Cited by

(“The very purpose of a jury charge is to flag the jurors’ attention to concepts that must not be misunderstood .

–78 (1991); –97 (1995); ¶ 43 (2019); ¶¶ 11, 14–15, 104 ¶ 16 (2021).

See, (“Where, under the facts of the case, the error affects the primary or sole issue, we are likely to find fundamental error.”); (holding that improper burden shifting to a defendant constitutes fundamental error).

of such magnitude that the defendant could not possibly have received a fair trial.” see also Maxwell v. Aetna Life Ins.

(“The United States Supreme Court has held that even the failure to give a presumption of innocence instruction is not per se fundamental error[.]”) –90 (1984) (finding fundamental error when the superior court gave jury instructions improperly shifting the burden of proof to the defense).

–90 (1984) (concluding the given self-defense instruction constituted fundamental error because it was unclear that the State was required “to disprove beyond a reasonable doubt that [the defendant] acted in self-defense”).

Fundamental error goes “to the foundation of the case [and] takes from the defendant a right essential to his defense, and [is] of such magnitude that the defendant could not possibly have received a fair trial.”

that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial.”

that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial.”

An error is fundamental when it “goes to the foundation of [the defendant’s] case, takes away a right that is essential to [the defendant’s] defense, [or] is of such magnitude that [the defendant] could not have received a fair trial.” Henderson, 210 Ariz. at 568 ¶ 24 (); see also Escalante, 245 Ariz. at 140 ¶ 16 (holding that the three prongs for determining when an error is fundamental are disjunctive).

¶17 In any event, an acquittal of the criminal charges would not mandate reversal of the legal decision-making and parenting time orders; while criminal charges must be proved beyond a reasonable doubt, the family court’s finding of significant domestic violence only requires proof by a preponderance of the evidence, see A.R.S.

See State v. Henderson , , ¶¶ 19-20, (quoting State v. Hunter , , 90, , 982 (1984) ) (fundamental error is "error going to the foundation of the case ...

at 567 ¶¶ 19–20 (emphasis added) ( ( (holding that fundamental error is that which is “clear, egregious, and curable only via a new trial”))).

(stating that when a defendant presents evidence of self-defense the state must prove beyond a reasonable doubt that the conduct was not justified); (to same effect).

¶20 Fundamental error is “rare” and is an “error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial.” Henderson, 210 Ariz. at 567, ¶ 19 (); ¶ 59 (2007).

Fundamental error is error that goes “to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial.”

While the quoted text is written in the conjunctive, in support of the rule, , which suggests that each element consti *384 tutes a distinct error that, standing alone, may amount to fundamental error.

Fundamental Error ¶ 8 Fundamental error is “error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial.” Henderson, , 115 P.3d at 607

(describing fundamental error as “error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial”) ( ), nor prejudicial, because Belvin had the opportunity to cross-examine the case agent regarding the different caliber of the bullets.

Fundamental error occurs “in those rare cases that involve ‘error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial.’” Henderson, 210 Ariz. at 567, ¶ 19 ().

See Neder v. United States, 527 U.S. 1, 8-9 (1999) (instructional error on element of offense subject to harmless error review); Henderson, ¶¶ 19-20, 115 P.3d at 607 (where no objection at trial, defendant must establish prejudice); (appellant must demonstrate how faulty jury instruction prejudiced him, even where constitutional violations alleged).