State v. Bearup

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-07-0048-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2003-024938-001
PATRICK WADE BEARUP, )
)
Appellant. ) O P I N I O N
_________________________________ )

Appeal from the Superior Court in Maricopa County
The Honorable Warren J. Granville, Judge

AFFIRMED
________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel
Criminal Appeals, Capital Litigation Section
Deborah A. Bigbee, Assistant Attorney General
Attorneys for State of Arizona

MICHAEL J. DEW ATTORNEY AT LAW Phoenix
By Michael J. Dew
Attorneys for Patrick Wade Bearup
________________________________________________________________

B E R C H, Chief Justice

¶1 Patrick Wade Bearup was convicted of one count of

kidnapping and one count of first degree murder, for which he

was sentenced to death. In this automatic appeal, Bearup raises

four claims of error and lists thirteen additional issues to

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avoid preclusion.1

I. FACTUAL AND PROCEDURAL BACKGROUND

¶2 In February 2002, Jessica Nelson discovered money

missing from her room. She suspected that Mark Mathes, another

resident of the home, had taken it. She called Sean Gaines and

told him of her suspicion; Gaines instructed her to call back

when Mark returned home.

¶3 Following the conversation, Nelson told Bruce and Marie

Mathes, the owners of the home, that Gaines and “the boys” –

Jeremy Johnson and Patrick Bearup – were going to confront Mark

about the missing money. Bruce and Marie expected Mark to

receive a “butt whooping” when Gaines, Johnson, and Bearup

arrived. Bruce asked Nelson to retrieve a ring he had

previously given Mark as a present. When Mark returned home

that evening, Nelson called Gaines and told him that Mark was

back. She then alerted Bruce and Marie that “the boys” were

coming, so Bruce left the residence with his daughters.

¶4 After receiving Nelson’s call, Gaines and Johnson armed

themselves and left for Nelson’s house. According to Johnson,

they brought weapons because they “knew there was going to be a

confrontation” and they were going “[t]o take care of business.”

¶5 On the way, Gaines and Johnson stopped at a convenience

1
The thirteen claims listed to avoid preclusion are appended
to this opinion.

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store to meet Bearup. As the men got back in their cars, Bearup

proclaimed, “Let’s go play, boys.” Johnson understood this

statement to mean they were going to “[c]ause trouble.”

¶6 The three men got out of their vehicles and approached

the Mathes home. Gaines carried a loaded shotgun, Johnson had

an aluminum baseball bat, and Bearup had a folding knife with a

nine- or ten-inch blade. They advanced across the backyard

toward Mark, who was sitting on the rear patio with Nelson.

¶7 Bearup, Johnson, and Gaines surrounded Mark. Johnson

attacked Mark with the baseball bat, striking him in the head

and upper torso as many as twenty-five times. Bearup maintained

his location throughout the assault, preventing Mark from

leaving.

¶8 The witnesses disagreed about whether Mark was alive

following the beating. Nelson was certain that Mark was killed

on the patio, while Johnson claimed that Mark was still

conscious and groaning. After the attack, Johnson and Bearup

dragged Mark to one of the cars and stuffed him in the trunk.

Bearup kicked Mark’s head to make him fit into the trunk.

¶9 The four perpetrators got into two vehicles – Bearup

and Nelson in Bearup’s car and Johnson and Gaines in the vehicle

containing Mark’s body – and drove to an isolated area near

Crown King. Johnson testified that he heard Mark mumbling and

moaning in the trunk during the drive.

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¶10 When the cars stopped on Crown King Road, Bearup pulled

Mark from the trunk. Gaines and Nelson stripped him to make the

body more difficult to identify. Nelson was unsuccessfully

attempting to remove Mark’s ring when Bearup approached and cut

off the finger with a pair of wire clippers. Mark was then

thrown over the guardrail and, as he lay in the ravine below,

Gaines shot him twice.

¶11 The assailants then returned to their vehicles and

departed for Phoenix. Bearup stopped at a gas station and then

drove Nelson home. Once there, Nelson returned the ring to

Marie, and Bearup told Marie that she did not have to file a

missing person’s report because Mark would never be found.

¶12 In February 2002, Bearup told his ex-wife, Sheena

Ramsey, that he had gone with friends to beat up a man who had

stolen a ring, but the person was killed and he helped dispose

of the body. Bearup also told an ex-girlfriend about the

killing. She overheard Bearup laughing as he talked about

cutting off the victim’s finger, and he seemed amused when he

told her about the act.

¶13 Bearup was indicted on one count of first degree murder

and one count of kidnapping. The State alleged two aggravating

factors: a previous conviction for a serious offense, Ariz.

Rev. Stat. (“A.R.S.”) § 13-703(F)(2) (2001), and the commission

of the offense in an especially heinous, cruel, or depraved

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manner, id. § 13-703(F)(6).

¶14 At trial, Bearup presented alibi and mistaken identity

defenses. The jury convicted him of first degree murder and

kidnapping and found both the (F)(2) and (F)(6) aggravating

factors. The jury determined that the mitigation was not

sufficiently substantial to call for leniency and returned a

verdict of death for the murder. This automatic appeal

followed. See Ariz. R. Crim. P. 31.2(b). We have jurisdiction

pursuant to Article 6, Section 5(3) of the Arizona Constitution

and A.R.S. § 13-4031 (2001).

II. DISCUSSION

A. Trial Issues

1. Sufficiency of the evidence to support kidnapping

¶15 Bearup contends that the State presented insufficient

evidence of kidnapping, which served as the predicate felony for

the felony murder conviction. He argues that the State did not

show that he intended to inflict death or physical injury as

required under A.R.S. § 13-1304(A)(3) (2001), which defines

kidnapping as “knowingly restraining another person with the

intent to . . . [i]nflict death [or] physical injury . . . or to

otherwise aid in the commission of a felony.” Bearup concedes

that the evidence showed restraint, but argues that it did not

establish that he intended to murder or physically injure Mark

or “to otherwise aid in the commission of a felony” such as

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aggravated assault.

¶16 We review a sufficiency of the evidence claim by

determining “whether substantial evidence supports the jury’s

finding, viewing the facts in the light most favorable to

sustaining the jury verdict.” State v. Roque, 213 Ariz. 193,

218, ¶ 93, 141 P.3d 368, 393 (2006) (citing State v. Roseberry,

210 Ariz. 360, 368-69, ¶ 45, 111 P.3d 402, 410-11 (2005)).

Substantial evidence is proof that “reasonable persons could

accept as adequate . . . to support a conclusion of defendant’s

guilt beyond a reasonable doubt.” State v. Jones, 125 Ariz.

417, 419, 610 P.2d 51, 53 (1980). We resolve any conflicting

evidence “in favor of sustaining the verdict.” State v. Guerra,

161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). “Criminal

intent, being a state of mind, is shown by circumstantial

evidence. Defendant’s conduct and comments are evidence of his

state of mind.” State v. Routhier, 137 Ariz. 90, 99, 669 P.2d

68, 77 (1983).

¶17 Substantial evidence supports the jury finding that

Bearup intended to participate in inflicting injury on Mark.

When leaving the convenience store before the attack, Bearup

said, “Let’s go play, boys.” Bearup, Gaines, and Johnson went

to the home armed with weapons. Bearup displayed a long-bladed

knife as the assailants approached and surrounded Mark in a

forceful and intimidating fashion, and he stood only a few feet

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away as Mark was severely beaten, never intervening or

protesting the length or severity of the beating.

¶18 Other evidence also suggested the understanding by all

participants that Nelson’s call to “the boys” would result in an

assault on and injury to Mark. Bruce and Marie testified that

after Nelson told them that she called “the boys,” they expected

that Mark would receive a “butt whooping.” Indeed, Bruce left

the house with his daughters when the beating was expected to

occur so they would not be exposed to it. Joe Mathes, another

resident of the house, also stated that he knew that Mark was

going to be beaten based on what Nelson told him. Finally,

Bearup confessed to his ex-wife, Sheena Ramsey, that he went

“with some friends to beat up somebody.”

¶19 This testimony provides substantial support for the

jury’s determination that Bearup intended to injure or assist

the group in injuring Mark while confining him to the patio.

2. Lesser-included offense instruction

¶20 Bearup argues that the trial judge committed

fundamental error by failing to give an unlawful imprisonment

instruction. Although the judge instructed the jury on felony

murder, kidnapping, and attempted kidnapping, he did not give,

and Bearup did not request, an instruction on the lesser-

included offense of unlawful imprisonment. See A.R.S. § 13-

1303(A) (2001). Had Bearup been convicted of unlawful

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imprisonment rather than kidnapping, he could not have been

convicted of felony murder because unlawful imprisonment is not

a predicate crime for felony murder. See A.R.S. § 13-1105(A)(2)

(2001) (listing felony murder predicate crimes).

a. Standard of review

¶21 We review assignments of trial error for fundamental

error if the defendant fails to object. State v. Henderson, 210

Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). To be

fundamental, an error must “go[] to the foundation of the case,

. . . take[] from the defendant a right essential to his

defense,” or be so significant “that the defendant could not

possibly have received a fair trial.” Id. (quoting State v.

Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984)). The

defendant bears the burden to establish that “(1) error exists,

(2) the error is fundamental, and (3) the error caused him

prejudice.” State v. Smith, 219 Ariz. 132, 136, ¶ 21, 194 P.3d

399, 403 (2008) (citing Henderson, 210 Ariz. at 567, ¶ 20, 115

P.3d at 607).

¶22 Because Bearup did not request an unlawful imprisonment

instruction at trial or object to the absence of one, we review

only for fundamental error. See State v. Dickens, 187 Ariz. 1,

22-23, 926 P.2d 468, 489-90 (1996). A “sentence of death may

not be imposed if the jury was not permitted to consider a

lesser-included, non-capital offense” that would have been

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supported by the evidence. State v. Nordstrom, 200 Ariz. 229,

253, ¶ 81, 25 P.3d 717, 741 (2001) (citing Beck v. Alabama, 447

U.S. 625, 627 (1980)).

b. Analysis

¶23 A lesser-included offense instruction is not required

in every case; it is appropriate only if the facts support

giving the instruction. See State v. Wall, 212 Ariz. 1, 4,

¶ 17, 126 P.3d 148, 151 (2006). To determine whether sufficient

evidence existed to require a lesser-included offense

instruction, the court must examine “whether the jury could

rationally fail to find the distinguishing element of the

greater offense.” State v. Detrich, 178 Ariz. 380, 383, 873

P.2d 1302, 1305 (quoting State v. Noriega, 142 Ariz. 474, 481,

690 P.2d 775, 782 (1984), overruled on other grounds, State v.

Burge, 167 Ariz. 25, 804 P.2d 754 (1990)). Thus, a lesser-

included offense instruction is required if the jury could “find

(a) that the State failed to prove an element of the greater

offense and (b) that the evidence is sufficient to support a

conviction on the lesser offense.” Wall, 212 Ariz. at 4, ¶ 18,

126 P.3d at 151 (citing State v. Caldera, 141 Ariz. 634, 636-37,

688 P.2d 642, 644-45 (1984)).

¶24 Unlawful imprisonment, a lesser-included offense of

kidnapping, is defined as “knowingly restraining another

person.” A.R.S. § 13-1303(A); see State v. Bolton, 182 Ariz.

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290, 309, 896 P.2d 830, 849 (1995). We therefore must determine

whether evidence was presented from which a rational jury could

find that Bearup simply intended to restrain Mark, see State v.

Trostle, 191 Ariz. 4, 16, 951 P.2d 869, 881 (1997); Detrich, 178

Ariz. at 383, 873 P.2d at 1305, but not to inflict death or

physical injury or to aid Johnson and Gaines in doing so. See

Wall, 212 Ariz. at 5, ¶ 20, 126 P.3d at 152.

¶25 We conclude that the trial court’s failure to give the

unsolicited instruction did not constitute fundamental error.

Once the beating commenced and Bearup continued to restrain

Mark, no reasonable jury could have found that he merely

intended to restrain Mark.

¶26 Our conclusion that no fundamental error occurred is

supported by the alibi and mistaken identity defenses Bearup

asserted at trial. His defense was “all or nothing”; he claimed

not to have been present during the assault on Mark or for the

subsequent attempt to conceal the crime. We recognize that a

trial court is not automatically precluded from instructing on a

lesser-included offense because a defendant elects to present an

all-or-nothing defense. Id. at 6, ¶ 28, 126 P.3d at 153. “As a

practical matter, [however,] when a defendant asserts an all-or-

nothing defense such as alibi or mistaken identity, there will

‘usually [be] little evidence on the record to support an

instruction on the lesser included offenses.’” Id. at ¶ 29

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(second alteration in original) (quoting Caldera, 141 Ariz. at

637, 688 P.2d at 645). Such is the case here.

¶27 This Court has required lesser-included offense

instructions in cases in which the defendant asserted a mere

presence defense. See id. at 5-6, ¶¶ 22, 31, 126 P.3d at 152-

53; State v. Dugan, 125 Ariz. 194, 195-96, 608 P.2d 771, 772-73

(1980). But in those cases, the defendants each testified at

trial regarding their lack of involvement in the crimes in a

manner that created a factual dispute for the jury to consider.

See Wall, 212 Ariz. at 2, ¶ 7, 126 P.3d at 149; Dugan, 125 Ariz.

at 196, 608 P.2d at 773. Here, no such factual dispute existed.

Bearup asserted that he was not present for the commission of

this crime and consequently lacked the mental state for

kidnapping. If the jurors believed that Bearup was not present,

then they would not have found him guilty. They could not then

have believed that he had the mental state to support unlawful

imprisonment, but not kidnapping. See Bolton, 182 Ariz. at 310,

896 P.2d at 850; see also State v. Salazar, 173 Ariz. 399, 408,

844 P.2d 566, 575 (1992) (“Because defendant’s theory of the

case denies all involvement in the killing, and no evidence

provides a basis for a second degree murder conviction, the

instruction was properly refused.”). Based on the evidence and

defenses presented, the jury could not have acquitted Bearup on

the greater offense of kidnapping, yet found him guilty of

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unlawful imprisonment.

¶28 Bearup also urges that the policy reasons enunciated by

the Supreme Court in Beck v. Alabama compelled the trial court

to give an unlawful imprisonment instruction. 447 U.S. 625

(1980). In Beck, the Court analyzed Alabama’s death penalty

statute, which prohibited judges from instructing jurors on the

lesser-included offense of felony murder when the defendant was

charged with a capital offense. Id. at 628. Beck was charged

with robbery involving an intentional killing and, although the

State conceded that the evidence at trial was sufficient to

entitle him to a lesser-included offense instruction on felony

murder, because of the statutory prohibition, the trial court

refused to give that instruction. Id. at 627-28, 630. The

Supreme Court reversed because it feared that

when the evidence unquestionably establishes that the
defendant is guilty of a serious, violent offense -
but leaves some doubt with respect to an element that
would justify conviction of a capital offense - the
failure to give the jury the “third option” of
convicting on a lesser included offense would seem
inevitably to enhance the risk of an unwarranted
[capital] conviction.

Id. at 637. Thus, the Court held that the jury must be given

the opportunity to consider a verdict of guilt on a lesser-

included offense because the inability to do so enhanced the

risk of an unwarranted conviction for a capital crime. Id. at

638, 642-43.

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¶29 “Beck[, however,] does not require a trial court to

instruct on a lesser offense that is unsupported by the

evidence.” State v. Landrigan, 176 Ariz. 1, 6, 859 P.2d 111,

116 (1993). Unlike the situation in Beck, in which the evidence

created some doubt with respect to an element of the capital

offense, the evidence against Bearup supported only the offense

of kidnapping – or total innocence if the jurors believed that

Bearup in fact was not present during the commission of the

crime.

¶30 Bearup argues that, like Beck, he faced mandatory

imposition of a death sentence because he had advised the trial

judge during the guilt phase of the trial that he would not

present mitigation evidence during the sentencing phase; thus,

if convicted, he would essentially receive a directed verdict of

death. But Bearup placed himself in that situation by declining

to present any mitigation evidence. Importantly, although the

trial judge knew of Bearup’s decision, the jury did not know

during the guilt phase of his choice to waive mitigation, and in

the sentencing phase, the judge instructed the jury that it

could consider mitigating evidence from the other phases of the

trial and the lesser sentences faced by Johnson and Nelson.

These factors eliminated the concern expressed in Beck that the

jury’s knowledge that a guilty verdict would automatically

result in a death sentence “interject[ed] irrelevant

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considerations into the factfinding process, diverting the

jury’s attention from the central issue of whether the State has

satisfied its burden of proving beyond a reasonable doubt that

the defendant [was] guilty of a capital crime.” Beck, 447 U.S.

at 642.

¶31 In sum, Bearup had the opportunity at trial to request

an unlawful imprisonment instruction or object to its absence,

but failed to do either. We conclude that, given Bearup’s alibi

and mistaken identity defenses, the lack of an unlawful

imprisonment instruction did not go to the foundation of his

case, take away a right essential to his defense, or prevent him

from receiving a fair trial. See Henderson, 210 Ariz. at 567, ¶

19, 115 P.3d at 607. Therefore, the trial court did not

fundamentally err by failing to instruct the jury on unlawful

imprisonment.2

B. Aggravation Issue: Sufficiency of the evidence to support
the Enmund/Tison findings

¶32 Bearup argues that insufficient evidence supported the

jury’s Enmund/Tison findings.

¶33 The Eighth Amendment prohibits the imposition of the

death penalty on a defendant unless he “himself kill[s],

attempt[s] to kill, or intend[s] that a killing take place or

2
Because we do not find fundamental error, we need not
address prejudice. See Smith, 219 Ariz. at 136, ¶ 21, 194 P.3d
at 403.

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that lethal force will be employed,” Enmund v. Florida, 458 U.S.

782, 797 (1982), or is a major participant in the crime and acts

“with reckless indifference to human life,” Tison v. Arizona,

481 U.S. 137, 158 (1987). The prosecutor in this case

acknowledged that Bearup acted as an accomplice to the murder

and conceded that no evidence showed “that Bearup inflicted the

death wound.” Therefore, to make Bearup eligible for a capital

sentence, the State had to prove beyond a reasonable doubt that

Bearup intended the murder or was a major participant in the

crime who acted with reckless indifference to the harm to Mark.

See id.; Enmund, 458 U.S. at 801; State v. Tison, 160 Ariz. 501,

502 (1989). The jury found all of these factors.

1. Major participant

¶34 Sufficient evidence supports the jury’s finding that

Bearup was a major participant in the crime. See Tison, 481

U.S. at 157-58. Armed with a knife, Bearup joined Gaines and

Johnson in encircling Mark to prevent him from leaving as

Johnson administered a savage beating. By these actions, Bearup

substantially participated in the kidnapping. See A.R.S. §§ 13-

1301(2), -1304(A) (2001).

¶35 Bearup did far more than “merely sitting in a car away

from the actual scene of the murders acting as the getaway

driver.” See Tison, 481 U.S. at 158. He was “actively involved

in every element of the [kidnapping] and was physically present

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during the entire sequence of criminal activity culminating in”

Mark’s murder and the subsequent disposal of his body near Crown

King. See id. Therefore, the record contains sufficient

evidence to support the jury’s finding that Bearup was a major

participant in the kidnapping.

2. Reckless indifference

¶36 The jury also found that Bearup acted with reckless

indifference to human life. See id. at 157-58. Reckless

indifference is characterized by “knowingly engaging in criminal

activities known to carry a grave risk of death.” Id. at 157.

Bearup argues that he was not reckless because he was present

only to intimidate Mark and did not anticipate that Mark would

be killed.

¶37 Bearup cites State v. Lacy, 187 Ariz. 340, 929 P.2d

1288 (1996), in support of his contention that the record

contains insufficient evidence that he acted with reckless

indifference to life. Lacy involved a burglary and double

murder in which the defendant denied any involvement in

restraining or harming the victims. Id. at 345, 929 P.2d at

1293. In that case, without the defendant’s testimony, there

was “an almost complete void as to what occurred that night.”

Id. at 352, 929 P.2d at 1300. Because the record contained

almost no evidence indicating what the defendant saw, knew, or

did, except for his statement that he was not present when one

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of the victims was bound and gagged, we found the evidence

insufficient to support the conclusion that the defendant was

recklessly indifferent. Id. at 353, 929 P.2d at 1301.

¶38 The situation here differs. Bearup’s case is more like

State v. Ellison, a case in which we found reckless

indifference. 213 Ariz. 116, 135, ¶ 73, 140 P.3d 899, 918

(2006). In Ellison, the defendant argued that he was not the

actual killer and that he participated in the murder under

duress. Id. at 124, 135, ¶¶ 10, 73, 140 P.3d at 907, 918. On

appeal, citing Lacy, Ellison argued that the State failed to

prove that he acted with reckless indifference. Id. at 135,

¶ 73, 140 P.3d at 918. We distinguished the cases because

“[t]he defendant in Lacy . . . was not present when the actual

killer bound and gagged the victim; he only witnessed the

killing afterwards,” whereas Ellison “was not merely present

during the burglary and subsequent murders,” but directly

participated in restraining the victims and smothering one of

them. Id. We held that a reasonable jury could have concluded

that Ellison acted with reckless indifference to the fate of the

victims. Id.

¶39 We similarly upheld the murder convictions of two

defendants, Robinson and Washington, who killed one person and

severely injured another during a home invasion. State v.

Robinson, 165 Ariz. 51, 54-55, 796 P.2d 853, 856-57 (1990).

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Although it was unclear from the evidence who actually committed

the murder, we examined whether each defendant’s participation

in the felony was major and was done with reckless indifference

to life. Id. at 62, 796 P.2d at 864. We determined that the

Enmund/Tison culpability requirement was met for both defendants

based on

[e]vidence . . . that Robinson loaded firearms into
his vehicle in preparation for the trip from
[California] to Yuma, that Washington was at least
present when the hands and feet of [the victims] were
bound, that the [victims] were terrorized with
firearms, that Robinson masterminded the trip, and
that Washington was at least present in the [victims’]
home when [one victim] was wounded and [the other
victim] was murdered.

Id. In addition, Washington stated that he knew beforehand that

it might be necessary to kill the residents, he carried a gun

into the victims’ home and helped ransack it, and he did nothing

to prevent the victims from being shot. Id. at 61-62, 796 P.2d

at 863-64.

¶40 The circumstances surrounding Mark’s murder are more

like the facts in Ellison and Robinson than those in Lacy.

Unlike the situation in Lacy, in which little was known of the

events of the crime, Johnson and Nelson provided detailed

accounts of Bearup’s conduct. Both testified that Bearup was

not merely present, but actively participated in Mark’s

kidnapping and murder.

¶41 Even assuming that Bearup went to the scene intending

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only to intimidate Mark, the facts support the jury’s finding

that he thereafter acted with reckless indifference to whether

his acts, along with those of Johnson and Gaines, were likely to

result in Mark’s death. See Tison, 481 U.S. at 152. At some

point during the armed assault, Bearup must have realized that

Mark’s life was at risk. From this evidence, the jury

reasonably found that Bearup knew his actions created a grave

risk of death. Cf. Lacy, 187 Ariz. at 351, 929 P.2d at 1299

(recognizing that in the absence of other evidence, failure to

render aid may not suffice to show reckless indifference).

¶42 The evidence here showed that Bearup also participated

in and helped coordinate the post-beating activities, which

culminated in dumping Mark’s body. These actions as well

demonstrate reckless indifference. Bearup helped confine Mark

to the trunk of a car, cut off Mark’s finger while he might

still have been alive, and helped throw Mark’s body into the

ravine without verifying whether he was alive and while he was

at least seriously injured.

¶43 Viewing the facts in the light most favorable to

sustaining the verdict, we conclude that substantial evidence

demonstrated Bearup’s reckless indifference to human life; thus,

sufficient evidence supported the jury’s Enmund/Tison findings.

III. REVIEW OF SENTENCE

¶44 Because Bearup’s crimes occurred before August 1, 2002,

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we independently review the aggravating and mitigating factors

and the propriety of the death sentence. A.R.S. § 13-703.04(A)

(Supp. 2008); see 2002 Ariz. Sess. Laws, ch. 1, § 7 (5th Spec.

Sess.). In conducting our independent review, we “consider the

quality and the strength, not simply the number, of aggravating

and mitigating factors.” Roque, 213 Ariz. at 230, ¶ 166, 141

P.3d at 405 (quoting State v. Greene, 192 Ariz. 431, 443, ¶ 60,

967 P.2d 106, 118 (1998)).

A. Aggravating Circumstances

¶45 The State alleged two aggravating factors: Bearup had

previously been convicted of aggravated assault, a serious

offense in violation of A.R.S. § 13-703(F)(2), and he murdered

Mark in an especially cruel, heinous, and depraved manner in

violation of § 13-703(F)(6). Both aggravating factors were

proved beyond a reasonable doubt.

¶46 For the (F)(2) aggravator, the State produced a

certified copy of Bearup’s conviction for aggravated assault and

presented testimony that Bearup was in fact the person

convicted. Bearup concedes that aggravated assault qualifies as

a serious offense. This evidence establishes the “prior serious

offense” aggravating factor.

¶47 For the (F)(6) aggravating factor, the jury found both

that the murder was especially cruel and that it was committed

in an especially heinous or depraved manner. We find both

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elements satisfied as well.

¶48 “Cruelty exists if the victim consciously experienced

physical or mental pain prior to death and the defendant knew or

should have known that suffering would occur.” Trostle, 191

Ariz. at 18, 951 P.2d at 883 (citation omitted). “Mental

anguish includes a victim’s uncertainty about [his] ultimate

fate.” State v. Kiles, 175 Ariz. 358, 371, 857 P.2d 1212, 1225

(1993).

¶49 The evidence established that Mark experienced physical

pain and mental anguish and that Bearup knew of his suffering.

After Johnson began bludgeoning Mark with the baseball bat, Mark

attempted to stand up and may have tried to use Nelson to shield

himself from the assault. Mark screamed, “No. Leave me alone,”

and somebody else yelled, “Get him.” The assault lasted between

sixty and ninety seconds, during which time Mark was severely

beaten, resulting in visible facial fractures and substantial

blood loss. This evidence establishes cruelty. See id. at 371-

72, 857 P.2d at 1225-26; State v. Amaya-Ruiz, 166 Ariz. 152,

177, 800 P.2d 1260, 1285 (1990).

¶50 The record also shows that the murder was especially

heinous or depraved. Bearup relished the murder and either

mutilated the corpse or committed gratuitous violence. See

State v. Carlson, 202 Ariz. 570, 583-84, ¶ 51, 48 P.3d 1180,

1193-94 (2002) (citing State v. Gretzler, 135 Ariz. 42, 52-53,

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659 P.2d 1, 11-12 (1983)) (listing factors used to establish

heinousness and depravity).

¶51 “Mutilation requires a finding of a separate purpose to

mutilate” a corpse. Id. at 584, ¶ 52, 48 P.3d at 1194. In this

case, Bearup cut off Mark’s finger to recover the ring Mark was

wearing, which was a purpose separate from the killing itself.

Such “purposeful severing of body parts” constitutes mutilation.

State v. Doerr, 193 Ariz. 56, 68, ¶ 55, 969 P.2d 1168, 1180

(1998).

¶52 Gratuitous violence occurs when the defendant uses

violence in addition to that necessary to kill and intends to

inflict such violence. State v. Bocharski, 218 Ariz. 476, 494,

¶¶ 85, 87, 189 P.3d 403, 421 (2008). It may be demonstrated by

the continued infliction of violence after the defendant knew or

should have known that a fatal action had occurred. Id.

Removing Mark’s finger after he had been beaten nearly to death

with an aluminum baseball bat exceeded the violence necessary to

kill. Bearup’s actions also occurred after he knew or should

have known that Mark would not survive.

¶53 Although the record is not clear regarding when Mark

died, cutting off Mark’s finger approximately an hour after the

original assault constituted either mutilation (if Mark was dead

at the time) or gratuitous violence (if Mark was alive at the

time). See, e.g., State v. Pandeli (Pandeli I), 200 Ariz. 365,

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376, ¶ 41, 26 P.3d 1136, 1147 (2001) (removing victim’s nipples

after death constituted mutilation), vacated on other grounds,

536 U.S. 953 (2002) (mem.). The State thus established

heinousness and depravity beyond a reasonable doubt.

¶54 The State also established that Bearup relished the

crime. Bearup was overheard laughing while talking about

cutting off a person’s finger and was amused when he told his

ex-girlfriend about his actions. See supra ¶ 12; see also State

v. Medina, 193 Ariz. 504, 514, ¶ 35, 975 P.2d 94, 104 (1999)

(relishing demonstrated by defendant “laughing out loud,”

joking, and looking forward to media coverage); State v. West,

176 Ariz. 432, 448, 862 P.2d 192, 208 (1993) (bragging about

beating victim shows that defendant relished his crime),

overruled on other grounds, State v. Rodriguez, 192 Ariz. 58, 64

n.7, ¶ 30, 961 P.2d 1006, 1012 n.7 (1998); State v.

Runningeagle, 176 Ariz. 59, 65, 859 P.2d 169, 175 (1993)

(laughing immediately after murder and bragging to girlfriend

constitute relishing); cf. Greene, 192 Ariz. at 441, ¶ 40, 967

P.2d at 116 (noting that bragging may provide “sufficient proof

of relishing where the defendant’s statements provide clear

insight into his state of mind at the time of the killing”).

¶55 Therefore, the State proved beyond a reasonable doubt

that the murders were especially cruel and especially heinous or

depraved.

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B. Mitigating Circumstances

¶56 Bearup represented himself during the penalty phase and

elected not to present any mitigation evidence.3 He contends

that we should consider his decision to waive mitigation during

the penalty phase and his comparatively minor participation in

the crime. See A.R.S. § 13-703(G)(3).

¶57 Bearup’s chief argument, however, is that the disparity

between his sentence and Johnson’s and Nelson’s sentences is a

mitigating factor sufficiently substantial to warrant leniency.

During the guilt phase, Nelson testified that, under her plea

agreement, she was sentenced to ten and one-half years in prison

for kidnapping and she was eligible to receive a ten-to-twenty

year sentence for second degree murder. Johnson likewise

testified that, under his plea agreement, he was sentenced to

twelve years for kidnapping and was eligible to receive a ten-

3
On several occasions, the trial court conducted a colloquy
and determined that Bearup knowingly, intelligently, and
voluntarily waived his right to counsel and to present
mitigation evidence during the penalty phase. See Faretta v.
California, 422 U.S. 806, 835 (1975); State v. Hampton, 208
Ariz. 241, 243-44, ¶ 7, 92 P.3d 871, 873-74 (2004); see also
State v. Ashworth, 706 N.E.2d 1231, 1237 (Ohio 1999) (requiring
the trial court to inquire if the waiver of all mitigating
evidence in a capital case is knowing, voluntary, and
competent). But see Schriro v. Landrigan, 550 U.S. 465, 479
(2007) (“We have never imposed an ‘informed and knowing’
requirement upon a defendant’s decision not to introduce
[mitigation] evidence.”).

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to-twenty-two year sentence for second degree murder.

¶58 In September and October 2008, more than eighteen

months after Bearup was sentenced to death, the same trial judge

sentenced Johnson and Nelson to fourteen years’ incarceration

for Mark’s murder, each sentence to run concurrently with their

kidnapping sentences; thus each received a sentence totaling

fourteen years. See State v. Valenzuela, 109 Ariz. 109, 110,

506 P.2d 240, 241 (1973) (allowing judicial notice of the

superior court records). Gaines has entered a plea agreement,

but has yet to be sentenced.

¶59 “A disparity in sentences between codefendants and/or

accomplices can be a mitigating circumstance if no reasonable

explanation exists for the disparity.” State v. Kayer, 194

Ariz. 423, 439, ¶ 57, 984 P.2d 31, 47 (1999). “Only the

unexplained disparity is significant.” Ellison, 213 Ariz. at

140, ¶ 105, 140 P.3d at 923 (emphasis omitted). Here, however,

the plea deals with Johnson and Nelson were explained as being

necessary to bring everyone in this killing to justice. And

because the jury found the murder especially cruel, heinous, or

depraved, “even unexplained disparity has little significance.”

Id. (quoting State v. Schurz, 176 Ariz. 46, 57, 859 P.2d 156,

167 (1993)).

¶60 Bearup contends that we should compare his sentencing

disparity to the disparity in State v. Marlow, 163 Ariz. 65, 786

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P.2d 395 (1989). There, the defendant was sentenced to death

while his codefendant, who was also originally charged with

first degree murder, received a four-year sentence. Id. at 71-

72, 786 P.2d at 401-02. A probation officer testified that the

codefendant’s sentence was a “travesty of justice.” Id. at 71,

786 P.2d at 401. Despite the disparity, the trial court did not

consider the difference mitigating. Id. at 71-72, 786 P.2d at

401-02. On appeal, we reversed, finding that, in an appropriate

circumstance, disparity may qualify as a mitigating

circumstance. Id. at 72, 786 P.2d at 402. Despite upholding

the “heinous or depraved” aggravating circumstance, we found the

dramatic disparity in sentences sufficient to require reduction

of Marlow’s sentence to life imprisonment. Id. Bearup urges

the same result here.

¶61 We find this case more like State v. Henry (Henry II),

189 Ariz. 542, 944 P.2d 57 (1997), than Marlow. In Henry II, we

faced a sentencing disparity similar to the one here. The

defendant, Henry, received the death penalty while his

codefendant - who Henry alleged committed the murder - pled

guilty to attempted first degree murder and received a fifteen-

year sentence. Id. at 551, 944 P.2d at 66; State v. Henry

(Henry I), 176 Ariz. 569, 574-75, 863 P.2d 861, 866-67 (1993).

We found two aggravating factors – (F)(2), a prior serious

offense for armed robbery, and (F)(5), that the murder was

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committed in expectation of pecuniary gain. Henry II, 189 Ariz.

at 551, 944 P.2d at 66. We affirmed Henry’s death sentence

after finding that “the men’s distinct criminal backgrounds were

sufficient to justify the disparity in penalties.” Id.; see

also Schurz, 176 Ariz. at 50, 57, 859 P.2d at 160, 167 (holding

that disparity between defendant’s death sentence and co-

perpetrator’s sentence to a term of probation was “explain[ed]

and justif[ied]” and given “little, if any, weight” because the

co-perpetrator pled to a lesser felony offense and testified

against defendant at trial, the crime was heinous, cruel, or

depraved, and the jury rejected defendant’s accomplice theory).

C. Propriety of Death Sentence

¶62 The sentencing disparity in this case merits only

limited weight as mitigation in light of the reasonable

explanations for the disparity. Bearup’s criminal history was

more extensive than either Johnson’s or Nelson’s. The age

difference between Bearup and Johnson is also significant:

Bearup was twenty-four at the time of the murder, whereas

Johnson was only nineteen. Nelson, meanwhile, received a lesser

sentence based on her more limited role in the crimes.

Furthermore, Johnson’s and Nelson’s testimony was vital to the

State’s case against Bearup. See State v. Stokley, 182 Ariz.

505, 523, 898 P.2d 454, 472 (1995) (“[W]here the difference in

sentences is a result of appropriate plea bargaining, it may not

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be considered in mitigation.”). We conclude that procuring

testimony was an appropriate consideration in the plea

bargaining process. See id. at 524, 898 P.2d at 473.

¶63 Finally, Bearup asserts that despite the jury’s

determination that he was a major participant in the murder for

purposes of the Enmund/Tison findings, we nevertheless should

consider his relatively minor participation as a mitigating

circumstance. We conclude, however, that although Bearup did

not strike the death blows, he was not a minor participant in

the crimes.

¶64 We also conclude that, under the circumstances of this

case, Bearup’s election not to present mitigating evidence

during the penalty phase is not mitigating. We have searched

the record to determine whether there is any mitigating evidence

sufficiently substantial to call for leniency and conclude that

there is not.

¶65 Meanwhile, the aggravating circumstances in this case

were substantial. The State proved both the (F)(2) and (F)(6)

aggravating factors, including all prongs of the (F)(6) factor.

In light of the serious aggravating factors, we find that the

limited mitigation is not sufficiently substantial to call for

leniency.

IV. CONCLUSION

¶66 For the foregoing reasons, we affirm Bearup’s

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convictions and death sentence.

_______________________________________
Rebecca White Berch, Chief Justice

CONCURRING:

_______________________________________
Andrew D. Hurwitz, Vice Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
W. Scott Bales, Justice

_______________________________________
Ruth V. McGregor, Justice (Retired)

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APPENDIX

Claims Raised to Avoid Federal Preclusion

Bearup raises the following thirteen challenges to the

constitutionality of Arizona’s death penalty scheme to avoid

preclusion:

1. The death penalty is per se cruel and unusual

punishment. Both the United States Supreme Court and this Court

have rejected this argument. Gregg v. Georgia, 428 U.S. 153,

186-87 (1976); Salazar, 173 Ariz. at 411, 844 P.2d at 578; State

v. Gillies, 135 Ariz. 500, 507, 662 P.2d 1007, 1014 (1983).

2. Execution by lethal injection is cruel and unusual

punishment. This Court rejected this argument in State v.

Hinchey, 181 Ariz. 307, 315, 890 P.2d 602, 610 (1995).

3. The death statute is unconstitutional because it fails

to guide the sentencing jury. This Court rejected this argument

in State v. Greenway, 170 Ariz. 155, 164, 823 P.2d 22, 31

(1991).

4. The statute unconstitutionally fails to require either

cumulative consideration of multiple mitigating factors or that

the jury make specific findings as to each mitigating factor.

This Court rejected this argument in State v. Gulbrandson, 184

Ariz. 46, 69, 906 P.2d 579, 602 (1995), State v. Ramirez, 178

Ariz. 116, 131, 871 P.2d 237, 252 (1994), and State v. Fierro,

166 Ariz. 539, 551, 804 P.2d 72, 84 (1990).

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5. Arizona’s statutory scheme for considering mitigating

evidence is unconstitutional because it limits full

consideration of that evidence. This Court rejected this

argument in State v. Mata, 125 Ariz. 233, 242, 609 P.2d 48, 57

(1980).

6. Arizona’s death statute insufficiently channels the

sentencer’s discretion in imposing the death sentence. This

Court rejected this argument in West, 176 Ariz. at 454, 862 P.2d

at 214, and Greenway, 170 Ariz. at 162, 823 P.2d at 31.

7. Arizona’s death statute is unconstitutionally

defective because it fails to require the State to prove that

death is appropriate. This Court rejected this argument in

Gulbrandson, 184 Ariz. at 72, 906 P.2d at 605.

8. The prosecutor’s discretion to seek the death penalty

unconstitutionally lacks standards. This Court rejected this

argument in Salazar, 173 Ariz. at 411, 844 P.2d at 578.

9. The constitution requires proportionality review of a

defendant’s death sentence. This Court rejected this argument

in Salazar, 173 Ariz. at 416, 844 P.2d at 583, and State v.

Serna, 163 Ariz. 260, 269-70, 787 P.2d 1056, 1065-66 (1990).

10. There is no meaningful distinction between capital and

non-capital cases. This Court rejected this argument in

Salazar, 173 Ariz. at 411, 844 P.2d at 578.

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11. Applying a death statute enacted after the Supreme

Court’s decision in Ring II violates the ex post facto clauses

of the federal and state constitutions and A.R.S. § 1-244. This

Court rejected this argument in State v. Ring (Ring III), 204

Ariz. 534, 545-47, ¶¶ 15-24, 65 P.3d 915, 926-28 (2003).

12. The death penalty is cruel and unusual because it is

irrationally and arbitrarily imposed and serves no purpose that

is not adequately addressed by life in prison. This Court

rejected this argument in Pandeli I, 200 Ariz. at 382, ¶ 88, 26

P.3d at 1153, vacated on other grounds by Ring v. Arizona, 536

U.S. 584 (2002), and State v. Beaty, 158 Ariz. 232, 247, 762

P.2d 519, 534 (1988).

13. Arizona’s death penalty statute is unconstitutional

because it requires imposition of the death penalty whenever at

least one aggravating circumstance and no mitigating

circumstances exist. Both the United States Supreme Court and

this Court have rejected this argument. Walton v. Arizona, 497

U.S. 639, 648 (1990); State v. Miles, 186 Ariz. 10, 19, 918 P.2d

1028, 1037 (1996); Bolton, 182 Ariz. at 310, 896 P.2d at 850;

State v. Tucker (Tucker II), 215 Ariz. 298, 160 P.3d 177 (2007).

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