
    penalty. But he was not entitled to ask whether they would impose the
    death penalty based on the specific facts of his case. Under Smith, the trial
    court properly stopped this line of questioning and did not abuse its
    
    discretion. 215 Ariz. at 231
    42, 159 P.3d at 541
    .
    Jurors Struck for Cause
    ¶22           Burns argues the trial court unconstitutionally struck three
    jurors―68, 186, and 198―for cause because of their views on the death
    penalty. We review a trial court’s rulings on strikes for cause for an abuse
    of discretion, giving deference to the judge who was able to observe the
    potential jurors. State v. Glassel, 
    211 Ariz. 33
    , 47 ¶ 46, 
    116 P.3d 1193
    , 1207
    (2005).
    ¶23           A court may not strike a juror merely because he or she
    “voiced general objections to the death penalty or expressed conscientious
    or religious scruples against its infliction.” State v. Prince (Prince II), 
    226 Ariz. 516
    , 528 ¶ 27, 
    250 P.3d 1145
    , 1157 (2011) (internal quotation marks
    omitted). But a judge “may strike a juror whose views about capital
    punishment would prevent or substantially impair the performance of his
    duties as a juror in accordance with his instructions and his oath.” 
    Id. (internal quotation
    marks omitted). A trial judge must consider the entirety
    of a prospective juror’s demeanor and behavior; if a juror’s promise to
    uphold the law is coupled with ambiguous statements and uncertainty, the
    trial judge may strike the juror for cause. State v. Lynch, 
    225 Ariz. 27
    , 35 ¶
    28, 
    234 P.3d 595
    , 603 (2010); State v. Roque, 
    213 Ariz. 193
    , 204–05 ¶¶ 18–20,
    
    141 P.3d 368
    , 379–80 (2006). A potential juror need not object to the death
    6
    STATE V. BURNS
    Opinion of the Court
    penalty in every possible case to warrant a dismissal for cause. Prince 
    II, 226 Ariz. at 528
    29, 250 P.3d at 1157
    .
    1. Juror 68
    ¶24           During voir dire, Juror 68 said she had “mixed feelings” about
    the death penalty because she felt “that life sentencing is bad enough.” She
    also indicated that her religious beliefs would interfere with her ability to
    impose the death penalty.         Nonetheless, during defense counsel’s
    questioning, Juror 68 said she could vote to impose the death penalty in the
    proper case. The trial judge struck Juror 68 for cause.
    ¶25           The trial court did not abuse its discretion by striking Juror
    68. There was an adequate basis for the trial judge to determine that Juror
    68’s performance could be substantially impaired by her feelings about
    capital punishment.
    2. Juror 186
    ¶26           During voir dire, Juror 186 said that the death penalty should
    be reserved for people with a violent criminal history “like serial killers”
    and that he could not impose the death penalty unless a defendant had a
    violent criminal past.
    ¶27          The trial court did not abuse its discretion by striking Juror
    186. A juror does not have to object to the death penalty in every
    conceivable case to be excluded for cause. 
    Id. The trial
    court had an
    adequate basis for determining that Juror 186’s feelings about capital
    punishment would have substantially impaired his ability to serve fairly
    and impartially.
    3. Juror 198
    ¶28              Juror 198’s juror questionnaire revealed that she feared dying,
    could not vote for a death sentence, and could not look at “photos of death.”
    When the State asked if her fear of dying might interfere with her ability to
    impose the death penalty, Juror 198 replied, “I don’t know. It depends how
    I felt after I’ve seen all of the evidence.” The court struck Juror 198 for cause.
    Based on Juror 198’s inability to say whether she could follow the law
    notwithstanding her fear of death, the trial court did not abuse its discretion
    in striking her.
    7
    STATE V. BURNS
    Opinion of the Court
    Failure to Sever Charges
    ¶29           Burns argues the trial court erred in denying his motion to
    sever the charges. We review for an abuse of discretion, and reverse only
    if the defendant can show “compelling prejudice against which the trial
    court was unable to protect.” State v. Murray, 
    184 Ariz. 9
    , 25, 
    906 P.2d 542
    ,
    558 (1995) (quoting State v. Cruz, 
    137 Ariz. 541
    , 544, 
    672 P.2d 470
    , 473 (1983)).
    ¶30           The State charged Burns with sexual assault, kidnapping,
    misconduct involving weapons, and first-degree murder under both
    premeditated- and felony-murder theories. Before trial, Burns moved to
    sever all charges and proceed to trial only on the premeditated-murder
    charge. After an evidentiary hearing, the trial court denied the motion,
    finding the charges sufficiently intertwined and related to consolidate them
    for trial.
    ¶31              The state may join charges that are of the same or similar
    character, are based on the same conduct, or are alleged as part of a
    common scheme or plan. Ariz. R. Crim. P. 13.3(a). But a trial court must
    grant a motion to sever charges if “necessary to promote a fair
    determination of the guilt or innocence of any defendant of any
    offense . . . .” Ariz. R. Crim. P. 13.4(a).
    ¶32            Joinder is permitted if separate crimes arise from a series of
    connected acts and are provable by overlapping evidence. State v. Prince
    (Prince I), 
    204 Ariz. 156
    , 160 ¶ 17, 
    61 P.3d 450
    , 454 (2003); see also State v.
    Prion, 
    203 Ariz. 157
    , 162 ¶ 32, 
    52 P.3d 189
    , 194 (2002). A common scheme or
    plan, under Rule 13.3(a)(3), is a “particular plan of which the charged crime
    is a part.” State v. Hausner, 
    230 Ariz. 60
    , 74 ¶ 45, 
    280 P.3d 604
    , 618 (2012)
    (quoting State v. Ives, 
    187 Ariz. 102
    , 109, 
    927 P.2d 762
    , 769 (1996)).
    ¶33           The sexual assault, kidnapping, and murder were properly
    joined as part of a “common scheme or plan” under Rule 13.3(a). The State
    alleged that Burns kidnapped Jackie intending to sexually assault her,
    sexually assaulted her, and then murdered her to prevent discovery of the
    kidnapping and sexual assault. Much of the same evidence that proved the
    murder also proved the sexual assault and kidnapping. The court did not
    abuse its discretion in consolidating these charges.
    8
    STATE V. BURNS
    Opinion of the Court
    ¶34           We are troubled, however, by the failure to sever the
    misconduct-involving-weapons charge. The State prosecuted Burns for
    that charge under A.R.S. § 13-3102(A)(4), alleging that he possessed a
    firearm the night of the murder and was a prohibited possessor because he
    had two prior felony convictions for burglary. See A.R.S. § 13-3101(A)(7)(b).
    To prove the misconduct-involving-weapons charge, the State had to
    introduce evidence of Burns’ prior felony convictions. The State notified
    Burns that, unless he was willing to stipulate to his prohibited-possessor
    status, it would introduce evidence of these prior felonies. Burns declined
    to stipulate, and the State introduced this evidence through a sanitized
    affidavit from the superior court clerk and testimony from Mandi Smith.
    ¶35           But for joinder of the misconduct-involving-weapons charge,
    the evidence of Burns’ prior felony convictions would not have been
    admissible during the guilt phase. Burns did not testify at trial, and any
    attempt to introduce the convictions would have been impermissible
    character evidence. See Ariz. R. Evid. 404(b). Simply put, trying the
    misconduct charge with the other charges permitted the jury to hear, during
    the guilt phase of the trial, that Burns was a convicted felon.
    ¶36            We conclude that denial of the motion to sever was an abuse
    of discretion. Although Burns’ possession of the murder weapon was cross-
    admissible for the murder and the weapons charge, his prior conviction was
    not and its admission created a serious risk of prejudice. See United States
    v. Nguyen, 
    88 F.3d 812
    , 815 (9th Cir. 1996) (noting uniform agreement
    among the federal circuit courts that introduction of prior convictions
    creates a dangerous potential for misuse of that information by the jury).
    There was no connection between Burns’ illegal possession of the murder
    weapon and the murder, kidnapping, or sexual assault. That he had a gun
    was relevant: that it was illegal was not.
    ¶37            Although the trial court instructed the jury that it must
    consider each offense separately, we are not persuaded that the instruction
    alone is sufficient in this context. Such an instruction requires the jury to
    ignore prior felony convictions in a capital criminal prosecution. We agree
    with the D.C. Circuit that this asks jurors “to act with a measure of
    dispassion and exactitude well beyond moral capacities.” United States v.
    Daniels, 
    770 F.2d 1111
    , 1118 (D.C. Cir. 1985). Because Burns’ prior felony
    conviction was prejudicial and irrelevant to the other charges, severance
    9
    STATE V. BURNS
    Opinion of the Court
    “was necessary to promote a fair determination” of Burns’ guilt or
    innocence under Arizona Rule of Criminal Procedure 13.4(a).
    ¶38            Nevertheless, on this record we find that the trial court’s error
    was harmless. See State v. Henderson, 
    210 Ariz. 561
    , 567 ¶ 18, 
    115 P.3d 601
    ,
    607 (2005) (“Harmless error review places the burden on the state to prove
    beyond a reasonable doubt that the error did not contribute to or affect the
    verdict or sentence.”). Evidence of Burns’ guilt was overwhelming: He was
    the last person seen with Jackie, her blood was found in his truck and on a
    pair of jeans in the trunk of his Honda, his cellphone records indicated he
    was in the area where Jackie’s body was found, his DNA matched sperm
    found in Jackie’s body, and he possessed and disposed of the murder
    weapon. Moreover, the State did not emphasize Burns’ conviction during
    closing argument, mentioning it only in the context of the weapons charge.
    There is nothing to indicate that the jury considered his prior convictions in
    contravention of the guilt-phase jury instructions, and this evidence was
    properly introduced in the penalty phase. Thus, we are satisfied that the
    failure to sever the misconduct charge did not affect the jury’s verdicts or
    sentences.
    ¶39           We take this opportunity, however, to emphasize that trial
    courts should prevent this situation. Evidence of prior felony convictions
    has a potential to create prejudice, which is precisely the reason previous
    criminal convictions are generally inadmissible under Rule 404(b). Absent
    an appropriate factual nexus, trial courts generally should not join a
    misconduct-involving-weapons charge, or any charge that requires
    evidence of a prior felony conviction, unless the parties have stipulated to
    a defendant’s status as a prohibited possessor. Alternatively, the court
    could conduct a bifurcated trial to adjudicate any charge that requires
    evidence of a prior felony conviction. Likewise, the State should avoid the
    risk of reversal by refraining from joining charges that require proof of a
    defendant’s prior convictions. But, for the reasons stated above, we do not
    find prejudice on this record.
    Duplicitous Charges
    ¶40           Burns next contends that, because the felony-murder
    indictment alleged both kidnapping and sexual assault as predicate
    felonies, it was duplicitous. Burns argues that this deprived him of a
    unanimous verdict regarding the felony-murder charge. We disagree.
    10
    STATE V. BURNS
    Opinion of the Court
    ¶41           “An indictment is duplicitous if it charges more than one
    crime in the same count.” State v. Anderson, 
    210 Ariz. 327
    , 335 ¶ 13, 
    111 P.3d 369
    , 377 (2005). Duplicitous indictments are prohibited in part because they
    present the chance for non-unanimous jury verdicts. 
    Id. But, we
    have held
    that if substantial evidence supports each alleged predicate offense, a
    felony-murder conviction should be upheld since a defendant is not
    entitled to a unanimous verdict on precisely how the murder was
    committed. State v. Hardy, 
    230 Ariz. 281
    , 288 ¶¶ 29–30, 
    283 P.3d 1
    2, 19
    (2012).
    ¶42            Burns was convicted of sexual assault and kidnapping, both
    of which are predicates for felony murder. See A.R.S. § 13-1105(A)(2).
    Substantial evidence supported his convictions on both charges. Burns was
    not entitled to a unanimous jury finding that the murder furthered a
    particular felony, only a unanimous agreement that the murder furthered a
    predicate felony. See 
    Hardy, 230 Ariz. at 288
    ¶¶ 
    29–30, 283 P.3d at 19
    .
    Moreover, this point is moot because the jury unanimously found Burns
    guilty of premeditated murder in addition to felony murder. See 
    Anderson, 210 Ariz. at 343
    59, 111 P.3d at 385
    (reasoning that when a jury returns
    guilty verdicts for both felony and premeditated murder, a first-degree
    murder conviction would stand even absent a felony-murder predicate).
    First-Date Testimony
    ¶43           Burns contends the trial court erred by allowing the State to
    elicit, and use in its opening statement and closing argument, testimony
    that Jackie had never dated anyone before and was on her “first date.”
    Burns argues this testimony violated Arizona’s Rape Shield Law, A.R.S. §
    13-1421, by impermissibly commenting on Jackie’s chastity. This type of
    evidence, however, is not prohibited by § 13-1421, which states:
    A.   Evidence relating to a victim’s reputation for chastity
    and opinion evidence relating to a victim’s chastity are
    not admissible in any prosecution for any offense in this
    chapter. Evidence of specific instances of the victim’s
    prior sexual conduct may be admitted only if a judge
    finds the evidence is relevant and is material to a fact in
    issue in the case and that the inflammatory or prejudicial
    nature of the evidence does not outweigh the probative
    11
    STATE V. BURNS
    Opinion of the Court
    value of the evidence, and if the evidence is one of the
    following:
    1.   Evidence of the victim’s past sexual conduct with
    the defendant.
    2.   Evidence of specific instances of sexual activity
    showing the source or origin of semen, pregnancy,
    disease or trauma.
    3.   Evidence that supports a claim that the victim has
    a motive in accusing the defendant of the crime.
    4.   Evidence offered for the purpose of impeachment
    when the prosecutor puts the victim’s prior sexual
    conduct in issue.
    5.   Evidence of false allegations of sexual misconduct
    made by the victim against others.
    ¶44            We recognize the potential for misuse of a victim’s reputation
    for chastity in a murder trial. See Michelle J. Anderson, From Chastity
    Requirement to Sexuality License: Sexual Consent and a New Rape Shield Law, 70
    Geo. Wash. L. Rev. 51, 104–07 (2002) (detailing studies of juror bias based
    on perceived promiscuity or virginity of rape victims). But evidence of how
    many “dates” someone has had does not necessarily reflect on that person’s
    chastity. See Richardson v. State, 
    581 S.E.2d 528
    , 640–41 (Ga. 2003) (“Evidence
    merely that the victim has or had a romantic relationship with another man
    does not reflect on her character for sexual behavior.”); Banks v. State, 
    366 S.E.2d 228
    , 230 (Ga. Ct. App. 1988) (holding evidence that victim was “going
    steady” did not open the door to evidence of sexual experience); State v.
    Miller, 
    870 S.W.2d 242
    , 245 (Mo. Ct. App. 1994) (refusing to endorse the
    “cynical notion” that dating is synonymous with sexual activity). While
    one could infer that a victim who has never gone on a date before is more
    likely to be a virgin than someone who has, we do not believe that the
    relationship between the use of the term “first date” in this case and sexual
    conduct is so close that it falls into the ambit of § 13-1421.
    ¶45         Burns also argues that this testimony warranted a mistrial
    under Arizona Rule of Evidence 403. Because Burns failed to object on this
    12
    STATE V. BURNS
    Opinion of the Court
    ground at trial, we review only for fundamental error. 
    Henderson, 210 Ariz. at 567
    19, 115 P.3d at 607
    . “Fundamental error is error going to the
    foundation of the case . . . of such magnitude that defendant could not
    possibly have received a fair trial.” State v. Rutledge, 
    205 Ariz. 7
    , 13 ¶ 32, 
    66 P.3d 50
    , 56 (2003) (quoting State v. Hughes, 
    193 Ariz. 72
    , 86 ¶ 62, 
    969 P.2d 1184
    , 1198 (1998)). We find no error here. Evidence that Jackie’s date with
    Burns was her first date helped to place her actions in context and thus was
    probative. And because Burns has not shown that the evidence posed a
    danger of unfair prejudice under Rule 403, he cannot show error, much less
    fundamental error.
    Presence of GHB in the Victim’s Organs
    ¶46            Before trial, Burns moved to preclude any evidence regarding
    the presence of gamma-hydroxybutyric acid (“GHB”) in Jackie’s liver
    tissue. At a pretrial hearing, an expert for the State testified that GHB is
    often used as a date-rape drug that causes confusion and unconsciousness,
    but is also produced by the body in small amounts. The expert further
    testified that the small amount of GHB found in Jackie’s liver tissue could
    have been from natural causes, but it could also have shown that Jackie was
    drugged with GHB before her death. The trial court found the evidence
    relevant and that its probative value outweighed any prejudice. The court
    permitted the State to present essentially the same evidence at trial,
    although it disallowed use of the term “date-rape drug.” Burns contends
    that the trial court erred in allowing evidence of the GHB in Jackie’s liver
    because its origin was unknown. We review the trial court’s ruling for an
    abuse of discretion. State v. Dann, 
    220 Ariz. 351
    , 365 ¶ 66, 
    207 P.3d 604
    , 618
    (2009).
    ¶47            Evidence is relevant if “it has any tendency to make a fact
    more or less probable than it would be without the evidence.” Ariz. R. Evid.
    401(a). The State’s theory was that Burns killed Jackie to keep her from
    telling the police that she was raped. On the night she was murdered, Jackie
    sounded confused and disoriented when she spoke on the telephone to
    Randi. Confusion and disorientation are side effects of ingested GHB.
    Thus, the testimony that the GHB in Jackie’s liver tissue could have
    naturally occurred or resulted from someone giving Jackie a dose of the
    drug to subdue her was relevant to whether the sexual intercourse between
    Burns and Jackie was consensual. That the GHB might have been naturally
    present went to the weight of the evidence rather than its admissibility. See
    13
    STATE V. BURNS
    Opinion of the Court
    State v. Lacy, 
    187 Ariz. 340
    , 349, 
    929 P.2d 1288
    , 1297 (1996) (holding that a
    lack of certainty regarding the source of admitted evidence goes to the
    weight of the evidence, not to its admissibility). Thus, the trial court did
    not abuse its discretion in admitting the GHB evidence.
    ¶48            Burns also argues the trial court abused its discretion by
    instructing the jury that “without consent” means that “the victim is
    incapable of consent by reason of mental disorder, mental defect, drugs,
    alcohol, sleep, or any other similar impairment.” A party is entitled to any
    jury instruction reasonably supported by the evidence. State v. Trostle, 
    191 Ariz. 4
    , 15, 
    951 P.2d 869
    , 880 (1997). That GHB was found in Jackie’s liver
    tissue and she sounded confused the night of the murder indicate Jackie
    might have been drugged with GHB. Because the jury instruction was
    supported by the evidence, we find no error.
    Mandi’s Testimony that She Feared Burns
    ¶49           During an interview with the State, Mandi said she feared
    Burns, and he had previously threatened to kill her. The trial court initially
    precluded evidence of any specific threats made by Burns. It did, however,
    allow Mandi to testify on direct examination to her general feelings toward
    Burns. Burns’ counsel spent much of his cross-examination attempting to
    establish that Mandi, not Burns, had killed Jackie. Burns’ counsel also
    attempted to impeach Mandi’s testimony that she feared Burns by eliciting
    testimony that Mandi never told the police that she was afraid of Burns.
    After cross-examination, the State asked the court to reconsider its previous
    ruling that Mandi could not testify as to specific acts by Burns that caused
    her to fear him, arguing that Burns had opened the door by implying that
    Mandi’s testimony was recently fabricated. Over Burns’ objection, the court
    allowed the State on redirect to question Mandi about specific threats Burns
    allegedly made on her life and Mandi’s assertions that she planned to
    remove all the guns from her house because she feared Burns.
    ¶50          Burns contends the trial court erred in permitting Mandi’s
    testimony because it was irrelevant, unduly prejudicial, and was other-act
    evidence prohibited under Rule 404(b).5 Burns also argues he should have
    5     Burns also argues that Mandi’s testimony was not timely disclosed
    and should have been precluded, but does not support this claim with any
    argument or citation to the record. He has, therefore, waived this claim.
    14
    STATE V. BURNS
    Opinion of the Court
    been permitted to re-cross-examine Mandi on certain subjects. We review
    for an abuse of discretion. 
    Dann, 220 Ariz. at 365
    66, 207 P.3d at 618
    .
    ¶51           Mandi’s testimony that she feared Burns, that she planned to
    remove all the guns from their shared home, and that Burns threatened to
    kill her one week before Jackie’s murder are all relevant to rebut Burns’
    contention that her testimony was a recent fabrication. See Ariz. R. Evid.
    401(a)–(b). The probative value of this evidence was not substantially
    outweighed by any prejudicial effect. See State v. Martinez, 
    230 Ariz. 208
    ,
    213 ¶ 21, 
    282 P.3d 409
    , 414 (2012) (noting that not all harmful evidence is
    unfairly prejudicial, only that evidence which suggests a decision based on
    an improper basis such as emotion, sympathy, or horror).
    ¶52           Burns’ Rule 404 argument also lacks merit. Under Arizona
    Rule of Evidence 404(b), other wrongs or acts are not admissible to show
    that a person acted in conformity with his or her character. They may,
    however, be admissible for other purposes, such as rebutting an attempt to
    impeach a witness. See State v. Williams, 
    183 Ariz. 368
    , 376, 
    904 P.2d 437
    ,
    445 (1995) (“Evidence which tests, sustains, or impeaches the credibility or
    character of a witness is generally admissible, even if it refers to a
    defendant’s prior bad acts.”) (internal quotation marks omitted). Rule
    404(b) does not apply to Mandi’s testimony that she feared Burns or
    planned to remove guns from their home, because that testimony involves
    no other act by Burns. Mandi’s testimony that Burns threatened to kill her
    before Jackie’s murder was inadmissible to show that Burns was more
    likely to have killed Jackie, because it involved a specific threat made by
    Burns. That evidence, however, was properly admitted to rebut Burns’
    attempt to show that Mandi was not credible when she testified that she
    feared Burns. Thus, Burns’ 404(b) argument fails.
    ¶53          Burns’ argument that he should have been permitted to re-
    cross-examine Mandi is also without merit. Burns asserts that he should
    have been allowed to question Mandi about a recorded phone conversation
    in which Mandi told Burns’ co-worker that she was not afraid of Burns and
    that Burns was never violent with women. A trial court may, in its
    See State v. Carver, 
    160 Ariz. 167
    , 175, 
    771 P.2d 1382
    , 1390 (1989) (“[O]pening
    briefs must present significant arguments, supported by authority, setting
    forth an appellant’s position on the issues raised. Failure to argue a claim
    usually constitutes abandonment and waiver of that claim.”).
    15
    STATE V. BURNS
    Opinion of the Court
    discretion, permit re-cross-examination on any new issue raised on re-
    direct. State v. (Robert D.) Smith, 
    138 Ariz. 79
    , 81, 
    673 P.2d 17
    , 19 (1983).
    Defense counsel, however, asked about this conversation on cross-
    examination, and no new issue arose during re-direct examination that
    would have warranted re-cross-examination. Thus, the trial court did not
    abuse its discretion.
    Jail Calls
    ¶54            Burns contends the trial court erred in admitting recordings
    of sixteen “irrelevant and prejudicial” phone calls that he made while in jail.
    We review the trial court’s admission of this evidence for an abuse of
    discretion. 
    Dann, 220 Ariz. at 372
    117, 207 P.3d at 625
    . In these calls, Burns
    spoke with Mandi and asked about the search for Jackie’s body, whether
    his brother had cleaned out Burns’ Honda, and whether Mandi would stay
    with him “no matter what.” Over Burns’ objection, the trial court allowed
    the recordings to be played to the jury and permitted testimony about the
    content of the calls.
    ¶55          The phone calls are clearly relevant. The conversations all
    tend to show that Burns was involved in Jackie’s disappearance. The
    probative value of the statements is not substantially outweighed by any
    danger of unfair prejudice. 
    Martinez, 230 Ariz. at 213
    21, 282 P.3d at 414
    .
    We find no abuse of discretion.
    Testimony Regarding Knives in Burns’ Home
    ¶56           Burns contends the trial court erred in denying a mistrial after
    it inappropriately admitted evidence that the police found numerous
    “folding knives” inside Burns’ home. We review the admission of evidence
    and the denial of a mistrial for an abuse of discretion. See State v. Villalobos,
    
    225 Ariz. 74
    , 80 ¶ 18, 
    235 P.3d 227
    , 233 (2010); State v. Kuhs, 
    223 Ariz. 376
    ,
    380 ¶ 18, 
    224 P.3d 192
    , 196 (2010).
    ¶57           Before trial, Burns moved to exclude evidence of any weapons
    found in his home besides the murder weapon, a 9mm handgun. The trial
    court did not rule on the motion, but noted that the State had stipulated not
    to introduce evidence of any other weapons. But at trial, when asked by
    the State what was found in Burns’ home, a detective testified that several
    folding knives were found. Burns moved for a mistrial. The prosecutor
    avowed on the record that the State had intended that the detective testify
    16
    STATE V. BURNS
    Opinion of the Court
    about the 9mm handgun case and not the knives. The court denied the
    mistrial motion.
    ¶58            “When unsolicited prejudicial testimony has been admitted,
    the trial court must decide whether the remarks call attention to
    information that the jurors would not be justified in considering for their
    verdict, and whether the jurors in a particular case were influenced by the
    remarks.” State v. Jones, 
    197 Ariz. 290
    , 304 ¶ 32, 
    4 P.3d 345
    , 359 (2000). In
    this case, the detective briefly remarked that he had found knives, common
    household items, in Burns’ home. These remarks would not have
    influenced the jury’s verdict when viewed in context with the evidence that
    was properly before the jury. The court, therefore, did not err by denying
    Burns’ request for a mistrial.
    Photographs of Jackie’s Body
    ¶59           Burns contends that the trial court erred when it admitted
    photographs of Jackie’s body as it was discovered in the desert, as well as
    images of Jackie’s skull.       Before trial, Burns moved to preclude
    photographic evidence of Jackie’s body. He contended that the photos and
    descriptions of Jackie’s remains were not relevant, were unduly prejudicial,
    and only served to inflame the jury because Jackie’s remains were in an
    advanced state of decomposition and wild animals had severed her head.
    The trial court denied Burns’ motion, as well as several objections to specific
    photographs. The court found that the photographs had probative value,
    including the photographs of Jackie’s skull, which helped explain the
    testimony of a forensic anthropologist, Dr. Fulginiti, who based her
    conclusions on an examination of the skull.
    ¶60             Trial courts have broad discretion in admitting photographs.
    State v. Spreitz, 
    190 Ariz. 129
    , 141, 
    945 P.2d 1260
    , 1272 (1997).
    ¶61           In State v. Murray, we set forth a three-part test for
    determining whether photographs of a murder victim are admissible:
    whether the photograph is relevant, whether it has “the tendency to incite
    passion or inflame the jury,” and its probative value versus its potential to
    create unfair prejudice. 
    184 Ariz. 9
    , 28, 
    906 P.2d 542
    , 561 (1995). The trial
    court here properly applied this test.
    17
    STATE V. BURNS
    Opinion of the Court
    ¶62           First, the photographs are relevant. A photograph of the
    deceased in any murder case is relevant to assist a jury in understanding an
    issue because the fact and cause of death are always relevant in a murder
    prosecution. 
    Spreitz, 190 Ariz. at 142
    , 945 P.2d at 1273. The photographs
    show where the body was found and how it was hidden, and they helped
    the jury understand the expert testimony in the case. Although the
    photographs are gruesome, and thus had some potential to inflame the jury,
    their probative value outweighs any danger of unfair prejudice.
    Ballistic Expert Testimony
    ¶63            Burns contends the trial court erred in admitting the
    testimony of the State’s ballistics expert, Christian Gunsolley, who
    identified Burns’ 9mm handgun as the murder weapon. Because Burns did
    not object at trial, we review for fundamental error. State v. Valverde, 
    220 Ariz. 582
    , 585 ¶ 12, 
    208 P.3d 233
    , 236 (2009).
    ¶64             Burns contends that Daubert v. Merrell Dow Pharm., Inc., 
    509 U.S. 579
    (1993), and amended Rule of Evidence 702 applied to his case and
    that the trial court erred by not holding a Daubert hearing. But, because the
    current version of Rule 702 is not a new constitutional rule, it does not apply
    to trials that ended before the new rule became effective on January 1, 2012.
    State v. Miller, 
    234 Ariz. 31
    , 41 ¶¶ 28–31, 
    316 P.3d 1219
    , 1228 (2013). Because
    the guilt phase of Burns’ trial concluded on December 16, 2010, Daubert and
    new Rule 702 did not apply to his case.
    ¶65             Burns argues that, even if Daubert does not apply, Gunsolley’s
    testimony should still have been precluded under Frye. See Frye v. United
    States, 
    293 F. 1013
    (D.C. Cir. 1923). But, because Gunsolley’s testimony did
    not rely on any novel theory or process, it was also not subject to Frye. See
    Logerquist v. McVey, 
    196 Ariz. 470
    , 480 ¶ 31, 
    1 P.3d 113
    , 123 (2000) (holding
    that Frye applies only to expert testimony based on “novel scientific
    principles”). Thus, Burns has not established that the trial court erred in
    admitting Gunsolley’s testimony, much less that it constituted fundamental
    error.
    Burns’ Hearsay Statement about Consensual Sex
    ¶66          Burns argues the trial court deprived him of his right to
    present a complete defense by refusing to allow testimony about his
    statements to police that he had consensual sex with Jackie. We disagree.
    18
    STATE V. BURNS
    Opinion of the Court
    ¶67          After Jackie’s disappearance, Burns told police during an
    interview that he and Jackie had consensual sex in his truck. At trial,
    defense counsel asked the court to permit him to elicit testimony about this
    statement. The trial court refused because Burns’ statements were hearsay.
    ¶68           Burns admits that his statements were hearsay but contends
    that they should have been admitted under the residual hearsay exception,
    which is now contained in Arizona Rule of Evidence 807. Rule 807 provides
    that hearsay that does not fall into any other exception may be admitted if
    (1) the statement has equivalent guarantees of trustworthiness, (2) it is
    offered as evidence of a material fact, (3) it is more probative than any other
    evidence that the proponent can obtain through reasonable efforts, and (4)
    admitting it will best serve the purposes of the rules and the interests of
    justice.
    ¶69             The residual hearsay exception “require[s] the out of court
    statement      to    have    equivalent    circumstantial guarantees of
    trustworthiness,” and absent such guarantees, self-serving hearsay is
    inadmissible. (Robert D.) 
    Smith, 138 Ariz. at 84
    , 673 P.2d at 22 (internal
    quotation marks omitted). When deciding if a statement is trustworthy, we
    consider “the spontaneity, consistency, knowledge, and motives of the
    declarant . . . to speak truthfully,” among other things. State v. Allen, 
    157 Ariz. 165
    , 174, 
    755 P.2d 1153
    , 1162 (1988).
    ¶70           Burns’ statements did not have circumstantial guarantees of
    trustworthiness. The statements were not spontaneous but were made in
    response to police questioning two days after Jackie’s disappearance.
    Further, Burns was not motivated to speak truthfully. He was at a police
    station, speaking to police officers in an interview room about a murder
    investigation, a condition that does not necessarily elicit trustworthy
    answers. Cf. United States v. Morgan, 
    385 F.3d 196
    , 209 (2d Cir. 2004) (noting
    statements in response to police questioning and addressed to law
    enforcement officers lack equivalent guarantees of trustworthiness).
    ¶71          Burns also contends that his testimony was alternatively
    admissible under Arizona Rule of Evidence 106, which states that “[i]f a
    party introduces all or part of a writing or recorded statement, an adverse
    party may require the introduction, at that time, of any other part—or any
    other writing or recorded statement—that in fairness ought to be
    considered at the same time.” But the State did not introduce any writings
    19
    STATE V. BURNS
    Opinion of the Court
    or recorded statements about Burns and Jackie having non-consensual sex.
    Burns’ statements were therefore not “necessary to qualify, explain or place
    into context the portion already introduced . . . .” State v. Cruz, 
    218 Ariz. 149
    , 162 ¶ 58, 
    181 P.3d 196
    , 209 (2008) (citation and internal quotation marks
    omitted). Thus, the trial court did not abuse its discretion by excluding the
    statements.
    Evidence Supporting Burns’ Convictions
    ¶72            Burns claims (1) there was insufficient evidence to support the
    finding that he sexually assaulted Jackie; (2) there was insufficient evidence
    to find that he kidnapped Jackie; (3) sexual assault and kidnapping cannot
    serve as predicate offenses for felony murder; and (4) there was no evidence
    of premeditation to support the first-degree murder conviction. We review
    the facts in the light most favorable to sustaining the verdicts and resolve
    inferences against the defendant. State v. Davolt, 
    207 Ariz. 191
    , 212 ¶ 87, 
    84 P.3d 456
    , 477 (2004). We determine de novo whether the evidence
    introduced at trial is sufficient to support a conviction. State v. West, 
    226 Ariz. 559
    , 562 ¶ 15, 
    250 P.3d 1188
    , 1191 (2011). “Substantial evidence” to
    support a conviction exists when “reasonable persons could accept [it] as
    adequate and sufficient to support a conclusion of defendant’s guilt beyond
    a reasonable doubt.” 
    Id. at 562
    16, 250 P.3d at 1191
    .
    1. Evidence that Burns used immediate force to coerce sexual
    intercourse
    ¶73           The State presented sufficient evidence to support the jury’s
    finding that Burns coerced sexual intercourse with Jackie: Jackie’s bra and
    blouse were ripped, and her blood was found in Burns’ truck. Jackie
    suffered facial and skull fractures, and her vagina was bruised. She had
    GHB in her system and was confused and disoriented when she spoke to
    Randi on the phone. This evidence was sufficient for a reasonable person
    to conclude that Burns sexually assaulted Jackie.
    2. Evidence of kidnapping
    ¶74           Sufficient evidence also existed to support the jury’s finding
    that Burns kidnapped Jackie. Kidnapping occurs when a person knowingly
    restrains another with the intent to inflict death, physical injury, or a sexual
    offense on the victim. A.R.S. § 13-1304(A)(3). “Restrain” means “to restrict
    a person’s movements without consent, without legal authority, and in a
    20
    STATE V. BURNS
    Opinion of the Court
    manner which interferes substantially with such person’s liberty, by either
    moving such person from one place to another or by confining such
    person.” A.R.S. § 13-1301(2). A person may restrain another by “[p]hysical
    force, intimidation or deception.” 
    Id. ¶75 Having
    found sufficient evidence to support the jury’s
    finding that Jackie was sexually assaulted, we look to see if she was
    restrained against her will for the sexual assault to be accomplished. As
    noted above, there was evidence that Jackie’s clothes were torn and that she
    was drugged with GHB. Additionally, Burns was carrying a gun that could
    have been used to confine Jackie in his truck. And Jackie never made it to
    the gas station where she told Randi to meet her. Accordingly, the State
    presented sufficient evidence to support Burns’ conviction for kidnapping.
    3. Evidence of kidnapping or sexual assault as a predicate
    offense for felony murder
    ¶76          Burns argues that Jackie’s murder could not have occurred in
    furtherance of the sexual assault because the assault, if it occurred, was
    completed at a time and place remote from Jackie’s murder.
    ¶77           For felony murder, the state must prove that the defendant
    caused the victim’s death “in the course of and in furtherance of . . . or
    immediate flight from” the underlying offense. A.R.S. § 13-1105(A)(2). “A
    death is in furtherance of an underlying felony if the death resulted from
    an action taken to facilitate accomplishment of the felony.” State v. Jones,
    
    188 Ariz. 388
    , 397, 
    937 P.2d 310
    , 319 (1997).
    ¶78           There is sufficient evidence that Burns killed Jackie in
    furtherance of or during immediate flight from the kidnapping or sexual
    assault. The evidence that proves the kidnapping and sexual assault also
    proves the predicate felonies. Even if several hours passed between the
    attack and the murder, the evidence supports a finding that Burns never let
    Jackie out of his presence before driving Jackie to the desert and shooting
    her. The jury could have reasonably found that the murder was perpetrated
    in order to prevent Jackie from reporting the sexual assault or kidnapping.
    ¶79           Burns’ argument that the kidnapping merged into the murder
    is also without merit. He asserts there is no evidence that Jackie was ever
    restrained until just before her death; thus, the intent to kill “merged” with
    21
    STATE V. BURNS
    Opinion of the Court
    the intent to restrain. But Jackie’s facial fractures, the GHB in her liver, and
    her failure to arrive at the gas station where she told Randi to meet her all
    suggest that Burns restrained Jackie in some manner in the hours
    proceeding her death. Jackie’s body was found face down clutching a tree
    branch and a bullet was found where her head would have been,
    suggesting that she was ordered to lie down on her stomach and then shot.
    We have held that even mere moments between restraint and murder
    permits a finding that two offenses occurred. See State v. Herrera, 
    176 Ariz. 9
    , 16, 
    859 P.2d 119
    , 126 (1993) (holding kidnapping and murder were two
    distinct acts and did not merge where victim was ordered to lie on the
    grounds and then shot moments later).
    ¶80            Moreover, Burns was convicted of premeditated murder,
    which cannot merge with kidnapping. Two crimes do not merge when
    “[e]ach of the offenses . . . requires proof of a different element.” Blockburger
    v. United States, 
    284 U.S. 299
    , 304 (1932); see also Parker v. United States, 
    692 A.2d 913
    , 916 (D.C. 1997). Premeditated murder obviously requires proof
    that the defendant killed with premeditation, whereas kidnapping requires
    restraining the victim. See A.R.S. §§ 13-1105(A)(1), -1304(A). Thus, even if
    we accept Burns’ view of the evidence as true, the kidnapping did not
    merge with the murder.
    4. Evidence of premeditation
    ¶81           Finally, there was sufficient evidence to allow the jury to find
    Burns guilty of premeditated murder. To establish premeditation, the state
    must be able to “convince a jury beyond a reasonable doubt that the
    defendant actually reflected” before the murder. State v. Thompson, 
    204 Ariz. 471
    , 479 ¶ 31, 
    65 P.3d 420
    , 428 (2003).
    ¶82           The State presented evidence that Burns brought a gun on a
    “date.” He picked up Jackie, left Chandler, stopped for gas, and then drove
    to a remote location in the desert where he shot and killed Jackie. Sometime
    during the night, he sexually assaulted her. This provides sufficient
    circumstantial evidence to demonstrate premeditation. See 
    id. (noting that
    the defendant’s acquiring of a weapon before the killing is evidence of
    premeditation); State v. Grell, 
    205 Ariz. 57
    , 60 ¶ 21, 
    66 P.3d 1234
    , 1237 (2003)
    (holding that “driving to a remote area,” among other facts, supported
    finding of premeditation). Additionally, the fact that Burns positioned
    Jackie on the ground before shooting her twice in the back of the head and
    22
    STATE V. BURNS
    Opinion of the Court
    then hid her body shows that Burns actually reflected on whether to kill
    her.
    Multiplicity and Double Jeopardy
    ¶83           Burns argues that using his sexual assault and kidnapping
    convictions both as predicate felonies and to satisfy the (F)(2) aggravator
    violates the Double Jeopardy Clause. Further, Burns argues the trial court
    erred by not instructing the jury that his multiple felony convictions only
    counted as one aggravator. Whether charges are multiplicitous is a matter
    of law, which we review de novo. See State v. Boggs, 
    218 Ariz. 325
    , 334 ¶ 38,
    
    185 P.3d 111
    , 120 (2008) (noting that we review legal issues de novo). We
    also review de novo whether the trial court properly instructed the jury. See
    
    Glassel, 211 Ariz. at 53
    74, 116 P.3d at 1213
    .
    1. Multiplicitous charges
    ¶84         Burns argues that, because the State submitted both his sexual
    assault and kidnapping convictions as (F)(2) aggravators, the (F)(2)
    aggravator was multiplicitous and was improperly given additional
    weight. He did not raise this argument below, so we review for
    fundamental error. See 
    Henderson, 210 Ariz. at 568
    22, 115 P.3d at 608
    .
    ¶85           The (F)(2) aggravating factor requires the trier of fact to
    consider whether a defendant has been previously convicted of a serious
    offense. A.R.S. § 13-751(F)(2). Convictions for serious offenses committed
    at the same time as the homicide, or those consolidated for trial with the
    homicide, are considered prior convictions. The state may use multiple
    contemporaneous convictions to prove an (F)(2) aggravator. 
    Martinez, 230 Ariz. at 213
    –214 ¶¶ 
    16–23, 282 P.3d at 414
    –15. Burns has not established
    fundamental error on this point.
    2. Double jeopardy
    ¶86            Burns also argues that it was improper for him to be convicted
    of kidnapping and sexual assault, and then for those offenses to be used to
    satisfy the serious offense requirement of A.R.S. § 13-751(J)(5) and (10), and
    to establish the (F)(2) aggravator. He claims that using the convictions in
    this manner resulted in multiple punishments, since he was sentenced to
    prison for the same felonies that were used as felony murder predicates and
    as capital aggravators.
    23
    STATE V. BURNS
    Opinion of the Court
    ¶87           We need not address this claim. Burns’ double-jeopardy
    claims relate only to his conviction for felony murder. But because the jury
    also unanimously found Burns’ first-degree murder conviction supported
    by a premeditated-murder theory, Burns’ first-degree murder charge
    would stand regardless of whether the felony-murder conviction exists,
    and the kidnapping and sexual assault charges were independent of the
    premeditated murder. 
    Anderson, 210 Ariz. at 343
    59, 111 P.3d at 385
    .
    ¶88           Burns’ claim also fails on its merits. We have held, as Burns
    acknowledges, that an element of a crime may also be used as a capital
    aggravator. 
    Cruz, 218 Ariz. at 169
    130, 181 P.3d at 216
    (citing State v. Lara,
    
    171 Ariz. 282
    , 284–85, 
    830 P.2d 803
    , 805–06 (1992)). We decline to overrule
    these cases.
    3. Jury instruction on the (F)(2) aggravator
    ¶89          Burns argues the trial court failed to cure the errors
    enumerated above by not informing the jury that his prior convictions
    counted toward only one aggravating factor, the (F)(2) factor requiring
    proof of conviction of a prior serious offense. It does not appear that Burns
    requested this instruction below, and so we review for fundamental error.
    
    Henderson, 210 Ariz. at 568
    22, 115 P.3d at 608
    .
    ¶90           A prior conviction may be used to establish more than one
    aggravating factor, so long as the jury does not consider the conviction
    more than once in assessing the aggravating and mitigating circumstances.
    State v. Chappell, 
    225 Ariz. 229
    , 241 ¶ 48, 
    236 P.3d 1176
    , 1188 (2010). The trial
    court did not instruct the jury during the penalty phase that it could only
    consider the convictions once, although it did give this instruction in the
    aggravation phase. However, the instruction was unnecessary. Burns’
    prior convictions were only used to prove the (F)(2) aggravator. The state
    may present more than one prior conviction to satisfy the (F)(2) factor.
    
    Martinez, 230 Ariz. at 213
    –214 ¶¶ 
    16–23, 282 P.3d at 414
    –15. Moreover, the
    jury was instructed that it could only consider the aggravating factors that
    it found during the aggravation phase. Thus, Burns has not established
    fundamental error on this point.
    Preclusion of Burns’ Expert Testimony
    ¶91          Burns asserts that the trial court erred in precluding
    testimony from some of his expert witnesses. “We review the trial court’s
    24
    STATE V. BURNS
    Opinion of the Court
    decision to exclude evidence for abuse of discretion.” 
    Villalobos, 225 Ariz. at 82
    33, 235 P.3d at 235
    ; State v. Jackson, 
    186 Ariz. 20
    , 24, 
    918 P.2d 1038
    ,
    1042 (1996) (reviewing a court’s “imposition and choice of sanction” for an
    abuse of discretion). While trial courts may preclude or limit a witness’
    testimony as a sanction for disclosure violations, doing so should be a
    remedy of last resort. Ariz. R. Crim. P. 15.7(a); State v. Moody, 
    208 Ariz. 424
    ,
    454 ¶ 114, 
    94 P.3d 1119
    , 1149 (2004).
    ¶92            To determine whether witnesses should be precluded from
    testifying, courts should assess four criteria: “(1) how vital the witness is to
    the case, (2) whether the opposing party will be surprised, (3) whether the
    discovery violation was motivated by bad faith, and (4) any other relevant
    circumstances.” State v. (Joe U.) Smith, 
    140 Ariz. 355
    , 359, 
    681 P.2d 1374
    , 1378
    (1984).
    1. Dr. Wu
    ¶93             Under Arizona Rule of Criminal Procedure 15.2(d), a
    defendant must disclose witnesses forty days after arraignment or ten days
    after the state’s disclosure. Parties have an ongoing duty to disclose new
    information as it is discovered. Ariz. R. Crim. P. 15.6(a). Yet less than one
    week before the penalty phase began, Burns provided notice that Dr. Joseph
    Wu, a mitigation witness, would testify regarding results of a PET scan of
    Burns’ brain. In response, the State moved to preclude Dr. Wu’s testimony
    and the results of the PET scan. The trial court ultimately allowed Dr. Wu
    to testify after Burns disclosed the reports.
    ¶94          The State objected on lack-of-disclosure grounds when Burns’
    counsel questioned Dr. Wu about a quantitative measurement of Burns’
    PET scans. One week before he testified, Dr. Wu told the State he had not
    performed a quantitative analysis. The court ruled that the State should
    have the opportunity to have its expert review the PET scan findings and
    would not allow the line of questioning until it could be determined
    whether there was adequate time for the results to be examined.
    Ultimately, Dr. Wu was not allowed to testify about the quantitative
    analysis. Dr. Wu did testify at length that, in his opinion, Burns had
    diminished frontal-lobe activity, rendering him less culpable for his actions.
    ¶95          Based on the Smith factors, the trial court did not abuse its
    discretion by precluding Dr. Wu’s quantitative analysis. Dr. Wu’s
    25
    STATE V. BURNS
    Opinion of the Court
    testimony was not critical to Burns’ defense. Dr. Wu testified at length that
    Burns had diminished frontal-lobe activity and explained that this could
    affect Burns’ impulse control, judgment, and emotional regulation. Burns
    has not identified what the quantitative analysis would have additionally
    shown. Second, the prosecution was unfairly surprised by the evidence, as
    Dr. Wu had stated just one week earlier that he had not performed a
    quantitative analysis. There is no indication of bad faith, so the third Smith
    factor is inapplicable. Finally, the trial court did not preclude the testimony
    entirely, but instead imposed a less-burdensome alternative: it required
    Burns to wait to delve into the quantitative analysis until the State’s expert
    had a chance to review it. By the conclusion of Dr. Wu’s testimony, the
    State’s expert, Dr. Waxman, had not received the data in a useable format.
    And Burns never attempted to recall Dr. Wu after Dr. Waxman had
    accessed the files. Under the Smith test, the trial court did not abuse its
    discretion by precluding the quantitative analysis evidence.
    2. Dr. Cunningham
    ¶96            The court sustained an objection on non-disclosure grounds
    to Dr. Cunningham’s direct examination testimony regarding “the rates of
    violence in prison, factors that are predictive of violence in prison, and how
    capital offenders behave in prison.” At the conclusion of Dr. Cunningham’s
    testimony, Burns’ counsel said he intended to recall Dr. Cunningham as a
    rebuttal witness. The State objected, arguing that Burns did not disclose to
    the State that it intended to call Dr. Cunningham as a rebuttal witness and
    that Dr. Cunningham’s purported testimony on the likelihood of violence
    in prison among capital offenders was not relevant to the State’s rebuttal
    evidence. The trial court ruled that if the State presented evidence on the
    likelihood of violence in prison, “then Dr. Cunningham will be allowed to
    testify” as a rebuttal witness.
    ¶97             A few days later, a State expert, Dr. Kirkley, discussed Burns’
    past misconduct to support her conclusion that Burns exhibited antisocial
    personality disorder. Burns then moved to recall Dr. Cunningham to
    address antisocial personality disorder and to explain the statistical analysis
    on the risk of inmate prison violence based upon his own research and other
    research presented in Burns’ case-in-chief. The trial court precluded this
    testimony because it “was not timely disclosed.” Further, the court found
    that the State did not inject the issue by its questioning of Dr. Kirkley and
    that the offered testimony was not relevant as rebuttal evidence.
    26
    STATE V. BURNS
    Opinion of the Court
    ¶98            Burns’ offer of proof disclosed that Dr. Cunningham would
    have offered a statistical analysis showing that violent offenders do not
    necessarily commit acts of violence while incarcerated. Burns argues that
    this testimony would have rebutted the “[S]tate’s position that [Burns]
    could not be safely housed for life in ADOC” as well as Dr. Kirkley’s
    opinion that Burns’ antisocial personality disorder and history meant he
    had a high probability of future dangerousness in prison. We find no abuse
    of discretion.
    ¶99            Under the Smith factors, Dr. Cunningham’s testimony that
    Burns could safely be incarcerated for life was cumulative and therefore not
    vital to his mitigation evidence. Another defense expert, James Aiken, had
    already testified that an inmate like Burns could be safely housed in prison.
    Second, the fact that Dr. Cunningham had testified in other trials does not
    mean that the State was prepared to effectively deal with his late-disclosed
    testimony in Burns’ case. The fact that the State had virtually no notice that
    Burns intended to call Dr. Cunningham as a rebuttal witness weighs in
    favor of preclusion. As with Dr. Wu’s testimony, there is no evidence of
    bad faith in the defense’s late disclosure, and so the third Smith factor is
    inapplicable here.
    ¶100            Ultimately, Burns cannot establish that he was prejudiced by
    the preclusion of Dr. Cunningham’s testimony because the proffered
    testimony was largely cumulative. We find no abuse of discretion in the
    trial court’s refusal to allow Dr. Cunningham’s rebuttal testimony.
    Impeachment of Burns’ Experts
    ¶101           Burns next argues the trial court erred by not limiting the
    State’s cross-examination of Dr. Wu and Burns’ prison expert, James Aiken.
    We review a trial court’s ruling regarding the scope of cross-examination
    for an abuse of discretion. State v. Ellison, 
    213 Ariz. 116
    , 132 ¶ 52, 
    140 P.3d 899
    , 915 (2006).
    ¶102           On direct examination during the penalty phase, Mr. Aiken
    testified that Burns could be safely managed in the Arizona prison system.
    The State then cross-examined Mr. Aiken regarding recent inmate crimes
    and escape attempts in a private prison facility in Kingman, the murder of
    a detention officer inside the prison, a hostage crisis at an Arizona prison,
    27
    STATE V. BURNS
    Opinion of the Court
    and other matters. The trial judge allowed the cross-examination over
    Burns’ objection.
    ¶103         Burns also objected to the State’s cross-examination of Dr. Wu
    regarding his evaluation of the PET scans. Burns again objected when the
    State asked Dr. Wu about several other cases, listed in his PowerPoint
    presentation, from other jurisdictions where courts precluded PET scan
    evidence. The trial court overruled the objection, and Dr. Wu responded
    that he was unsure what the courts had concluded.
    ¶104         We find nothing improper with the State’s cross-
    examinations of Burns’ experts. The cross-examinations were relevant to
    impeach each expert. See Ariz. R. Evid. 401(a) (“Evidence is relevant if [] it
    has any tendency to make a fact more or less probable than it would be
    without the evidence . . . .”); Ariz. R. Evid. 611(b) (“A witness may be cross-
    examined on any relevant matter.”).
    Jurors’ Concern for Courtroom Safety
    ¶105          Burns contends the trial court violated his right to a fair trial
    when it denied his motions for a mistrial after the jurors expressed concern
    about their safety. Trial court rulings on motions for mistrial are reviewed
    for an abuse of discretion. State v. Lehr (Lehr III), 
    227 Ariz. 140
    , 150 ¶ 43, 
    254 P.3d 379
    , 389 (2011).
    ¶106         During the guilt-phase deliberations, the jury sent the
    following question to the judge:
    We are concerned about the juror’s [sic] safety. In other
    words, are people going to be able to access our personal
    information—name, employer, address, etc.? Since [the]
    foreperson had to sign their actual name[,] will [the]
    foreperson be safe? Is there a way that we can keep our
    personal information private/safe from the public?
    Defendant’s family etc.? We are concerned about our
    safety . . . also media etc.
    The judge responded that the juror information would be sealed by the
    court and unavailable to the general public. Burns moved for a mistrial,
    arguing that the jurors’ concern for their safety could have “played a role
    28
    STATE V. BURNS
    Opinion of the Court
    in [their] deliberative process.” The trial court denied Burns’ motion for a
    mistrial.
    ¶107          The next day, defense counsel asked the court to question the
    jurors individually to ensure that their concerns would not affect their
    impartiality. Instead of asking each juror individually, the judge asked the
    jury as a group whether any juror would be unable to keep an open mind
    during the next phase of the trial. No juror responded.
    ¶108           During the penalty phase, the jurors submitted a written
    request asking the trial judge to ensure that a guard be posted by Burns at
    all times because some jurors were feeling “uncomfortable.” Burns moved
    for a mistrial, and the judge asked defense counsel if there was a question
    he would like the court to ask the jury. Defense counsel responded that the
    court needed to follow up on the jury’s question and ask each juror whether
    he or she was afraid of Burns and whether the courtroom security was
    insufficient.
    ¶109           The trial judge denied the mistrial motion. The court noted
    that one of the deputies who usually sat by Burns had to leave for a personal
    emergency, leaving only one deputy in the courtroom instead of two. The
    trial court addressed the jury and asked whether anyone could not keep an
    open mind based on of anything that occurred in the guilt phase. No juror
    responded. The trial judge planned to ask any juror who raised a hand
    additional questions outside the presence of the other jurors. In the penalty-
    phase jury instructions, the trial judge reminded the jurors that “any belief
    or feeling you have about courtroom security or other security matters shall
    not be part of your decision making process.”
    ¶110          A trial court must ensure that the jury is capable of rendering
    a fair and impartial verdict. See State v. Detrich, 
    188 Ariz. 57
    , 67, 
    932 P.2d 1328
    , 1338 (1997). A trial court has broad discretion in selecting methods to
    detect and protect against potential juror bias. See 
    Trostle, 191 Ariz. at 12
    ,
    951 P.2d at 877 (finding no abuse of discretion where trial court elected not
    to conduct individual or small-group voir dire to screen for bias).
    ¶111          Here, the trial court did not abuse its discretion when it
    denied Burns’ motions for a mistrial. When the jurors raised a concern
    about their personal information becoming public, the court appropriately
    reassured them that their information would remain sealed. The court then
    29
    STATE V. BURNS
    Opinion of the Court
    verified that the jurors’ concern had not affected their ability to decide the
    case fairly and impartially. It did so again when the jurors expressed their
    discomfort during the penalty phase. The trial court did not abuse its
    discretion in addressing the issue as it did.
    Juror Misconduct
    ¶112            Burns argues that the trial court erred when it failed to declare
    a mistrial after Juror 11 investigated a fellow juror’s anti-death-penalty
    political activity and shared this information with other jurors. “A trial
    court’s decision to grant or deny a new trial based on alleged jury
    misconduct generally will not be reversed absent an abuse of discretion.”
    State v. Hall, 
    204 Ariz. 442
    , 447 ¶ 16, 
    65 P.3d 90
    , 95 (2003). Juror misconduct
    warrants a new trial only if a defendant shows actual prejudice or if
    prejudice may be fairly presumed from the facts. State v. Miller, 
    178 Ariz. 555
    , 558, 
    875 P.2d 788
    , 791 (1994). Because Burns failed to raise this issue at
    trial, however, we review for fundamental error. 
    Rutledge, 205 Ariz. at 13
    29–30, 66 P.3d at 56
    .
    ¶113          On the second day of jury deliberations in the penalty phase,
    Juror 11 sent a note to the judge that stated, “I believe we have a stealth
    juror in the jury.”      Juror 11 expressed concerns about Juror 2’s
    unwillingness to deliberate and personal feelings about sexual assault.
    Juror 11 explained how he had taken it upon himself to research Juror 2 on
    the Internet and had uncovered contributions to political parties and
    candidates that oppose the death penalty. Juror 11 attached the results of
    his various Internet searches to the note he sent to the judge.
    ¶114           Defense counsel asked that the court talk to Juror 11 to see if
    he had shared the research he had conducted on Juror 2 with the other jury
    members. The parties and court agreed to release Juror 11 for violating the
    admonition after he admitted that he told a “couple of the jurors” about the
    information he had discovered. After dismissing Juror 11, the court called
    in the remaining jurors and advised them that she had dismissed Juror 11,
    but not to “question why that happened.” The court also asked the jurors
    if Juror 11 had shared information about any of the other jurors with any of
    them. No juror responded to the question. The court then replaced Juror
    11 with the last remaining alternate, Juror 17.
    30
    STATE V. BURNS
    Opinion of the Court
    ¶115          The next trial day, Juror 8 sent a note to the judge indicating
    that she had spoken with Juror 11 about the contents of his letter. The court
    then questioned Juror 8, who confirmed that Juror 11 had told her and other
    jurors what he discovered on the Internet about the “stealth juror’s” views
    on the death penalty and political contributions. The court asked Juror 8 if
    she believed that she would be able to put aside that information to
    deliberate and decide the case solely on the evidence and jury instructions
    provided. Juror 8 responded, “Absolutely.”
    ¶116          The court also questioned Juror 15, who explained that he saw
    Juror 11 writing his note to the judge. Juror 15 explained that Juror 11
    identified the juror who was the subject of his note, but did not indicate
    what information he possessed. Juror 15 assured the court that he could
    remain fair and impartial.
    ¶117          The court next questioned Juror 6, who explained that
    throughout the trial, Jurors 2 and 11 had politically opposite views and
    argued a lot. Juror 6 thought that Juror 11 “wanted to remove himself from
    the jury” once the penalty phase began. Juror 6 explained that she did not
    want to know what Juror 11 told the court and that she could put the
    incident aside, follow the jury instructions, and decide the issues based on
    the evidence presented.
    ¶118            The court then questioned Juror 4, who heard Juror 11
    explaining that he had “Googled” a member of the jury, discovering
    political affiliations. Juror 4 explained that he was not paying that much
    attention to Juror 11, that he was not concerned with what Juror 11 had
    found, and that he would be able to follow the jury instructions as given.
    ¶119          Finally, the court brought in the entire jury, explained that
    Juror 11 had been replaced with Juror 17, and told jurors not to worry about
    the reasons for Juror 11’s replacement. The court explained that the jurors
    were still under the admonitions and that they were not permitted to do
    any outside research on the Internet or otherwise. The court further
    explained that the jury must begin the penalty-phase deliberations anew.
    ¶120           Burns asserts the trial court failed to adequately investigate
    this issue by refusing to question all twelve jurors individually and, because
    of the limited nature of the court’s questioning, it cannot be concluded
    31
    STATE V. BURNS
    Opinion of the Court
    beyond a reasonable doubt that the prior guilt- and aggravation-phase
    verdicts in the case were not coerced and were truly unanimous.
    ¶121          Burns, however, failed to object or otherwise raise any
    concerns to the trial court about its handling of this matter. After receiving
    Juror 11’s note, the trial judge met with Burns’ counsel and the prosecutor,
    and Burns’ counsel stated that he agreed with the court’s planned response.
    Burns’ counsel only asked that Juror 11 identify which jurors he had shared
    the information with (Juror 11 was unable to accurately do so without using
    their names on the record). Counsel did not ask the court to question all
    jurors individually, object to the court’s plan to discuss the situation with
    the jury as a whole, or move for a mistrial.
    ¶122           Burns has not established error, much less fundamental error.
    In State v. Garcia, a juror told other jurors about alleged improper contact
    initiated by the defendant’s family during the aggravation phase of the trial.
    
    224 Ariz. 1
    , 11 ¶ 29, 
    226 P.3d 370
    , 380 (2010). The trial court interviewed all
    the jurors, and no juror expressed a concern that the incident would affect
    his or her deliberations. 
    Id. at 11
    30, 226 P.3d at 380
    . After the interviews
    concluded, defense counsel moved for a mistrial of the aggravation phase,
    which the trial court granted. 
    Id. We held
    that the trial court did not err by
    failing to grant a mistrial on the already completed guilt phase because “the
    trial court’s decision to grant a mistrial as to the aggravation phase alone
    was sufficient in light of the limited nature of the potential prejudice.” 
    Id. at 11
    31, 226 P.3d at 380
    . We have explained that when confronting issues
    of juror misconduct, “the court’s response should be commensurate with
    the severity of the threat posed.” 
    Id. (quoting Miller,
    178 Ariz. at 
    557, 875 P.2d at 790
    ).
    ¶123           Burns cannot show error because the jurors who spoke to
    Juror 11 about his letter indicated to the judge that they received no specifics
    from Juror 11 regarding his concerns about Juror 2, and all assured the court
    that they had no difficulty setting aside what happened and following the
    jury instructions. Here, unlike the jurors in Garcia, the jurors remaining on
    the jury panel had no information regarding the content of Juror 11’s letter
    to the court. Burns’ contention that “it is now unknown” what impact Juror
    11’s conduct had on the remaining jurors is insufficient to demonstrate
    fundamental error.
    32
    STATE V. BURNS
    Opinion of the Court
    Sentencing on the Non-Capital Counts
    ¶124          Burns contends the trial court erred by refusing to sentence
    him on the non-capital counts within thirty days of his conviction in
    violation of Arizona Rule of Criminal Procedure 26.3. Burns asserts that,
    because he was not sentenced on his non-capital convictions, he was
    deprived of the right to have the jury consider his terms of imprisonment
    on those charges during the penalty phase. We review a trial court’s
    interpretation of the Arizona Rules of Criminal Procedure de novo. State v.
    Manuel, 
    229 Ariz. 1
    , 3 ¶ 5, 
    270 P.3d 828
    , 830 (2011).
    ¶125          Under Rule 26.3, a court is obligated to sentence a defendant
    between fifteen and thirty days after conviction. Ariz. R. Crim. P. 26.3. But
    “[u]nder both Arizona’s superseded and current capital sentencing
    schemes, a defendant’s [capital] trial consists of two phases: a guilt phase
    and a penalty phase.” State v. Ring, 
    204 Ariz. 534
    , 554 ¶ 50, 
    65 P.3d 915
    , 935
    (2003). Thus, waiting until the end of the proceeding to determine Burns’
    sentences for both non-capital and capital convictions is both logical and
    within the plain language of Rule 26.3. We hold that, in a capital
    proceeding, the thirty-day sentencing period does not begin to run until
    after the conclusion of the penalty phase.
    ¶126          Burns next argues that he should have been permitted to
    argue to the jury that his consecutive sentences on his non-capital
    convictions would require him to spend the rest of his life in prison. But
    Burns had no right to present evidence of his effective life sentence to the
    jury because it would have been irrelevant as a mitigating factor. See State
    v. Benson, 
    232 Ariz. 452
    , 465 ¶¶ 52–57, 
    307 P.3d 19
    , 32 (2013) (refusing to
    allow defendant to present evidence that he was unlikely to be paroled or
    would stipulate to ineligibility for parole not an abuse of discretion); 
    Dann, 220 Ariz. at 372
    –73 ¶¶ 
    122–24, 207 P.3d at 625
    –26 (refusing to instruct jury
    that defendant would waive parole eligibility if not sentenced to death not
    an abuse of discretion). The trial court did not err in so ruling.
    Evidence of Burns’ Gang Affiliation, Attitude, and Other
    Misconduct
    ¶127           Burns argues that evidence of his jail calls, religious beliefs,
    tattoos, and gang membership were improperly admitted in violation of his
    First, Eighth, and Fourteenth Amendment rights. This Court reviews the
    admission of evidence in the penalty phase for an abuse of discretion. State
    33
    STATE V. BURNS
    Opinion of the Court
    v. Nordstrom, 
    230 Ariz. 110
    , 114 ¶ 8, 
    280 P.3d 1244
    , 1248 (2012). So long as
    rebuttal evidence is relevant to the thrust of a defendant’s mitigation and is
    not unduly prejudicial, we defer to the trial court’s finding of admissibility.
    
    VanWinkle, 230 Ariz. at 394
    28, 285 P.3d at 315
    .
    ¶128          During the penalty phase, the court admitted evidence of
    Burns’ other acts. This included testimony regarding alleged uncharged
    sexual assaults committed by Burns and testimony about Burns’ fifteen
    prior police reports, beginning when he was thirteen years old and ending
    with his possession of a homemade handcuff key while awaiting trial in this
    case. The State also offered testimony about Burns’ white-supremacist
    views, the significance of Burns’ tattoos (many of which were connected
    with white-supremacist gangs or ideology), and Burns’ Asatru religion.
    The court also permitted testimony about letters and jail calls in which
    Burns described committing acts of racially motivated violence in prison,
    made derogatory comments about individuals involved in the case, and
    discussed his former cellmate killing someone to join Burns in prison.
    ¶129         Burns argues this rebuttal evidence was irrelevant to specific
    mitigation evidence and the trial court erred by failing to analyze this
    evidence under Rules of Evidence 401–403 or 404(b). We disagree.
    ¶130           The Rules of Evidence do not apply to the admission of
    evidence during the penalty phase of a capital trial. 
    Chappell, 225 Ariz. at 239
    35, 236 P.3d at 1186
    ; A.R.S. §§ 13–751(C), –752(G). Thus, evidence that
    is inadmissible during the guilt phase may be admissible during the penalty
    phase if it rebuts the defendant’s mitigation and is not unfairly prejudicial.
    See 
    Chappell, 225 Ariz. at 239
    ¶¶ 
    35–36, 236 P.3d at 1186
    . Trial courts,
    however, should exclude evidence that is irrelevant in order to prevent the
    penalty phase from devolving into a “limitless and standardless assault on
    the defendant’s character and history.” State v. Hampton, 
    213 Ariz. 167
    , 180
    ¶ 51, 
    140 P.3d 950
    , 963 (2006).
    ¶131          Burns first contends that evidence of his prior arrests, other
    criminal acts, and alleged sexual assaults should not have been admitted.
    This evidence, however, was directly relevant to rebut Mr. Aiken’s
    testimony that Burns would not pose a danger in the prison system and
    could be effectively and safely housed there. The court did not abuse its
    discretion in allowing this evidence.
    34
    STATE V. BURNS
    Opinion of the Court
    ¶132           Burns next challenges the admissibility of evidence regarding
    his white-supremacist beliefs. Mr. Aiken testified that, after reviewing the
    police reports from the department of corrections, he did not see anything
    to validate Burns as a gang member. Evidence of Burns’ Skinhead
    affiliation, including his tattoos, statements of his beliefs, interest in the
    Asatru religion, and documentation by police as a Skinhead member, was
    directly relevant to rebut Mr. Aiken’s testimony suggesting that Burns was
    not a gang member and that he could safely be controlled in prison.
    ¶133         Burns also contends that his derogatory comments toward the
    prosecutor and the State’s witnesses should not have been admitted into
    evidence because their only purpose was “to inflame the jury.” Burns
    described the individual who brought Mandi to court to testify as “a big fat
    Mexican dude,” and referred to Mandi as a “race [traitor] bitch.” This
    provides evidence of his Skinhead beliefs and rebuts Mr. Aiken’s testimony
    that Burns could be controlled in prison because he was not a member of a
    gang. Burns also commented that the assistant prosecutor looked like she
    had “Down’s Syndrome.” This was evidence of Burns’ anti-social behavior,
    supporting the findings of Dr. Kirkley.
    ¶134          Burns finally contends that his calls with his former cellmate
    were improperly admitted as evidence because the calls injected the
    cellmate’s “behavior and attitudes” into the trial. Again, the calls were
    relevant because they demonstrated that Burns was involved in misconduct
    while incarcerated, directly rebutting Mr. Aiken’s testimony that Burns
    could safely be managed in prison.
    ¶135          Because all the proffered evidence was relevant to rebut
    Burns’ mitigation evidence, the trial court did not abuse its discretion by
    admitting it during the penalty phase.
    Victim Impact Evidence
    ¶136         Burns contends “[t]he trial court violated Arizona Rule of
    Criminal Procedure 19.1(d)” and his constitutional rights by admitting
    more than two hours of victim impact evidence. Burns also argues that the
    victim impact evidence was not admissible because some of the testimony
    speculated about what Jackie’s final moments were like rather than
    describing how her murder affected her family. We review the trial court’s
    decision whether to grant a mistrial based on the admission of victim
    35
    STATE V. BURNS
    Opinion of the Court
    impact testimony for an abuse of discretion. State v. Gallardo, 
    225 Ariz. 560
    ,
    567 ¶ 26, 
    242 P.3d 159
    , 166 (2010).
    ¶137          During the penalty phase, thirteen family members either
    presented their own statements or had the victim’s advocate read prepared
    statements. The State also showed an eight-minute video from Jackie’s
    memorial services, which contained approximately 110 pictures of Jackie.
    The State also showed the jury Jackie’s “senior project,” a nine-page
    PowerPoint presentation containing thirteen photographs of Jackie and her
    written reflections on growing up. At the end of the presentation, Burns
    moved for a mistrial, which the trial court denied.
    ¶138          Victim impact evidence is admissible during the penalty
    phase of a capital trial to rebut a defendant’s mitigation evidence. A.R.S. §
    13-752(R); Ariz. R. Crim. P. 19.1(d)(3); 
    Dann, 220 Ariz. at 369
    100, 207 P.3d at 622
    . “Even if victim impact statements are not offered to rebut any
    specific mitigating fact, they are ‘generally relevant to rebut mitigation’ and
    thus admissible in the penalty phase.” 
    Gallardo, 225 Ariz. at 567
    28, 242 P.3d at 166
    (quoting 
    Garza, 216 Ariz. at 69
    ¶ 60 
    n.12, 163 P.3d at 1019
    n.12).
    Although victim impact testimony may not request imposition of a
    particular sentence, it may properly describe the victim and the impact of
    the murder on family members. 
    Id. at 567
    27, 242 P.3d at 167
    .
    ¶139            That is not to say, however, that a trial judge must permit all
    victim impact testimony. A trial court must exclude victim impact evidence
    if it is so “unduly prejudicial that it renders the trial fundamentally unfair.”
    
    Id. at 567
    25, 242 P.3d at 166
    . We have repeatedly recognized the potential
    “danger that photos of the victims may ‘be used to generate sympathy for
    the victim and his or her family.’” State v. Rose, 
    231 Ariz. 500
    , 511 ¶ 50, 
    297 P.3d 906
    , 917 (2013) (quoting 
    Ellison, 213 Ariz. at 141
    115, 140 P.3d at 924
    ).
    Nonetheless, we have declined to impose a per se bar on the use of
    photographs in victim impact presentations, instead relying on trial judges
    to exercise their discretion to weigh a photograph’s potential for unfair
    prejudice against its probative value. See id.; 
    Ellison, 213 Ariz. at 141
    115, 140 P.3d at 924
    . Thus, a trial judge must take an active role in reviewing
    victim impact evidence to screen for potential unfair prejudice. See 
    Rose, 231 Ariz. at 511
    47, 297 P.3d at 917
    .
    ¶140          On the record before us, we cannot say that the trial court
    abused its discretion. The statements from Jackie’s family focused on the
    36
    STATE V. BURNS
    Opinion of the Court
    type of person Jackie was and the family’s sense of loss. This is acceptable
    victim impact evidence. 
    Gallardo, 225 Ariz. at 567
    27, 242 P.3d at 166
    .
    Similarly, the photos here were relatively benign, including depictions of
    graduations, birthdays, and vacations. The photos fell within bounds and
    did not render the trial “fundamentally unfair.” See 
    id. at 567
    28, 242 P.3d at 166
    . The trial court gave the jury a limiting instruction, cautioning jurors
    that they could consider the victim impact statements only to the extent that
    they rebutted mitigation and could not consider the victim impact evidence
    as an aggravating circumstance. Because the statements and photographs
    in this case were not unfairly prejudicial, and the trial court gave an
    appropriate limiting instruction, the court did not abuse its discretion in
    permitting the victim impact evidence.
    ¶141           Burns’ contention that victim impact statements may not
    speculate about how the victim may have felt during the crime is similarly
    without merit. We have previously held a family member’s brief remarks
    about the impact of remembering or visualizing a victim’s final moments
    were not unduly prejudicial. See, e.g., 
    Glassel, 211 Ariz. at 53
    79, 116 P.3d at 1193
    (holding that victim impact statement that described how husband
    felt while victim begged for help was not unduly prejudicial); Prince 
    II, 226 Ariz. at 535
    ¶¶ 
    71–73, 250 P.3d at 1164
    (mother’s victim impact statement
    that described how she still hears victim crying as she was thrown across
    the floor not unduly prejudicial). We again caution victims and prosecutors
    to exercise restraint when presenting this type of victim impact evidence.
    But, on the record before us, we find no error. The trial court did not abuse
    its discretion in denying Burns’ motion for a mistrial.
    ¶142          Nevertheless, we are troubled with the volume and type of
    materials presented as victim impact evidence in this case. The jury heard
    more than a dozen victim impact statements, some of which came from
    people who had never met Jackie. Jackie’s school work was displayed to
    the jury. While we understand the strong emotions that senseless murders
    generate in surviving family members and communities, we again caution
    victims and prosecutors about piling on impact evidence “lest they risk a
    mistrial.” 
    Rose, 231 Ariz. at 511
    47, 297 P.3d at 917
    . The trial court should
    take an active role in pre-screening the nature and scope of victim impact
    evidence to ensure it does not “cross the line.” Cf. 
    id. 37 STATE
    V. BURNS
    Opinion of the Court
    Penalty-Phase Jury Instructions
    ¶143           Burns contends that the trial court’s penalty-phase jury
    instructions were erroneous in two respects. First, Burns argues the court
    instructed the jury to consider in mitigation only evidence presented during
    the mitigation phase, and not evidence presented during other phases of
    the trial. This argument is without merit. The thrust of the challenged jury
    instruction was to prevent sympathy unrelated to the defendant’s
    character, not to limit the factors that the jury could consider. The jury was
    instructed that it could consider any facts that it found relevant.
    ¶144           Second, Burns argues that the jury instructions restricted the
    type of evidence that the jury could consider as mitigating in violation of
    Lockett v. Ohio, 
    438 U.S. 586
    (1978), and Tennard v. Dretke, 
    542 U.S. 274
    (2004).
    We disagree. The trial court instructed the jury that it could consider any
    factors that “relate to any sympathetic or other aspect of the defendant’s
    character, propensity or record, or circumstances of the offense.” We have
    approved similar jury instructions as complying with Lockett. See State v.
    Velazquez, 
    216 Ariz. 300
    , 311 ¶ 44, 
    166 P.3d 91
    , 102 (2007). The jury
    instructions in this case allowed the jury to consider any relevant mitigation
    evidence. We find no error.
    Prosecutorial Misconduct
    ¶145         Burns contends that the prosecutor engaged in misconduct
    throughout the trial, which deprived Burns of his right to due process
    under the Fourteenth Amendment.
    ¶146             We review a trial court’s denial of a motion for mistrial for
    prosecutorial misconduct for an abuse of discretion. State v. Lehr (Lehr I),
    
    201 Ariz. 509
    , 522 ¶ 56, 
    38 P.3d 1172
    , 1185 (2002). When a defendant fails to
    object at trial, however, “we review only for fundamental error.” 
    Roque, 213 Ariz. at 228
    154, 141 P.3d at 403
    . “To prevail on a claim of prosecutorial
    misconduct, a defendant must demonstrate that the prosecutor’s
    misconduct 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
    (internal quotation marks and citation omitted). We look to the
    “cumulative effect of the misconduct” on the trial. 
    Id. ¶147 The
    prosecutorial misconduct that Burns complains of falls
    into two categories: those actions that he objected to at trial, which we
    38
    STATE V. BURNS
    Opinion of the Court
    review for an abuse of discretion, and those to which he did not object,
    which we review only for fundamental error.
    1. Conduct objected to during trial
    ¶148          Burns objected to eight actions by the prosecutor at trial that
    he claims constituted prosecutorial misconduct. He argues that the
    prosecutor committed misconduct by (1) repeatedly eliciting testimony that
    this was Jackie’s first date after promising to not comment on her chastity;
    (2) arguing without any evidence that Burns gave Jackie GHB; (3) infecting
    the entire penalty phase with irrelevant testimony regarding Burns’
    religion, white supremacist beliefs, Skinhead affiliations, and prior acts of
    violence and sexual misconduct; (4) showing the jury gruesome
    photographs of the victim’s body for no substantive reason; (5) eliciting
    testimony that various knives were found at Burns’ home despite having
    promised to not inquire into them; (6) commenting on Burns’ refusal to
    answer police questions; (7) arguing in closing of both trial phases that
    Burns’ motive for killing the victim was to prevent her from reporting him
    for committing sexual assault and to avoid going back to prison; and (8)
    arguing several times that to “do justice” required that the jury think about
    what Burns’ conduct did to Jackie’s family.
    ¶149           We have already rejected most of Burns’ arguments
    underlying his assertion of prosecutorial misconduct. The trial court did
    not err in admitting, and the prosecutor therefore did not commit
    misconduct by commenting upon, evidence concerning Jackie’s being on
    her first date, the presence of GHB in her liver, Burns’ religious and white-
    supremacist beliefs, photographs of Jackie’s body, the knives found in
    Burns’ house, and the impact of Jackie’s death on her family.6
    ¶150          Burns is also unpersuasive in contending that the prosecutor
    committed misconduct when (1) he elicited testimony that Burns was silent
    when asked after his arrest about Jackie’s body, and (2) argued during
    closing argument that Burns killed Jackie so she would not report the sexual
    assault. A prosecutor may not make any comments calculated to point out
    a defendant’s invocation of his Fifth Amendment right. 
    Id. at 87
    64, 969 P.2d at 1199
    . This Court examines a comment on a defendant’s silence in
    the context of the proceedings as a whole to determine whether the jury
    6     
    See supra
    Sections F, G, U, K, J, and V.
    39
    STATE V. BURNS
    Opinion of the Court
    would perceive them to be a comment on a defendant’s failure to testify.
    
    Id. But comments
    and evasive answers made before invoking the right to
    remain silent are admissible. See State v. Parker, 
    231 Ariz. 391
    , 406 ¶ 65, 
    296 P.3d 54
    , 69 (2013).
    ¶151           Burns objects to a detective’s testimony about Burns’ conduct
    during police questioning. The detective stated that, when the police asked
    for the location of Jackie’s body, Burns did not say where Jackie’s body was
    located, but just got “real quiet, clos[ed] his eyes, and just sh[ook] his head.”
    This exchange occurred before Burns invoked his right to remain silent,
    making the testimony admissible. See 
    id. ¶152 The
    prosecutor did not commit misconduct by arguing that
    Burns murdered Jackie to prevent her from disclosing the sexual assault. A
    prosecutor may make arguments and may draw inferences that are
    reasonably supported by the evidence. 
    Hughes, 193 Ariz. at 85
    59, 969 P.2d at 1197
    . Here, the evidence reasonably supported the prosecutor’s
    arguments.
    2. Conduct not objected to during trial
    ¶153          Burns also now claims that the prosecutor committed
    misconduct by (1) arguing that Jackie did not consent to sexual intercourse,
    (2) arguing that Burns’ allocution should be given little weight because it
    was not under oath or subject to cross-examination, and (3) “belittl[ing] the
    integrity of” Dr. Cunningham.
    ¶154          The prosecutor’s reference to Jackie’s lack of consent during
    the guilt-phase closing argument was not misconduct because evidence
    supports this inference. 
    See supra
    Section N.1. Nor did the prosecutor
    improperly inflame the jury by commenting in his closing that Burns
    treated Jackie “like trash” and has a low regard for women. Although the
    brief comments were unnecessary, they were supported by the evidence
    and, when viewed in context, were not improperly inflammatory.
    ¶155         Nor did the prosecutor commit misconduct by noting that
    Burns’ allocution was not under oath or subject to cross-examination. A
    sentencing judge or jury may properly consider the fact that an allocution
    was not under oath or subject to cross-examination when weighing a
    40
    STATE V. BURNS
    Opinion of the Court
    defendant’s credibility. State v. McCall, 
    160 Ariz. 119
    , 124, 
    770 P.2d 1165
    ,
    1170 (1989).
    ¶156           Finally, Burns has not shown that the prosecutor committed
    misconduct by “belittl[ing]” Dr. Cunningham. It is improper for a
    prosecutor to argue, without evidentiary support, that an expert acted
    unethically. State v. Bailey, 
    132 Ariz. 472
    , 479, 
    647 P.2d 170
    , 177 (1982); see
    also 
    Hughes, 193 Ariz. at 86
    61, 969 P.2d at 1198
    (holding that “arguing that
    all mental health experts are fools or frauds who say whatever they are paid
    to say” was prosecutorial misconduct). However, a prosecutor may
    properly inquire into an expert’s credentials and employment for
    impeachment purposes. 
    Bailey, 132 Ariz. at 478
    , 647 P.2d at 176. Here, the
    State argued that the jury should give little weight to Dr. Cunningham’s
    testimony because he (1) did not interview the defendant, yet was willing
    to opine as to a causal link between mitigating factors and the murder; and
    (2) is exclusively employed as an expert witness and does not have a clinical
    practice. The prosecutor did not impugn Dr. Cunningham’s integrity, but
    merely questioned his credentials and familiarity with this case.
    ¶157         Because we have found no prosecutorial misconduct, we need
    not analyze whether any errors deprived Burns of a fair trial or whether he
    suffered any prejudice.
    Jury Coercion
    ¶158           Burns contends that the trial court coerced a death verdict
    when it granted a break over the weekend and required further
    deliberations after the jury advised the court that it was deadlocked. “In
    determining whether a trial court has coerced the jury’s verdict, this court
    views the actions of the judge and the comments made to the jury based on
    the totality of the circumstances and attempts to determine if the
    independent judgment of the jury was displaced.” State v. Huerstel, 
    206 Ariz. 93
    , 97 ¶ 5, 
    75 P.3d 698
    , 702 (2003). Improperly coercing a verdict from
    the jury constitutes reversible error. State v. McCrimmon, 
    187 Ariz. 169
    , 172,
    
    927 P.2d 1298
    , 1301 (1996).
    ¶159         On February 15, 2011, at 3:51 p.m., the jury began penalty-
    phase deliberations. Deliberations continued for approximately a day and
    a half before the jury had to restart deliberations when the trial judge
    41
    STATE V. BURNS
    Opinion of the Court
    dismissed Juror 11 and substituted an alternate juror.7 On February 22, the
    newly composed jury began deliberations. On the afternoon of February
    23, the jury notified the court that it could not reach a unanimous verdict,
    and the trial court gave an impasse instruction. One juror responded to that
    instruction by saying that more information would be helpful. Burns
    moved for a mistrial, and the trial court denied that motion. The jury
    resumed deliberations. Later in the afternoon, the trial court asked if any
    of the jurors would object to recessing for the day and returning to
    deliberate on Monday. Some jurors indicated that they felt it would be
    pointless, but two responded that taking the weekend to “cool off” would
    be helpful. The trial court again denied Burns’ motion for a mistrial. The
    following Monday afternoon, the jury returned a death verdict.
    ¶160           We have held that “[j]ury coercion exists when the trial
    court’s actions or remarks, viewed in the totality of the circumstances,
    displaced the independent judgment of the jurors or when the trial judge
    encourages a deadlocked jury to reach a verdict.” 
    Davolt, 207 Ariz. at 213
    94, 84 P.3d at 478
    (internal quotation marks and citations omitted). Whether
    jury coercion occurs is fact intensive and requires a case-by-case analysis.
    State v. Roberts, 
    131 Ariz. 513
    , 515, 
    642 P.2d 858
    , 860 (1982) (citations
    omitted). A trial judge may coerce a verdict by focusing jury instructions
    on a holdout juror in a way that suggests that the juror should reconsider
    his or her views. 
    Huerstel, 206 Ariz. at 100
    –01 ¶ 
    23, 75 P.3d at 705
    –06.
    ¶161          With these principles in mind, we conclude that the trial court
    did not coerce a verdict. After it began deliberations anew, the
    reconstituted jury had deliberated for only one and one half days when it
    advised the court it was deadlocked. The court gave the impasse
    instruction after which the jury continued to deliberate. When the jury had
    not reached a decision by the weekend break, the judge asked if continuing
    deliberations after the weekend might help. Some jurors thought that
    taking a break and having the jury reconvene would be helpful.
    ¶162          The court never forced the jury to come to a consensus. The
    judge never knew how near the jury was to reaching a unanimous verdict
    or whether they were leaning toward a life or death verdict. The trial judge
    also did not know who the holdout juror or jurors were and did nothing to
    get the holdouts to change their votes. We find no coercion.
    7     
    See supra
    Section S.
    42
    STATE V. BURNS
    Opinion of the Court
    Death Verdict
    ¶163         The jury found two aggravating circumstances in Burns’ case:
    the murder was especially cruel under A.R.S. § 13-751(F)(6), and Burns had
    previously been convicted of a serious offense under A.R.S. § 13-751(F)(2).
    Regarding the aggravating circumstances, Burns contends that (1)
    “substantial evidence did not support the jury’s verdicts on the (F)(6)
    aggravating circumstances”; (2) “[t]he (F)(2) aggravator was entitled to
    minimal weight”; and (3) the jury abused its discretion by imposing a death
    sentence.
    ¶164          We “review all death sentences to determine whether the trier
    of fact abused its discretion in finding aggravating circumstances and
    imposing a sentence of death.” A.R.S. § 13-756(A). A jury does not abuse
    its discretion in reaching a death verdict “if there is ‘any reasonable
    evidence in the record to sustain’ those conclusions.” 
    Villalobos, 225 Ariz. at 83
    41, 235 P.3d at 236
    (quoting State v. Morris, 
    215 Ariz. 324
    , 341 ¶ 77,
    
    160 P.3d 203
    , 220 (2007)).
    1. The (F)(6) aggravator
    ¶165          Under A.R.S. § 13-751(F)(6), a jury must consider whether the
    defendant committed the murder in an especially cruel, heinous, or
    depraved manner. A.R.S. § 13-751(F)(6). We have explained that “[a]
    murder is especially cruel under A.R.S. § 13–751(F)(6) when the victim
    consciously ‘suffered physical pain or mental anguish during at least some
    portion of the crime and [] the defendant knew or should have known that
    the victim would suffer.’” 
    Dixon, 226 Ariz. at 556
    61, 250 P.3d at 1185
    (quoting 
    Morris, 215 Ariz. at 338
    61, 160 P.3d at 217
    ).
    ¶166           There was substantial evidence supporting a finding that
    Jackie was conscious and that she suffered mental and physical pain. The
    skull fractures, blood and earring in Burns’ truck, as well as Jackie’s ripped
    bra and top all suggest a struggle and sexual assault. See State v. Amaya-
    Ruiz, 
    166 Ariz. 152
    , 177, 
    800 P.2d 1260
    , 1285 (1990); State v. Schackart, 
    190 Ariz. 238
    , 249, 
    947 P.2d 315
    , 326 (1997). The blood spatter and the bullet
    found in the sand established that Jackie was shot after being taken out of
    the truck. When her body was found, she appeared to be clutching a
    branch, which further suggests that she was still conscious when she was
    shot and would have been aware of what was happening to her. See Prince
    
    II, 226 Ariz. at 540
    ¶ 98 
    n.7, 250 P.3d at 1169
    n.7; State v. Hargrave, 
    225 Ariz. 43
                                  STATE V. BURNS
    Opinion of the Court
    1, 17 ¶ 72, 
    234 P.3d 569
    , 585 (2010). Burns knew or should have known that
    his actions would cause Jackie to suffer. Therefore, reasonable evidence in
    the record supports the jury’s conclusions that the murder was especially
    cruel. The jury did not abuse its discretion when it found the (F)(6)
    aggravator.
    2. The jury’s application of the (F)(2) aggravator
    ¶167            Under A.R.S. § 13-751(F)(2), an aggravating circumstance
    exists if:
    [T]he defendant has been or was previously convicted of a
    serious offense, whether preparatory or completed.
    Convictions for serious offenses committed on the same
    occasion as the homicide, or not committed on the same
    occasion but consolidated for trial with the homicide, shall be
    treated as a serious offense under this paragraph.
    Thus, convictions for crimes that occurred contemporaneously with the
    capital offense may be considered for (F)(2) purposes. State v. Carreon, 
    210 Ariz. 54
    , 66 ¶ 59, 
    107 P.3d 900
    , 912 (2005).
    ¶168           Burns argues that, because his two prior burglary convictions
    were non-violent offenses, the jurors should have given the (F)(2)
    aggravator little consideration. Burns does not contend, however, that the
    State failed to prove that he had two prior convictions for burglary or that
    he was contemporaneously convicted of sexual assault and kidnapping.
    The jury found the (F)(2) aggravator. Having made this finding, it was up
    to each juror to individually consider the aggravator in light of the
    mitigation presented. State ex rel. Thomas v. Granville (Baldwin), 
    211 Ariz. 468
    , 472–73 ¶ 17–18, 
    123 P.3d 662
    , 666–67 (2005). We do not find an abuse
    of discretion in applying the aggravator.
    3. The death verdict
    ¶169          The jurors did not abuse their discretion in determining that
    the mitigating evidence was insufficient to warrant leniency. During the
    penalty phase, Burns presented mitigation evidence regarding his difficult
    childhood, his dysfunctional family, his diagnosed learning disabilities, his
    impulsivity, the personality disorders from which he suffered, and whether
    he would be able to be safely housed in prison while serving a life sentence.
    44
    STATE V. BURNS
    Opinion of the Court
    ¶170          “We must uphold a jury’s determination that death is the
    appropriate sentence if any ‘reasonable juror could conclude that the
    mitigation presented was not sufficiently substantial to call for leniency.’”
    State v. Naranjo, 
    234 Ariz. 233
    , 250 ¶ 89, 
    321 P.3d 398
    , 415 (2014) (quoting
    
    Gallardo, 225 Ariz. at 570
    52, 242 P.3d at 169
    ). Even if we assume that
    Burns proved all his proffered mitigating factors, we cannot say the jurors
    abused their discretion in concluding that the mitigation did not warrant
    leniency.
    III.   CONCLUSION
    ¶171          For the reasons stated we affirm Burns’ convictions and
    sentences, including his death sentence.8
    8     Burns raises thirty-two additional constitutional claims that he
    acknowledges this Court has previously rejected but that he wishes to
    preserve for federal review. We decline to revisit these claims.
    45