State v. Alston

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

DEVON LOUJOSEPH ALSTON, Appellant.

No. 1 CA-CR 23-0511
FILED 10-20-2025

Appeal from the Superior Court in Maricopa County
No. CR2021-110684-001
The Honorable David J. Palmer, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Alice M. Jones
Counsel for Appellee

Bain & Lauritano, PLC, Glendale
By Amy E. Bain
Counsel for Appellant
 STATE v. ALSTON
Opinion of the Court

OPINION

Presiding Judge Michael J. Brown delivered the opinion of the Court, in
which Judge Daniel J. Kiley and Judge D. Steven Williams joined.

B R O W N, Judge:

¶1 Devon Alston appeals his convictions and sentences for
first-degree murder and drive-by shooting. He argues the trial court
improperly admitted several out-of-court statements from witnesses and
wrongly considered aggravating factors the State had not proven at
sentencing. Because Alston has not shown reversible error, we affirm.

BACKGROUND

¶2 We view the facts in the light most favorable to sustaining the
jury’s verdicts and resolve all reasonable inferences against Alston. State v.
Fierro, 254 Ariz. 35, 38, ¶ 2 (2022). Late one evening in March 2021, a venue
located in a strip mall hosted a party. The venue hired security guards,
including Warren and Hunter, to ensure no weapons or alcohol were
brought into the party and to prevent people from loitering outside.1 As
the evening progressed, Warren overheard Alston—who appeared to be
wearing a pink beanie—say that he had a “banger,” meaning a firearm.
Warren relayed that statement to the other security guards, including
Hunter. Both Warren and Hunter watched Alston as he walked around the
parking lot and talked with others.

¶3 As the party was winding down and people began to leave,
Alston and several others ran to a red sedan in a parking lot near the venue.
Alston got into the driver’s seat, drove the car out of the parking lot, and
then continued down the street with the driver’s side of the car facing the
venue. Several shots were fired from the car toward the venue. Both
Warren and Hunter noted the driver’s side window was down, and they
each saw muzzle flashes from a firearm coming from that window. One of
the bullets struck a partygoer, who died at the scene from the gunshot.

1 We use pseudonyms to protect the identities of the victims,
including the security guards and event organizer.

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Opinion of the Court

¶4 Law enforcement interviewed the security guards, as well as
Samuel (the event organizer), who explained the “pink beanie” was
actually a pink ski mask that had been rolled up and resembled a beanie.
Officers found 9-millimeter and .40 caliber bullet casings on the street in
front of the venue. After speaking to a member of the victim’s family the
next morning, police suspected that Alston may have been involved in the
shooting. Officers located Alston in an apartment complex and followed
him. They noticed he was wearing a black hooded sweatshirt and carrying
a black backpack when he got into a red car and drove away, eventually
stopping in a neighborhood and entering a house. After receiving
permission from the renter of the house to search for Alston, the officers
found him there; he was wearing a maroon sweatshirt and did not have a
backpack.

¶5 Police searched the house, finding a black sweatshirt as well
as a backpack resembling what Alston had been carrying earlier. Inside the
backpack was a .40 caliber handgun and a 9-millimeter rifle. Officers also
found a smaller fanny pack containing both .40 caliber and 9-millimeter
ammunition. Subsequent testing determined that the bullet casings
recovered at the scene had been fired from the firearms found in the
backpack. Officers also searched Alston’s apartment, where they found a
pink ski mask on top of a refrigerator. During a photo lineup, security
guards Hunter and Warren identified Alston as the person in the driver’s
seat of the car from which the gunshots were fired.

¶6 A grand jury indicted Alston for first-degree murder,
drive-by shooting, and misconduct involving weapons. The court severed
trial of the misconduct count. After a seven-day trial on the remaining
counts, at which the security guards and Samuel testified, a jury convicted
Alston as charged. During the aggravation phase, the State alleged the
offenses were (1) dangerous; (2) involved the use of a deadly weapon; and
(3) caused physical, emotional, or financial harm to the victims or their
families. The jury found the State proved the first two factors as to both
convictions. The jury further found the State did not prove emotional or
financial harm to the victim’s family as to Alston’s murder conviction and
could not reach a unanimous decision for the same aggravator as to the
drive-by shooting conviction.2

2 As stated in A.R.S. § 13-701(D)(9), this factor applies when “[t]he
victim . . . suffered physical, emotional or financial harm.” For the drive-
by shooting conviction, because the State’s argument during the

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Opinion of the Court

¶7 At sentencing, the trial court acknowledged the two
aggravating factors found by the jury and that Alston had a prior conviction
for facilitation to commit aggravated robbery, a class six non-dangerous
felony. Despite the jury’s determination that the State did not prove the
victim’s family suffered emotional harm, the court relied on that factor at
sentencing. The court then sentenced Alston to natural life in prison for the
murder conviction, and a slightly aggravated term of 12 years’
imprisonment for the drive-by shooting conviction. Alston timely
appealed. We have jurisdiction under A.R.S. §§ 13-4031, -4033.

DISCUSSION

A. Prior Consistent Statements

¶8 Alston argues the trial court erred by admitting several
hearsay statements and audio recordings as prior consistent statements
under Arizona Rule of Evidence (“Rule”) 801(d)(1)(B). Though we review
evidentiary rulings for an abuse of discretion, State v. Fish, 222 Ariz. 109,
114, ¶ 8 (App. 2009), we review the interpretation of rules de novo, State v.
Winegardner, 243 Ariz. 482, 484, ¶ 5 (2018).

1. Hunter’s Statements

¶9 Alston first challenges the admission of statements Hunter
made to a police officer shortly after the shooting. At trial, an officer who
responded to the crime scene testified about an interview he conducted
with Hunter, and specifically, whether Hunter had indicated “that he paid
closer attention” to Alston because “he had made some mention of having
a gun.” The court allowed the officer to answer questions about the
interview over Alston’s hearsay objection after the State asserted that it was
admissible as a prior consistent statement under Rule 801(d)(1)(B) because
Hunter’s credibility had been attacked on cross-examination.

¶10 Generally, an out-of-court statement offered for the truth of
the matter asserted is hearsay and not admissible as evidence. Ariz. R. Evid.
801(c), 802. But a declarant’s prior statements that are consistent with that
declarant’s testimony are not hearsay if the declarant testifies at trial, is
subject to cross-examination about the statements, and as pertinent here,
the statements are offered either (1) “to rebut an express or implied charge
that the declarant recently fabricated” the testimony, or (2) “to rehabilitate
the declarant’s credibility as a witness when attacked on another ground.”

aggravation phase relied only on the emotional harm Alston’s conduct had
on Hunter, we reference only that type of harm in our analysis.

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Opinion of the Court

Ariz. R. Evid. 801(d)(1)(B)(i),(ii). Amended in 2015, the current rule is
intended “to extend substantive effect to consistent statements that rebut
other attacks on a witness—such as the charges of inconsistency or faulty
memory.” See Ariz. R. Evid. 801 cmt. 2015 Amendment to Rule 801(d)(1)(B).
The text of Rule 801(d)(1)(B) mirrors the text of the analogous federal rule
of evidence. See Fed. R. Evid. 801(d)(1)(B).

¶11 Alston argues he never expressly or impliedly accused
Hunter or any other witness of fabricating their testimony, making Rule
801(d)(1)(B)(i) inapplicable. He also contends that Rule 801(d)(1)(B)(ii) does
not protect the statements because his trial strategy focused on
misidentification rather than witness credibility.

¶12 Contrary to Alston’s position, nothing in Rule 801(d)(1)(B)(ii)
limits or qualifies the use of prior consistent statements based on how a
party attacks witness credibility, or how important attacking that witness’s
credibility is to the party’s case. See Winegardner, 243 Ariz. at 484, ¶ 5 (“[I]f
a rule’s language is subject to only one reasonable meaning, we apply that
meaning.”). Instead, subpart (ii) explicitly allows the use of a prior
consistent statement to rehabilitate the declarant’s credibility as a witness if
it has been attacked on “another ground,” meaning a different ground than
fabrication of testimony. Ariz. R. Evid. 801(d)(1)(B)(ii). Thus, under this
rule, once a party attacks a witness’s credibility, that witness’s prior
consistent statements offered to rehabilitate their testimony become
substantively admissible.

¶13 Arizona courts have not addressed the issue of the scope or
significance of a credibility attack required to trigger the rule’s protection
for such statements, but federal courts have held that even brief attacks on
credibility may allow the admission of prior consistent statements. See
United States v. Flores, 945 F.3d 687, 705 (2d Cir. 2019) (noting that prior
consistent statements were admissible under the Federal Rule of Evidence
801(d)(1)(B)(ii) even though the defendant’s challenges to the
witness-declarant’s memory during opening statements were “brief” and
“not their main challenges”); see also United States v. Cox, 871 F.3d 479, 487
(6th Cir. 2017) (finding admission of prior consistent statements proper
when defendant attacked witness’s memory); see also Winegardner, 243 Ariz.
at 485, ¶ 8 (“Although the federal courts’ interpretation of the Federal Rules
of Evidence does not control our interpretation of our own evidentiary
rules, federal precedent is particularly persuasive given that we have
expressly sought to conform our rules to the federal rules.”).

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Opinion of the Court

¶14 Alston impeached Hunter with prior statements Hunter
made to officers about the number of people in the parking lot outside the
party, as well as Hunter having seen other partygoers wearing pink
beanies. Although the questioning was brief, it was nonetheless an attack
on Hunter’s credibility. Even if Alston did not focus on Hunter’s credibility
at trial, the trial court could have reasonably determined that Alston had
attacked Hunter’s credibility, and Hunter’s prior statements to the officer
were admissible to rebut that attack. See United States v. Purcell, 967 F.3d
159, 196 (2d Cir. 2020) (noting that Federal Rule of Evidence 801(d)(1)(B)(ii)
was amended in 2014 to allow substantive admission of prior consistent
statements to “explain what otherwise appears to be an inconsistency in the
witness’s testimony or to rebut a charge of faulty memory” (internal
quotations and citations omitted)). Alston has not shown the court abused
its discretion by admitting Hunter’s prior consistent statements.

2. Warren’s Statements

¶15 The State also introduced statements at trial Warren made to
police. The State asked to play for the jury a portion of a recorded interview
of Warren under Rule 801(d)(1)(B), which the court allowed without
objection by Alston. In the clip, Warren explained that (1) the person he
identified as the shooter was wearing a pink beanie, dark jeans, and a
colorful shirt; (2) he heard the person talk about having a weapon; and (3)
a group, including the person, ran south from the event toward a red sedan.
Because Alston did not object to the introduction of these statements or the
recording, we review for fundamental error only. State v. Escalante, 245
Ariz. 135, 140, ¶ 12 (2018).

¶16 Under that standard of review, Alston must show that
admission of the statements was error, that the error was fundamental, and
the error caused him prejudice. Id. An error is fundamental when it either
(1) goes to the foundation of his case, (2) deprives him of a right essential to
his defense, or (3) is so egregious that he could not have received a fair trial.
Id. at 142, ¶ 21. If the error is fundamental under the first two prongs Alston
must demonstrate prejudice, but not under the third. Id.

¶17 Whether Alston sufficiently attacked Warren’s credibility to
render his prior consistent statements admissible as non-hearsay under
Rule 801(d)(1)(B)(ii) is unclear. Regardless, Alston has not carried his
burden to demonstrate prejudice, which required him to show that if the
State had not introduced the prior consistent statements, “a reasonable jury
could have reached a different verdict.” Id. at 144, ¶ 29 (citation modified).

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Opinion of the Court

This “could have” standard is not easily met and is an objective inquiry that
cannot rely on imaginative guesswork. Id. at ¶ 31.

¶18 Alston argues he does not have to show prejudice because
admitting the challenged statements was “so egregious that [he] could not
possibly have received a fair trial,” obviating any need to show prejudice.
Escalante, 245 Ariz. at 141, ¶ 20. According to Alston, the hearsay statements
constituted a “parade of corroborating witnesses,” which created the
egregious error. But Alston fails to recognize that fundamental error under
this prong is a very demanding standard, State v. Romero, 258 Ariz. 237, 255,
¶ 65 (App. 2024), and the error in question must “so profoundly distort the
trial that injustice is obvious without the need to further consider
prejudice,” Escalante, 245 Ariz. at 141, ¶ 20. Even assuming Alston is correct
that some of these statements should not have been admitted at trial, much
of their content was established through testimony of the same declarant,
or the testimony of other witnesses. Infra ¶ 19. The claimed errors are not
“so egregious” that Alston “could not possibly have received a fair trial.”
Escalante, 245 Ariz. at 141, ¶ 20.

¶19 Moreover, the information conveyed through the recorded
interview and the officer’s testimony largely reflects the same information
Warren provided on direct examination. Warren testified that the night of
the shooting, he recalled seeing an individual in dark clothing wearing a
pink beanie, who had mentioned having a “banger” (meaning a firearm).
Warren also noted this person’s race, height, and build. He also saw this
individual leave the event with a group of people who then got into a red
sedan. Hunter likewise testified to many of the same facts reflected in the
recording. Warren’s prior consistent statements offered evidence the jury
would have heard from other witnesses or his own properly admitted
testimony presented at trial. See State v. Wood, 180 Ariz. 53, 65 (1994)
(finding that impermissible hearsay evidence did not prejudice the
defendant because “other witnesses presented direct testimony on the same
issue”). Nothing in this record convinces us that a reasonable jury could
have reached a different conclusion had Warren’s prior statements been
precluded, and thus Alston has not shown prejudice. Cf. State v. McGann, 132 Ariz. 296, 299 (1982) (noting that admission of unobjected to hearsay
testimony warrants reversal when it is “the sole proof of an essential
element of the state’s case”).

3. Samuel’s Statements

¶20 Alston also argues the trial court abused its discretion by
allowing the State (1) to question the same officer who had interviewed

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Opinion of the Court

Hunter about statements Samuel made to law enforcement after the
shooting, and (2) to further play a recorded portion of the interview. In the
recorded interview, Samuel described seeing the shooter wearing a pink
beanie and running towards a car. Samuel also said he saw this same
individual driving by the party, with his window rolled down, and the
individual was “shooting in the air.” The officer testified that Samuel
indicated he saw the shooter wearing a pink beanie and dark clothing, and
that this individual ran to a vehicle. Alston objected to playing the recorded
interview for the jury and thus we review its admission for harmless error.
See State v. Henderson, 210 Ariz. 561, 567, ¶ 18 (2005). An error is harmless
if the State demonstrates “beyond a reasonable doubt that the error did not
contribute to or affect the verdict or sentence.” Id.

¶21 Given that the record does not reveal any attack on Samuel’s
credibility as a witness such that his statements would be admissible under
Rule 801(d)(1)(B), admission of these statements was error. However,
Samuel’s prior statements to the officer, as evidenced both in the recording
and through the officer’s testimony, reflected the same facts established
through Samuel’s own testimony and the testimony of the security guards.
Evidence that “supports a fact otherwise established by existing evidence”
is cumulative, State v. Copeland, 253 Ariz. 104, 116, ¶ 27 (App. 2022)
(citations omitted), and the erroneous admission of cumulative evidence is
harmless, State v. Williams, 133 Ariz. 220, 226 (1982). See State v. Hoskins, 199
Ariz. 127, 144, ¶ 66 (2000) (finding error was harmless because “all aspects
of [the witness’s] prior statements were included in [his] own testimony”
and the witness was subject to cross-examination).

¶22 Citing State v. Martin, 135 Ariz. 552 (1983), Alston contends
that concluding the hearsay statements did not affect the verdict is
impossible. But the circumstances in Martin are materially different from
the present case. Martin involved a defendant accused of child molestation,
where the State introduced several witnesses with whom the victim had
discussed her allegations. Id. at 553. Those witnesses testified about what
the victim had told them. Our supreme court analyzed the statements
under Rule 801(d)(1)(B)(i) and held admission of these statements was
erroneous because the superior court “made no determination as to when
the motive to fabricate began.” Id. at 555. The court further concluded it
could not say this “parade of corroborating witnesses” did not influence the
jury’s verdict beyond a reasonable doubt. Id.

¶23 Samuel’s testimony at trial and the content of his prior
statements reflect facts that both Warren and Hunter largely established in
their properly admitted testimony. Alston’s case does not present a

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Opinion of the Court

situation where a “parade of corroborating witnesses” bolstered the
credibility of the State’s key witness, see Martin, 135 Ariz. at 555, given that
Samuel was one of several witnesses attesting to essentially the same set of
facts. And though admission of corroborating hearsay statements may be
prejudicial when credibility is “‘the central issue’ because of scant physical
evidence or a dearth of corroborating eyewitnesses,” Copeland, 253 Ariz. at
116, ¶ 29, Alston has plainly asserted in his appellate briefing that his trial
strategy did not turn on witness credibility. The State has met its burden of
showing that admitting Samuel’s prior consistent statements was harmless.
See State v. McVay, 127 Ariz. 450, 453 (1980) (using prior consistent
statements to bolster a witness’s credibility may be prejudicial when that
witness’s testimony is the only evidence for elements of an offense, or when
the credibility of that witness may be “the factor which removed a
reasonable doubt in the minds of the jurors”).

B. Aggravating Factors at Sentencing

¶24 Alston argues the trial court improperly considered several
aggravating factors at sentencing. Because Alston did not object at
sentencing, we review for fundamental, prejudicial error. Escalante, 245
Ariz. at 140, ¶ 12. To justify re-sentencing, Alston must demonstrate that
absent the error the court could have reasonably imposed a lighter sentence.
State v. Trujillo, 227 Ariz. 314, 318, ¶ 16 (App. 2011).

¶25 At sentencing, the court considered four aggravating factors:
the dangerousness of the offense, the use of a deadly weapon, Alston’s prior
felony conviction, and the emotional harm to the victim, or the victim’s
family. The State concedes the court should not have considered the first
two factors. The “dangerousness” of the offense is not an aggravating
factor a court could properly use to impose an aggravated sentence under
A.R.S. § 13-701(D). The use of a deadly weapon was an essential element
of the drive-by shooting offense, and by extension felony murder, which
meant it could not serve to aggravate the sentence for the convictions. See
A.R.S. § 13-701(D)(2). But Alston does not contest he had a prior conviction,
nor does he assert the court erred in considering the conviction. See A.R.S.
§ 13-701(D)(11). Thus, only the emotional harm factor is at issue here.
Alston argues the court’s reliance on that factor was improper because the
jury found the State did not prove it as to his murder conviction and could
not reach a verdict on that factor for his drive-by shooting conviction. We
analyze the court’s consideration of the emotional harm factor as it pertains
to each of Alston’s convictions.

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Opinion of the Court

1. First-Degree Murder Sentence

¶26 When a defendant is convicted of first-degree murder based
on felony murder, see A.R.S. § 13-1105(A)(2), and the State has not noticed
an intent to seek the death penalty, “the court shall determine whether to
impose a sentence of life or natural life,” A.R.S. § 13-752(A). “A defendant
who is sentenced to natural life is not eligible for commutation, parole,
work furlough, work release or release from confinement on any basis,”
whereas a defendant sentenced to life “shall not be released on any basis”
until that defendant serves a set term, the length of which turns on the age
of the victim. A.R.S. § 13-751(A)(2).

¶27 Section 13-752(Q) sets forth the applicable factors for
determining whether to impose life or natural life. The statute says the trial
court “[s]hall consider the aggravating and mitigating circumstances listed
in section 13-701 and any statement made by a victim” and “[m]ay consider
any evidence introduced before sentencing or at any other sentencing
proceeding.” Id. (emphasis added). Nothing in the statute suggests the
court or a jury must find an aggravating factor to sentence a defendant to
natural life, as opposed to a life sentence; nor does the Constitution require
such a finding. See State v. Fell, 210 Ariz. 554, 560, ¶ 19 (2005) (concluding
that “the Sixth Amendment does not require that a jury find an aggravating
circumstance before a natural life sentence can be imposed”).

¶28 Alston has not shown the court erred by considering the
emotional harm to the victim’s family in determining the appropriate
sentence for his murder conviction, regardless of the jury’s verdict during
the aggravation phase of trial. At the sentencing hearing, several of the
victim’s family members spoke and discussed the effect the murder had on
their lives. Additionally, the presentence report included numerous letters
from the victim’s family and friends describing how the loss of the victim
affected them. At the least, the court had discretion under A.R.S.
§ 13-751(Q)(2) to consider evidence of emotional harm to the victim’s
family, notwithstanding the jury’s aggravation verdict, in determining
what sentence was appropriate for the murder conviction.

2. Drive-by Shooting Conviction

¶29 We next address whether the trial court erred by considering
emotional harm to the victim as it relates to Alston’s conviction for drive-
by shooting. Alston was convicted of violating A.R.S. § 13-1209, which
makes “intentionally discharging a weapon from a motor vehicle at a
person . . . or an occupied structure” a class two felony. A.R.S.

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Opinion of the Court

§ 13-1209(A), (D). Because Alston committed a dangerous offense, he was
subject to sentencing under A.R.S. § 13-704. Section 13-704(A) establishes
the applicable sentencing range for a class two dangerous felony offense:
the minimum sentence is 7 years, the presumptive is 10.5 years, and the
maximum is 21 years. To aggravate a sentence beyond the presumptive
term, the court needed to rely on at least one aggravating factor found by
the trier of fact. A.R.S. §§ 13-701(C), (D), -704(H). Aggravating factors must
be found beyond a reasonable doubt by the trier of fact, except for the prior
felony conviction factor under A.R.S. § 13-701(D)(11), which may be found
by the court. A.R.S. § 13-701(C).

¶30 Once an appropriate aggravating factor has been found
beyond a reasonable doubt, the trial court may then “find and consider
additional factors relevant to the imposition of a sentence up to the
maximum.” State v. Martinez, 210 Ariz. 578, 585, ¶ 26 (2005). In determining
what sentence to impose within a permissible sentencing range, the court
may find any additional aggravating factors relevant to the court’s exercise
of such discretion by a preponderance of the evidence. Id.

¶31 The trial court imposed a 12-year sentence for the drive-by
shooting conviction. Because this exceeds the 10.5-year presumptive
sentence, there needed to be at least one aggravating factor under A.R.S.
§ 13-701. The court found, and Alston does not contest, that he had a prior
felony conviction within the past 10 years under A.R.S. § 13-701(D)(11). So
regardless of the emotional harm factor, the court was authorized to impose
an aggravated sentence for Alston’s conviction for drive-by shooting up to
the maximum term based on his prior conviction; any additional factors the
court relied upon were merely relevant to the court’s exercise of discretion
as to what specific sentence it would impose. See State v. Price, 217 Ariz.
182, 185, ¶ 15 (2007) (explaining that if a prior conviction is found by the
court or the jury, “the Sixth Amendment permits the sentencing judge to
find and consider additional factors relevant to the imposition of a sentence
up to the maximum prescribed in that statute”); see also A.R.S. § 13-701(G)
(requiring a sentencing court to “consider the evidence and opinions
presented by the victim or the victim’s immediate family at any aggravation
or mitigation proceeding or in the presentence report”).

¶32 Under these circumstances, the court did not err by
considering the emotional harm factor in sentencing Alston to an
aggravated term of imprisonment. As noted, the jury could not reach a
unanimous decision on this factor during the aggravation phase at trial.
However, as the court instructed, the jury had to determine whether the
State proved emotional harm to the victim beyond a reasonable doubt. At

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Opinion of the Court

sentencing, the trial court found that Alston had a prior conviction under
A.R.S. § 13-701(D)(11), and thus proof of the emotional harm factor was no
longer governed by the same standard. Instead, the burden of proof
required at sentencing was preponderance of the evidence. Martinez, 210
Ariz. at 585, ¶ 26. Because the jury evaluated the emotional harm factor for
a different purpose and under a higher burden of proof than the court when
it considered the same factor at sentencing, the court did not err in relying
on that factor at sentencing.

¶33 Even assuming the court should not have considered the
emotional harm to the victim or victim’s family, Alston has not shown that
any error was fundamental to his sentence for either conviction. It is true
that an illegal sentence constitutes fundamental error. See State v. Pesqueria, 235 Ariz. 470, 478, ¶ 29 (App. 2014). But Alston’s sentences are not illegal.
Because the prior conviction served as a legally proper aggravating factor
to support an aggravated sentence for drive-by shooting, and because the
court did not need any such factor to sentence Alston to natural life for his
murder conviction, Alston’s sentences were within the court’s discretion to
impose. See State v. Munninger, 213 Ariz. 393, 397, ¶ 12 (App. 2006)
(concluding that the erroneous consideration of an aggravating factor was
not fundamental error in part because the defendant did not receive an
illegal sentence and the sentences were within the statutory range
prescribed for the offense).

¶34 Nor are we persuaded by Alston’s reliance on Trujillo, 227
Ariz. at 314, ¶ 15, in asserting that consideration of an “improper factor”
warrants resentencing in this case. In Trujillo, the trial court specifically
relied on the defendant’s lack of remorse during sentencing in imposing an
aggravated sentence. Id. at 316, ¶ 6. This court held that such consideration
improperly infringed on the defendant’s Fifth Amendment right against
self-incrimination. Id. at 318, ¶ 15. Alston has not identified how
consideration of the emotional harm to the victim or victim’s family, or the
other factors the State concedes as error (the dangerousness of the offense
and the use of a deadly weapon), similarly deprived him of any
constitutional protection. He has therefore failed to meet his burden of
demonstrating that any sentencing error was fundamental.

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Opinion of the Court

CONCLUSION

¶35 We affirm Alston’s convictions and sentences.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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