State of Arizona v. Albert F. Vergara

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

THE STATE OF ARIZONA,
Appellee,

v.

ALBERT F. VERGARA,
Appellant.

No. 2 CA-CR 2023-0081
Filed March 26, 2025

Appeal from the Superior Court in Pima County
No. CR20211250001
The Honorable Javier Chon-Lopez, Judge

AFFIRMED

COUNSEL

Kristin K. Mayes, Arizona Attorney General
Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals
By Tanja K. Kelly, Assistant Attorney General, Tucson
Counsel for Appellee

Megan Page, Pima County Public Defender
By Erin K. Sutherland, Assistant Public Defender, Tucson
Counsel for Appellant

OPINION

Vice Chief Judge Eppich authored the opinion of the Court, in which
Presiding Judge Kelly and Chief Judge Staring concurred.

E P P I C H, Vice Chief Judge:
 STATE v. VERGARA
Opinion of the Court

¶1 Albert Vergara appeals from his convictions and sentences for
kidnapping, sexual assault, and aggravated assault with a deadly weapon
or dangerous instrument. He asserts the trial court erred by denying his
motion to dismiss the charges against him as time-barred by the statute of
limitations. He also contends the court committed reversible error by
permitting the state to introduce evidence that his DNA profile was in a
database, which, he alleges, implied he had a prior criminal history. For the
following reasons, we affirm.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to sustaining the
jury’s verdicts and resolve all reasonable inferences against Vergara. See
State v. Fierro, 254 Ariz. 35, ¶ 2 (2022). Early in the morning on December
21, 1991, T.M. left her home to walk to work. As she was walking, she
noticed a man, later identified as Vergara, at the end of the street. Vergara
began to jog toward T.M., and when she moved out of the way for him to
pass, he grabbed her arm and pulled her into the nearby desert. Vergara
had a weight in his hand that was large enough to kill or knock T.M.
unconscious, and he threatened her with it. Vergara pulled T.M. to the
ground, and she resisted as he tried to remove her pants. When T.M.
screamed, Vergara punched her in the face. Vergara then penetrated T.M.’s
vulva with his penis.

¶3 After Vergara finished assaulting T.M., he left, threatening to
kill T.M. if she moved. T.M. waited awhile and then ran home, where her
mother called the police. The police took T.M. to the emergency room, and
medical staff conducted a sexual assault examination which included
taking swabs from T.M.’s vagina. Police generated a sketch from T.M.’s
description but were unable to identify a suspect, and the case went “cold.”

¶4 In 2015, the police department received a grant to process cold
case sexual assault kits. T.M.’s kit was selected for testing, and, in 2018,
DNA from T.M.’s vaginal swab was developed into a profile “consistent
with a mixture of two individuals, including a major male contributor and
alleles consistent with [T.M.].” On December 6, 2018,1 the male contributor
“hit to a database,” identifying Vergara as a possible suspect. A detective

1The parties do not dispute this date, which the trial court used to

consider Vergara’s motion to dismiss.

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Opinion of the Court

later obtained Vergara’s DNA using buccal swabs, the profile of which
matched the male profile obtained from T.M.’s vaginal swabs.

¶5 On April 20, 2021, Vergara was indicted for kidnapping,
aggravated assault with a deadly weapon or dangerous instrument, and
sexual assault. After a trial in which the jury could not reach a verdict, the
court declared a mistrial. Vergara was retried before another jury and
found guilty as charged. The court sentenced him to concurrent terms of
imprisonment, the longest of which is twenty-eight years. This appeal
followed. We have jurisdiction pursuant to article VI, § 9 of the Arizona
Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

Time-barred Prosecution

¶6 Before trial, Vergara moved to dismiss the charges against
him, which the trial court denied. Vergara argues the trial court erred
because the statute of limitations barred his prosecution. He alternatively
asserts that if his prosecution for sexual assault was not time-barred, his
prosecutions for kidnapping and aggravated assault were because the
statute of limitations was merely tolled and he is entitled to credit for the
nearly six years between the date of the offense and the effective date of the
amendment. We review for an abuse of discretion the denial of a motion to
dismiss, but we review de novo issues of statutory interpretation. State v.
Aguilar, 218 Ariz. 25, ¶¶ 14-15 (App. 2008) (whether statute of limitations
applies is question of law).

¶7 In his dismissal motion, Vergara argued that because the
version of A.R.S. § 13-107 in effect in 1991 when he committed the offenses
barred prosecution of those offenses after seven years, see 1985 Ariz. Sess.
Laws, ch. 223, § 1, the state was prohibited from pursuing the prosecution
in 2021, over twenty-two years after the expiration of the 1991 statute of
limitations. In State v. Gum, 214 Ariz. 397, ¶¶ 13, 29 (App. 2007), and
Aguilar, 218 Ariz. 25, ¶¶ 22, 26, we determined that a 1997 amendment to
§ 13-107, at a minimum, tolled the statute of limitations for “serious
offense[s]” in which the offender was unknown, see 1997 Ariz. Sess. Laws,
ch. 135, § 1, so long as the initial limitations period had not yet expired
when the amendment became effective.2 But Vergara argued Gum and
Aguilar were incorrectly decided based on our supreme court’s opinion in

2Vergara’s identity was not discovered until 2018, and his crimes

constituted “serious offense[s]” under the 1997 amendment. See 1997 Ariz.
Sess. Laws, ch. 135, § 1; 1997 Ariz. Sess. Laws, ch. 34, § 1.

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Opinion of the Court

Martin v. Superior Court, 135 Ariz. 99 (1983), and our court’s opinions in
Taylor v. Cruikshank, 214 Ariz. 40 (App. 2006), and State v. Escobar-Mendez,
195 Ariz. 194 (App. 1999). Alternatively, he argued, even if the statute of
limitations was tolled, the prosecution was still untimely.

¶8 At the conclusion of a hearing, the trial court stated it was
“not willing to say that [our court had] incorrectly decided” Gum and
Aguilar. Because the statute of limitations had not expired in Vergara’s case
when the 1997 amendment became effective, and because his identity was
not discovered until December 6, 2018, the court concluded the state’s
commencement of the prosecution on April 6, 2021 was timely.
Additionally, the court found the plain language of the 1997 amendment
did not toll the limitations period but, rather, the limitations period did not
begin to run until the identity of the perpetrator was discovered; therefore,
prosecution of Vergara for all of the charged offenses was not time-barred.
On appeal, Vergara largely re-asserts these arguments.3

I. Statute of Limitations

¶9 “Statutes of limitation in criminal cases are designed
primarily to protect the accused from the burden of defending himself
against charges of long completed misconduct.” Martin, 135 Ariz. at 100
(quoting State v. Fogel, 16 Ariz. App. 246, 248 (1972)). Criminal statutes of
limitations are not merely a “limitation upon the remedy, but a limitation
upon the power of the sovereign to act against the accused.” Id. (quoting
Fogel, 16 Ariz. App. at 248); see also Escobar-Mendez, 195 Ariz. 194, ¶ 13
(criminal statutes of limitations are jurisdictional). “No statute is
retroactive unless expressly declared therein,” A.R.S. § 1-244, and we
construe statutes of limitations “liberally in favor of the accused and against
the prosecution,” Escobar-Mendez, 195 Ariz. 194, ¶ 13.

¶10 In 1991, when Vergara committed the offenses against T.M.,
§ 13-107(B) provided, in relevant part, that prosecutions for sexual assault,
aggravated assault with a deadly weapon or dangerous instrument, and
kidnapping “must be commenced” within seven years after “actual
discovery by the state or the political subdivision having jurisdiction of the

3Vergara has abandoned his argument that the sexual assault
prosecution was untimely based on his theory that the 1997 amendment
tolled rather than extended the statute of limitations—he solely argues it
was untimely because at the time of his prosecution, the 1991 limitation
period had expired.

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Opinion of the Court

offense or discovery by the state or such political subdivision which should
have occurred with the exercise of reasonable diligence, whichever first
occurs.” 1985 Ariz. Sess. Laws, ch. 223, § 1; see also 1989 Ariz. Sess. Laws,
ch. 199, § 1 (sexual assault); 1990 Ariz. Sess. Laws, ch. 152, § 1 (aggravated
assault with deadly weapon or dangerous instrument); 1985 Ariz. Sess.
Laws, ch. 364, § 15 (kidnapping). “[A] prosecution is commenced when an
indictment . . . is filed.” 1985 Ariz. Sess. Laws, ch. 223, § 1.

¶11 Effective July 21, 1997, the legislature amended § 13-107 and
added subsection (E) which provides, “The period of limitation does not
run for a serious offense . . . during any time when the identity of the person
who commits the offense or offenses is unknown.” 1997 Ariz. Sess. Laws,
ch. 135, § 1; see Gum, 214 Ariz. 397, n.5 (effective date). Sexual assault,
aggravated assault with a dangerous weapon or dangerous instrument, and
kidnapping are “serious offense[s]” under § 13-107(E). See 1997 Ariz. Sess.
Laws, ch. 34, § 1. In 2001, the legislature again amended the statute to
provide that a prosecution for sexual assault “may be commenced at any
time.” See 2001 Ariz. Sess. Laws, ch. 183, § 1.

¶12 On appeal, the parties agree that T.M. reported Vergara’s
crimes immediately, and, therefore, under the version of § 13-107(B) in
effect at the time, the state actually discovered Vergara’s offenses on
December 21, 1991. See 1985 Ariz. Sess. Laws, ch. 223, § 1; State v. Jackson, 208 Ariz. 56, ¶¶ 28, 30 (App. 2004) (limitations period in § 13-107(B) begins
to run “when the authorities know or should know in the exercise of
reasonable diligence that there is probable cause to believe a criminal
[offense] has been committed” (alteration in Jackson) (quoting State v.
Wilson, 573 N.W.2d 248, 254 (Iowa 1998))). At that time, the statute of
limitations would have expired on December 21, 1998. See Taylor, 214 Ariz.
40, ¶¶ 18-19, 23, 28 (limitations period begins to run from discovery of
offense, not offender, in pre-1997 version of § 13-107). The parties dispute,
however, whether the 1997 amendment to § 13-107 applies to Vergara’s
case since his identity was not discovered until December 2018. See 1997
Ariz. Sess. Laws, ch. 135, § 1 (limitations period for serious offenses “does
not run” while the perpetrator’s identity is unknown). As explained below,
the 1997 amendment applies.

A. Overview of applicable Arizona case law

¶13 In 1983, our supreme court considered retroactive application
of an amendment to a criminal statute of limitations in Martin. 135 Ariz. at
99-100 (considering A.R.S. § 13-106 which later became § 13-107). The
defendant, Martin, had allegedly committed six felony counts of lewd and

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Opinion of the Court

lascivious acts on various dates between June 1973 and May 1977. Id. at 99
& n.1. At that time, the statute of limitations provided that a prosecution
for a felony must be commenced within five years. Id. at 99-100. But
effective October 1, 1978, as part of the new criminal code, the statute was
amended, extending the relevant limitations period to seven years. Id.
Martin was indicted in September 1982. Id. at 99.

¶14 Martin argued his prosecution was barred because the statute
of limitations in effect at the time of his alleged crimes had expired by the
time he was indicted. Id. at 100. The state countered that the 1978
amendment extended the statute of limitations for all alleged offenses for
which the five-year period had not yet run as of the amendment’s effective
date. Id.

¶15 Our supreme court held Martin’s prosecution was barred by
the applicable statute of limitations. Id. The court reasoned that the
legislature had “spoken to [the] issue” because the session law enacting the
new criminal code had stated, in part,

The provisions of this act do not apply to or
govern the construction of and punishment for
any offense committed before the effective date
of this act, or the construction and application of
any defense to a prosecution for such an offense.
Such an offense must be construed and
punished according to the provisions of law
existing at the time of the commission thereof in
the same manner as if this act had not been
enacted.

Id. (quoting 1977 Ariz. Sess. Laws, ch. 142, § 179 (hereinafter, “Section
179”)). The court identified Section 179 as a clear direction “that the new
criminal code shall only operate prospectively.” Id. The court further
observed that given the legislature’s explicit instruction, “[a]ny inquiry into
the technical nature of the statute of limitations is simply not relevant” and
nothing indicated that the legislature intended “the new seven-year statute
of limitations to apply retroactively.” Id. Additionally, the court remarked
that its interpretation was consistent with the purpose of criminal statutes
of limitations as described above—to “protect the accused from the burden
of defending himself against charges of long completed misconduct.” Id.
(quoting Fogel, 16 Ariz. App. at 248).

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Opinion of the Court

¶16 As explained above, § 13-107 was amended in 1997 to include
subsection (E). 1997 Ariz. Sess. Laws, ch. 135, § 1; see also Escobar-Mendez,
195 Ariz. 194, n.6 (“limitation period does not begin to run if the identity of
the person who commits a ‘serious offense’ . . . is unknown”). Two years
later, we stated, in a footnote citing Martin, that the 1997 “revision [did] not
apply” to a defendant’s crimes committed between 1984 and 1987 because
“statutes of limitations only apply to offenses committed after their
adoption.” Escobar-Mendez, 195 Ariz. 194, ¶¶ 3, 19, 22-23 & n.6 (considering
whether the state had exercised reasonable diligence in discovering
defendant’s crimes). Subsequently, in Jackson, we relied on Martin and
Escobar-Mendez in accepting the state’s concession that the 1997 amendment
did not impact the defendant’s case. 208 Ariz. 56, n.3. Both references to
the 1997 amendment in those cases were dicta. See Escobar-Mendez, 195
Ariz. 194, ¶¶ 14, 21 & n.6 (law enforcement was reasonably diligent in
discovering defendant’s crimes in 1994 and indictment ten months later
was timely); Jackson, 208 Ariz. 56, n.3 (amendment irrelevant because
defendant’s identity known in 1994).

¶17 In 2006, citing Martin, Escobar-Mendez, and Jackson, we again
agreed with the state’s concession that the 1997 amendment did not extend
the statute of limitations for serious crimes committed in 1994. Taylor, 214
Ariz. 40, ¶¶ 8-9 & n.7 (also relying on § 1-244, stating no statute is
retroactive unless so expressly declared). In Taylor, we granted relief to
petitioners Taylor and Johnson, who had each filed a special-action petition
from the trial courts’ respective denials of their motions to dismiss. Id. ¶ 1.
Taylor had allegedly committed multiple felonies in June 1994, but the trial
court found his identity could not have reasonably been discovered until
May 2000. Id. ¶¶ 3-4. He was indicted in February 2006. Id. Similarly,
Johnson had allegedly committed multiple felonies in April 1994, but his
identity was not discovered until February 2006. Id. ¶ 6. He was indicted
in March 2006. Id. The trial courts in both cases determined the statute of
limitations began to run when the state discovered, or could have
reasonably discovered, the defendants’ identities, and thus concluded the
prosecutions were timely. Id. ¶¶ 4, 7.

¶18 In the special-action proceeding, as explained above, we
agreed with the parties’ assessment that the 1994 statute of limitations was
applicable, but the issue was whether that statute “requires discovery of an
offense or discovery of the offender.” Id. ¶¶ 8, 13 & n.7. We concluded the
statute of limitations in the 1994 version of § 13-107 ran from “the time the
state either discovered or, with the exercise of reasonable diligence should

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Opinion of the Court

have discovered, that an offense had been committed” and granted relief to
the petitioners. Id. ¶¶ 27, 29.

¶19 Then, in 2007, a different division of this court decided Gum.
214 Ariz. 397. Two women were sexually assaulted in 1991. Id. ¶ 2. Gum,
the assailant, was not identified until 2004 and was indicted within months.
Id. ¶¶ 3-4. Gum pled guilty to the offenses and in a subsequent Rule 32,
Ariz. R. Crim. P., proceeding argued his prosecution was barred by the
statute of limitations. Id. ¶¶ 4-5.

¶20 The Gum court “agree[d] with Taylor’s holding that the
applicable limitations period begins to run upon discovery of the offense
and not upon discovery of the offender” but concluded “the 1997
amendment to § 13-107 extended the limitations period, and thus Gum’s
prosecution was not time-barred.” Id. ¶ 11. Through extensive
constitutional, common law, and statutory analysis, the Gum court
explained that application of the 1997 amendment “to cases in which the
existing limitations period had not yet expired on the amendment’s
effective date” is not an impermissible retroactive application of law under
§ 1-244 nor is it ex post facto under the United States and Arizona
Constitutions. Id. ¶¶ 13-29. Gum distinguished Martin stating that the
result there was “based solely on the fact that the legislature had specifically
expressed its intent that the new statutes apply only to crimes committed
on or after their effective date” and that the Martin court “did not decide
the issue of ex post facto or retroactivity presented in this case.” Id. ¶ 21.
The Gum court also characterized Jackson’s and Escobar-Mendez’s reliance on
Martin as “overly broad.” Id.

¶21 We subsequently followed Gum in State v. Aguilar. 218 Ariz.
25. In Aguilar, the state appealed the trial court’s dismissal of the sexual
assault, kidnapping, sexual abuse, and second-degree burglary charges
against the defendant, Aguilar. Id. ¶ 5. The central issue on appeal was
whether the court had erred by applying a “reasonable-diligence standard”
to the state’s identification of Aguilar. Id. ¶ 2. The state also argued,
however, that the court erred by failing to apply the 1997 amendment to
Aguilar’s crimes which were committed in 1993, but for which his identity
was not discovered until 2006—the same year he was indicted. Id. ¶¶ 4-5,
13.

¶22 Relying on Taylor and Gum, we determined the trial court was
correct in concluding the statute of limitations began to run in 1993 when
the state discovered Aguilar’s crimes. Id. ¶ 20. And because the 1997
amendment only applies to “serious offenses,” which did not statutorily

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Opinion of the Court

include sexual abuse and second-degree burglary, we affirmed the
dismissal of those charges. Id.

¶23 But we further determined that under Gum, “§ 13-107(E) at
least applies to toll the limitations period as of the subsection’s effective
date” and, therefore, Aguilar’s prosecutions for sexual assault and
kidnapping were not time-barred. Id. ¶¶ 22, 25, 51. Aguilar argued Gum
was wrongly decided, but we rejected his argument, concluding Gum was
“wholly consistent with retroactivity principles recognized in Arizona and
elsewhere” and not contrary to Martin. Id. ¶¶ 23, 35, 39. Applying Gum,
we also rejected Aguilar’s argument that application of the 1997
amendment violated ex post facto principles. Id. ¶ 42.

B. Analysis

¶24 As he did before the trial court, Vergara argues that based on
our supreme court’s opinion in Martin and this court’s opinions in Taylor,
Escobar-Mendez, and Jackson, the 1997 amendment does not apply and the
statute of limitations applicable to his crimes expired on December 21, 1998.
He asserts that, for various reasons, this court wrongly decided Gum and
Aguilar and we should reject them. The state counters that Gum and Aguilar
were correctly decided, are not contrary to Martin, and the 1997 amendment
applies to Vergara’s offenses.

¶25 Vergara does not meaningfully challenge Gum’s suggestion
and Aguilar’s conclusion that § 13-107(E) constitutes a procedural change in
the law and therefore does not raise retroactivity concerns. See Aguilar,
218 Ariz. 25, ¶ 27 (“even if application of § 13-107(E) . . . results in the
statute being given retroactive effect, Arizona law would not necessarily
prohibit it” because procedural enactments may be applied retroactively).
On this ground alone we could conclude Vergara’s arguments concerning
the alleged improper retroactive application of § 13-107(E) fail. See id. We
nevertheless address Vergara’s arguments, conscious that although we are
not “absolutely bound” by prior opinions of this court, we will adopt their
reasonings and results unless the opinions rest “upon clearly erroneous
principles, or conditions have changed so as to render [them] inapplicable.”
Id. ¶ 23 (quoting Danielson v. Evans, 201 Ariz. 401, ¶ 28 (App. 2001)).

¶26 Vergara first argues § 13-107(E) cannot apply retroactively
because the legislature did not so expressly provide. See § 1-244 (“No
statute is retroactive unless expressly declared therein.”); see also Garcia v.
Browning, 214 Ariz. 250, ¶ 19 (2007) (Section 1-244 “plainly requires an
express declaration from the legislature” before retroactive application.). In

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Opinion of the Court

Aguilar, we rejected the defendant’s similar argument that Gum had applied
§ 13-107(E) retroactively in contravention of § 1-244. 218 Ariz. 25, ¶ 23. We
explained that a statute is not necessarily applied retroactively just because
it relates to antecedent facts. Id. ¶ 25. Rather, a statute is applied
retroactively if it “disturb[s] vested substantive rights by retroactively
changing the law that applies to completed events.” Id. (quoting San Carlos
Apache Tribe v. Superior Court, 193 Ariz. 195, ¶ 15 (1999)).

¶27 Section 13-107(E) is not substantive because it does not “alter
the elements of an offense, redefine a crime or substantive defense in some
other manner, reallocate burdens of proof, or otherwise affect a substantive
right such as the length or type of punishment that might be imposed for
prior conduct.” Id. ¶ 26. And if the applicable limitations period has not
yet expired, a defendant has no “vested, substantive right to any fixed or
unchangeable statute of limitations” because he cannot assert a valid
limitations defense at that time. Id. The seven-year limitations period in
Vergara’s case had not expired at the time § 13-107(E) became effective, and,
consequently, applying § 13-107(E) here is not retroactive and does not
implicate § 1-244.4 See id. ¶¶ 23-26; see also Gum, 214 Ariz. 397, ¶¶ 27-28.

¶28 Quoting Hall v. A.N.R. Freight System, Inc., 149 Ariz. 130, 140
(1986), Vergara argues Gum and Aguilar “failed to recognize . . . that a right
does not only vest ‘when it is actually assertable as a legal cause of action
or defense,’ but a right may also fully vest when it ‘is so substantially relied
upon that retroactive divestiture would be manifestly unjust.’” 5 But
Vergara fails to explain how he “so substantially relied” upon the pre-1997
statute that an alleged retroactive divestiture would be “manifestly unjust.”
He simply asserts that it is.

4For this same reason, we reject Vergara’s argument that it “is
illogical to assume that [criminal] limitations . . . can be applied
retroactively without express say-so,” because in civil cases, Arizona law
dictated prospective application until 1928 when the legislature expressly
changed course. As explained above, application of § 13-107(E) is not
retroactive in a case like Vergara’s, where the limitation period had not yet
run at the time of the amendment. See Aguilar, 218 Ariz. 25, ¶¶ 23-26; Gum,
214 Ariz. 397, ¶¶ 27-28.
5Both Gum and Aguilar cited Hall. See Gum, 214 Ariz. 397, ¶ 26;
Aguilar, 218 Ariz. 25, ¶ 36.

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Opinion of the Court

¶29 Assuming Hall, a civil tort case, applies, our supreme court
there stated that “[a]ny substantial reliance argument raised by a defendant
must focus on actual reliance at the time of the litigated occurrence, not
upon any subsequent hope or expectation that the law will remain static”
until the right vests. Hall, 149 Ariz. at 142 n.16. The court determined the
defendant had not “substantially relied” on the contributory negligence
defense, in part, because, “the existence or lack of such an affirmative
defense has no effect on the every day conduct of individuals.” Id. at 142
(quoting Godfrey v. State, 530 P.2d 630, 632 (Wash. 1975)).

¶30 Vergara has not asserted, nor do we think he could reasonably
argue, that he relied on the statute of limitations in effect when he decided
to assault T.M. See id. at 142 n.16 (“reliance” must be at time of the
occurrence, not a subsequent expectation that the law will stay the same).
Moreover, § 13-107(E) does not “regulate primary or any other conduct or
attach new legal consequences” to Vergara’s offenses. Aguilar, 218 Ariz. 25,
¶ 37. We fail to see, and Vergara has not shown, how he “so substantially
relied” on the statute in effect in 1991 such that his right had fully vested at
that time and “retroactive divestiture would be manifestly unjust.”6 Hall,
149 Ariz. at 140.

¶31 Vergara also argues, however, that Aguilar’s conclusion that
§ 13-107(E) does not regulate primary conduct was erroneous. 218 Ariz. 25,
¶ 37. He contends the conclusion is based on flawed reliance on caselaw
from other jurisdictions and is contrary to the analysis in Martin. We
disagree.

¶32 Criminal offenses underlying a prosecution are an example of
“primary conduct,” whereas the state’s filing of those charges is an example
of “secondary conduct.” Aguilar, 218 Ariz. 25, ¶ 31 (quoting Cook v. Stegall,
295 F.3d 517, 520 (6th Cir. 2002)); cf. Landgraf v. USI Film Prods., 511 U.S. 244,
291 (1994) (Scalia, J., concurring) (in considering retroactivity, “[t]he critical
issue . . . is not whether the rule affects ‘vested rights,’ or governs substance

6Without citation to legal authority, Vergara argues that regardless

of whether rights are fully vested, because § 13-107 “begins to operate with
the discovery of the offense, applying statutory amendments to offenses
committed before the amendment went into effect constitutes retroactive
application.” But, as we have previously observed, the test for retroactivity
is when a limitations period vests, not when it begins to run. See Aguilar,
218 Ariz. 25, ¶ 25 (statute retroactive if it “disturb[s] vested substantive
rights,” not merely if it relates to antecedent facts).

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Opinion of the Court

or procedure, but rather what is the relevant activity that the rule
regulates”). In Aguilar, to determine whether § 13-107(E) regulated primary
or secondary conduct, we first looked to our supreme court. Id. ¶ 29. We
noted that in Garcia, to determine whether a statute was impermissibly
applied retroactively, our supreme court “implicitly differentiated primary
from secondary conduct,” by citing Justice Scalia’s concurrence in Landgraf.
See Aguilar, 218 Ariz. 25, ¶¶ 29-30; Garcia, 214 Ariz. 250, ¶ 14 (“Most statutes
are meant to regulate primary conduct, and hence will not be applied in
trials involving conduct that occurred before their effective date.” (quoting
Landgraf, 511 U.S. at 291 (Scalia, J., concurring))). We further observed that
statutes of limitations were like the procedural laws that the majority in
Landgraf had concluded “regulate secondary rather than primary conduct”
and do not, therefore, pose retroactivity concerns. Aguilar, 218 Ariz. 25, ¶ 30
(quoting Landgraf, 511 U.S. at 275). Vergara fails to give due weight to our
consideration of Arizona and United States Supreme Court law in Aguilar.
See id. ¶¶ 29-30.

¶33 And although we continued on to consider other jurisdictions
that had “addressed retroactivity questions in the context of newly enacted
statutes of limitations” and, consistent with those authorities, concluded
§ 13-107(E) regulates secondary conduct, we are not persuaded that such a
conclusion was clearly erroneous. Id. ¶¶ 23, 31. Vergara argues such
reliance was improper because Arizona, “consistent with a minority
position, construes its statute of limitations differently—the protections are
jurisdictional and designed to protect the accused from stale prosecutions.”
Although we have characterized criminal statutes of limitations in Arizona
as “jurisdictional,” see Fogel, 16 Ariz. App. at 248, we explained in Jackson
that Ҥ 13-107 relates only to time limitations and says nothing about
jurisdiction,” and noted the “jurisdictional” characterization has been
questioned and rejected by other courts, 208 Ariz. 56, ¶ 19 & n.11; see also
Musacchio v. United States, 577 U.S. 237, 246 (2016) (statutes of limitations
are not usually jurisdictional unless legislative body clearly says they are).
We further stated that, in any event, “we do not necessarily equate a
statute-of-limitation issue with . . . pure, territorial jurisdiction.” Jackson,
208 Ariz. 56, ¶ 20. Vergara has not explained how § 13-107(E) being
“jurisdictional” affects whether the statute regulates primary versus
secondary conduct. Jurisdiction does not necessarily affect whether a
statute is procedural or substantive, Aguilar, 218 Ariz. 25, ¶¶ 28, 31, and we
similarly fail to see how it affects what conduct § 13-107(E) regulates.

¶34 Vergara also argues the conclusion that § 13-107(E) regulates
secondary conduct is contrary to our supreme court’s interpretation in

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Opinion of the Court

Martin of Section 179 of the new criminal code. He asserts that if a criminal
statute of limitations does not regulate primary conduct, then Martin
should not have applied Section 179 in its retroactivity analysis because
Section 179, by its plain language, only applied to statutes regulating
primary conduct. See 135 Ariz. at 100 (quoting 1977 Ariz. Sess. Laws, ch.
142, § 179) (“The provisions of this act shall govern the construction of and
punishment for any offense defined in this act and committed after its
effective date” and, unless otherwise provided or required, must also
“govern the construction of and punishment for any offense defined
outside this act and committed after its effective date.” The provisions of
the act “do not apply to or govern the construction of and punishment for
any offense committed before the effective date of this act, or the
construction and application of any defense to a prosecution for such an
offense.”). He therefore argues that, under Martin, a statute of limitations
must regulate primary conduct.

¶35 But the Martin court was not required to consider the issue of
whether Section 179 applied to primary or secondary conduct. In fact, it
specifically noted that “[a]ny inquiry into the technical nature of the statute
of limitations is simply not relevant,” because the plain language of Section
179 directed the amendment to “only operate prospectively.”7 Id.; see 1977
Ariz. Sess. Laws, ch. 142, § 179 (offense committed before effective date of
new criminal code “must be construed and punished according to the
provisions of law existing at the time of the commission thereof in the same
manner as if this act had not been enacted” (emphasis added)). No such plain
language existed in the 1997 amendment, see 1997 Ariz. Sess. Laws, ch. 135,
§ 1; Gum, 214 Ariz. 397, ¶ 20, necessitating our court’s further inquiry into

7Vergara further argues that Gum erroneously stated that Martin

“looked no further than the language of the new code.” Vergara asserts this
fails to acknowledge that Martin relied on more than just the language of
the new code. See 135 Ariz. at 100. But, as shown above, we agree with
Gum that Martin’s analysis did not go beyond the plain language of the new
code. Rather, our supreme court rejected the state’s argument that the
statute of limitations is purely procedural as “specious” because it was
irrelevant. Id. It further stated nothing indicated a contrary intent to that
plainly stated in Section 179, the language of which was also consistent with
the purpose of criminal statutes of limitations. Id. These additional
analyses served only to bolster the Martin court’s plain-language
interpretation; they were not separate grounds on which it based its
conclusion. See id.

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Opinion of the Court

the accuracy of Gum’s conclusion that the 1997 addition of § 13-107(E) did
not regulate primary conduct, Aguilar, 218 Ariz. 25, ¶¶ 29-33, 38-39 (citing
Gum, 214 Ariz. 397, ¶ 27). We are not persuaded that this conclusion is
contrary to Martin, nor are we otherwise persuaded that the trial court erred
by relying on Aguilar and Gum to conclude the 1997 amendment applies to
Vergara’s offenses.

II. Tolling of the Statute of Limitations

¶36 Vergara argues that his prosecutions for kidnapping and
aggravated assault with a deadly weapon or dangerous instrument were
nevertheless time barred because the 1997 amendment tolled the statute of
limitations, it did not extend it. He therefore maintains he was “entitled to
receive credit against the limitation period for the five years and seven
months before the 1997 amendment went into effect.” Under his asserted
framework, after his identity was discovered in December 2018, the state
had seventeen months to obtain an indictment before the limitations period
ran on May 6, 2020 and, thus, his indictment on April 20, 2021 was
impermissible.

¶37 In Aguilar, we agreed with the state that “under Gum,
§ 13-107(E) at least applies to toll the limitations period as of the
subsection’s effective date.” 218 Ariz. 25, ¶ 22. Although we did not need
to reach it to resolve that case, we nevertheless observed that the 1997
amendment arguably “provided a new, seven-year ‘period of limitation’
that was unaffected by the time between the date the offenses were
committed and the amendment’s effective date.” Id. n.7. “In other words,
the limitations period arguably did not start to run until the identity of the
person who allegedly had committed the offenses was known.” Id.

¶38 “[T]he best and most reliable index of a statute’s meaning
is its language and, when the language is clear and unequivocal, it is
determinative of the statute’s construction.” State v. Hansen, 215 Ariz.
287, ¶ 7 (2007). Therefore, we apply the plain text of an unambiguous
statutory provision. State v. Agundez-Martinez, 256 Ariz. 445, ¶ 10 (2024).
Vergara concedes that the legislature did not use the word “toll” in
§ 13-107(E). But he argues the amendment could not have “extended”
the limitations period because “[t]o ‘extend’ is ‘to add to something in
order to make it . . . longer,’” (quoting Extend, Cambridge Dictionary,
https://dictionary.cambridge.org (last visited Mar. 28, 2024)) and
“regardless of knowledge of identity or lack thereof, the limitation
period for the offenses included in subsection (E) was still seven years.”

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Opinion of the Court

¶39 The plain language of § 13-107(E) does not support Vergara’s
argument. Section 13-107(E) states that “[t]he period of limitation does not
run for a serious offense . . . during any time when the identity of the person
who commits the . . . offenses is unknown.” (Emphasis added.) We have
already concluded § 13-107(E) applies to Vergara’s offenses. Vergara’s
identity was unknown until December 6, 2018 when he was identified
through the DNA “hit to a database.” The limitations period “[did] not
run” for the serious offenses he had committed during the time his identity
was unknown. § 13-107(E). Accordingly, beginning December 6, 2018, the
state had seven years to charge Vergara, see § 13-107(B), and it did so within
three years. The prosecution for all of Vergara’s offenses was timely.

¶40 Vergara nevertheless argues that even if the plain language of
§ 13-107(E) does not support his tolling theory, his “time credit” argument
is supported by A.R.S. § 1-250. There, our legislature directed that,
generally, when a limitations period has started running “before an act
repealing such law takes effect . . . the time which has already run shall be
deemed part of the time prescribed as such limitation . . . .” Id. Vergara
argues § 13-107(E) “constitutes a repeal” of “the seven-year limitation for
all class two serious offenses where identity was unknown.”

¶41 “Legislatures are presumed to enact statutes compatible with
existing legislation.” State v. O’Brien, 123 Ariz. 578, 583 (App. 1979). We
have a duty to harmonize statutory provisions and “will not construe a
statute as repealed by implication if [we] can avoid doing so.” State ex rel.
Purcell v. Superior Court, 107 Ariz. 224, 227 (1971); see also State v. Torrez, 141
Ariz. 537, 539 (App. 1984) (implicit repeal is not favored unless clear that
two statutes are inherently inconsistent). If two statutory provisions can be
harmonized, a specific, more narrow statutory provision does not replace
an earlier, more general one. O’Brien, 123 Ariz. at 583; see also State v.
Cassius, 110 Ariz. 485, 487 (1974) (“Where a statute first expresses a general
intent, and later an inconsistent particular intent, such particular intent will
be taken as an exception to the general intent, and both will stand.”).

¶42 The 1997 addition of § 13-107(E) did not repeal § 13-107(B). It
merely added a more specific provision for when the identity of the
perpetrator of a serious crime is unknown. See 1997 Ariz. Sess. Laws,
ch. 135, § 1. Generally, the limitations period for kidnapping and
aggravated assault with a deadly weapon or dangerous instrument is seven
years from discovery of the offense, see Gum, 214 Ariz. 397, ¶ 11, but,
specifically, when the assailant is unknown, the limitations period “does
not run,” § 13-107(E); see also A.R.S. §§ 13-706(F)(1)(d), (j), 13-1204(A)(2), (E)

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Opinion of the Court

(aggravated assault with deadly weapon or dangerous instrument),
13-1304(B) (kidnapping). The two subsections in § 13-107 are not inherently
inconsistent,8 but even if we assumed they are, subsection (E) is merely an
exception to subsection (B). See Cassius, 110 Ariz. at 487. There was no
repeal, implicit or otherwise, and thus, § 1-250 does not apply. The trial
court did not abuse its discretion in denying Vergara’s motion to dismiss
the charges against him.9

Database Hit

¶43 Vergara next asserts the trial court committed reversible error
when it denied his requests to preclude evidence that he became a suspect
because his DNA “hit to a database.” He argues this evidence
impermissibly implied he had a prior criminal history which violated his
constitutional right to a fair trial. We review for an abuse of discretion the
admissibility of evidence, State v. Rose, 231 Ariz. 500, ¶ 59 (2013), and review
alleged constitutional violations de novo, State v. McGill, 213 Ariz. 147, ¶ 53
(2006).

I. Background

¶44 Before his first trial, Vergara moved to preclude any evidence
that his DNA was “in a statewide database” and that the information from
that database matched the DNA profile developed from T.M.’s vaginal
swab. Among other things, he argued the only relevance of this evidence
was to show how he became a suspect, which was not an element the state
had to prove. While he acknowledged other states seemed to permit this
type of evidence, he asserted that those courts had failed to properly
consider the danger of unfair prejudice to the defendant and that although
“the DNA profile in the database does not directly reveal a prior conviction,
the fact of its existence raises an impermissible inference.” The state

8They are also not inherently inconsistent because the running of a

limitations period for a non-serious offense in subsection (B) is wholly
unaffected by subsection (E). § 13-107; see also Aguilar, 218 Ariz. 25, ¶ 20
(dismissing defendant’s non-serious offenses for which the statute of
limitations had expired long before the indictment).
9Given our disposition, we need not reach Vergara’s additional
argument that he is entitled to a new trial or resentencing because evidence
of and verdict forms for the kidnapping and aggravated assault were
improperly admitted in violation of Rule 404, Ariz. R. Evid.

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Opinion of the Court

responded that no Arizona authority prohibited the introduction of such
evidence and that other states seemed to “weigh decidedly in favor of
permitting the State to explain . . . why investigators went from having no
suspects to focusing on a single individual.” The state avowed that it would
not introduce any evidence regarding the source of the DNA or the name
of the database, “CODIS.”10

¶45 After a hearing, the trial court denied the motion “given the
State’s . . . avowal that the CODIS database is not going to be named by
name, and that the only evidence that would be introduced would be that
his DNA was in a database.” The court also found the evidence had
probative value and that value was not substantially outweighed by the
danger of unfair prejudice. See Ariz. R. Evid. 403.

¶46 After the mistrial, Vergara asked the trial court to reconsider
its prior ruling. The court, finding no good cause to reconsider, affirmed its
prior ruling allowing mention of a database without reference to a
“government data base or CODIS.”

¶47 In its opening statement, the state told the jury that after law
enforcement had obtained “a major male profile” from the sexual assault
kit, they “managed to get a hit from a database that led them to consider
Albert Vergara as a possible suspect.” The following day, the state asked a
detective if he had “a hit to a database that gave [him] the name of Albert
Vergara as a possible person to look into,” to which he responded “Yes.”
The state later asked the same detective if, “given that some of these cases
are assigned . . . after a preliminary DNA hit has occurred,” whether “that
hit is confirmed through further DNA analysis.”

¶48 The state also questioned a criminalist who, in 2018, had
generated a report on T.M.’s sexual assault kit. She described that
generally, an outside lab would do the DNA analysis and after reviewing
that lab’s report she would “decide if it was suitable to put into a database.”
If there “was a hit to the profile,” she would send that to the detective.
Specifically in Vergara’s case, the criminalist stated that she had to review
the outside lab’s report “to be allowed to put it in the database.”

10CODIS stands for “Combined DNA Index System.” Taylor, 214
Ariz. 40, ¶ 3. It is a national database utilized by law enforcement. Id.; State
v. Mitcham, ___ Ariz. ___, ¶ 5, 559 P.3d 1099 (2024).

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Opinion of the Court

¶49 After this questioning, Vergara asked the trial court to instruct
the state to not mention the database hit again. The state asserted that it
would not ask any more questions related to the database. On that avowal,
the court stated that it would not “enter a formal order,” but reminded the
state to “keep it in mind.”

¶50 Thereafter, the state called another detective, and although
that detective did not testify to any “database hit,” jurors submitted the
following questions after his testimony: (1) “For DNA ‘hits’ or a match how
are the original hits generated?”; (2) “For (Albert Vergara) was his DNA on
file with [the police department] or a hospital, e[tc.] . . .”; (3) “When there is
a DNA match from evidence collection, what database is being used to find
that match?”; (4) “How is that database built?”; (5) “Does a person have to
have been a suspect in a previous crime to have their DNA added to this
database?”

¶51 Based on these questions, Vergara moved for a mistrial. He
argued “the jury is wondering” and there is already “at least one juror who
is believing that [he] has been involved in criminal conduct before.” The
state responded that the questions showed that the jury was “not assuming
that he is a suspect” in other crimes because one of the questions referred
to DNA being on file with a hospital. The state further suggested that it
could ask the detective whether someone had to be a suspect to be in the
database, to which the answer would be “no.”

¶52 The trial court denied Vergara’s motion for mistrial. The
court reasoned that the state had not violated its previous ruling and that
while the jury “may be wondering about the database, they’re not making
any conclusions as to what database it might come from.” It further
observed that there are many databases and, based off the juror’s question,
the jury is aware of them. The court asked Vergara if he would like to take
the state’s suggested approach of further questioning the detective.
Vergara declined, asserting that “trying to fix it” may create a “cloud of
suspicion,” and solely asked that the state not refer to the database again.
The court did not ask the jurors’ questions as described above, and it
ordered the state not to refer to the database again.

¶53 Later that day, when discussing the process of DNA analysis,
the criminalist testified that at the end of the process, “you end up with,
basically, a list of numbers” which can then be “compare[d] to other
samples or put in a database and . . . searched against other profiles.” When
asked if she did additional work on Vergara’s case after reviewing the
outside lab’s report, the criminalist said “I entered the profile into—.”

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Opinion of the Court

Vergara objected and again asked for a mistrial. The trial court sustained
the objection.

¶54 Jurors again submitted questions related to the database after
the criminalist’s testimony: (1) “What data base is it that contains the DNA
profiles?”; (2) “How are DNA profiles matched?”; (3) “How do you go
about making a match from the ‘profile’ to the sample of DNA given by the
suspect?”; (4) “What data base was checked to find any possible DNA
match?”; (5) “Where do samples for this data base come from?”; (6) “How
large is the pool of people that this type of DNA testing uses when
searching for a match?”11 Vergara again argued the jury was “continuing
to wonder” about the database. In response, the trial court stated “the
limiting instruction is good enough to handle it because they’re told not to
consider it.” The court did not ask the criminalist any of the jurors’
questions related to the database. And, at the end of trial, the court
instructed the jury, “You have heard evidence that a preliminary DNA
profile for Mr. Vergara was contained in a database. This evidence is
admitted for the limited purpose of explaining why Mr. Vergara became a
subject in 2018 and, therefore, you must consider it for that limited purpose
and not for any other purpose.” The jurors were also instructed that they
“must not speculate or guess about any fact.”

II. Analysis

¶55 On appeal, Vergara argues the evidence related to the
database was “irrelevant and overly prejudicial” and violated his right to a
fair trial under the United States and Arizona Constitutions. He further
argues it was improper evidence of other acts. The state counters that the
evidence was relevant and not outweighed by a danger of unfair prejudice
and was not other-acts evidence.

A. Relevance

¶56 Evidence is relevant if it has any tendency to make a fact of
consequence more or less probable than it would be without the evidence.
Ariz. R. Evid. 401; see also State v. Leteve, 237 Ariz. 516, ¶ 48 (2015) (“The
threshold for relevance is a low one.”). Relevant evidence is generally
admissible unless otherwise prohibited by constitution, statute, or rules;
irrelevant evidence is never admissible. Ariz. R. Evid. 402. Evidence can

11Additionally, there was a question that was crossed-out that had

stated, “What database did the DNA sample get a hit out of?”

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Opinion of the Court

be relevant if it rebuts a defense. See State v. Hargrave, 225 Ariz. 1, ¶¶ 3, 6,
20, 22 (2010), abrogated on other grounds by Cruz v. Arizona, 598 U.S. 17, n.1
(2023) (evidence of co-defendant’s guns found at defendant’s campsite was
relevant to rebut defendant’s main defense that he did not know his
co-defendant would have a gun during robbery).

¶57 Vergara argues the database evidence did not have any
tendency to prove that he was the perpetrator of the offenses because “the
relevant DNA comparison and match was between the known profile
obtained from [his] buccal cells and the profile obtained from [T.M.’s]
vaginal swatches.” But Vergara fails to acknowledge the evidence was
relevant to rebut his defense and argument to the jury that law enforcement
wanted to “pin” the offenses on him because of “a DNA profile.” Vergara
further argued that within the nearly “30-year period” of investigation
there were “discrepancies, and really troubling facts” that had led to a false
accusation. Evidence that Vergara’s DNA “hit to a database” had a
tendency to rebut this defense by showing how law enforcement came to
suspect him nearly twenty-seven years after the offenses. See Hargrave,
225 Ariz. 1, ¶ 22; People v. Jackson, 903 N.E.2d 388, 397-99 (Ill. 2009) (evidence
of defendant’s DNA in a database was relevant to show how authorities
identified him six years after murder).

B. Unfair prejudice

¶58 Relevant evidence can still be excluded, however, if “its
probative value is substantially outweighed by a danger of . . . unfair
prejudice.” Ariz. R. Evid. 403. Unfair prejudice is “an undue tendency to
suggest decision on an improper basis . . . such as emotion, sympathy or
horror.” State v. Riley, 248 Ariz. 154, ¶ 70 (2020) (quoting State v. Schurz, 176
Ariz. 46, 52 (1993)). Just because evidence is harmful to the defendant does
not necessarily make it unfairly prejudicial. Schurz, 176 Ariz. at 52. “Trial
courts have considerable discretion in deciding whether to exclude
evidence under [Rule 403].” State v. Cooperman, 232 Ariz. 347, ¶ 17 (2013).

¶59 The fact that Vergara’s DNA was in a database did not have
an “undue tendency to suggest [a] decision” on “emotion, sympathy or
horror.” Riley, 248 Ariz. 154, ¶ 70 (quoting Schurz, 176 Ariz. at 52). But
Vergara argues the evidence nevertheless “carried a danger of unfair
prejudice because . . . it is common knowledge that criminals have their
DNA put into databases” and testimony related to a DNA database

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Opinion of the Court

implicitly introduced “bad character evidence and inadmissible other act
evidence.”12

¶60 Generally, “evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in
conformity therewith.” Ariz. R. Evid. 404(b)(1). In other words, evidence
cannot be admitted to show that “because a defendant did one bad act, he
likely engaged in other bad acts,” but the trial court may admit such
evidence for other, non-propensity purposes. State v. Payne, 233 Ariz. 484,
¶ 58 (2013); see also Ariz. R. Evid. 404(b)(2). If other-act evidence is
admissible but prejudicial, the court must “limit the evidence to its
probative essence . . . by excluding irrelevant or inflammatory detail.”
Payne, 233 Ariz. 484, ¶ 58 (quoting State v. Hughes, 189 Ariz. 62, 70 (1997)).

¶61 As explained above, the criminalist testified that, specifically
in Vergara’s case, she had to review the report of the outside lab’s analysis
of the sexual assault kit “to be allowed to put it in the database.” This
statement came after she had already testified that, generally, she would
review an outside lab’s report, “decide if it was suitable to put into a
database,” and then, if there “was a hit to the profile,” she would send that
to a detective. Additionally, the detective testified that he had “a hit to a
database that gave [him] the name of Albert Vergara as a possible person
to look into” as a suspect, and the prosecutor asked him about confirmatory
DNA analysis “given that some of these cases are assigned . . . after a
preliminary DNA hit has occurred.” Taken together, the evidence could
have reasonably suggested the database related to criminal investigations.

¶62 But the trial court sanitized the evidence by prohibiting the
state from referring to a “government data base or CODIS,” and, consistent
with that order, there was no mention of how Vergara’s DNA ended up in
the database or what the name or purpose of the database was. See Payne,
233 Ariz. 484, ¶ 58 (court must exclude irrelevant or inflammatory details
of otherwise probative evidence). As the court observed, there are various
databases which could contain DNA. Many of the jurors’ questions
indicated awareness of this by asking which DNA database was used, if

12Vergara and the state dispute whether the other-acts argument was

properly preserved for our review. We need not reach this issue because
we conclude there was no error. See State v. Montoya, ___ Ariz. ___, ¶ 14,
554 P.3d 473, 488 (2024) (“We need not decide if [the defendant’s] objection
was sufficient to preserve this issue for harmless error analysis. The
prosecutor did not commit error.”).

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Opinion of the Court

someone had to be involved in a crime to be in the database, and if the
database was through law enforcement or a hospital. And even assuming
the testimony suggested that Vergara had involvement in a prior crime,
wrong, or act—it was not presented to show he acted “in conformity
therewith.” Ariz. R. Evid. 404(b). No specific prior crime, wrong, or act
was even presented. See State v. Connor, 215 Ariz. 553, ¶ 32 (App. 2007)
(“Rule 404(b) only precludes evidence that is offered to show the character
of a defendant to prove disposition to acts of a particular type.”). Nor was
his role in, or extent of involvement in, a prior crime, wrong, or act revealed.
See id. The database evidence was solely used to show why Vergara became
a suspect decades later and to explain the criminalist’s steps in processing
reports received from outside labs. Such was not improper propensity
evidence, and we cannot say the court abused its broad discretion under
Rule 403. See Cooperman, 232 Ariz. 347, ¶ 17.

¶63 We further observe that Vergara declined the trial court’s
offer for the state’s witness to clarify that a person did not have to be a
suspect to be in the database, which would have stymied any asserted
prejudice. In any event, the court later instructed the jury that it “must not
speculate or guess about any fact” and that it could only consider the
database evidence for the “limited purpose of explaining why Mr. Vergara
became a suspect in 2018 . . . and not for any other purpose.” “We presume
jurors follow the court’s instructions,” State v. Newell, 212 Ariz. 389, ¶ 69
(2006), and we will not reverse based on “vague references to other
unproven crimes” with an appropriate limiting instruction, State v. Jones, 197 Ariz. 290, ¶ 34 (2000).

Disposition

¶64 For the foregoing reasons, we affirm Vergara’s convictions
and sentences.

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