State of Arizona v. Preston Alton Strong

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA,
Appellee,

v.

PRESTON ALTON STRONG,
Appellant.

No. CR-17-0201-AP
Filed September 3, 2024

Appeal from the Superior Court in Yuma County
The Honorable Maria Elena Cruz, Presiding Judge
No. S1400CR201400685
AFFIRMED

COUNSEL:

Kristin K. Mayes, Arizona Attorney General, Joshua Bendor, Solicitor
General, Jason Lewis, Chief Counsel, Capital Litigation Section, Laura P.
Chiasson (argued), Assistant Attorney General, Tucson, Attorneys for State
of Arizona

Harriette P. Levitt (argued), Law Offices of Harriette P. Levitt, Tucson; Julie
Hall, Office of the Conflict Administrator, Yuma County Public Defender’s
Office, Yuma, Attorneys for Preston Alton Strong
 STATE V. PRESTON ALTON STRONG
Opinion of the Court

JUSTICE BEENE authored the Opinion of the Court, in which CHIEF
JUSTICE TIMMER, VICE CHIEF JUSTICE LOPEZ and JUSTICES
BRUTINEL, BOLICK, MONTGOMERY, and PELANDER (RETIRED) joined. *

JUSTICE BEENE, Opinion of the Court:

¶1 Preston Strong was sentenced to death after a jury found him
guilty of six counts of first degree murder. We have jurisdiction of this
automatic appeal pursuant to article 6, section 5(3) of the Arizona
Constitution and A.R.S. §§ 13-4031 and -4033(A). We affirm Strong’s
convictions and sentences.

BACKGROUND 1

¶2 Strong and victim Luis Rios were close friends. Strong had a
history of financial troubles, and Luis loaned Strong money on a regular
basis. Approximately one month before the murders, Luis’s cousin,
Hermes Soto Rios (“Soto”), heard what sounded like an argument between
Luis and Strong. After the apparent argument, Luis told Soto that Strong
“was kind of upset” because Luis had refused to loan Strong more money.

¶3 At the time of the murders, Luis and victim Adrienne Heredia
lived together at East La Mesa Street in Yuma (the “East La Mesa
residence”) with Adrienne’s four children, victims: A.C. (age thirteen), E.B.
(age twelve), I.N. (age nine), and D.H. (age six). Adrienne was separated
from D.H.’s father, Danny Heredia, but Danny typically took care of D.H.
and I.N. every Thursday and Friday.

¶4 On Friday, June 24, 2005, Danny had arranged to call
Adrienne before dropping off D.H. and I.N. with her at 6:00 p.m. After
several unsuccessful attempts to reach Adrienne by phone, Danny became
worried and decided to go to the East La Mesa residence.

* Pursuant to article 6, section 3 of the Arizona Constitution, Justice John
Pelander (Ret.) of the Arizona Supreme Court was designated to sit in this
matter.
1 We view the facts in the light most favorable to sustaining the jury’s

verdicts. See State v. Gallegos, 178 Ariz. 1, 9 (1994).
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 STATE V. PRESTON ALTON STRONG
Opinion of the Court

¶5 Danny arrived at approximately 5:30 p.m. Adrienne’s PT
Cruiser was in the driveway, but she did not answer the door. After
knocking several times and receiving no answer, Danny waited with D.H.
and I.N. before getting in his truck to drive away. As he drove, he saw Luis
driving down the street in his Dodge Durango. Danny turned around and
followed Luis back to the East La Mesa residence.

¶6 Danny told Luis he had been unable to contact Adrienne, and
Luis commented that he had also been unable to reach her. Danny left the
children with Luis, who took them inside the house. When Adrienne did
not come outside, Danny tried calling her again to let her know he had left
the children with Luis. Adrienne did not answer her phone, and Danny left
a message.

¶7 Danny drove back to his apartment. As he pulled into the
parking lot, he received a call from Adrienne’s telephone. When Danny
answered, however, Luis was on the other end. Luis had never called him
before. Luis told Danny that “Adrienne was tripping,” which confused
Danny. Danny thought Luis and Adrienne had been arguing, and he told
Luis to tell Adrienne to let him know if she needed help with the children.

¶8 Later that evening, Danny returned to the East La Mesa
residence to drop off some clothing for the children. Although Adrienne
and Luis’s vehicles were in the driveway, no one answered when Danny
knocked on the door. Danny left the clothes in a bag by the door, called
Adrienne, and left a voicemail message. While Danny was still at the house,
Luis called him again. Luis said that “everything was ok,” but Danny saw
“[n]o movement, no sound . . . nothing” at the house. Danny left the house
and drove to a nearby Circle K store, where a security camera captured his
image at 7:53 p.m.

¶9 At approximately 8:15 p.m., a Schwann’s delivery man
approached the East La Mesa residence. He knocked on the door several
times and heard “rustling” inside the house, but no one answered. As he
was leaving the neighborhood, he heard a “bang” that sounded like a
gunshot. He called the police to report the incident.

¶10 Adrienne and Luis’s neighbors, Gabriel Resendez and Rocio
Lopez, were in their backyard when they heard gunshots and someone
yelling for help from the victims’ backyard. While Lopez called 911,
Resendez jumped over the wall separating their backyards. Once in the
backyard, Resendez saw a man with a gun in his hand. The man “looked
at [Resendez] and he looked at his gun, then he just casually walked back
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 STATE V. PRESTON ALTON STRONG
Opinion of the Court

into the house.” Resendez later identified this man as Strong. Resendez
also noticed a trail of blood on the ground and Luis lying on his back with
his hands behind him. Luis had been shot in the chest and head.

¶11 When first responders arrived at the East La Mesa residence,
they immediately took Luis to the hospital, but he died en route. Police
then entered the East La Mesa residence and found the bodies of I.N., A.C.,
E.B., D.H., and Adrienne (collectively, the “La Mesa Murders”). Autopsies
showed that Luis and D.H. died from gunshot wounds while Adrienne,
I.N., A.C., and E.B. died of asphyxiation.

¶12 While in the home, police found white plastic bags in a few of
the rooms where the victims were found. Analysis later revealed Strong’s
fingerprints on two of the bags. Police also found Luis’s Dodge Durango
parked near Sanguinetti Park, and an analysis of Luis’s vehicle showed
Strong’s DNA was on the steering wheel.

¶13 Although law enforcement considered Strong a suspect in the
La Mesa Murders, the State did not indict him until 2014, nine years after
the killings. In the interval between the La Mesa Murders and Strong’s
indictment, he was convicted in 2012 for the murder of Dr. Satinder Gill (the
“Gill Murder”). Strong was sentenced to natural life in prison for the Gill
Murder, a conviction affirmed on appeal. State v. Strong, No. 1 CA-CR
12-0754, 2014 WL 4318326, at *8 ¶ 37 (Ariz. App. Sept. 2, 2014) (mem.
decision).

¶14 In June 2014, the State charged Strong with six counts of first
degree murder. The State alleged four aggravating circumstances pursuant
to A.R.S. § 13-751(F) (2012): (1) Strong had been convicted of another
offense for which a life sentence could be imposed, (F)(1); (2) Strong had
been convicted of committing one or more other homicides during the
commission of the offense, (F)(8); (3) with respect to the child victims, that
Strong was an adult and the murdered person was under fifteen years of
age, (F)(9); and (4) Strong had committed the murders in a “cold, calculated
manner without pretense of moral or legal justification,” (F)(13). See
§ 13-751(F)(1), (F)(8), (F)(9), (F)(13) (2012). 2

2 After this case was tried, the legislature amended § 13-751 and eliminated

multiple aggravators, including the cold-and-calculated aggravator in
subsection (F)(13). It also renumbered the remaining paragraphs within
subsection (F). See 2019 Ariz. Sess. Laws ch. 63, ¶ 1 (1st Reg. Sess.). Here,
we cite the version of § 13-751 in effect at the time of sentencing.
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 STATE V. PRESTON ALTON STRONG
Opinion of the Court

¶15 In August 2015, Strong moved to change the venue on the
grounds of prejudicial pretrial publicity, but the trial court denied the
motion. In April 2016, Strong moved to suppress Soto’s testimony about
the argument and the debt between Luis and Strong. Lastly, in September
2016, Strong moved to dismiss the case due to preindictment delay. The
court denied Strong’s motion to dismiss and, after holding an evidentiary
hearing, also denied his motion to suppress.

¶16 In April 2017, the jury found Strong guilty of six counts of first
degree murder. During the trial’s aggravation phase, the jury found that
the State had proved the alleged aggravating circumstances. During the
penalty phase, the trial court determined it should not have instructed the
jury on § 13-751(F)(13)’s “cold-and-calculating” aggravating factor. The
court accordingly instructed the jury to not consider that aggravating factor
in sentencing Strong. After considering the mitigation evidence, the jury
determined that Strong should be sentenced to death for the six murders.
The court then imposed the death sentence for each of the murder
convictions.

¶17 After the conclusion of the case, defense counsel spoke with
Juror 47 about her knowledge of Strong’s conviction for the Gill Murder.
Following this conversation, Strong moved for a new trial, alleging several
grounds, including juror misconduct. In support of his juror-misconduct
claim, Strong asserted that, before being impaneled, Juror 47 failed to
disclose that she knew Strong had been previously convicted of the Gill
Murder. Strong also moved to vacate the judgment, but the trial court
denied both motions after a hearing.

¶18 Strong appealed the judgments and his sentences. See A.R.S.
§ 13-4031; Ariz. R. Crim. P. 26.15, 31.2(b). After oral argument before this
Court, we issued a Decision Order staying the appeal and remanding with
instructions to the trial court to hold an evidentiary hearing to determine
“the circumstances of Juror 47’s alleged misconduct and knowledge of the
Gill Murder and prior conviction, and whether or not it was harmless.”
State v. Strong, No. CR-17-0201-AP, at 5 (Ariz. May 26, 2020) (dec. order).

¶19 After conducting the hearing, the trial court found that “Juror
47 knew of the Gill case at the time of the murder and subsequent
conviction, [but] she had forgotten that Strong was the person convicted of
Gill’s murder.” Therefore, the court could not “find that there was any
prejudicial information known to Juror 47 during the trial” or that “there
was any juror misconduct by Juror 47 or any other juror in this case.”
Following the hearing and the trial court’s ruling, jurisdiction revested in
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 STATE V. PRESTON ALTON STRONG
Opinion of the Court

this Court. The parties submitted supplemental briefing on the issue of
alleged juror misconduct.

DISCUSSION

¶20 Strong presents nine issues on appeal. For the reasons stated
below, we affirm his convictions and sentences.

A. Preindictment Delay

¶21 Strong argues that the nine-year delay between the La Mesa
Murders and his 2014 indictment for these crimes was unreasonable
because it provided the State with a tactical advantage and prejudiced him
due to the unavailability of certain witnesses. Strong also asserts that he
has the “right to a speedy indictment” pursuant to the Fifth and Fourteenth
Amendments and article 2, sections 23 and 24 of the Arizona Constitution.

¶22 We review the trial court’s denial of a motion to dismiss for
preindictment delay for abuse of discretion. State v. Hansen, 156 Ariz. 291,
294 (1988).

¶23 The due process guarantee of the Fifth and Fourteenth
Amendments safeguards criminal defendants from unreasonable
preindictment delay. State v. Lacy, 187 Ariz. 340, 346 (1996). For a delay in
prosecution to be unreasonable, a defendant must show that (1) “the
prosecution intentionally slowed proceedings to gain a tactical advantage
or to harass the defendant,” and (2) “actual prejudice resulted.” Id.
Investigative delay does not impermissibly slow proceedings, see State v.
Broughton, 156 Ariz. 394, 398 (1988), and not filing charges immediately
upon securing enough evidence to prove guilt beyond a reasonable doubt
is not intentional harassment, see United States v. Lovasco, 431 U.S. 783, 792,
794–96 (1977); Lacy, 187 Ariz. at 346. Proof of “actual prejudice” must be
“definite and not speculative.” United States v. Valentine, 783 F.2d 1413, 1416
(9th Cir. 1986) (quoting United States v. Moran, 759 F.2d 777, 782 (9th Cir.
1985)).

¶24 Strong moved to dismiss the charges based on preindictment
delay in September 2016. The trial court denied the motion, finding Strong
failed to establish that the State intentionally slowed the proceedings in the
hope of obtaining a tactical advantage or to harass him. The court further
found that—even if Strong had shown culpable prosecutorial misconduct
on the issue of preindictment delay—he failed to show prejudice.

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 STATE V. PRESTON ALTON STRONG
Opinion of the Court

¶25 Here, we find no abuse of discretion in the trial court’s
findings because, as a threshold matter, the record contains no evidence
that the State “intentionally slowed proceedings to gain a tactical advantage
or to harass the defendant.” See Lacy, 187 Ariz. at 346. Moreover, Strong’s
arguments on the issue of prejudice are unavailing.

¶26 First, Strong argues that certain witnesses died before he was
indicted. He claims their testimony would have shown that more than one
gunman entered the victims’ residence on the night of the murders,
rebutting the State’s witnesses. But as the trial court determined, Strong’s
claim is too speculative to grant relief. See Valentine, 783 F.2d at 1416.

¶27 Next, Strong claims that he was unable to introduce the
testimony of Edward Miknaitis, an eighty-four-year-old retired Yuma
Police Department (“YPD”) identification technician, who suffered several
strokes during the period between the murders and trial, which rendered
him incompetent to testify. Strong claims Miknaitis would have testified
that “his notes and reports were taken and lost by the [YPD]” and that “after
he put down evidence markers at the crime scene, an FBI technician moved
his markers,” thereby supporting Strong’s claim that evidence at the crime
scene had been tampered with. But at Miknaitis’s competency hearing,
Miknaitis told the court that he only “heard . . . through the grapevine” that
evidence markers had been moved, and Strong ultimately did not seek to
have him testify on that matter. Furthermore, the testimony at trial did not
establish precisely when Miknaitis suffered his strokes or at what point in
time his memory was affected. Accordingly, this claim of prejudice is also
too speculative.

¶28 Strong also asserts that he was prejudiced by the delay
because mitigation witnesses died “since the case began,” but he fails to
describe or explain how these witnesses would have aided his case. See
State v. Torres, 116 Ariz. 377, 379 (1977) (“A mere assertion of the
unavailability of an eyewitness is insufficient to show that a denial of due
process has occurred.”).

¶29 Finally, Strong argues the delay caused a key eyewitness,
Gabriel Resendez, to change his testimony. Strong, however, failed to
establish how the delay caused Resendez to alter his description of the
murderer. Even so, Strong was able to demonstrate that Resendez changed
his initial identification of the killer from a Hispanic male to an
African-American male in later identifications. Because Strong was able to
confront Resendez and impeach him with countervailing evidence as to

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 STATE V. PRESTON ALTON STRONG
Opinion of the Court

Resendez’s initial identification, Strong suffered no prejudice from the
delay.

¶30 At bottom, the prejudice that Strong complains of primarily
concerns the unavailability and diminished memory of witnesses, which is
insufficient to establish a due process violation—and is counterbalanced by
the fact that the State also suffered from unavailable witnesses. See State v.
Dunlap, 187 Ariz. 441, 450–51 (App. 1996); Broughton, 156 Ariz. at 398.
Absent a demonstration by Strong that the unavailable witnesses “would
have testified, the jury would have found the witness credible, and the
testimony of the witness would have affected the outcome of the trial,” his
claims fail. See Dunlap, 187 Ariz. at 451.

¶31 Furthermore, Strong conflates the rights guaranteed by the
Fifth and Sixth Amendments. The protection afforded by the Sixth
Amendment’s speedy-trial guarantee “is activated only when a criminal
prosecution has begun and extends only to those persons who have been
‘accused’ in the course of that prosecution.” United States v. Marion, 404 U.S.
307, 313 (1971); accord State v. Williams, 183 Ariz. 368, 379 (1995) (explaining
that the right to a speedy trial only attaches after an indictment has been
returned). Conversely, the Fifth Amendment’s due-process guarantee does
not define a specific right to a speedy indictment and only safeguards
against an unreasonable delay under limited circumstances. See Lovasco, 431
U.S. at 789–90. And as we have just explained, those limited circumstances
are not present here. Thus, the court did not abuse its discretion in denying
Strong’s motion to dismiss based on preindictment delay.

B. Change Of Venue

¶32 Strong argues that both the La Mesa and Gill Murders
resulted in “considerable pretrial publicity,” prejudicing the jury pool in
Yuma County and increasing the risk that jurors may remember Strong’s
conviction for the Gill Murder during trial. In his motion to change venue,
Strong argued that a different trial location would save judicial resources
expended on extensive individual voir dire and prevent possible
contamination of the jury, repeated jury selection, or a new trial.

¶33 We review the trial court’s ruling on a motion for change of
venue based on pretrial publicity for abuse of discretion. State v. Payne, 233
Ariz. 484, 499 ¶ 26 (2013). “A defendant is entitled to change the venue for

8
 STATE V. PRESTON ALTON STRONG
Opinion of the Court

his trial ‘if a fair and impartial trial cannot be had.’” Id. ¶ 28 (quoting Ariz.
R. Crim. P. 10.3(a)). 3

¶34 In August 2015, sixteen months before jury selection
commenced, Strong moved for a change of venue. In January 2016, the trial
court denied Strong’s motion and in January 2017, jury selection began.
Strong did not supplement or renew his motion with recent news articles
or additional evidence of pretrial publicity.

¶35 In denying Strong’s motion for change of venue, the court
found that “there was a fair amount of publicity when defendant was
charged in this case in June 2014” but that “[r]ecently . . . the media
coverage has been minimal.” The court further noted that “the media
attention in this matter has been confined to reporting what has occurred
in court proceedings and a brief mention of the Gill case.”

¶36 The issue of “pretrial publicity” is analyzed in two steps. State
v. Cruz, 218 Ariz. 149, 156 ¶ 14 (2008). First, we examine whether the
publicity permeated the court proceedings so pervasively that prejudice
can be presumed. Id. Next, if the level of publicity was such that prejudice
cannot be presumed, we then ask whether the defendant has shown actual
prejudice among the members of the jury. Id.

¶37 Prejudice will only be presumed when the publicity “was so
extensive or outrageous that it permeated the proceedings or created a
carnival-like atmosphere.” Payne, 233 Ariz. at 499 ¶ 28 (quoting State v.
Blakley, 204 Ariz. 429, 434 ¶ 14 (2003)). “The publicity must be so unfair,
prejudicial, and pervasive that jurors could not decide the case fairly, even
if they avow otherwise.” State v. Forde, 233 Ariz. 543, 554 ¶ 13 (2014). The
burden to show prejudice is on the defendant, Payne, 233 Ariz. at 499 ¶ 28,
and is “extremely heavy,” Forde, 233 Ariz. at 554 ¶ 13 (quoting State v. Bible, 175 Ariz. 549, 564 (1993)). Consequently, the standard is rarely met. See
State v. Davolt, 207 Ariz. 191, 206 ¶ 46 (2004).

¶38 Further, we will not presume prejudice when the publicity
did not occur near the time of trial or is mostly factual and not

3 The language of Rule 10.3(a) quoted in Payne in 2013 is the same as the
language of Rule 10.3(a) at the time of Strong’s motion for a change of
venue. See Ariz. R. Crim. P. 10.3(a) (2015) (stating a defendant “shall be
entitled to a change of the place of trial to another county, if a fair and
impartial trial cannot be had for any reason other than the interest or prejudice
of the trial judge” (emphasis added)).
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 STATE V. PRESTON ALTON STRONG
Opinion of the Court

inflammatory. Id. “The mere fact that jury members have been exposed to
the facts of the case through media coverage does not create a presumption
of prejudice if the jurors can lay aside that information and render a verdict
based on the evidence.” Cruz, 218 Ariz. at 156–57 ¶ 14.

¶39 Here, the trial court properly ruled that prejudice could not
be presumed. The media coverage reflected in the news articles about
Strong’s trial was not “so extensive” to create a “carnival-like atmosphere.”
See Payne, 233 Ariz. at 499–500 ¶¶ 27–29 (quoting Blakley, 204 Ariz. at 434
¶ 14) (concluding that over 200 newspaper and broadcast reports did not
warrant a presumption of prejudice). Instead, the publicity was primarily
factual, with articles discussing the ongoing judicial proceedings and
“repeat[ing] a basic description of the crime that mirrored indictment
allegations.” See id. at 500 ¶ 29; see also Davolt, 207 Ariz. at 206 ¶ 47
(concluding that “twenty newspaper articles and thirteen radio reports”
did not warrant a presumption of prejudice when most of them “were
generated at the time of the crime and were factual in nature”).
Accordingly, the trial court did not abuse its discretion; it properly found
that Strong failed to meet the “very heavy burden” of proof necessary to
establish a presumption of prejudice. See Payne, 233 Ariz. at 500 ¶¶ 29–30
(internal quotation marks omitted) (quoting Cruz, 218 Ariz. at 157 ¶ 20); see
also Forde, 233 Ariz. at 554 ¶ 14 (citing cases); Davolt, 207 Ariz. at 206 ¶ 48.

¶40 Just as Strong cannot establish that prejudice should be
presumed, neither can he establish that actual prejudice “likely deprived
him of a fair trial.” See Davolt, 207 Ariz. at 206 ¶ 49; Cruz, 218 Ariz. at 156
¶ 14. Actual prejudice occurs when “the jurors have formed preconceived
notions concerning the defendant’s guilt and that they cannot leave those
notions aside.” Davolt, 207 Ariz. at 206 ¶ 49 (quoting State v. Chaney, 141
Ariz. 295, 302 (1984)). “Prior knowledge of the case alone is insufficient to
disqualify a juror” because “[t]he critical inquiry is the ‘effect of publicity on
a juror’s objectivity.’” Id. ¶ 50 (quoting State v. LaGrand, 153 Ariz. 21, 34
(1987)). “[T]he defendant has the burden of showing actual prejudice.”
Blakley, 204 Ariz. at 434 ¶ 16.

¶41 Here, during voir dire, the trial court and defense counsel
extensively questioned prospective jurors who indicated that they had
received information regarding the facts of either the Gill Murder or the La
Mesa Murders through the media, and jurors who indicated they had any
knowledge of Strong’s 2012 conviction for the Gill Murder were excused
for cause. Only jurors who indicated they had no knowledge of Strong’s
2012 conviction, could set aside other information learned through the

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 STATE V. PRESTON ALTON STRONG
Opinion of the Court

media, and could decide the case on the evidence presented during trial
were allowed to sit on the jury.

¶42 Further, the fact that a juror who was approached during trial
by an individual who informed her that Strong was “already serving a life
sentence for murder” and was “totally guilty” does not have any
relationship to the impact of pre-trial publicity. That juror was excused
from the jury and replaced by an alternate juror.

¶43 Strong finally argues that because Juror 47 participated in the
trial, found him guilty, and voted for death sentences while knowing about
his 2012 conviction, there was “evidence that the trial court abused its
discretion in denying [Strong’s] motion for change of venue.” But as will
be discussed in Part (D), no competent evidence supports Strong’s claim
that Juror 47 knew about Strong’s conviction for the Gill Murder
throughout voir dire or guilt-phase proceedings and deliberations. Strong
has therefore failed to show that Juror 47, or any other juror, had “formed
preconceived notions concerning [his] guilt and that they [could not lay]
those notions aside.” See Davolt, 207 Ariz. at 206 ¶ 49 (internal quotation
mark omitted) (quoting Chaney, 141 Ariz. at 302). Accordingly, the court
did not abuse its discretion in denying Strong’s motion to change venue.

C. Improper Preclusion Or Limited Admission Of Evidence

¶44 Strong argues the trial court erred by precluding certain
evidence he sought to introduce at trial. Specifically, Strong challenges the
court’s rulings regarding the following evidence: (1) the testimony of Rocio
Lopez and Detective Ben Olivas pertaining to Gabriel Resendez’s
statements made on the night of the murders; (2) Defense Exhibit 1—Sketch
of Suspect; (3) the testimony of Edward Miknaitis; and (4) Defense Exhibit
43—Phone Records.

¶45 We review the court’s evidentiary rulings for an abuse of
discretion. State v. Burns, 237 Ariz. 1, 17 ¶ 46 (2015). For objected-to trial
error, we conduct harmless error review, which “places the burden on the
state to prove beyond a reasonable doubt that the error did not contribute
to or affect the verdict or sentence.” State v. Henderson, 210 Ariz. 561, 567
¶ 18 (2005). Conversely, for issues not properly objected to at trial, we
review for fundamental error only. State v. Escalante, 245 Ariz. 135, 140 ¶ 12
(2018). To prevail under that standard, “a defendant must establish both
that fundamental error occurred and that it caused him prejudice (though
showing the former may establish the latter).” State v. Johnson, 247 Ariz.
166, 185 ¶ 41 (2019). “An error is fundamental if it goes to the foundation
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Opinion of the Court

of the case, takes away from the defendant a right essential to his defense,
or is of such magnitude that the defendant could not have possibly received
a fair trial.” Id. When determining whether the alleged error caused Strong
prejudice, we review “whether, without the error, a reasonable jury could
have reached a different result, even if substantial evidence of guilt exists.”
See Escalante, 245 Ariz. at 144 ¶ 34.

1. Rocio Lopez and Detective Ben Olivas

¶46 Strong argues the trial court erred by precluding statements
Resendez made to Lopez on the night of the murders because the
statements were admissible excited utterances. See Ariz. R. Evid. 803(2).

¶47 The State called Resendez as a witness. Resendez testified
that, on the night of the murders, he and Lopez were in his backyard when
he heard someone yelling for help, followed by gunshots. Resendez further
testified that he jumped over the wall into the victims’ backyard and saw
Strong holding a gun.

¶48 Strong sought to introduce testimony from Lopez and YPD
Detective Ben Olivas. Both individuals stated that on the night of the
incident, Resendez told them that the assailant was a Hispanic man. But
the court determined that Resendez’s statements to Lopez were
inadmissible hearsay. Pursuant to subsections (2) and (5) of Arizona Rule
of Evidence 803, however, the court let Strong’s counsel read into evidence
a relevant portion of Detective Olivas’s police report, in which Resendez
gave a statement describing the suspect as “a Hispanic male, approximately
five foot six inches to five foot eight inches.”

¶49 “Out of court statements offered to prove the truth of the
matter asserted are hearsay and are inadmissible unless they fall within an
exception to the hearsay rule.” Payne, 233 Ariz. at 502 ¶ 49; see also Ariz. R.
Evid. 801(c)–(d), 802. One of these exceptions is an excited utterance, which
is a “statement relating to a startling event or condition, made while the
declarant was under the stress of excitement that it caused.” Ariz. R. Evid.
803(2). “The exception requires proof of three elements: (1) a startling
event, (2) a statement made soon after the event to ensure the declarant has
no time to fabricate, and (3) a statement which relates to the startling event.”
State v. Bass, 198 Ariz. 571, 577 ¶ 20 (2000). “The basis for the exception is
that the event produces nervous excitement making fabrication unlikely.”
State v. Jeffers, 135 Ariz. 404, 419 (1983).

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Opinion of the Court

¶50 “[N]o precise time limits after the event can be established
within which a statement will qualify as an excited utterance.” Cruz, 218
Ariz. at 161 ¶ 55 (quoting Joseph M. Livermore et al., Arizona Practice: Law
of Evidence § 803.2, at 348 (2000)). Instead, the court should consider the
totality of the circumstances in determining whether a statement is
spontaneous. State v. Anaya, 165 Ariz. 535, 539 (App. 1990); see Jeffers, 135
Ariz. at 420. “Among the elements usually examined are the time factor
between the event and statement, the physical and emotional condition of
the declarant, and the nature of the offense.” Anaya, 165 Ariz. at 539.

¶51 At trial, Lopez testified that she and Resendez were sitting in
their backyard when they heard someone yelling for help, followed by
gunshots. She said that while she called 911, Resendez jumped over the
wall separating their backyard from the victims’ backyard. Lopez
explained that she and Resendez “were all kind of panicked,” but she could
not say whether Resendez seemed excited at the time of the statement. She
testified Resendez told her that “he saw a guy, a Mexican guy,” but she
could not remember when Resendez made the statement.

¶52 The State objected to Lopez’s testimony on hearsay grounds,
and Strong argued that Resendez’s statement to Lopez was admissible
because it constituted an excited utterance. 4 The court allowed Strong to
attempt to lay foundation for the statement.

¶53 Lopez testified that Resendez appeared “in shock and
nervous” when he ran to the fence separating the backyards. Lopez initially
stated Resendez made the statement “before the police got there,” but she
could not remember how much time had elapsed between Resendez
jumping the wall and making the statement or between Resendez’s
statement and the arrival of the police. She then said that Resendez made
the statement while they were in the alley between the yards “because that’s
where the police were by that time.”

¶54 The State again asserted that Lopez’s testimony had not
established when Resendez had made the statement. The trial court
sustained the hearsay objection, precluding Lopez’s testimony, reasoning
that it had not been established when Resendez’s statements were made.

4 At trial, Strong also argued that it was an inconsistent statement or a
present sense impression. However, Strong did not raise these arguments
in his opening brief, so we do not address them.
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 STATE V. PRESTON ALTON STRONG
Opinion of the Court

¶55 Although Lopez’s testimony likely demonstrated Resendez’s
excitement, the court did not abuse its discretion in precluding Resendez’s
statements. See State v. Carr, 154 Ariz. 468, 470 (1987) (“We will not reverse
a trial court’s ruling under the excited utterance exception absent a clear
abuse of discretion.”). Lopez’s inability to recall when Resendez’s
statements were made meant the temporal requirement of the excited
utterance exception was not met. See Bass, 198 Ariz. at 577 ¶ 20 (stating it is
the party’s burden to demonstrate that the statements were “made soon
after the event”).

¶56 And even if the court abused its discretion, Strong did not
suffer prejudice because the court allowed Resendez’s description of the
shooter into evidence via Detective Olivas’s police report. Contrary to
Strong’s assertion on appeal, the court ruled that Resendez’s on-the-scene
statement to Detective Olivas was admissible as an excited utterance. The
Detective, however, could not recall the conversation with Resendez.
Accordingly, the court allowed the relevant portion of Detective Olivas’s
police report—Resendez’s description of the shooter—to be read into
evidence by Strong’s trial counsel based on Rule 803(5) (Recorded
Recollection). Thus, even if the trial court committed error by precluding
Resendez’s statements to Lopez, Strong did not suffer prejudice because
Resendez’s on-the-scene description of the shooter was provided to the
jury.

2. Defense Exhibit 1A

¶57 Strong asserts the trial court abused its discretion by issuing
a limiting instruction for the admission of Defense Exhibit 1A. He argues
this prejudiced him because he was not permitted to argue that Resendez
gave a detailed description of a Hispanic man a month after the murder.
Because Strong did not object at trial, we review his argument for
fundamental error. See Johnson, 247 Ariz. at 185 ¶ 41.

¶58 Resendez testified he worked with law enforcement to create
two sketches of the suspect. He stated he created the second sketch with
YPD three weeks after the murders, and at trial, the State presented
Resendez with a black-and-white copy of the sketch (“Defense Exhibit 1”).
The State did not seek to admit Defense Exhibit 1 into evidence.

¶59 During the presentation of his case, Strong offered testimony
from Kirk Messick, a forensic artist with the Phoenix Police Department
(“PPD”). Messick testified he had met with someone one month after the
murders to prepare a composite sketch for YPD. When presented with
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 STATE V. PRESTON ALTON STRONG
Opinion of the Court

Defense Exhibit 1, Messick stated the exhibit was a dark photocopy of the
sketch he had prepared and that it lacked the detail of the original. He then
said he had the original sketch with him, and Strong sought to publish the
alleged original to the jury. The State asserted it had not seen the alleged
original and that Strong could not authenticate or show the relevance of the
alleged original because there was no evidence that the alleged original
sketch came from Resendez’s description. The court allowed Strong to
attempt to lay proper foundation for the admission of the sketch.

¶60 Messick testified that the alleged original sketch was signed
by the person he worked with to create the sketch, but he was unable to
read the signature or remember the name of that person. He could only
state that the person’s name was potentially “Gerald,” and that the sketch
was the one YPD had asked him to prepare.

¶61 The State objected, noting that Strong had still failed to lay the
proper foundation for Defense Exhibit 1 because Messick could not recall
who he had worked with to make the original sketch, and thus failed to
connect the copy of the sketch with Resendez. The State also objected
because the exhibit included a page containing extraneous information.
The court removed the unnecessary page containing the extraneous
information and renumbered the photocopy sketch as Defense Exhibit 1A.
As to the exhibit’s foundation, the State acknowledged that Resendez met
with Messick, but it reiterated that Strong failed to provide proper
foundation for Defense Exhibit 1A. Additionally, the State did not stipulate
that Resendez met with Messick to create the underlying sketch. Lastly, the
State also asserted that the exhibit was a flyer created by law enforcement
and contained more information than the original sketch.

¶62 Strong then attempted to establish that the alleged original
sketch and Defense Exhibit 1A were based on Resendez’s description of the
suspect he saw on the night of the murders. However, he was unable to do
so. Strong abandoned his attempt to introduce either the alleged original
sketch or Defense Exhibit 1A and stated he would try to admit Defense
Exhibit 1A through other officers’ testimony.

¶63 Later, Strong called YPD Detective Melissa Norred. Detective
Norred testified that in July 2005 she distributed a flyer that had been
prepared by “somebody from the Phoenix Police Department.” She
identified Defense Exhibit 1A as a copy of the flyer she had distributed, and
the trial court admitted it in evidence over the State’s objection.

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Opinion of the Court

¶64 On cross-examination, the State established that Detective
Norred had no personal knowledge of the information on the flyer and was
not present when the sketch was created. The State then requested that
Defense Exhibit 1A be limited to show that Detective Norred distributed
the exhibit to law enforcement agencies. Strong did not object to the State’s
request and the court gave a limiting instruction regarding the scope of
Exhibit 1A to the jury. Strong did not object to the limiting instruction.

¶65 To introduce an exhibit, “the proponent must produce
evidence sufficient to support a finding that the item is what the proponent
claims it is.” Ariz. R. Evid. 901(a). The proponent may do this through
testimony of a witness with knowledge. Ariz. R. Evid. 901(b)(1). “If the
court admits evidence that is admissible against a party or for a
purpose—but not against another party or for another purpose—the court,
on timely request, must restrict the evidence to its proper scope and instruct
the jury accordingly.” Ariz. R. Evid. 105.

¶66 Strong has not shown that the trial court’s admission of
Defense Exhibit 1A for a limited purpose was error. Strong was unable to
establish that the sketch was based on Resendez’s description of the
suspect. Although Messick testified that he had produced a sketch and that
he recognized Defense Exhibit 1 as a photocopy of that sketch, he was
unable to recall with whom he had met to create the sketch. Similarly,
Detective Norred stated she had no personal knowledge of the information
on the exhibit, did not know which officer or civilian participated in
creating the sketch, and was not present when it was created. Additionally,
even though Resendez had previously testified that he had met with a
visiting PPD officer to create the sketch and that Defense Exhibit 1 was a
copy, he could not identify the officer with whom he worked to make the
sketch. The trial court did not commit error, much less fundamental error,
by limiting Defense Exhibit 1A. See Escalante, 245 Ariz. at 142 ¶ 21 (“[T]he
first step in fundamental error review is determining whether trial error
exists.”).

3. Edward Miknaitis

¶67 Strong argues the trial court erred by finding Edward
Miknaitis incompetent to testify. When Strong sought to introduce the
testimony of Miknaitis, a former YPD technician who assisted in processing
the crime scene at the East La Mesa residence, the State objected. According
to the State, Miknaitis had suffered a series of strokes since the murders and
was therefore not competent to testify. But Strong asserts that insufficient
evidence supported the State’s position, and that precluding Miknaitis’s
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 STATE V. PRESTON ALTON STRONG
Opinion of the Court

testimony denied him the right to present witnesses to establish a defense.
See Washington v. Texas, 388 U.S. 14, 18–19 (1967).

¶68 We review a court’s competency determination for an abuse
of discretion. State v. Schossow, 145 Ariz. 504, 507–08 (1985); State v. Griffin, 117 Ariz. 54, 57 (1977). And a “trial court abuses its discretion if it precludes
a witness from testifying without conducting a meaningful inquiry into the
witness’ [sic] competency.” Zimmer v. Peters, 176 Ariz. 426, 429 (App. 1993).

¶69 Generally, “[e]very person is competent to be a witness unless
the[] rules [of evidence] or an applicable statute provides otherwise.” Ariz.
R. Evid. 601; see A.R.S. § 13-4061 (“In any criminal trial every person is
competent to be a witness.”). But a witness is not competent when he or
she does not have the ability to perceive, recollect, or communicate about
the events at issue. Griffin, 117 Ariz. at 57. “A trial court has broad
discretion in determining if reasonable grounds exist for a hearing to
determine a witness’ [sic] competency.” Id.

¶70 Here, the trial court held a hearing on Miknaitis’s
competency. At the hearing, Miknaitis stated that his duties at the scene
were to “find[] evidence that was there and lay[] numbers next to it” and
collect items to send to the laboratory to be examined for fingerprints. He
further testified that all of the bodies, except Luis’s, were found in the same
bedroom, with the four children in one bed. Miknaitis also indicated that
he did not work outdoors at the East La Mesa crime scene, took no
photographs at the scene, and did not wear protective gear when collecting
evidence.

¶71 The State then called YPD Detective James Frazier to testify to
the inaccuracies in Miknaitis’s account of his role in the investigation.
Frazier stated that Miknaitis’s role at the scene was as “a photographer and
crime scene personnel.” Detective Frazier also stated that he saw Miknaitis
in protective gear and identified a picture of Miknaitis at the scene with a
camera and wearing protective gear.

¶72 Miknaitis’s competency hearing revealed troubling memory
lapses. He incorrectly claimed that five of the six victims were found in one
bedroom, with the four children on one bed. When confronted with this
inaccuracy, Miknaitis did not concede that his memory might be faulty but
asserted that someone must have moved the bodies. Miknaitis also testified
that he did not work outside the East La Mesa residence, did not
photograph the scene or any evidence, and did not wear protective gear
while at the scene. When the State showed Miknaitis a photograph of him
17
 STATE V. PRESTON ALTON STRONG
Opinion of the Court

working outside the East La Mesa residence with a camera and wearing
protective gear, however, he did not recognize himself. Nor did Miknaitis
recognize a report he authored in which he admitted to photographing the
crime scene.

¶73 Both parties were given the opportunity to examine
Miknaitis’s ability to remember his role in the investigation, and the trial
court was able to determine his “capacity or ability to observe, recollect,
and communicate with reference to the event in question.” See Zimmer, 176
Ariz. at 429. Given Miknaitis’s inability to accurately recollect the events at
issue, the trial court did not abuse its discretion by finding him incompetent
to testify.

4. Defense Exhibit 43

¶74 Strong alleges the court improperly precluded admission of
Defense Exhibit 43 as a business record. See Ariz. R. Evid. 803(6). He also
argues for the first time on appeal that the exhibit was admissible under the
residual hearsay exception. See Ariz. R. Evid. 807.

¶75 At trial, the State presented Strong’s phone records, which the
court admitted. After YPD Detective John Gawler testified about the phone
records, Strong attempted to introduce Defense Exhibit 43, which
purportedly consisted of witness Ada Harris’s phone records from Virgin
Mobile. 5 The State objected, arguing that no custodian of records could
authenticate the records. The trial court allowed Strong to attempt to lay
the necessary foundation for the records.

¶76 Detective Gawler stated that, although he had seen the phone
records in Defense Exhibit 43 before and used them as a reference in
producing a timeline of Strong’s phone calls (“Exhibit 957”), he had only
used the records to verify calls shown on Strong’s phone records.

¶77 The State then argued that Defense Exhibit 43 did not provide
any additional information regarding Strong’s phone calls that was not
contained in Exhibit 957. In response, Strong asserted that Exhibit 957 was
incomplete because it did not show which of Harris’s calls were answered
and which went to voicemail. The State reiterated that, although it did not
dispute that the phone number on the records was Harris’s, proper
foundational testimony for the admission of Defense Exhibit 43 was not

5 After the murders, Harris gave Strong a ride from a Circle K to Sanguinetti

Park, where Luis’s Durango was later found.
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 STATE V. PRESTON ALTON STRONG
Opinion of the Court

provided. The court concluded that Strong had failed to lay sufficient
foundation for the records’ admission and denied admission of Defense
Exhibit 43.

i. Business Records

¶78 Strong argues that the trial court improperly precluded
admission of Defense Exhibit 43 as a business record because (1) testimony
from various police detectives established that YPD obtained the records
from Virgin Mobile during its investigation and (2) the State did not dispute
the authenticity of the records. Because Strong asserted the business
records exception at trial, if we find error, we review for harmless error.
Henderson, 210 Ariz. at 567 ¶ 18. We begin our analysis by determining
whether the trial court erred by precluding the exhibit. See State v. Dunbar,
550 P.3d 142, 150 ¶¶ 29–30 (Ariz. 2024) (stating that any error review must
begin by determining whether error occurred).

¶79 “The business records exception requires that the record be
made at or near the time of the entry by or from information transmitted by
someone with knowledge, be kept in the ordinary course of business, be
made as a regular practice, and be testified to by a qualified witness.” State
v. Parker, 231 Ariz. 391, 401 ¶ 28 (2012); Ariz. R. Evid. 803(6).

¶80 Here, the trial court did not err by precluding admission of
Defense Exhibit 43 as a business record. Contrary to Strong’s assertions,
testimony from various police officers was insufficient to lay the necessary
foundation to admit Defense Exhibit 43 as a business record. Although the
officers could testify that they acquired the records from Virgin Mobile
during their investigation, they could not establish that the records were
“made at or near the time of the entry by or from information transmitted
by someone with knowledge,” “kept in the ordinary course of business,” or
“made as a regular practice.” See Parker, 231 Ariz. at 401 ¶ 28; Ariz. R. Evid.
803(6). Accordingly, the officers could not qualify the exhibit as a business
record. Although the State did not dispute that the phone number on the
records was Harris’s, this does not establish their admissibility in the
absence of qualified witness testimony.

ii. Residual Exception to Hearsay
¶81 Strong also argues the court erred by precluding the
admission of Defense Exhibit 43 because the exhibit was admissible under
the residual exception to hearsay. See Ariz. R. Evid. 807. Because Strong

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 STATE V. PRESTON ALTON STRONG
Opinion of the Court

did not raise the residual exception to hearsay issue at trial, we review for
fundamental error. Johnson, 247 Ariz. at 185 ¶ 41.

¶82 Under the residual exception to hearsay, a hearsay statement
that is not admissible under an exception in Rule 803 or 804 is not excluded
by the rule against hearsay if: “(1) the statement is supported by sufficient
guarantees of trustworthiness—after considering the totality of
circumstances under which it was made and evidence, if any, corroborating
the statement;” and “(2) it is more probative on the point for which it is
offered than any other evidence that the proponent can obtain through
reasonable efforts.” Ariz. R. Evid. 807(a).

¶83 Strong has not shown that both requirements for the residual
exception to hearsay were met. He argues that the State agreed that Defense
Exhibit 43 concerned Ada Harris’s phone activity and that the records were
genuine. But the State merely did not dispute that the phone number on the
records was Harris’s. Although the records may have been more probative
than other evidence as to whether calls to Harris went to voicemail,
“sufficient guarantees of trustworthiness” were not presented.
Accordingly, preclusion of Defense Exhibit 43 did not constitute error.

D. Juror Misconduct

¶84 Strong argues that Juror 47’s knowledge of the Gill Murder,
prior to serving as a juror in the La Mesa case, deprived him of his
constitutional right to a fair trial.

¶85 After the verdict, Strong moved for a new trial under Arizona
Rule of Criminal Procedure 24.1, alleging, among other claims, that Juror
47 had knowledge of Strong’s previous conviction for the Gill Murder. This
claim was based on a conversation that Strong’s attorney had with Juror 47
at the conclusion of the trial. Strong’s attorney alleged that Juror 47 told
him information that indicated she “intentionally or otherwise failed to
inform court and counsel that she knew of the Gill Murder conviction
before being impanelled [sic] in this matter.” A defense investigator then
spoke with Juror 47 about her knowledge of the Gill Murder. The
investigator’s notes regarding his conversation with Juror 47 were attached
to Strong’s motion for a new trial. In his motion, Strong argued that he had
“been denied basic procedural safeguards regarding a juror that the court
certainly would have excused and/or that the defense would not have had
to spend a preemptive challenge.”

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 STATE V. PRESTON ALTON STRONG
Opinion of the Court

¶86 Strong later filed a Rule 24.2 motion to vacate the judgment,
asserting the same claims as under the Rule 24.1 motion. At a hearing on
both motions, the trial court limited the proceeding to arguments from
counsel and did not allow Strong’s investigator to testify. After the hearing,
Strong filed a supplement to both motions arguing that the trial court
should hold an evidentiary hearing regarding the juror misconduct issue
pursuant to Godoy v. Spearman, 861 F.3d 956, 959 (9th Cir. 2017).

¶87 The trial court denied Strong’s Rule 24.1 motion as untimely.
The court also denied Strong’s Rule 24.2 motion, concluding that Juror 47
“did not intentionally fail to disclose her knowledge of the Gill Murder and
no misconduct occurred.” Moreover, the court found that Strong had failed
to show his verdict was influenced by Juror 47’s knowledge of the Gill
Murder, and that Strong had also failed to show prejudice “because one
juror was aware of his prior conviction before the aggravation phase of the
trial.”

1. Evidentiary Hearing

¶88 Following Strong’s initial appeal on this issue, we remanded
the case to the trial court with instructions “to hold an evidentiary hearing
to determine the circumstances of Juror 47’s alleged misconduct and
knowledge of the Gill Murder and prior conviction.” At this hearing, the
trial court heard testimony from Juror 47 and other witnesses. When
questioned about her knowledge of the Gill Murder—by both defense
counsel and the State—Juror 47 testified that she knew about the Gill
Murder from reading contemporaneous press accounts about the case. But
she stated that she did not remember that Strong committed the Gill
Murder when questioned during jury selection for the La Mesa Murder
trial. Juror 47 informed the court she did not remember that Strong had
been convicted of the Gill Murder until the State presented evidence of that
homicide during the aggravation phase.

¶89 After the hearing, the trial court found that Juror 47 “did not
remember Strong’s previous conviction of the Gill murder at the time of
jury selection or during the trial.” The court also concluded that “although
Juror 47 knew of the Gill case at the time of the murder and subsequent
conviction, she had forgotten that Strong was the person convicted of Gill’s
murder” and “did not realize that Strong had been convicted of the Gill
murder until the aggravation phase of the trial.” The court further found
“Juror 47’s testimony to be credible” and that “[s]he did not appear to be
deceptive or evasive in her responses on direct or cross examination.”
Thus, the court did not find “there was any prejudicial information known
21
 STATE V. PRESTON ALTON STRONG
Opinion of the Court

to Juror 47 during the trial that would even begin the two-step process laid
out to this court by the [Arizona] Supreme Court.” Consequently, the court
denied Strong’s motion to vacate judgment and motion for a new trial.

2. Godoy Juror Misconduct Test

¶90 Under Arizona Rule of Criminal Procedure 24.2(a)(2), (3)
(2017), a court may vacate a judgment when “newly discovered material
6

facts exist under the standards in Rule 32.1,” or if “the conviction was
obtained in violation of the United States or Arizona Constitutions.” And
criminal defendants are constitutionally entitled to be tried by an impartial
jury. U.S. Const. amends. VI, XIV. A jury’s verdict must be based on
evidence presented and developed at trial, free from outside influences.
State v. (Rudy R.) Miller, 178 Ariz. 555, 557 (1994).

¶91 When a defendant alleges that a juror is improperly exposed
to external information, we apply a two-step framework based on Mattox v.
United States, 146 U.S. 140 (1892), and Remmer v. United States, 347 U.S. 227
(1954). Godoy, 861 F.3d at 959. Under this framework, the trial court must
first determine whether the alleged external information known to the juror
was “possibly prejudicial,” meaning it tended to be injurious to the
defendant. Id. (quoting Mattox, 146 U.S. at 150). If so, a presumption of
prejudice arises, and, at the second step, the state must then rebut the
presumption by showing that the information was harmless. Id. If the state
cannot make a showing of harmlessness, then the defendant is entitled to a
new trial. Id. But if “the presumption arises but the prejudicial effect of the
external information is unclear from the existing record, the trial court must
hold a ‘hearing’ to ‘determine the circumstances [of the contact], the impact
thereof upon the juror, and whether or not it was prejudicial.’” Id.
(alteration in original) (quoting Remmer, 347 U.S. at 229–30).

¶92 In our Decision Order, we concluded that this “analytical
framework should be applied to the circumstances and allegations
presented in this case, involving precluded external information about the
[Gill] murder and Strong’s [subsequent] conviction.” We then found that
because Strong established a presumption of prejudice based on the
investigator’s notes regarding his conversation with Juror 47 after the trial,
he was entitled to a hearing to determine whether he was prejudiced by
Juror 47.

6 We cite to the 2017 edition of Rule 24 because this was the version in force

at the time of Strong’s motions and the trial court’s rulings.
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 STATE V. PRESTON ALTON STRONG
Opinion of the Court

¶93 Based on the evidentiary hearing held on remand, we
conclude that the court did not abuse its discretion in finding no juror
misconduct. See Burns, 237 Ariz. at 26 ¶ 112 (explaining that when a
defendant alleges jury misconduct and moves for a new trial, we will not
reverse the trial court’s ruling absent an abuse of discretion); see also (Rudy
R.) Miller, 178 Ariz. at 557 (finding an abuse of discretion when a trial court
did not hold an evidentiary hearing despite a “substantial risk of prejudice”
from jurors’ exposure to external information).

¶94 In concluding that Juror 47 was not influenced in the trial’s
guilt phase by external information—i.e., knowledge that Strong
committed the Gill Murder—the trial court acknowledged that the Godoy
analysis we instructed the court to apply “cannot begin unless and until the
court determines that the juror had information and possibly could have
used that information during the trial.” The court continued, explaining
that the “threshold question, therefore, [wa]s whether Juror 47 was still
aware of [Strong’s association with the Gill Murder] at the time of jury
selection or during her service as a juror prior to that information being
provided during the aggravation phase of the trial.” Based on the record
developed at the hearing, the court concluded that “Juror 47 did not realize
that Strong had been convicted of the Gill murder until the aggravation
phase of the trial.” Moreover, Juror 47 did not communicate with other
jurors about the Gill Murder once she realized the connection.

¶95 In its order, the trial court correctly noted that—before
determining whether alleged improper information was prejudicial—it
must establish what was “known to the juror” at the time of trial. When we
remanded this case for an evidentiary hearing, we assumed—based on the
investigator’s notes attached to Strong’s motion for a new trial—that Juror
47 remembered that Strong was the perpetrator of the Gill Murder while
she served as a juror on the La Mesa Murder trial. But faced with a fully
developed record on remand, the trial court determined, as an initial
matter, that Juror 47 did not remember Strong’s conviction for the Gill
Murder at the time of jury selection or during the guilt phase of the trial.
The court further found that Juror 47 did not realize that Strong had been
convicted of the Gill Murder until the State presented evidence of this fact
at the aggravation phase of the trial. These findings are supported by the
record and are not clearly erroneous. State v. Hulsey, 243 Ariz. 367, 377 ¶ 17
(2018) (“We defer to a trial court’s findings of fact when they are supported
by the record and not clearly erroneous . . . .”). At bottom, Strong was not
prejudiced because Juror 47 did not remember his prior murder conviction
until that fact was admitted at the aggravation phase. See State v. Nelson, 229 Ariz. 180, 184 ¶ 12 (2012) (“[P]rejudice cannot be presumed without the
23
 STATE V. PRESTON ALTON STRONG
Opinion of the Court

requisite showing that the jury received and considered extrinsic evidence
on the issues.” (quoting Davolt, 207 Ariz. at 208 ¶ 59)). Accordingly, we
conclude that the court did not abuse its discretion in finding no juror
misconduct.

E. DNA Evidence

¶96 Strong argues that the DNA results obtained from analyzing
evidence taken from the steering wheel of Luis’s Dodge Durango was the
product of unreliable principles and methods and should have been
excluded from trial. He cites Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993), and Arizona Rule of Evidence 702 as authority for this
claim.

¶97 “We review a trial court’s decision whether to admit DNA
evidence for an abuse of discretion and in the light most favorable to
sustaining its ruling.” State v. Gomez, 250 Ariz. 518, 521 ¶ 13 (2021). But an
“error of law committed in reaching a discretionary conclusion may,
however, constitute an abuse of discretion.” Johnson, 247 Ariz. at 186 ¶ 45
(internal quotation mark omitted) (quoting State v. Wall, 212 Ariz. 1, 3 ¶ 12
(2006)).

¶98 Before trial, Strong sought to prevent the State from
presenting evidence showing that he was a major contributor of DNA
found on the steering wheel of Luis’s Dodge Durango. In support of this
motion, Strong presented a report by a forensic scientist, Debra Epstein, that
challenged the methodology used by the Department of Public Safety
(“DPS”) in testing the DNA material.

¶99 The trial court held an evidentiary hearing on Strong’s
motion. At the hearing, former DPS forensic scientist Lorraine Heath
testified about the protocols and procedures she followed when she
performed the DNA analysis. Strong presented testimony by Epstein.
After the hearing, the court denied Strong’s motion.

¶100 Here, Strong asserts that the trial court erred by admitting the
DNA evidence because Heath did not follow accepted scientific methods
and protocols when she conducted her analysis. And he claims that this
unfairly prejudiced him because the DNA evidence was the only evidence
that linked him to Luis’s Durango, which was used to advance the State’s
theory that Strong drove Luis’s Durango to Sanguinetti Park after the

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Opinion of the Court

murders. 7 Specifically, Strong argues that the DNA evidence was
inadmissible because Heath: (1) used the wrong standard cut off for
testing; 8 (2) should not have combined samples unless she knew the
samples were collected from the same area; (3) did not preserve some of the
DNA swabs in their original state before testing; and (4) did not preserve
all notes used to generate data, including her calculations, for peer review.
We disagree.

¶101 Arizona Rule of Evidence 702 allows an expert witness to
testify if:

(a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact
to understand the evidence or to determine a
fact in issue; (b) the testimony is based on
sufficient facts or data; (c) the testimony is the
product of reliable principles and methods; and
(d) the expert’s opinion reflects a reliable
application of the principles and methods to the
facts of the case.

“Trial courts serve as the ‘gatekeepers’ of admissibility for expert
testimony, with the aim of ensuring such testimony is reliable and helpful
to the jury.” State v. Romero, 239 Ariz. 6, 9 ¶ 12 (2016) (quoting Ariz. R. Evid.
702 cmt. to 2012 amendment). However, the court’s “gatekeeping role is
not intended to displace the jury’s fact-finding role, which includes
assessing the weight and credibility of testimony and resolving any
evidentiary conflicts.” State v. Rojo-Valenzuela, 237 Ariz. 448, 451 ¶ 11
(2015). “In close cases, the trial court should allow the jury to exercise its
fact-finding function, for it is the jury’s exclusive province to assess the

7 Strong also asserts that admission of the evidence denied him his
constitutional right to due process as guaranteed by the Fifth, Sixth, and
Fourteenth Amendments to the United States Constitution and article 2,
sections 23 and 24 of the Arizona Constitution. However, because Strong
did not cite authority or present an argument on the due process issues, he
has waived them. See Johnson, 247 Ariz. at 194 ¶ 91.
8 Here, the “standard cut off for testing” refers to a minimum analytical

threshold for data comparisons between a DNA profile and a DNA sample.
See Amplified DNA Product Separation for Forensic Analysts: Glossary, Nat’l
Inst. of Just., (July 21, 2023) https://nij.ojp.gov/nij-hosted-online-training-
courses/amplified-dna-product-separation-forensic-
analysts/glossary#analytical-threshold.
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 STATE V. PRESTON ALTON STRONG
Opinion of the Court

weight and credibility of evidence.” State v. Bernstein, 237 Ariz. 226, 230
¶ 18 (2015).

¶102 Here, the trial court did not abuse its discretion by admitting
the DNA evidence. Although Strong’s expert asserted Heath violated
protocol by using the wrong standard cut off for testing, Heath testified that
DPS protocol gave her the authority to determine an appropriate threshold.
Heath further testified that, based on her knowledge and experience, she
felt that the threshold level used was appropriate. She also noted that the
DPS crime lab and its procedures were accredited by the American Society
of Crime Lab Directors Laboratory Accrediting Board and approved under
the FBI’s quality assurance standards. Heath further stated that even if she
had used a higher threshold level only one sample would have been
excluded—and therefore the impact of using a higher threshold would
have been minimal.

¶103 Next, Strong asserts that Heath violated protocol by
improperly combining DNA samples. However, Heath testified that it was
standard procedure to combine swabs from the same area, especially when
looking for touch DNA, in order to maximize the ability to detect the DNA
that is present. Heath further stated that, based on her knowledge and the
sensitivity of the testing at the time, using all the samples was an
appropriate method to maximize the possibility of getting an interpretable
DNA sample.

¶104 Strong also claims that Heath violated protocol by failing to
preserve some of each swab in its original state before testing. Heath
testified that, although the cotton swabs had been consumed, DNA extract
remained and could be tested by the defense. Heath also stated that
according to the DPS policy in effect at the time she conducted her analysis,
an investigator could give her permission to consume the entire sample and
she had received that authorization.

¶105 Finally, Strong argues that Heath violated protocol by failing
to preserve all notes used to generate data, including her calculations for
peer review. Heath stated she did the calculations but did not include them
in her report because that was the standard practice at the time. Heath
further confirmed all her work was approved following technical and
administrative review to verify proper procedures.

¶106 The testimony presented at the evidentiary hearing supports
the trial court’s conclusion that Heath’s expert testimony regarding the
DNA evidence was: (1) based on sufficient data using reliable scientific
26
 STATE V. PRESTON ALTON STRONG
Opinion of the Court

principles and methods; (2) relevant and would assist the jury; and (3) was
more probative than prejudicial. Strong fails to show that testimony
presented at the hearing, when viewed in the most favorable light, does not
support the court’s conclusion. Strong further fails to show that the trial
court committed any legal error when admitting the DNA evidence.
Accordingly, he fails to show that the trial court abused its discretion in
admitting the DNA evidence.

F. Argument Between Luis And Strong

¶107 Strong argues that the trial court committed fundamental
error by admitting testimony from Soto, Luis’s cousin, because the
testimony was: (1) inadmissible other-act evidence under Arizona Rule of
Evidence 404(b); (2) irrelevant under Rule 401; and (3) more prejudicial than
probative under Rule 403.

¶108 Before trial, Strong moved to preclude Soto’s testimony about
an argument he heard between Strong and Luis. Regarding this argument,
Soto told police officers that one month before the murders, he visited Luis
at the RC Liquor Store and heard what sounded like an argument in the
back of the store. He said he then saw Strong and Luis leave the back of the
store and asked Luis what had happened. Soto said Luis told him that
Strong “was kind of upset” because Luis had refused to loan Strong more
money and that Strong already owed Luis $50,000.

¶109 In his motion to preclude Soto’s testimony, Strong argued
Soto’s statements were hearsay and did not fall within a hearsay exception. 9
The State argued Luis’s statements to Soto were admissible because they
fell within the excited-utterance, present-sense-impression, and
statements-against-interest exceptions to hearsay. Additionally, the State
argued the statements were non-hearsay because they were being offered
to explain why Luis was emotionally upset at the time he interacted with
Soto—i.e., to show Luis’s state of mind—and not to prove the truth of the
matter asserted therein. Finally, the State argued that the statements also
went to Strong’s state of mind. In reply, Strong reasserted that Luis’s
statements were hearsay without an exception. 10

9 Although the State and the court also addressed whether evidence of
Soto’s observations was admissible, Strong only argued that Soto’s
testimony regarding Luis’s statements was inadmissible.
10 Strong also argued in reply that Luis’s statements were stale because Soto

did not report them to police until 2014, but he does not raise this argument
on appeal.
27
 STATE V. PRESTON ALTON STRONG
Opinion of the Court

¶110 The trial court denied Strong’s motion. The court found that
Luis’s statements to Soto fell within the present-sense-impression exception
to hearsay because Luis perceived and participated in the argument and
made the statement to Soto immediately after it occurred. See Ariz. R. Evid.
803(1).

¶111 On appeal, Strong does not assert that the trial court erred by
finding that Luis’s statements to Soto were admissible as present sense
impressions. Instead, he contends that Soto’s testimony was inadmissible
“other act” evidence under Rule 404(b), that it was not relevant, and that its
prejudicial effect outweighed its probative value. We review this claim for
fundamental error because Strong did not raise this objection at trial. See
Hulsey, 243 Ariz. at 381 ¶ 38 (reviewing for fundamental error because a
party “failed to specifically object in the trial court to any admission of
evidence on 404(b) grounds”).

¶112 When admitting evidence of other acts, the evidence must:
(1) be relevant, (2) be admitted for a proper purpose under Rule 404(b), and
(3) satisfy Rule 403 balancing. State v. Mott, 187 Ariz. 536, 545 (1997).
“Evidence is relevant if: (a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action.” Ariz. R. Evid. 401. “Unfair
prejudice means an undue tendency to suggest decision on an improper
basis, . . . such as emotion, sympathy or horror.” State v. Hardy, 230 Ariz.
281, 290 ¶ 40 (2012) (alteration in original) (quoting State v. Schurz, 176 Ariz.
46, 52 (1993)). The greater the probative value of the evidence, the less likely
such value will be substantially outweighed by unfair prejudice. Shotwell
v. Donahoe, 207 Ariz. 287, 296 ¶ 34 (2004).

¶113 Strong has not shown that the admission of Soto’s testimony
was error, let alone fundamental error. First, the testimony was relevant
because it had a tendency to show Strong had motive to murder the victims,
a fact of consequence in determining whether Strong acted intentionally
and with premeditation. See Ariz. R. Evid. 401; see also A.R.S.
§ 13-1105(A)(1) (defining first degree murder to include intentional and
premeditated killing).

¶114 Second, Soto’s testimony would have been admissible under
Rule 404(b). The State did not introduce the testimony to show that Strong
acted in conformity with his character, but rather to establish Strong’s
potential motive. Such use is permissible under Rule 404(b). See State v.
Via, 146 Ariz. 108, 122 (1985).
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 STATE V. PRESTON ALTON STRONG
Opinion of the Court

¶115 Finally, the testimony’s probative value substantially
outweighed its prejudicial effect. Strong’s motive and intent were
significant issues at trial. Therefore, Luis’s statements indicating that he
and Strong argued, Strong was “upset,” and that Strong owed Luis money
all had sufficient probative value. Although Strong argues the testimony
was unduly prejudicial because no other evidence showed Strong owed
Luis $50,000, other contradictory testimony regarding Strong’s financial
state was presented. Soto’s testimony thus constituted conflicting evidence
for the jury to consider. See Doe v. Roe, 191 Ariz. 313, 327 ¶ 45 (1998)
(recognizing that weighing conflicting evidence is the jury’s function).
Moreover, Soto’s testimony was not inflammatory, see State v. Lee, 189 Ariz.
608, 614 (1997) (noting testimony did not use inflammatory language when
weighing testimony’s prejudicial value), and did not tend to encourage
judgment on emotion, sympathy, horror, or any other improper basis.
Although the testimony was not favorable to Strong, that, taken alone, is
insufficient to render the testimony unduly prejudicial. Schurz, 176 Ariz.
at 52 (explaining that “not all harmful evidence is unfairly prejudicial”
because “evidence which is relevant and material will generally be adverse
to the opponent”).

¶116 Even if the trial court erred in admitting Soto’s testimony, we
do not find the alleged error was “of such a magnitude that [the] defendant
could not possibly have received a fair trial” or that Strong was prejudiced
by the testimony’s admission. See Escalante, 245 Ariz. at 140–41 ¶ 16
(internal quotation mark omitted) (quoting Henderson, 210 Ariz. at 567
¶ 20). Although improperly admitted hearsay evidence may be grounds
for reversal if such evidence was the “sole proof of an essential element of
the state’s case,” State v. McGann, 132 Ariz. 296, 299 (1982), the State—as
Strong acknowledges—presented other evidence of Strong’s financial
troubles and debts to Luis. Strong argues he was prejudiced because only
Soto’s testimony indicated that Strong owed Luis $50,000. This only means
that Soto’s testimony was conflicting evidence for the jury’s consideration.
Because the alleged error did not prejudice Strong, fundamental error has
not been established, and reversal is not warranted. See Bible, 175 Ariz.
at 599.

G. Ramon Curiel

¶117 Strong asserts that the trial court erred (1) by admitting
Curiel’s testimony and a redacted letter written by Curiel—both stating that
Strong confessed to the La Mesa Murders—because they were unduly

29
 STATE V. PRESTON ALTON STRONG
Opinion of the Court

prejudicial, and (2) for failing to sua sponte preclude Curiel’s testimony and
letter as hearsay.

¶118 Because Strong objected on the basis of undue prejudice at
trial, we review for harmless error. See Henderson, 210 Ariz. at 567 ¶ 18.
However, because Strong did not argue at trial that the letter and testimony
were hearsay, we review those arguments for fundamental error. See State
v. Goudeau, 239 Ariz. 421, 457 ¶ 144 (2016). We consider “only the evidence
presented at the suppression hearing and view[] it in the light most
favorable to sustaining the trial court’s ruling.” State v. Primous, 242 Ariz.
221, 223 ¶ 10 (2017); see State v. Superior Court, 128 Ariz. 583, 585 (1981) (“In
criminal cases, a motion in limine is treated as a motion to suppress . . . .”).

¶119 In 2015, Curiel, an inmate at the Arizona Department of
Corrections, wrote a letter to the Yuma City Attorney saying that he would
be willing to testify against Strong in exchange for early release from his
prison sentence. In the letter, Curiel recounted a 2013 conversation with
Strong while both men were in prison. According to Curiel’s letter, Curiel
had asked Strong whether he was still a suspect in the La Mesa Murders,
and Strong replied that he was but that he would never be convicted
because he had been too careful.

¶120 Strong moved to preclude Curiel’s testimony and letter,
arguing that Curiel’s testimony and the information contained in the letter
would inform the jury that Strong was in prison when their conversation
took place and would therefore be unduly prejudicial.

¶121 The trial court denied the motion to preclude, determining
that Curiel’s testimony was relevant and that the reliability of his testimony
went to “the weight of the statements and not their admissibility.” The
court also concluded Curiel’s testimony could be properly sanitized to
remove any prejudicial material. The court also admonished Curiel before
he testified that he was not to mention the fact that Strong was in custody
or that Strong had any prior felony convictions.

¶122 Regarding Curiel’s letter, the court determined that the letter
could be sanitized to remove any indication that the conversation
referenced therein took place in prison. The court allowed the admission
of the redacted letter and instructed the jury not to concern itself with the
reasons for or contents of the redactions.

¶123 When considering evidence, the “court may exclude relevant
evidence if its probative value is substantially outweighed by a danger
30
 STATE V. PRESTON ALTON STRONG
Opinion of the Court

of . . . unfair prejudice.” Ariz. R. Evid. 403. Adverse evidence is not
necessarily unfairly prejudicial, however, because relevant and material
evidence will almost always be harmful to an opponent. Schurz, 176 Ariz.
at 52. Moreover, courts may mitigate the prejudicial impact of evidence
with proper jury instructions. See State v. Leteve, 237 Ariz. 516, 523 ¶ 17
(2015).

¶124 Here, the court did not abuse its discretion in admitting
Curiel’s testimony and the redacted letter. Both the testimony and letter
had probative value because they showed Strong’s involvement in the La
Mesa Murders. In contrast, the danger of unfair prejudice was minimal
because the admission of the redacted letter was not based on an improper
reason, such as emotion or sympathy. Further, the trial court properly
instructed the jury not to consider the reasons for or content of the
redactions, thus mitigating any prejudicial impact. We presume the jury
follows the court’s instructions. State v. Dann (“Dann I”), 205 Ariz. 557, 570
¶ 46 (2003). Thus, the trial court did not abuse its discretion by concluding
that Curiel’s testimony and the redacted letter’s probative value
outweighed the danger of unfair prejudice.

¶125 Strong also argues the court fundamentally erred by
admitting Curiel’s testimony and redacted letter because they constituted
hearsay with no indicia of reliability. Specifically, Strong asserts his own
statement contained in the letter was not an admission because there was
no evidence that he actually made the statement Curiel reported. This
argument fails.

¶126 While hearsay is generally inadmissible, an opposing party’s
statement is not hearsay. Ariz. R. Evid. 801(d)(2). “Party admissions
require no external indicia of reliability.” State v. Garza, 216 Ariz. 56, 66 ¶ 41
(2007). They need only be offered against and made by the opposing party.
Ariz. R. Evid. 801(d)(2).

¶127 Strong’s statements to Curiel, as reflected in Curiel’s
testimony and letter, were made by Strong and were properly offered
against him as a party admission under Rule 801(d)(2)(A). Accordingly, the
court did not err by admitting the statements. Because Strong has not
shown trial error, he has failed to show the court committed fundamental
error. See Escalante, 245 Ariz. at 142 ¶ 21.

31
 STATE V. PRESTON ALTON STRONG
Opinion of the Court

H. Admission Of Timeline Evidence

¶128 Strong asserts that the court denied him his right to due
process by admitting Exhibits 957, 958, 959, and 960 without providing him
the opportunity to review and rebut them, citing State v. Krone, 182 Ariz.
319 (1995). He argues the error was prejudicial because the late disclosure
prevented him from developing his own exhibit to rebut the State’s
timelines.

¶129 Strong objected at trial to Exhibits 957, 958, and 959, and so
we apply harmless error review. See Henderson, 210 Ariz. at 567 ¶ 18. Only
if we find error do we then assess the objected-to error for harm. See
Dunbar, 550 P.3d at 150 ¶¶ 29–30. Because Strong did not object to Exhibit
960 at trial, however, we review that claim for fundamental error. Johnson,
247 Ariz. at 185 ¶ 41.

¶130 During trial, Strong advised the court that the State recently
disclosed three timeline exhibits that it proposed to admit into evidence.
The timelines were created by Detective Gawler based on previously
admitted call records from Adrienne, Luis, and Strong, respectively.

¶131 Strong objected to the disclosures, arguing the exhibits were
not timely disclosed and may be misleading. The State agreed that Strong
should have additional time to review the exhibits and explained that it
disclosed the exhibits to Strong immediately after receiving them from
YPD. The State further explained it could not have sought admission of the
exhibits earlier because the information displayed in the charts had not yet
been established by testimony, but in any event it had disclosed another
version of the timeline to Strong “years ago.” The State asserted that all the
contents of each exhibit were supported by previous testimony, and it
repeated that Strong should have additional time to verify the exhibits’
contents. The court did not permit the State to present the exhibits at that
time.

¶132 Two days later, the State notified the court that it intended to
call Detective Gawler, who created Exhibits 957, 958, and 959, to testify.
Strong again objected, arguing that although the timelines appeared to be
accurate, they were misleading because they did not contain “a lot of other
things that should have been on there in order to form a complete picture.”
Over Strong’s objection, the court ruled that the State could use Exhibits
957, 958, and 959. Strong did not object when the State moved to admit
Exhibit 960, which consisted of charts providing hourly breakdowns for

32
 STATE V. PRESTON ALTON STRONG
Opinion of the Court

calls to and from Strong’s phone. Detective Gawler testified regarding each
of these exhibits and was subjected to cross-examination by Strong.

¶133 Pursuant to Arizona Rule of Criminal Procedure 15.7 (2017), 11
if a party fails to make timely disclosures, the court may impose
sanctions—including precluding or limiting the use of evidence. Upon a
motion by a party “[t]he court shall order disclosure and shall impose any
sanction it finds appropriate, unless the court finds [1] that the failure to
comply was harmless or [2] that the information could not have been
disclosed earlier even with due diligence and the information was disclosed
immediately upon its discovery.” Ariz. Crim. P. 15.7(a) (2017). “All orders
imposing sanctions shall take into account the significance of the
information not timely disclosed, the impact of the sanction on the party
and the victim and the stage of the proceedings at which the disclosure is
ultimately made.” Id.

¶134 Here, the trial court did not abuse its discretion by admitting
Exhibits 957, 958, and 959. As to Exhibits 958 and 959, though the court did
not expressly state on the record “that the failure to comply was harmless
or that the information could not have been disclosed earlier,” id., it is
apparent from the record that Detective Gawler’s testimony supported the
State’s assertion that it had produced the exhibits as soon as it had received
them from YPD. Detective Gawler’s testimony also established that he
created the exhibits from previously admitted call records—rather from any
new evidence—thereby mitigating any prejudice to Strong. As to Exhibit
957, the court concluded that “the information contained within the exhibit
was timely disclosed,” that the State disclosed the exhibit as soon as it had
received it from YPD, and that the State had previously disclosed to Strong
another version of the timelines. Moreover, the court granted Strong ample
time—five days—to review the exhibits before they were admitted.

¶135 Strong’s reliance on Krone is equally unavailing. In Krone, this
Court considered the appropriate remedy for the state’s disclosure of an
exhibit on the eve of trial. 182 Ariz. at 321. The exhibit at issue in Krone was
a videotape prepared by a dental expert to show that bite marks on the
victim matched the defendant’s teeth. Id. at 320. This Court concluded that
“the trial court should have either granted a continuance or precluded the
tape when first asked to do so” and that “a discovery sanction should be
proportionate to the harm caused.” Id. at 322.

11 We cite the version in effect at the time of trial, which did not expressly
state a requirement for the court to first find a disclosure violation.
33
 STATE V. PRESTON ALTON STRONG
Opinion of the Court

¶136 Here, Strong argues that the trial court’s admission of Exhibits
957, 958, and 959 contravenes Krone and that the court should have
precluded the timeline exhibits based on the State’s late disclosure.
However, Strong had five days to review the three exhibits and to compare
them to the information that had been previously disclosed to him.
Moreover, Strong does not contend that this time was insufficient to review
the exhibits or that his cross-examination of Detective Gawler was
compromised based on the State’s late disclosure.

¶137 As previously noted, “a discovery sanction should be
proportionate to the harm caused.” Id. Here, any possible harm caused by
the late disclosure of the timeline exhibits was minimal and was cured by
the trial court’s order delaying the admission of the exhibits. Because we
cannot say that “no reasonable judge would have reached the same result
under the circumstances,” State v. Naranjo, 234 Ariz. 233, 242 ¶ 29 (2014)
(quoting State v. Armstrong, 208 Ariz. 345, 354 ¶ 40 (2004)), we conclude the
trial court did not abuse its discretion by admitting Exhibits 957, 958, and
959.

¶138 Finally, as to Exhibit 960, Strong does not explain or develop
his argument that its admission was fundamental error; he has therefore
failed to carry his burden on fundamental error review. See Escalante, 245
Ariz. at 142 ¶ 21. He also asserts that admission of this evidence denied
him his constitutional right to due process as guaranteed by the Fifth, Sixth,
and Fourteenth Amendments to the United States Constitution and article
2, sections 23 and 24 of the Arizona Constitution. However, because Strong
did not cite authority or present an argument on the due process issues, he
has waived them. See Johnson, 247 Ariz. at 194 ¶ 91.

I. Death Penalty

¶139 Strong argues that imposition of the death penalty was
improper and unconstitutional because: (1) the court improperly instructed
the jury to consider whether the murders were committed in a cold and
calculated manner; (2) the victim impact statements unfairly prejudiced
him; (3) the aggravating factor of committing multiple homicides was not
proven; and (4) an independent review of the imposition of the death
penalty mandates commutation to life imprisonment. He also asserts
imposition of the death penalty in this case violated both the Eighth
Amendment of the United States Constitution and article 2, section 24 of
the Arizona Constitution.

34
 STATE V. PRESTON ALTON STRONG
Opinion of the Court

1. Cold-and-Calculated Aggravating Factor

¶140 Strong asserts that the trial court erred by instructing the jury
regarding the cold-and-calculated aggravating factor and allowing the State
to present that factor. Because Strong did not object to perceived error
during the aggravation phase, we review for fundamental error. 12 See
Johnson, 247 Ariz. at 185 ¶ 41. Although we agree that the court’s
instruction regarding the aggravating factor was erroneous, we do not find
it rises to the level of a fundamental error.

¶141 The State alleged, and the jury found, that Strong committed
each murder in a “cold, calculated manner without pretense of moral or
legal justification.” § 13-751(F)(13). This finding was erroneous because the
murders were committed before the effective date of the (F)(13) factor.

¶142 But before beginning the penalty phase, the trial court
realized this error and proposed instructing the jury that it “must disregard
[its] finding [of the (F)(13) factor] and no longer consider it in making [its]
sentencing determination.” Because neither the State nor Strong objected
to this resolution, the court so instructed the jury at both the beginning and
the end of the penalty phase.

¶143 Certain instructional errors may constitute fundamental
error. See, e.g., State v. King, 158 Ariz. 419, 425 (1998) (“Where, under the
facts of the case, the error affects the primary or sole issue, we are likely to
find fundamental error.”); State v. Hunter, 142 Ariz. 88, 90 (1984) (holding
that improper burden shifting to a defendant constitutes fundamental
error). These errors are generally so significant they undermine the
foundation of a case or render a fair trial impossible. See King, 158 Ariz.
at 424–25.

¶144 Here, though giving the cold-and-calculating instruction was
error, the instruction did not fundamentally undermine the trial. The error
did not affect the primary or sole issue in the case—this was not the only
aggravator alleged. The State alleged, and the jury also found, three
aggravating circumstances under § 13-751(F)(1), (8), and (9). Also, the State
presented no additional evidence to support the (F)(13) aggravating factor.
During the aggravation phase, the State argued that (F)(13) had been
established by the evidence already presented during the guilt phase of the

12 Strong first asserted this claim in a post-trial motion, but “an untimely
objection first raised in a motion for a new trial does not preserve an issue
for appeal.” State v. Davis, 226 Ariz. 97, 100 ¶ 12 (App. 2010).
35
 STATE V. PRESTON ALTON STRONG
Opinion of the Court

trial. Moreover, the instruction did not improperly shift the burden to
Strong. And finally, and of critical importance here, the court cured the
error by clearly and unequivocally instructing the jury—at both the
beginning and end of the penalty phase—to disregard the (F)(13) factor in
its entirety. See State v. Newell, 212 Ariz. 389, 403 ¶ 68 (2006) (“We presume
that the jurors followed the court’s instructions.”).

¶145 In short, the erroneous instruction did not go to the
foundation of the case, deprive Strong of a right essential to his defense, or
deny him a fair trial. See Escalante, 245 Ariz. at 142 ¶ 21. Accordingly, the
trial court’s erroneous instruction regarding the cold-and-calculating
aggravating factor does not constitute a fundamental error.

2. Victim Impact Statements

¶146 Strong asserts that two comments in the victim impact
statements unfairly prejudiced him. Specifically, he argues: (1) that a
victim’s statement characterizing the murders as a “satanic act” was unduly
prejudicial; and (2) that another victim’s assertion that Strong “deserve[d]
what’s coming to [him], if not worse” offered an impermissible opinion
regarding the appropriate sentence to be imposed. 13 He alleges the victim
impact statements were not only highly inflammatory and prejudicial, but
were especially prejudicial because the trial court instructed the jury to
consider them to rebut his mitigation.

¶147 Four family members gave victim impact statements,
including Luis’s adult daughter, Amanda Rios, and A.C.’s and E.B.’s father,
Ken Crawford. In his statement, Crawford told the jury that the murders
were “a disgrace, a shameless, satanic act.” Amanda told Strong: “You
deserve what’s coming to you, if not worse. You’ve ruined multiple lives
including the ones related or connected with the deceased.” Strong
objected and moved for a mistrial asserting these statements were
inappropriate. The trial court denied Strong’s mistrial motion.

¶148 Victim impact evidence is admissible during the penalty
phase of a capital trial to rebut a defendant’s mitigation evidence. See Ariz.
Const. art. 2, § 2.1(A)(4) (entitling a victim to be heard at sentencing); A.R.S.
§ 13-752(R) (allowing victim to present information during penalty phase

13 Strong also states the “satanic” statement violated the “mandate” in State
v. Comer, 165 Ariz. 413 (1990). However, Comer does not address victim
impact statements, and Strong provides no citation or explanation to which
“mandate” he refers.
36
 STATE V. PRESTON ALTON STRONG
Opinion of the Court

“about the murdered person and the impact of the murder on the victim
and other family members”); Ariz. R. Crim. P. 19.1(e)(3) (allowing victim
impact statements, but statements may not contain “any opinion or
recommendation about an appropriate sentence”). “Victim impact
evidence should not be allowed, however, if it is ‘so unduly prejudicial that
it renders the trial fundamentally unfair.’” State v. Dann (“Dann III”), 220
Ariz. 351, 369 ¶ 98 (2009) (quoting Payne v. Tennessee, 501 U.S. 808, 825
(1991)).

¶149 Strong did not object to the victim impact evidence until after
it was presented, when he moved for a mistrial. “The trial court’s decision
whether to grant a mistrial is reviewed for an abuse of discretion, as is the
admission of victim impact evidence.” State v. Gallardo, 225 Ariz. 560, 567
¶ 26 (2010) (internal citations omitted).

¶150 The victim impact statements characterizing the murders as
“a satanic act” and stating that Strong “deserve[d] what’s coming to [him],
if not worse” were not so unduly prejudicial as to render the trial
fundamentally unfair. The statements, although emotional, were no more
improper than other statements this Court has found to be permissible. See,
e.g., Burns, 237 Ariz. at 30 ¶ 141 (“[A] family member’s brief remarks about
the impact of remembering or visualizing a victim’s final moments were
not unduly prejudicial.”); State v. Rose, 231 Ariz. 500, 513 ¶ 57 (2013)
(labeling a defendant as a “cop killer” was permissible); State v. Cota, 229
Ariz. 136, 150 ¶¶ 69–71 (2012) (finding a statement describing the victims’
bodies as “mutilated” and “tortured” permissible); State v. Bush, 244 Ariz.
575, 593–94 ¶¶ 78, 82 (2018) (finding a victim’s statements that her
“daughter was shot at close range, like she was worth nothing” and “[c]lose
enough to almost blow her face completely off” and that the victim was
confused about “how someone could have that much hate in their heart”
were permissible (alteration in original)).

¶151 Additionally, the statement that Strong “deserve[d] what’s
coming to [him], if not worse” did not violate the rule against offering an
opinion or recommendation about an appropriate sentence. Although
pressing for an “appropriate” or “just” sentence “come[s] dangerously
close” to infringing the rule against recommending an appropriate
sentence, this Court has found no violation of the rule in absence of an
“express request” that the defendant be put to death. See Rose, 231 Ariz.
at 513 ¶¶ 57–58 (finding no violation of the rule where victim requested the
jury to “give the appropriate sentence”). The victim here did not make such
an express statement. Additionally, during the statement the victim said
Strong was already “in prison paying for [his] idiocy right where [he]
37
 STATE V. PRESTON ALTON STRONG
Opinion of the Court

should be,” lessening an implication that the victim was asking for Strong
to be put to death.

¶152 Moreover, any prejudice caused by the statements was cured
by the trial court’s instructions. See Dann III, 220 Ariz. at 369–70 ¶ 101.
Before and after the victims’ statements, the court appropriately instructed
the jurors that they could consider victim impact statements to the extent
they rebutted mitigation evidence but that they could not consider the
information as a new aggravating circumstance. It also instructed the jury
that the victims were “not allowed to offer any opinion or recommendation
regarding an appropriate sentence.” The court did not abuse its discretion
by admitting the victim impact statements or denying Strong’s motion for
a mistrial.

3. Multiple Homicide Statutory Aggravator

¶153 Strong argues the statutory aggravating factor of committing
multiple homicides was not properly established. See § 13-751(F)(8). He
asserts that although the victims died in the same home over the course of
an afternoon and evening, the State did not prove that the multiple
homicides were motivationally related. We review the jury’s finding for an
abuse of discretion and will uphold it if substantial evidence supporting the
aggravator exists. State v. Gunches (“Gunches I”), 225 Ariz. 22, 25 ¶¶ 13–14
(2010). We view the evidence in the light most favorable to upholding the
jury’s findings. Id. ¶ 14.

¶154 Strong is correct that the (F)(8) aggravating factor requires
jurors to find a “temporal, spatial, and motivational relationship between
the homicides” and that the trial court did not instruct the jury as to that
relationship. See Payne, 233 Ariz. at 515 ¶ 137. However, because Strong
neither requested the correct instruction nor objected to the instruction
given at trial, we review for fundamental error only. See id. at 516 ¶ 137. A
defendant only shows fundamental error if no rational jury would “find a
temporal, spatial, and motivational relationship between the murders.” See
id. ¶ 141.

¶155 Strong does not dispute that the murders were temporally
and spatially related but argues that the State failed to prove the
motivational relationship. This argument, however, fails.

¶156 Here, the State introduced evidence supporting the
conclusion that the murders were motivationally related. The State
presented evidence that Strong killed Luis because he refused to loan
38
 STATE V. PRESTON ALTON STRONG
Opinion of the Court

Strong more money and then killed Adrienne, I.N., D.H., A.C., and E.B.
because they could identify Strong as the killer. See State v. (William C.)
Miller, 234 Ariz. 31, 45 ¶ 53 (2013) (“We have repeatedly found the
motivational relationship requirement satisfied when evidence suggested
that a defendant killed others in the vicinity to eliminate witnesses.”).
Although the (F)(8) instruction given was inadequate, Strong failed to show
fundamental error because any rational jury would have found a
motivational relationship between the murders of Luis, Adrienne, I.N.,
D.H., A.C., and E.B.

4. Abuse of Discretion Review

¶157 Strong urges this Court to independently review the
aggravating and mitigating circumstances found by the jury. Because the
murders in this case occurred after August 1, 2002, we do not
independently review the aggravating and mitigating circumstances and
the propriety of the death sentence. State v. Morris, 215 Ariz. 324, 340 ¶ 72
(2007). Rather, we review the jury’s findings of aggravating circumstances
and the imposition of the death penalty for an abuse of discretion. A.R.S.
§ 13-756(A).

¶158 We will not find “an abuse of discretion if ‘there is any
reasonable evidence in the record to sustain [the findings and sentences].’”
State v. Delahanty, 226 Ariz. 503, 508 ¶ 36 (2011) (quoting Morris, 215 Ariz.
at 341 ¶ 77). In conducting this review, we “view[] the facts in the light
most favorable to sustaining the verdict.” State v. Gunches (“Gunches II”),
240 Ariz. 198, 207 ¶ 41 (2016).

¶159 As previously stated, the jury found that the State proved the
following three aggravating circumstances beyond a reasonable doubt:
(1) Strong had been convicted of another offense for which a life sentence
could be imposed under § 13-751(F)(1); (2) Strong had been convicted of
committing one or more other homicides during the commission of the
offense under (F)(8); and (3) with respect to the child victims, Strong was
an adult and the victims were under fifteen years of age under (F)(9).

¶160 Reasonable evidence supports the jury’s findings. As to the
(F)(1) factor, the State presented evidence that Strong was convicted for the
Gill Murder, and a certified copy of the conviction was admitted at trial.
Regarding the (F)(8) factor, the State presented sufficient evidence that
Strong murdered all six family members over the course of several hours
and that there was a temporal, spatial, and motivational relationship
between the homicides. See Payne, 233 Ariz. at 516 ¶ 137; Part (I)(3). And
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 STATE V. PRESTON ALTON STRONG
Opinion of the Court

as to the (F)(9) factor, Danny Heredia established the children’s ages during
his testimony.

¶161 Further, considering the evidence presented during the
mitigation phase, the jury did not abuse its discretion when it imposed the
death sentences in this case. Through his proffered mitigation evidence,
Strong asserted that he was interested in helping others—especially those
with disabilities—as shown by his employment history; was able to be
employed; helped young adults and older children; had never been
involved with drugs; and behaved well since being incarcerated. However,
the State rebutted much of this mitigation evidence. It established that
Strong had been convicted of a felony theft while living in Yuma; that he
had ten felony convictions before arriving in Yuma; and that he had been
convicted in connection with “put[ting] an 88-year-old lady in the hospital
to steal her purse.” The State also presented additional evidence arguing
that leniency should not be shown. This evidence included details of the
Gill Murder, including that Gill had died of asphyxiation by ligature,
suffered blunt force trauma on various parts of his body, and was under
Strong’s control for approximately two hours before being killed. It was
also established that Strong stole $24,000 from Gill in connection with that
homicide.

¶162 The jury did not find the proffered mitigation sufficiently
substantial to call for leniency, and, after considering this evidence, we
conclude it did not abuse its discretion in doing so. See State v. Hampton, 213 Ariz. 167, 184 ¶ 81 (2006) (noting the aggravating factor of committing
multiple murders during the commission of the offense is “extraordinarily
weighty”).

¶163 Strong also argues that the imposition of the death penalty
violates the Eighth Amendment of the United States Constitution and
article 2, section 24 of the Arizona Constitution because Arizona’s capital
sentencing structure fails to adequately narrow the class of defendants
eligible for the death penalty. We rejected this argument in State v. Hidalgo, 241 Ariz. 543, 548 ¶ 7, 549–52 ¶¶ 14–29 (2017). For the reasons explained
there, we reject this argument here.

CONCLUSION

¶164 We affirm Strong’s convictions and death sentences.

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