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The following action was taken by the Supreme Court of the State of Arizona on January 08, 2002, in regard to the above-referenced cause: ORDERED: Petition for Review = DENIED. FURTHER ORDERED: The Court of Appeals’ Opinion shall not be published, pursuant to Rule 111(g), Arizona Rules of the Supreme Court. Justice MARTONE did not participate in the determination of this matter.

OPINION RYAN, Judge. ¶ 1 Faik and Sequine Kurti are qualified aliens who entered the United States on September 24, 1998. Both need non-emergency medical care for serious illnesses, but were denied non-emergency indigent health care from state and county programs because they failed to meet the eligibility requirements for qualified aliens under Arizona Revised Statutes (“A.R.S.”) sections 36-2903.03, 11-297(B), and 11-291(A) (Supp. 2000). These statutes limit indigent health care for qualified aliens who entered the United States after August 22,1996, to emergency care. The Kurtis challenge the denial of state and county indigent health care ben efits, contending that §§ 36-2903.03, 11-297(B), and 11-291(A) violate the Equal Protection Clauses of the United States and Arizona Constitutions. See U.S. Const, amend. XIV, § 1; Ariz. Const, art. 2, § 13. We hold that these statutes are unconstitutional because they are inconsistent with federal immigration laws and further no compelling governmental interest. BACKGROUND ¶ 2 The eligibility requirements for qualified aliens to receive benefits under the Arizona Health Care Cost Containment System (“AHCCCS”) program are set forth in A.R.S. § 36-2903.03. Section 36-2903.03(B) permits any qualified alien “who entered the United States on or before August 21, 1996” to be eligible for all services under § 36-2907. Section 36-2907 provides inpatient and outpatient medical care coverage for those eligible under the AHCCCS program; such coverage includes non-emergency and emergency care. See A.R.S. § 36-2907(A),(K). But under § 36-2903.03(D), “a qualified alien who entered the United States on or after August 22, 1996” and “who is not a member of one of the exception groups ... shall receive only emergency medical services.” ¶3 Similarly, the eligibility requirements for the county’s indigent health care program contained in A.R.S. §§ 11-297(B)(5) and 11-291(A) incorporate the eligibility limitations set forth in A.R.S. § 36-2903.03. Thus, both the state and county programs render qualified aliens who entered the United States on or after August 22, 1996, ineligible for non-emergency indigent health care unless they are members of an exception group as prescribed in A.R.S. § 36-2903.03. ¶ 4 Because the Kurtis entered the United States after August 21, 1996, and do not fall within any exception group, they were declared ineligible for non-emergency indigent health care under the state and county programs. ¶ 5 The Kurtis filed a complaint against Maricopa County and Phyllis Biedess, in her capacity as the Director of AHCCCS, challenging the constitutionality of Arizona’s alien eligibility requirements to the county and state funded indigent health care programs. Specifically, they sought injunctive and declaratory relief barring application of A.R.S. § 36-2903.03 to themselves and others similarly situated. Appellees filed mo tions to dismiss or, alternatively, motions for summary judgment, arguing that the state laws do not violate the Equal Protection Clauses of the United States and Arizona Constitutions because they mirror federal law governing alien eligibility for public benefits. The Kurtis responded and filed a cross-motion for summary judgment, arguing that Arizona’s laws are more restrictive than federal law and that, unlike Congress, states cannot impose such restrictions on alien eligibility for state and county aid programs. ¶6 The trial court issued a preliminary injunction ordering Maricopa County to continue to provide medical care to Mr. Kurti. After hearing oral argument on the parties’ motions, the trial court granted Appellees’ motion to dismiss. The trial court found that A.R.S. § 36-2903.03 was constitutional because it mirrored the eligibility requirements for indigent health care under federal programs and because Congress authorized the states to impose residency requirements on aliens to be eligible for state benefits. The court found the constitutionality of A.R.S. § 36-2903.03 supported by Mathews v. Diaz, 426 U.S. 67, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976); Sudomir v. McMahon, 767 F.2d 1456 (9th Cir.1985); and Cid v. South Dakota Dep’t of Social Services, 598 N.W.2d 887 (S.D.1999). The Kurtis appealed. DISCUSSION ¶ 7 In reviewing the constitutionality of a statute, we generally presume that the statute is constitutional and must construe it, if possible, to give it constitutional meaning. State v. Bonnewell, 196 Ariz. 592, 594, ¶ 5, 2 P.3d 682, 684 (App.1999) (citing State Comp. Fund v. Symington, 174 Ariz. 188, 193, 848 P.2d 273, 278 (1993)). In addition, the party alleging the constitutional violation generally bears the burden of proving it. Id. (citation omitted). But, “where the regulation in question impinges on core constitutional rights, the standards of strict scrutiny apply and the burden of showing constitutionality is shifted to the proponent of the regulation.” Ruiz v. Hull, 191 Ariz. 441, 448, ¶ 25, 957 P.2d 984, 991 (1998) (citations omitted). ¶ 8 The United States Constitution prohibits each state from “denyfing] to any person within its jurisdiction the equal protection of laws.” U.S. Const.amend. XIV, § 1. “'Person' in this context encompasses lawfully admitted resident aliens as well as citizens of the United States and entitles both citizens and aliens to the equal protection of the laws of the State in which they reside." Graham v. Richardson, 403 U.S. 365, 371, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971). ¶ 9 Appellees argue, and the trial court agreed, that Arizona’s statutes denying certain groups of qualified aliens indigent health care are constitutional because they are based on federal law, which imposes the same restrictions on qualified aliens. We conclude that the eligibility requirements of A.R.S. §§ 36-2903.03, 11-297(B), and 11-291(A) do not mirror the federal eligibility requirements, thus necessitating a strict scrutiny analysis of the state statutes. We further conclude that the state and county eligibility requirements are unconstitutional because they cannot withstand strict scrutiny under the Equal Protection Clause of the United States Constitution. ¶ 10 In Graham v. Richardson, 403 U.S. at 376, 91 S.Ct. 1848, the Supreme Court held that “a state statute that denies welfare benefits ... to aliens who have not resided in the United States for a specified number of years violate[s] the Equal Protection Clause.” Graham involved an Arizona statute imposing a fifteen-year residency requirement on aliens in order to qualify for county benefits. Id. at 367, 91 S.Ct. 1848. In evaluating the constitutionality of the residency requirement, the Court applied a strict scrutiny analysis. Id. at 376, 91 S.Ct. 1848. Under the strict scrutiny standard, the Court held that preserving limited welfare benefits for the state’s own citizens did not justify a state classification based on alienage. Id. at 374-75, 91 S.Ct. 1848. ¶ 11 In addition, the Court compared the state residency requirement to federal immigration laws, which, at that time, did not impose any restrictions on aliens’ eligibility for benefits. Id. at 377, 91 S.Ct. 1848. Because Arizona’s law conflicted with “these overriding national policies in an area constitutionally entrusted to the Federal Government” and therefore “encroach[ed] upon exclusive federal power,” the state law was constitutionally impermissible. Id. at 378, 380, 91 S.Ct. 1848. ¶ 12 In a footnote, the Graham, Court left open the question whether Congress, rather than the states, could impose a uniform residency requirement as a condition of federally funded welfare benefits. Id. at 382 n. 14, 91 S.Ct. 1848. Five years after Graham, the Court addressed this question in Mathews, 426 U.S. at 69, 96 S.Ct. 1883. In Mathews, the Supreme Court upheld a restriction imposed by Congress, which denied federal health care benefits to aliens unless they had been admitted for permanent residence and also had resided in the United States for a five-year period. Id. at 70, 96 S.Ct. 1883 (upholding 42 U.S.C. § 1395o (1970 ed., Supp. IV)). ¶ 13 The Supreme Court recognized that Congress has a legitimate basis for distinguishing among aliens because of its exclusive responsibility for regulating the relationship between the United States and aliens. Id. at 81, 96 S.Ct. 1883. The Court noted that immigration policy “may implicate our relations with foreign powers, and ... a wide variety of classifications must be defined in the light of changing political and economic circumstances.” Id. The Court further held that “it is the business of the political branches of the Federal Government, rather than that of either the States or the Federal Judiciary, to regulate the conditions of entry and residence of aliens.” Id. at 84, 96 S.Ct. 1883. On the other hand, the Court concluded that states have no similarly legitimate justification for discriminating against aliens. Id. at 84-85, 96 S.Ct. 1883. Distinguishing the state-imposed residency requirements in Graham, the Mathews Court said the following: Insofar as state welfare policy is concerned, there is little, if any, basis for treating persons who are citizens of another State differently from persons who are citizens of another country. Both groups are noncitizens as far as the State’s interests in administering its welfare programs are concerned. Thus, a division by a State of the category of persons who are not citizens of that State into subeategories of United States citizens and aliens has no apparent justification, whereas, a comparable classification by the Federal Government is a routine and normally legitimate part of its business. Id. at 85, 96 S.Ct. 1883 (footnote omitted). Mathews also distinguished the constitutional limits on a state’s ability to impair an alien’s right to travel within the United States from Congress’s undisputed power to prevent the travel of aliens into this country as further support for a federal, but not a state classification. Id. at 85-86, 96 S.Ct. 1883. ¶ 14 Twenty years after Mathews, the President signed the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, also known as the Welfare Reform Act. See 8 U.S.C. §§ 1601-1646 (1999 ed., Supp. V). The Act, in part, is a comprehensive statutory scheme for determining aliens’ eligibility for federal, state, and local benefits. Id. Congress explicitly stated a national public immigration policy of removing the availability of public benefits as an incentive for immigration and of promoting the self-sufficiency of aliens. See 8 U.S.C. § 1601. Consistent with the Mathews decision, the federal statute provides that federal means-tested public benefits, including health care benefits, are not available to qualified aliens who entered the United States on or after August 22, 1996, for a period of five years from the date of the alien’s entry into the United States. See 8 U.S.C. § 1613(a). ¶ 15 Appellees claim that because Arizona’s laws follow the federal classification and policy regarding alien eligibility for public benefits, a rational basis standard of review should be applied to the analysis of Arizona’s statutes. They rely on two cases: Sudomir, 767 F.2d at 1456-68, and Cid, 598 N.W.2d at 887-93. Without deciding whether Sudomir and Cid correctly used a rational basis test, we conclude that these cases are nevertheless distinguishable because Arizona’s statutes are not consistent with the federal laws. ¶ 16 In Sudomir, the Ninth Circuit Court of Appeals held that California’s. denial of welfare benefits to aliens not admitted for permanent residence or otherwise permanently residing in the United States under color of law did not violate equal protection because the state laws followed the federal classification and policy regarding the appropriate standards for the treatment of a particular class of aliens. 767 F.2d at 1466. The classification Congress created was “valid because of its plenary power over immigration,” and California properly adopted that policy regarding eligibility of aliens for federally supported welfare programs. Id. at 1466-67. Similarly, in Cid, the Supreme Court of South Dakota upheld a state administrative rule that adopted the federal classification and imposed an identical limitation on qualified aliens’ eligibility for benefits. 598 N.W.2d at 891-93. ¶ 17 In both Sudomir and Cid, the state statutes were subjected only to rational basis scrutiny because the state statutes and regulations at issue were consistent with and adopted the federal classifications. Sudomir, 767 F.2d at 1464, 1466; Cid, 598 N.W.2d at 892. Under rational basis scrutiny, federal classifications distinguishing among groups of aliens are valid unless “wholly irrational.” Sudomir, 767 F.2d at 1464 (citing Mathews, 426 U.S. at 83, 96 S.Ct. 1883); see also Kenyon v. Hammer, 142 Ariz. 69, 78, 688 P.2d 961, 970 (1984) (noting that under the rational basis test, “equal protection is violated ‘only if the classification rests on grounds wholly irrelevant to the achievement of the state’s objective.’ ”) (quoting McGowan v. Maryland, 366 U.S. 420, 425, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961)). ¶ 18 Unlike the statutes at issue in Sudomir and Cid, Arizona’s statutes regarding alien eligibility for health care benefits are not consistent with federal law. Federal law provides that qualified aliens who entered the United States on or after August 22,1996 and who are not designated as a member of one of the exception groups under 8 U.S.C. § 1613(b) become eligible for federal health care benefits five years after the date of entry into the United States. See 8 U.S.C. § 1613(a). But Arizona’s eligibility requirements do not allow the same subclass of qualified aliens to become eligible for indigent health care five years after the date of entry into the United States. Rather, under A.R.S. § 36-2903.03(D), qualified aliens who entered the United States on or after August 22, 1996 and who are not designated as a member of one of the exceptions under 8 U.S.C. § 1613(b) or a minor adopted by a citizen, are only entitled to emergency services. Thus, unlike the federal statutes, Arizona’s law forever denies a certain subclass of qualified aliens from receiving state or county indigent health care. Thus, Appellees’ reliance on Sudomir and Cid is misplaced. ¶ 19 The trial court concluded that Arizona’s statute impliedly “incorporated]” the federal statute’s five-year residency requirement, and was, therefore, identical to the federal law. But, neither the trial court nor Appellees have pointed to any statutory basis that would support such an implied incorporation. Thus, in the absence of an inferential basis for the alleged incorporation, we decline to read such specific language into the state and county eligibility requirements. Cf. Hartford Accident & Indem. Co. v. Ariz. Dep't of Transp., 172 Ariz. 564, 568, 838 P.2d 1325, 1329 (App.1992) (stating that when Arizona models a statute after a federal statute but changes some of the language, interpretations of the federal statute are not persuasive on points on which the language of the statutes differs). ¶ 20 Appellees also point out that Congress authorized the states to determine qualified aliens’ eligibility for state public benefits. 8 U.S.C. § 1622(a). However, such congressional authorization cannot excuse states from compliance with the mandates of equal protection. See, e.g., Graham, 403 U.S. at 382, 91 S.Ct. 1848 (“Congress does not have the power to authorize the individual States to violate the Equal Protection Clause.”) (citing Shapiro v. Thompson, 394 U.S. 618, 641, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) rev’d in part on other grounds, Edelman v. Jordan, 415 U.S. 651, 670, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974)). ¶ 21 Because Arizona’s statues do not follow the federal law regarding the treatment of a particular subclass of aliens, the challenged eligibility requirements are subject to strict scrutiny. See Graham, 403 U.S. at 376-80, 91 S.Ct. 1848; see also Cabell v. Chavez-Salido, 454 U.S. 432, 439, 102 S.Ct. 735, 70 L.Ed.2d 677 (1982) (holding that state restrictions that primarily affect lawfully resident aliens’ economic interests, as opposed to political interests, are subject to heightened judicial scrutiny); Aleman v. Glickman, 217 F.3d 1191, 1197-98 (9th Cir.2000) (holding that while federal classifications discriminating among aliens in distribution of welfare benefits are subject to rational basis review, state classifications have been held to a higher standard); City of Chicago v. Shalala, 189 F.3d 598, 603 (7th Cir.1999), cert. denied, 529 U.S. 1036, 120 S.Ct. 1530, 146 L.Ed.2d 345 (2000) (stating that while a heightened scrutiny standard applies to state statutes, that standard does not apply to review of federal legislation involving alienage); Rodriguez v. United States, 169 F.3d 1342, 1347 (11th Cir.1999) (concluding that a strict scrutiny standard applies to equal protection challenges to state classification of aliens, but not to Congress’s classification of aliens). ¶ 22 Under the strict scrutiny standard, the state must “demonstrate that its classification has been precisely tailored to serve a compelling governmental interest.” Plyler v. Doe, 457 U.S. 202, 217, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982); see also Kenyon, 142 Ariz. at 78, 688 P.2d at 970 (noting that a discriminatory statute will withstand strict scrutiny “only if there is a ‘compelling state interest’ to be served and the regulation is ‘necessary’ to achieve the legislative objective”) (citations omitted). ¶ 23 Appellees assert that Arizona’s statutes satisfy strict scrutiny because they further a compelling governmental interest of following and implementing a uniform policy regarding the eligibility of qualified aliens for public benefits. However, as discussed above, Arizona’s statutes are more restrictive than the federal law and policy to which they purport to adhere. Moreover, because Arizona’s statutes discourage entry into or continued residence in Arizona, they conflict with the “constitutionally derived federal power to regulate immigration” and may be invalidated on federal preemption grounds. Graham, 403 U.S. at 378, 91 S.Ct. 1848 (quoting Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 419, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948)). Thus, we reject Appellees’ claim that § 36-2903.03 implements the federal immigration policy and its uniform rules regarding alien eligibility for public benefits. ¶24 Appellees offer no other legitimate purpose for the discriminatory classification. The State’s desire to preserve limited welfare benefits for its own citizens is insufficient justification for a restriction against a certain subclass of aliens. See Graham, 403 U.S. at 374-75, 91 S.Ct. 1848. The classification furthers no uniform state policy regarding treatment of particular aliens because qualified aliens are eligible for other state benefits. See A.R.S. § 46-233(A)(6) (Supp.2000) (stating that an alien who is legally admitted for permanent residence is eligible for general assistance under the state welfare program). In short, Appellees have failed to establish that § 36-2903.03 furthers any compelling state interest. CONCLUSION ¶ 25 Accordingly, we hold that A.R.S. § 36-2903.03, and §§ 11-291 and 11-297, which refer to § 36-2903.03, violate the Equal Protection Clause of the United States Constitution. We reverse the judgment in favor of Appellees. ¶ 26 The Kurtis have requested an award of attorney’s fees on appeal pursuant to 42 U.S.C. § 1988 (1998 ed., Supp. IV). In the exercise of our discretion under § 1988, we award the Kurtis reasonable attorney’s fees upon their compliance with Rule 21 of the Arizona Rules of Civil Appellate Procedure. ANN A. SCOTT TIMMER, Judge and JOHN C. GEMMILL, Judge concurring. . "Qualified aliens” include “alien[s] who [are] lawfully admitted for permanent residence under the Immigration and Nationality Act [8 U.S.C. § 1101 et seq.l" See 8 U.S.C. § 1641(b)(1) (1999 ed., Supp. V), referenced in A.R.S. § 36-2903.03(G) (Supp.2000). . A.R.S. § 36-2903.03(D) states as follows: D. A qualified alien who entered the United States on or after August 22, 1996 may apply for eligibility pursuant to § 36-2901, paragraph 4, subdivision (b) and, if otherwise eligible for title XIX, may receive services pursuant to the following: 1. A qualified alien who is designated as a member of one of the exception groups under [8 U.S.C. § 1613] or a minor who has entered the United States as an adoptee of a United States citizen shall be determined eligible for all title XIX services as specified in § 36-2907. 2. A qualified alien who is not a member of one of the exception groups as defined in [8 U.S.C. § 1613] shall receive only emergency services as defined in § 1903(v) of the social security act [42 U.S.C. § 1396b]. . Section 11-297(B)(5) provides, in relevant part, the following: For the purposes of this section, an “indigent” is a resident of the county who: ... [e]xcept as provided in subsection J of this section or for emergency care required by § 36-2905.05, meets one of the following requirements for citizenship or alien status: (a) Is a citizen of the United States!;] (b) Is a qualified alien who entered the United States on or before August 21, 1996 as prescribed in § 36-2903.03[;] (c) Is a qualified alien who entered the United States on or after August 22, 1996 and is a member of an exception group as prescribed in § 36-2903.03. (Emphasis added.) Section 11-291(A) provides, in relevant part, the following: For the purposes of this section, an indigent is a resident of the county who is otherwise eligible for county services and, except for emergency services provided to persons who are in fact eligible pursuant to § 36-2905.05, who meets one of the following requirements for citizenship or alien status: 1. Is a citizen of the United States!;] 2. Is a qualified alien who entered the United States on or before August 21, 1996 as prescribed in § 36-2903.03[;] 3. Is a qualified alien who entered the United States on or after August 22, 1996 and is a member of an exception group as prescribed in § 36-2903.03. (Emphasis added.) . The trial court apparently did not certify this case as a class action and the parties do not address the issue on appeal. . Because the state statutes here do not mirror the federal law, we find it unnecessary to decide what the appropriate standard of review would be if Arizona’s statutes did mirror the federal law. But see Aliessa v. Novello, 96 N.Y.2d 418, 434, 730 N.Y.S.2d 1, 13, 754 N.E.2d 1085, 1097 (2001) (applying strict scrutiny to New York law excluding non-emergency Medicaid coverage for certain aliens, notwithstanding the law’s incorporation of the Welfare Reform Act’s eligibility requirements). . There are several exceptions to this restriction, none of which applies to the Kurtis. See 8 U.S.C. § 1613(b). . At oral argument, counsel for the County suggested that the existence of a five-year limitation in the Arizona statutes had never been an issue between the parties. He agreed, however, that without the five-year limitation, there would be an equal protection "problem.” Counsel for AHCCCS proposed that the "whole tenor” of the Arizona laws suggests the incorporation of a five-year limitation. Such a tenuous reference does not support our reading into the statute a very specific five-year limitation. . We also note that Mathews, Sudomir, and Cid are distinguishable for the additional reason that they involved restrictions placed on federally funded programs. Mathews, 426 U.S. at 70, 96 S.Ct. 1883; Sudomir, 767 F.2d at 1466-67; Cid, 598 N.W.2d at 889. In contrast, the Kurtis are only challenging the application of A.R.S. § 36-2903.03 to state- and county-funded programs. . Because we conclude that the statutes at issue are invalid under the United States Constitution, we need not address their validity under the Arizona Constitution.

GORDON, Vice Chief Justice. This Petition for Special Action raises the issue of whether parents may maintain a cause of action for loss of consortium against a third party who negligently injures their adult child. The petition was brought by Howard Frank, M.D., who claims that the respondent judge erred by denying a motion for summary judgment in the underlying tort action. We have jurisdiction pursuant to Arizona Const, art. 6 § 5(1), and Ariz.R.Sp.Act. 4, 17A A.R.S. The real parties in interest are Emily and Roland Lee Hathaway, parents of Marilyn Hathaway, an adult. In 1983 Marilyn Hathaway sued petitioner, alleging that his negligent administration of anesthesia during surgery had caused her severe brain damage. Following a jury trial, Marilyn was awarded damages of $5 million. The trial court granted petitioner a new trial after Marilyn refused a remittitur to $3.1 million. Both parties have appealed from that judgment. On March 7, 1985, Emily and Roland Lee Hathaway filed a separate lawsuit, alleging that as a result of petitioner’s negligence they have been deprived of their daughter’s love, companionship, comfort, affection, society, solace, and moral support, and requesting damages to compensate them for the loss of consortium of their only child. On April 22, 1985, petitioner moved to dismiss the complaint on the ground that Arizona does not recognize a cause of action for loss of consortium of an adult child. The respondent judge denied the motion on August 12, 1985, relying upon Reben v. Ely, 146 Ariz. 309, 705 P.2d 1360 (App.1985) (review denied Sept. 4, 1985), which recognized for the first time a cause of action for loss of consortium of a minor child. The petitioner now seeks an order from this Court requiring the respondent judge to grant the motion for summary judgment. The petition raises a legal issue of statewide importance which is a matter of first impression in Arizona. We therefore felt it would be appropriate to accept jurisdiction in order to decide whether a cause of action exists for loss of consortium of an adult child and thereby determine whether the respondent judge failed “to perform a duty required by law as to which he has no discretion” or acted “in excess of [his] ... legal authority....” Ariz.R.Sp.Act. 3(a) and (b), 17A A.R.S. I The starting point of our discussion must be Reben v. Ely, supra. In Reben a ten-year-old child was administered a dosage of liquid cocaine, mistakenly thought to be liquid Tylenol. The result was severe and permanent brain damage. In addition to the award to the child’s estate, his parents were awarded $500,000 for past and future services of their son and $1 million for loss of consortium, described in their complaint as “the loss of his love, society, companionship, and the right of every parent to have the society and companionship of a normal child free from injury caused by the wrongful conduct of another.” 146 Ariz. at 310, 705 P.2d at 1361. The defendants challenged the award of consortium damages, asserting that Arizona did not recognize a cause of action for loss of filial consortium. The court of appeals disagreed. After analyzing Arizona’s wrongful death statute, A.R.S. § 12-613, which has been interpreted to allow for consortium damages, the court concluded that “[w]e are unable to justify denial of an award in such circumstances when only the bare fact of the child’s existence distinguishes this from a wrongful death case.” 146 Ariz. at 312, 705 P.2d at 1363. Thus Arizona has joined those jurisdictions which allow recovery for loss of filial consortium of a minor child where the child has been severely injured by the negligence of a third party. In both Reben v. Ely and the present case the defendants raised a host of policy arguments against recognizing claims for loss of filial consortium. They boil down to these: that the loss is intangible and cannot be compensated by money, that damages will necessarily be speculative, that the defendant is exposed to liability out of proportion to the negligent act, and that the family may reap a double recovery. These arguments were raised in the past when we were called upon to value consortium, and as a brief examination of Arizona legal history will confirm, the arguments against compensating family members for loss of consortium were lost not today, or in Reben, but during the past two decades. In Jeune v. Del E. Webb Const. Co., 77 Ariz. 226, 269 P.2d 723 (1954), this Court denied a wife’s claim for loss of spousal consortium on the ground that “[t]he common law is and always has been that the wife has no such cause of action.” 77 Ariz. at 226, 269 P.2d at 723. However, in City of Glendale v. Bradshaw, 108 Ariz. 582, 503 P.2d 803 (1972), that portion of the Jeune case denying the right of consortium to the wife was specifically overruled. Our decisions interpreting the breadth of damages available under the wrongful death statute, A.R.S. § 12-613, are equally significant. Beginning in 1965 this Court held that “[t]he measure of damages is no longer limited to pecuniary damages, but also includes allowance for such things as loss of companionship, comfort, and guidance.” Boies v. Cole, 99 Ariz. 198, 203, 407 P.2d 917, 920 (1965). The wrongful death statute has been liberally construed to allow damages for “intangible[s] as to which there can be no unanimity of opinion[,]” State v. Watson, 7 Ariz.App. 81, 87, 436 P.2d 175, 181 (1968), including “anguish, sorrow, stress, mental suffering, pain and shock....” City of Tucson v. Wondergem, 105 Ariz. 429, 433, 466 P.2d 383, 387 (1970). In sum, we have not hesitated to assign a monetary value to the elements of consortium—society, companionship, care, support, and affection, to name a few—even in the most difficult cases. See, e.g., Summerfield v. Superior Court, 144 Ariz. 467, 698 P.2d 712 (1985) (parents may maintain loss of consortium action in wrongful death of viable fetus); University of Arizona Health Sciences Center v. Superior Court, 136 Ariz. 579, 667 P.2d 1294 (1983) (pecuniary damages in “wrongful pregnancy” action may be offset by intangible value of child’s consortium). As always, “[w]e are confident that the inherent good sense of the jury is the best safeguard to ‘runaway’ verdicts and unfounded speculation in the award of damages.” University of Arizona Health Sciences Center v. Superior Court, 136 Ariz. at 585, 667 P.2d at 1300. It is apparent from the foregoing discussion that the award of consortium damages is a well-established remedy in Arizona for negligent injury to family relations. Thus the court of appeals’ decision in Reben to allow an award of consortium damages was not particularly novel. What was unusual about Reben was the decision to extend the loss of consortium action beyond wrongful death, where it is well-established, to negligent injury. The cases in which we approved recovery for loss of consortium, e.g. Boies v. Cole, supra; State v. Watson, supra; City of Tucson v. Wondergem, supra; and Summerfield v. Superior Court, supra, involved a wrongful death. The significance of Reben v. Ely was the court of appeals’ decision that no meaningful distinction can be drawn between death and severe injury where the effect on consortium is concerned. Often death is separated from severe injury by mere fortuity; and it would be anomalous to distinguish between the two when the quality of consortium is negatively affected by both. “It is easy to see that the loss of a child through his death takes from his parents the society and companionship that is the essence of the lost relationship. But consider the magnitude of the loss of society and companionship that occurs when a normal [child] is suddenly reduced to a blind, nearly deaf, partially paralyzed child with a mental age of three. The parental expectations for the continuation of the family relationship are the same in either case. That the parents still have their son to love and care for is a factor to consider in determining the extent of their loss, but does not negate the loss. They have sustained a genuine loss in the nature of the society and companionship they can anticipate receiving from their son as a consequence of his injuries. Perhaps the loss of companionship and society experienced by the parents of a child permanently and severely injured ... is in some ways even greater than that suffered by parents of a deceased child. Not only has the normal family relationship been destroyed, as when a child dies, but the parent also is confronted with his loss each time he is with his child and experiences again the child’s diminished capacity to give comfort, society, and companionship.” Note, The Parental Claim for Loss of Society and Companionship Resulting From the Negligent Injury of a Child: A Proposal for Arizona, 1980 Ariz.St.L.J. 909, 923. Arizona is not alone in recognizing that severe injury may have just as deleterious an impact on filial consortium as death. See n. 1, supra. However, Reben v. Ely, like similar cases from other jurisdictions, dealt with injury to a minor child. In Reben the court allowed parents to seek recovery “where the damage to the child is so great as to likewise deprive the parents of the companionship, comfort, love, and society to be reasonably expected from the child during his minority. ” 146 Ariz. at 312, 705 P.2d at 1363 (emphasis added), and specifically declined to decide “whether the cause of action which we do recognize ... extends beyond a child’s reaching the age of majority.” Id. at 314, 705 P.2d at 1365. The question of whether Reben v. Ely should be extended to include adult children, as urged by the real parties in interest and the respondent judge, must now be answered. II The most salient legal argument against extending the filial consortium action to adult children is the fact that emancipation frees parents and children from the reciprocal legal obligations of support and obedience. It is argued that parents have some form of legal entitlement to the services and earnings of their children during their children’s minority, loss of which is compensable, but that accession to majority expunges this entitlement and the concomitant right to recovery for injury to the children. However, we believe that this argument against extension of a filial consortium action to adults is premised upon an archaic and outmoded pecuniary theory of parental rights and fundamentally misapprehends the modern elements of consortium. Accordingly, we are convinced that the cause of action first recognized in Reben v. Ely should be extended to adult children. Our reasons for rejecting the age distinction sought by petitioner are based upon the history and evolution of the consortium action. By necessity, then, we must examine the roots of the consortium action and trace its development through modern times. This examination will expose the legal inconsistency of distinguishing between minor and adult children in filial consortium actions. The origin of the consortium action at common law was the right of the master to recovery for tortious injury to his servants, since in such a case the master would suffer a loss of services in addition to whatever loss the servant himself suffered. Prosser and Keeton, The Law of Torts, § 125, p. 931 (5th ed. 1984). By 1619 this idea was carried over and applied to marital services and the husband was allowed to recover from the tortfeasor who had injured his wife. Id. “Like the master, the father had a proprietary interest in the services of his wife ... which afforded him an action when he was deprived of those services by the defendant’s wrongdoing.” Note, The Child’s Right to Sue for Loss of A Parent’s Love, Care, and Companionship Caused By Tortious Injury to the Parent, 56 B.U.L.Rev. 722, 724 (1976). At its earliest stage, then, the action for loss of consortium was in fact an action for loss of services to which the master was entitled. Gradually, however, services became only one element of the action as the intangible elements of love, comfort and society emerged as the predominant focus of consortium actions. At common law the child, like the wife, was relegated to the role of servant. “[A] child, like a servant, was thought to be solely an economic asset to his family because he was another source of income....” Note, Torts—Parents’ Recovery For Loss of Society and Companionship of Child, 80 W.Va.L.Rev. 340 (1978). As a result, “loss of services and wages of the injured or deceased child came to be recognized as a customary and necessary element of recoverable damages[,]” id. at 341, but a parent had no cause of action for loss of a child’s society and companionship. Id. Needless to say, the Dickensian era of brutal child labor, where “ample work could be found for the agile bodies and nimble fingers of small children....” Wycko v. Gnodtke, 361 Mich. 331, 335, 105 N.W.2d 118, 120 (1960), is long past. Today a plethora of laws aimed at children, e.g., child labor and compulsory education laws, virtually guarantees that children will not be an economic asset to their parents. Children are now valued for their society and companionship, and “[t]he true significance of a parent’s action under modern practice is that it compensates the parents’ emotional losses when their child is injured.” 56 B.U.L.Rev. at 731-732. Indeed, if we refuse compensation for loss of consortium and insist on “allowing only recovery for such earnings as he might be expected to contribute to his parents during his minority, recovery would necessarily be small, non-existent or wholly fictional, since cost of rearing a child would almost always exceed any contributions he would make financially.” D. Dobbs, Remedies, § 8.4, p. 560 (1973). Thus the right to a child’s services and earnings “should not be considered a prerequisite to the right to bring an action for loss of consortium....” 56 B.U.L.Rev. at 732 (emphasis added). In striking contrast to the significant changes in spousal consortium actions, however, filial consortium actions continue to be haunted by the common law master-servant heritage despite parallel changes in social status and the death of the economic-services rationale. Even those states which recognize the parents’ action for loss of filial consortium of their injured children restrict the action to minor children. Why they do so is puzzling, since the common law master-servant analogy is clearly antiquated and long overdue for judicial burial. We do not believe that an age distinction is justified. The demise of the pecuniary services theory of consortium and subsequent emergence of companionship and society as the primary components of the action has vitiated the legitimacy of any age distinction in filial consortium actions. Although the court in Reben v. Ely limited its holding to minors, it did so out of a laudable hesitancy to go beyond the facts before it. The court did not once refer to a pecuniary services theory to support its holding. Instead, the court of appeals relied solely upon the innate value of a child’s companionship, comfort, love and society and the relationship between severe injury and wrongful death. It is irrelevant that parents are not entitled to the services of their adult children; they continue to enjoy a legitimate and protectible expectation of consortium beyond majority arising from the very bonds of the family relationship. Surely nature recoils from the suggestion that the society, companionship and love which compose filial consortium automatically fade upon emancipation; while common sense and experience teach that the elements of consortium can never be commanded against a child’s will at any age. The filial relationship, admittedly intangible, is ill-defined by reference to the ages of the parties and ill-served by arbitrary age distinctions. Some filial relationships will be blessed with mutual caring and love from infancy through death while others will always be bereft of those qualities. Therefore, to suggest as a matter of law that compensable consortium begins at birth and ends at age eighteen is illogical and inconsistent with common sense and experience. Human relationships cannot and should not be so neatly boxed. “The law does not fly in the face of nature, but rather acts in harmony with it.” Harper v. Tipple, 21 Ariz. 41, 44, 184 P. 1005, 1006 (1919) (citation omitted). We note that in wrongful death actions no arbitrary age limit is placed upon recovery for loss of filial consortium. A.R.S. § 12-613 does not distinguish between minor and adult children. We see no reason why in cases of severe injury the result should be any different. Cf. Ueland v. Reynolds Metals Co., 103 Wash.2d 131, 691 P.2d 190 (1984) (adult children may recover for loss of parental consortium; age of the child relevant only for fixing damages). Petitioner also raises two policy arguments against extension of Reben v. Ely to adult children: an expanded class of plaintiffs will spawn increased litigation and insurance costs will increase. The danger of an increase in litigation has been raised as an objection in almost every instance where the courts have been asked to recognize a new cause of action. Theama By Bichler v. City of Kenosha, 117 Wis.2d 508, 516, 344 N.W.2d 513, 521 (1984). The short answer to this objection is that it is the court’s responsibility to deal with suits on their merits, whether there be few suits or many. 56 B.U.L.Rev. at 732. The rights of a new class of tort plaintiffs should be forthrightly judged without engaging in gloomy speculation as to where it will all end. Berger v. Weber, 82 Mich. App. 199, 204, 267 N.W.2d 124, 129 (1978), modified and aff’d, 411 Mich. 1, 303 N.W.2d 424 (1981) (child has independent cause of action for loss of parental society and companionship when parent is negligently injured). Such fears have been likened to “the fabled cry of wolf”, and have often proven groundless. Ingber, Rethinking Intangible Injuries: A Focus on Remedy, 73 Calif.L.Rev. 772, 817 (1985). We do not believe that increased litigation will be a problem because in the vast majority of cases involving injury to a child the injury will not be so severe that the parents suffer a loss of society and companionship. If, however, litigation should increase, “the existence of a multitude of claims merely shows society’s pressing need for [such] redress.” Dillon v. Legg, 68 Cal.2d 728, 735 n. 3, 69 Cal.Rptr. 72, 77 n. 3, 441 P.2d 912, 917, n. 3 (1968) (recognizing cause of action for negligent infliction of emotional distress). Moreover, while the overcrowding of dockets is a legitimate concern, there are procedural mechanisms that would enable the courts to minimize any increased burden. For example, compulsory joinder of the parents’ consortium claim with the child’s personal injury claim where feasible would eliminate the burden of multiple lawsuits. See generally Love, Tortious Interference with the Parent-Child, Relationship: Loss of an Injured Person’s Society and Companionship, 51 Ind.L.J. 590, 617-619 (1976). As for the claim that recognizing the parents’ cause of action for loss of filial consortium will raise insurance costs, even courts which have declined to expand loss of consortium actions reject this argument. The Supreme Court of Oregon has stated it well: “[a] person’s liability in our law still remains the same whether or not he has liability insurance; properly, the provision and cost of such insurance varies with potential liability under the law, not the law with the cost of insurance.” Norwest v. Presbyterian Intercommunity Hospital, 293 Or. 543, 548, 652 P.2d 318, 323 (1982) (rejecting child’s claim for loss of parents’ society and companionship). In conclusion, we believe parents should have a remedy in damages against a negligent tortfeasor whose actions have so severely injured the parents’ adult child that they are deprived of their child’s society, companionship, love and support—in short, of the child’s consortium. Arizona has long recognized that loss of consortium is a compensable harm, and we see no basis for limiting this action solely to cases of wrongful death. In particular, we can find no reason for limiting the class of plaintiffs to parents of minor children when the parents of adult children may suffer equal or greater harm. Why should the parents of an injured seventeen-year-old be allowed to recover for loss of consortium, but not the parents of an injured eighteen-year-old? We can divine no adequate answer based on law or logic; accordingly, the relief sought by petitioner is denied. HAYS and FELDMAN, JJ., concur. . Consortium has been variously defined, but essentially consists of love, affection, protection, support, services, companionship, care, society, and in the marital relationship, sexual relations. Note, The Child’s Claim for Loss of Consortium Damages: A Logical and Sympathetic Appeal, 13 S.D.L.Rev. 231 n. 3 (1975). It is often abbreviated as society and companionship. . Other states recognizing a cause of action by judicial decision for loss of consortium of a minor child negligently injured by a third party include Wisconsin, Shockley v. Trier, 66 Wisc.2d 394, 225 N.W.2d 495 (1975); Florida, Yordon v. Savage, 279 So.2d 844 (1973); Ohio, Norvell v. Cuyahoga County Hospital, 11 Ohio App.3d 70, 463 N.E.2d 111 (1983); and Illinois, Dymek v. Nyquist, 128 Ill.App.3d 859, 83 Ill.Dec. 52, 469 N.E.2d 659 (Ill.App. 1 Dist.1984). Three other states provide for such an action by statute: Idaho, Iowa and Washington. . Although the petitioner does not challenge the holding of Reben v. Ely his arguments in the present case pertain equally to Reben. Our rejection of petitioner’s arguments today should make plain our approval of Reben. However, we emphasize that our decision is limited to parents only. While all family members enjoy a mutual interest in consortium, the parent-child relationship is undeniably unique and the wellspring from which other family relationships derive. It is the parent-child relationship which most deserves protection and which, in fact, has received judicial protection in the past. See, e.g., Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); In the Matter of the Appeal in Maricopa County Juvenile Action No. JS-5209 and No. JS-4963, 143 Ariz. 178, 692 P.2d 1027 (App.1984). . A.R.S. § 12-613 reads in pertinent part: “In an action for wrongful death, the jury shall give such damages as it deems fair and just with reference to the injury resulting from the death to the surviving parties who may be entitled to recover,____” (emphasis added) . Arizona is now one of thirty-five states which allow recovery for loss of companionship and society in a wrongful death action brought by the parents. See Sanchez v. Schindler, 651 S.W.2d 249 (Tex. 1983), and cases cited therein at pp. 252-253 nn. 3, 4, and 5. The Schindler decision was simply the latest to recognize that "[tjhese elements of damage are not too speculative to be given a monetary value." 651 S.W.2d at 253. . However, the wife had no reciprocal action for negligent injury to her husband's consortium since she had no independent legal status: "husband and wife were one; and he was the one.” 3 W. Blackstone, Commentaries on the Law of England 433-36 (3rd ed. 1884). Even the advent of Married Women’s Acts in the nineteenth century, which removed the wife’s incapacity to sue, failed to provide wives with a comparable action for loss of consortium. 56 B.U.L.Rev. at 725. It was not until 1950 that the Court of Appeals for the District of Columbia Circuit held that wives, like husbands, could sue for loss of consortium caused by negligent injury. Hitaffer v. Argonne Co., 183 F.2d 811 (D.C.Cir.1950), cert. denied, 340 U.S. 852, 71 S.Ct. 80, 95 L.Ed. 624 (1950). Even then the concept was not greeted with immediate enthusiasm. Compare Jeune v. Del E. Webb Const. Co., 77 Ariz. 226, 269 P.2d 723 (1954) ("the common law is and always has been that the wife has no such cause of action”) with City of Glendale v. Bradshaw, 108 Ariz. 582, 503 P.2d 803 (1972) (overruling that portion of Jeune). Today a majority of states now extend to the wife a cause of action for loss of consortium caused by the defendant’s negligence. See 56 B.U.L.Rev. at 727. Interestingly, nearly all states have chosen to extend this action to wives rather than abolish it for husbands, despite the fact that the husband’s action was based upon the wife's common law status as a servant or chattel. This approach recognizes the evolution of the right of action from its common law origins. “Judicial decisions have changed the action from one based upon the servile status of the wife or child to one based upon an awareness of the emotional benefits that stem from the family relationship." 56 B.U.L.Rev. at 727. The action is no longer predicated upon loss of services; "sentimental interests now predominate.” Id. . See Shockley v. Prier, supra, wherein the Wisconsin Supreme Court noted that "today’s relationship between parents and children is, or should be, more than that between master and servant....”66 Wisc. at 399, 225 N.W.2d at 500, yet limited a parent’s cause of action for loss of aid, comfort, society and companionship to minor children; Yordon v. Savage, supra (minor child); Norvell v. Cuyahoga County Hospital, supra (minor child); and Dymek v. Nyquist, supra ("it is our opinion that we should now recognize a cause of action for parental loss of a minor child’s society and companionship"). However, the language of these opinions may simply have been directed toward the facts before them rather than the merits of an action involving adult children. None explicitly analyzes the factual situation we face.

OPINION BIRDSALL, Presiding Judge. This appeal is from a partial summary judgment which decided all issues between these parties but did not resolve the litigation between other parties in the trial court. The judgment contained Rule 54(b) language and is appealable. We affirm. The appellee, William R. Bliss, was the seller under an agreement by which George P. Salerno, Jr., and later his nominee, Catherine Salerno, his wife, were purchasers of a residential property in the Phoenix area. The sales price was $795,-000. The appellant, U.S. Life Title Company of Arizona, was employed as escrow agent. Written escrow instructions were given to appellant which contained the usual provisions detailing how the sales price was to be paid. Closing was delayed, but when the time finally arrived, the buyer’s agent gave the appellant what appeared to be a certified check for $114,-023.80. The certification was forged, however, and the Chase Manhattan Bank, upon which the check was drawn, refused payment. In the meantime, however, the appellant delivered the closing documents, including the deed from Bliss to Salerno, and disbursed $74,422.28 to Bliss, the cash amount due him on closing. Subsequently, the appellant and Bliss learned for the first time that the check had been refused. The appellant recorded a lis pendens and commenced this action against Salerno for the amount of the forged check. The complaint was later amended to state claims for relief against Bliss as an additional defendant. The complaint as to Bliss was in two counts. The first count sought recovery of the amount of the forged cheek on the strength of an indemnity provision in the escrow instructions. The second count, realleging the indemnity agreement, sought restitution on the theory of unjust enrichment. Bliss may have suffered no damage as a result of the appellant’s conduct. The closing was on September 22, 1980. The lis pendens was recorded October 14. On or about October 22, Bliss purchased another house from the Tillotsons. As part payment, he assigned a note of Salerno’s he had received as part payment of the purchase on the first home. That obligation was secured by a deed of trust on the property. Tillotson then foreclosed the deed of trust and secured the property. He then resold it to Bliss, who in turn sold it to another buyer for $755,000. Thus Bliss received $49,745 from Salerno through escrow and the $74,422.28 at closing and then recovered the property which he had sold. The appellant contends Bliss received benefits of $310,000 to $375,000 from the various transactions. We have not verified this arithmetic or reasoning. This is, however, the appellant’s contention and some evidence seems to permit the conclusion. In his motion for summary judgment and on appeal, Bliss contends: 1) that the appellant cannot prevail because it violated its fiduciary duties under the escrow instructions; 2) that the escrow instructions were not followed because the appellant closed the transaction, including delivery of the deed, before the terms of the sale had been performed; 3) that Salerno had not performed because the check was not honored and the appellant should not have accepted mere delivery of the check as performance; 4) that the appellant should have verified with the bank that the check was good even though it purported to be certified; and 5) that he orally requested the appellant’s escrow officer to secure verification from the bank. As to his last contention, the evidence before the trial court on the motion for summary judgment confirms that Bliss made this request, that the escrow officer made several unsuccessful attempts to contact the bank, and that the appellant closed anyway on the strength of the certification. The evidence further shows that other checks tendered by Salerno during the transaction had been dishonored and that appellant had notice of this fact. The appellant submitted evidence that the escrow industry practice in the community was to accept, as good and genuine, and as payment, a certified check. The appellant also points to the following provision in the escrow instructions: “12. Direct that all money payable hereunder be paid to Escrow Agent which, upon receipt thereof, shall deposit such funds in a general escrow account in one or more banks doing banking business in Arizona. Disbursement of any funds may be made by checks of Escrow Agent. Escrow Agent shall be under no obligation to disburse any funds represented by check or draft, and no check or draft shall be payment to Escrow Agent in compliance with any of the requirements hereof, until it is advised by the bank in which deposited that such check or draft has been honored, unless Escrow Agent specifically agrees in writing to accept liability for the sufficiency thereof.” The appellant argues that it never agreed in writing, or otherwise, to accept liability for the sufficiency of the check. We must decide whether the appellant is entitled to proceed on either an indemnity or a restitution theory. We consider these theories in that order. INDEMNITY The escrow instructions provided that the seller (Bliss): “Will Deliver to Escrow Agent a deed of the property from Seller to Buyer to be held by Escrow Agent until the terms hereof have been performed, at which time it shall deliver said deed to Buyer.” This is the very essence of escrow; and the purpose for having an independent escrow agent. See Young v. Bishop, 88 Ariz. 140, 353 P.2d 1017 (1960). The terms included a requirement that the buyer (Salerno) pay the amount required at closing. Salerno did not perform. The only payment made for closing was the check with the forged certification. When U.S. Life Title proceeded with the closing, including delivery of the deed, it breached the quoted provision of the escrow agreement. The title company assumed the risk when it elected to close on the strength of the check. Paragraph 12 is no defense. While it may be argued that the title company did not “agree to accept liability for the sufficiency of the check” in so many written words, it did more than that. It accepted the worthless check as payment and closed the transaction. This was, at least, the equivalent of an agreement to be responsible. An indemnitee, the title company here, may not recover for losses arising from its own breach of contract unless the indemnity agreement so provides in clear and unequivocal terms. See Royal Properties, Inc. v. Arizona Title Insurance and Trust Co., 13 Ariz.App. 376, 476 P.2d 897 (1971). The indemnity provision of the escrow agreement contained no such language. It read: “SELLER AND BUYER: 9. Will indemnify and save harmless Escrow Agent against all costs, damages, attorney’s fees, expenses and liabilities which it may incur or sustain in connection with these instructions or the escrow or any court action arising therefrom and will pay the same upon demand.” If the appellant’s breach is viewed as negligence, it would also be precluded from recovery by indemnification. See Southern Pacific Co. v. Gila River Ranch, Inc., 105 Ariz. 107, 460 P.2d 1 (1969). The duties of an escrow agent are defined in the escrow agreement and must be strictly construed. Tucson Title Insurance Co. v. D’Ascoli, 94 Ariz. 230, 383 P.2d 119 (1963); Malta v. Phoenix Title & Trust Co., 76 Ariz. 116, 259 P.2d 554 (1953). RESTITUTION Turning now to the second count of the appellant’s complaint we cannot see how the appellee was unjustly enriched. Bliss received exactly the amount to which he was entitled as the seller of the property, the amount computed by the title company. What Bliss did afterward was outside of the Salerno sale and the escrow agreement. The appellant does not contend that his conduct was fraudulent. The facts here do not give rise to a claim of unjust enrichment as in Artukovich & Sons, Inc. v. Reliance Truck Co., 126 Ariz. 246, 614 P.2d 327 (1980) or State v. Martin, 59 Ariz. 438, 130 P.2d 48 (1942). The appellee will be awarded attorney’s fees on appeal as requested upon filing a statement of costs pursuant to Rule 21(c), Rules of Civil Appellate Procedure, 17A A.R.S. (1985 Supp.), and Schweiger v. China Doll Restaurant, Inc., 138 Ariz. 183, 673 P.2d 927 (App.1983). Affirmed. HOWARD and FERNANDEZ, JJ.

OPINION GREER, Judge. The issue in this case is whether one insurer may recover from a second insurer for contribution for the costs of defense of their mutual insured. We find that such contribution is proper and reverse the granting of summary judgment in favor of the non-contributing insurer. The facts are not in dispute. Long’s Portable Stalls, Inc., leases portable horse stalls. Long’s was insured by appellant National Indemnity Company (National). Long’s leased portable barns to the Aid to Zoo National Horse Show and the Phoenix Zoo Auxiliary (PZA). Pursuant to the lease agreement, the lessees obtained a policy of insurance with appellee St. Paul Insurance Companies (St. Paul), for general liability from February 18, 1980 to February 25, 1980. Long’s was named as an additional insured and as the certificate holder. On February 19, 1980, two horses, named “The Omen” and “Lady Doc,” were accidentally electrocuted in portable stalls supplied by Long’s. The owners of Omen sued Long’s and others in Cause No. C-413027; while the owners of Lady Doc sued Long’s and others in No. C-417358. National defended Long’s in both actions, but St. Paul refused to participate in the defense. The claim in C-413027 was settled by National for $1,000. St. Paul later agreed to pay one-half of the settlement, but refused to pay one-half of the $7,807.90 defense costs. Later, C-417358 was settled. Once again, St. Paul agreed to reimburse National for one-half of the settlement costs, but refused to reimburse National for one-half of the costs of defense. The cost of defense to National in C-417358 was $9,974.89. The present appeal began as a declaratory judgment action filed by National against St. Paul for contribution for the costs of defense in C-413027 and settlement and defense in C-417358. After St. Paul contributed to the costs of settlement in C-417358, that claim became moot. National then filed a motion for summary judgment on the issue of whether or not it could obtain contribution for the costs of defense in the two actions. St. Paul responded, and also filed a cross-motion for summary judgment. The trial court granted St. Paul’s cross-motion and entered a declaratory judgment dismissing National’s complaint. In short, National argues on appeal that since St. Paul failed to defend, it should be required to reimburse National for one-half of the expenses of the defense of their mutual insured. Appellant acknowledges that an opinion of division two of this court, Arizona Joint Underwriting Plan v. Glacier General Ins. Co., 129 Ariz. 351, 631 P.2d 133 (App.1981), is precisely on point, although contrary to its position. Appellant urges this division to reject the conclusion reached by division two. While it is true that one division of the Court of Appeals is not bound by a decision of the other division, only the most cogent of reasons will justify a divergence between the two. Neil B. McGinnis Equipment Co. v. Henson, 2 Ariz.App. 59, 406 P.2d 409 (1965). Therefore, a decision by division two, although not controlling, is certainly persuasive authority. Scappatici v. Southwest Savings and Loan Ass’n, 135 Ariz. 456, 662 P.2d 131 (1983). Appellant argues that previous division one opinions suggest that the rule of reimbursement for defense costs would be followed in this division. In Rocky Mountain Fire & Cas. Co. v. Allstate Ins. Co., 13 Ariz.App. 31, 474 P.2d 38 (1970), we held under similar facts that the non-defending insurer was liable for a pro rata share of whatever loss was determined and further found that: [E]ach [insurer] has an obligation to defend, ... the cost of such defense to be borne on the same pro rata basis as liability. 13 Ariz.App. at 37, 474 P.2d 38. This opinion, however, was vacated on other grounds by the Arizona Supreme Court at 107 Ariz. 227, 485 P.2d 552 (1971). Once an opinion of the Court of Appeals has been vacated by the Arizona Supreme Court, it is of no force and effect and is not authority. Stroud v. Dorr-Oliver, Inc., 112 Ariz. 403, 542 P.2d 1102, rehearing denied, 112 Ariz. 574, 544 P.2d 1089 (1976). In Industrial Indem. Co. v. Beeson, 132 Ariz. 503, 647 P.2d 634 (App.1982), this court again recognized the rule that where two insurers insure the same risk, and one insurer pays the loss, the paying insurer is entitled to a pro rata contribution from the non-paying insurer. However, we did not, at that time, readopt the portion of Rocky Mountain requiring contribution for defense costs. After again considering this question, we choose to readopt the portion of the Rocky Mountain opinion requiring contribution by the non-defending insurer to the defense costs incurred by the defending insured. We recognize contrary authority from other jurisdictions, e.g., Transamerica Ins. Group v. Empire Mut. Ins. Co., 31 Conn. Supp. 235, 327 A.2d 734 (1974), but agree with the position stated in Pacific Power & Light Co. v. Transport Indem. Co., 460 F.2d 959 (9th Cir.1972): “[WJhere a question of proration as between companies is concerned, there appears little reason to distinguish between the defense costs and the principal liability under the policy coverage.” 460 F.2d at 963. In adopting the rule requiring contribution for defense costs, the California Supreme Court stated in Continental Cas. Co. v. Zurich Ins. Co., 57 Cal.2d 27, 17 Cal.Rptr. 12, 366 P.2d 455 (1961): A contrary result would simply provide a premium or offer a possible windfall for the insurer who refuses to defend, and thus, by leaving the insured to his own resources, enjoys a chance that the costs of defense will be provided by some other insurer at no expense to the company which declines to carry out its contractual commitments ... In our view, ... no insurer which deliberately breaches its obligation to the insured should be permitted thereby to profit, whether at the expense of the insured, or of an insurer which faithfully discharges its obligation. 366 P.2d at 461-62. See also, Marwell Constr., Inc. v. Underwriters at Lloyd’s, 465 P.2d 298 (Alaska 1970). Arizona Joint Underwriting, supra, and other decisions contrary to ours proceed on the theory that each insurer has an independent obligation to defend and that, absent an agreement between the insurers, there is no right to contribution for the costs of the defense. However, this reasoning has been the subject of strong criticism. For instance, 7C Appleman, Insurance Law & Practice § 4691 (1979), states: These holdings are indefensible. The courts are ignoring realities and encouraging insurers who are not concerned with their obligations to their insureds in the hope that someone else will ... step into the breach. Further, as a matter of public policy, courts should be demanding that insurers give prompt defense of claims to policyholders rather than to tolerate the shifting of responsibility with such impunity. Section 4691 at 278. See also Marwell, supra, at 313. We believe Appleman’s criticism is well founded. As stated in Beeson, supra, the “action for contribution [to a settlement by the one insurer] is not derivative from any third person, but exists as an independent action by one insurer against another under principles of equity.” 132 Ariz. at 508, 647 P.2d 634. If equity demands that the second insurer contribute to the cost of settlement, we see no reason why it does not equally demand that the second insurer contribute to the costs of defense. This is especially true where, as in the present case, the costs of defense exceed the amount of settlement. Appellee suggests that it, in fact, was “there” because it was defending PZA. However, although PZA was the named insured under the St. Paul policy, Long’s was also a named insured and was clearly the intended beneficiary of the policy. St. Paul cites no authority for the argument that its defense of a co-insured should excuse its failure to defend Long’s or bar National’s right to contribution for its costs in defending Long’s. We do not find this argument persuasive. ATTORNEY’S FEES Both parties, pursuant to A.R.S. § 12-341.01(A), have requested attorney’s fees incurred on appeal and in the trial court. Although attorney’s fees were requested in both the complaint and the answer, they were not mentioned in the motion or cross-motion for summary judgment, and attorney’s fees were neither awarded nor addressed in the judgment. Arizona Revised Statutes § 12-341.01(A) provides for recovery of attorney’s fees in an action “arising out of a contract, express or implied.” In Ash, Inc. v. Mesa Unified School Dist., 138 Ariz. 190, 673 P.2d 934 (App.1983), we interpreted this provision, stating, “Thus, as used in A.R.S. § 12-341.01, the words, ‘arising out of a contract’ describe an action in which a contract was a factor causing the dispute.” 138 Ariz. at 192. Analogously, in Sparks v. Republic Nat’l Life Ins. Co., 132 Ariz. 529, 647 P.2d 1127 (1982), our supreme court, in discussing attorney fee awards for claims sounding in tort, stated, “The fact that the two legal theories are intertwined does not preclude recovery of attorney’s fees under A.R.S. § 13-341.01(A) as long as the cause of action in tort could not exist but for the breach of the contract.” 132 Ariz. at 543, 647 P.2d 634. Here, but for the two insurance contracts with Long's, there would be no dispute. Further, recovery of attorney’s fees under the statute may be granted even if the successful party plaintiff was not a party to the contract which formed the basis of the claim. See Nationwide Mut. Ins. Co. v. Granillo, 117 Ariz. 389, 573 P.2d 80 (App. 1977) (to be awarded attorney fees under A.R.S. § 12-341.01, a successful party defendant need not have been a party to the contract). CONCLUSION For the above-stated reasons, the matter is reversed and remanded with instructions to the trial court to grant National’s motion for summary judgment. We also grant appellant’s request for attorney’s fees incurred before the trial court and on appeal. Appellants are directed to submit an affidavit in accordance with Rule 21(c), Arizona Rules of Civil Appellate Procedure, and Schweiger v. China Doll Restaurant, Inc., 138 Ariz. 183, 673 P.2d 927 (App.1983). KLEINSCHMIDT, P.J., concurs in the substantive result.

OPINION FERNANDEZ, Judge. The juvenile appeals from an adjudication finding him delinquent for robbery and for theft of $500 or more but less than $1,000. The trial court ordered him confined until his eighteenth birthday. The facts show that on January 19, 1986, the juvenile snatched a purse from a woman in Apache Junction. Minutes later the juvenile was apprehended. The woman’s purse and the wallet from within the purse were found on the ground along the juvenile’s escape route, and the only property missing from the purse was less than $20 in currency, a sum which was found on the juvenile. Still inside the purse when it was recovered, concealed in a secret compartment, was $530 in currency. For our purposes, we may assume that the minor never knew of the existence of the currency in the secret compartment. The juvenile’s sole argument on appeal is that, since he was unaware of the property within the purse and since that property served to increase the offense to theft of more than $500, the requirement of the statute that he knowingly control the property of another was not met and he was found guilty of too great a degree of theft. There is no merit to this contention. A.R.S. § 13-1802 states, in pertinent part: “A. A person commits theft if, without lawful authority, such person knowingly: 1. Controls property of another with the intent to deprive him of such property;.... * * * * * * C. ... Theft of property or services with a value of five hundred dollars or more but less than one thousand dollars is a class 4 felony....” The statute does not require that the thief knowingly control the property of another worth a certain sum. The knowing control goes only to the property of another. The breakdown of the degrees of the offense for punishment purposes does not require a knowing mental state. The juvenile does not contend that he did not knowingly control the woman’s purse, and he admits that a thief does not need to know the value of the property he steals. Therefore, it follows that the thief must bear the consequences for stealing an item whose value is not known by the thief. There is no difference between a thief who steals an empty purse which, because of its workmanship and materials, happens to be worth $530 and the facts of this case. The juvenile knowingly controlled the purse and necessarily controlled its contents; therefore, he must bear the consequences of his actions. The adjudication and commitment order are affirmed. HATHAWAY, C.J., and HOWARD, P.J., concur.

OPINION LACAGNINA, Judge. Cochise Memory Gardens (the cemetery) appeals a jury verdict awarding $25,000 in punitive damages in favor of Ann Carol Tomasits as a result of an action brought by her for the mishandling of her parents’ bodies during their disinterment and reinterment. The cemetery argues there was insufficient evidence to support the award of punitive damages. We affirm. FACTS The events relevant to this appeal occurred as follows. In February 1982 the cemetery sold Tomasits two plots for which she received deeds and a certificate of ownership. In May 1982 the cemetery learned that one of those plots had previously been sold to Luana Bascom, not a party to this action, as a part of contiguous plots for her parents. The cemetery failed to record the sale or deed for the earlier transaction, and Tomasits was not notified of the mistake when discovered by the cemetery. In Octo ber 1983 when Bascom’s father died, Tomasits’ parents’ bodies were already interred (4/82 and 7/83). Bascom filed suit to have Tomasits’ mother’s body moved to allow Bascom’s father to be buried. In January 1984 the trial court ordered the cemetery to transfer Tomasits’ parents’ bodies to similar contiguous spaces and to prepare the plot for burial of Bascom’s father. As of February 6, 1984, the cemetery’s post-trial motions and special action petition had all been denied; however, the disinterment and reinterment did not take place until April 2, 1984. This occurred without notice to Tomasits or her attorney, without Tomasits or her representative being present for the exhumation, without Tomasits being offered any choice of new grave sites and without having a Roman Catholic priest present to consecrate the new burial ground. LAW Although this court has not previously dealt with the question of liability for wrongful disinterment , the Restatement (Second) Torts § 868 states the rule: Interference with Dead Bodies. One who intentionally, recklessly or negligently removes, withholds, mutilates or operates upon the body of a dead person or prevents its proper interment or cremation is subject to liability to a member of the family of the deceased who is entitled to the disposition of the body. % !}C ‡ jjt Jfc Sj! Comment (e) “removes” includes disinterment. We follow the Restatement absent contrary authority. MacNeil v. Perkins, 84 Ariz. 74, 324 P.2d 211 (1958). The cemetery concedes, by not appealing the compensatory damages award ($1,000), that Tomasits was entitled to recover for her mental anguish even in the absence of any physical injury if the anguish and suffering resulted from the cemetery’s negligent mishandling of her parents’ bodies. The court instructed the jury that the negligent handling included but was not limited to the disinterment and reburial of Tomasits’ parents. Hovis v. City of Burns, 243 Or. 607, 415 P.2d 29 (1966); Prosser & Keeton, Torts § 54 at 362 (5th ed. 1984). The cemetery also concedes the jury found as instructed that the cemetery did not act as a reasonably prudent person in relying on the advice of its attorney concerning the disinterment. The cemetery argues this is a case of mere negligence beginning with the “paper error” which occurred in 1982 and ending in April 1984 upon compliance with statute and court order. See A.R.S. § 32-1368(A)(2)(e). The cemetery attempts to use the statute as a shield protecting it from any liability for punitive damages, claiming this compliance could not have shown “reckless indifference to the interests of others.” We agree that evidence of compliance with a statute governing the procedure for disinterment has in some cases precluded an award of punitive damages. See, e.g., Cybart v. Michael Reese Hospital and Medical Center, 50 Ill.App.3d 411, 365 N.E.2d 1002 (1977). Courts have also construed such statutes as mandatory and held that any agreements made in contravention of these provisions have no effect. See Bash v. Fir Grove Cemeteries Co., 282 Or. 677, 581 P.2d 75 (1978). What distinguishes this case, as argued by Tomasits, is not the disinterment itself or compliance with court order in doing so but the manner of disinterment. First, the necessity of disinterment including the delay involved was a direct result of the cemetery’s negligence—not recording the sale and deeds when Bascom bought the plots in 1980, compounded by the cemetery’s failure to notify Tomasits of the error when it was discovered in 1982. Secondly, even absent a statute the law has always recognized the right of a surviving relative to have a body remain undisturbed. Disinterment of a body is not favored in the law. Public policy frowns on the disinterment of a body and its removal to another burial place and it is the policy of the law except in cases of necessity or for laudible purposes that the sanctity of the grave should be maintained and that body once suitably buried should remain undisturbed. 25A C.J.S., Dead Bodies § 4(1) at 496 (1966). The provisions of A.R.S. § 32-1368 seek to protect these same rights, in this case by demanding a court order authorizing disinterment in the absence of consent by the surviving relatives. A.R.S. § 32-1368(A)(2)(e). The statute controls the exceptions allowing disinterment and the procedures to be followed. However, the cemetery’s compliance with these provisions does not end the inquiry. The parties were initially in court concerning the disinterment because of the cemetery’s negligence. The cemetery’s actions following the court order are significant. The evidence before the jury concerning the cemetery’s “reckless indifference to the interests of others” included the following: 1. Failure to notify Tomasits when the error was discovered in 1982. 2. Two-month delay in disinterment following the court order. 3. No prior notice to Tomasits of the disinterment. 4. No choice given to Tomasits of new grave sites. 5. No priest notified of disinterment and reinterment in order to consecrate the graves. 6. No notice given to Tomasits’ representative as requested to allow his presence at the time of disinterment. The cemetery’s explanation of the above actions, including reliance on advice from its attorney, and a lack of request from Tomasits regarding the desire to be present or have a priest there, were all questions concerning the credibility of witnesses and the weight to be given the testimony and were properly submitted to the jury on the issue of punitive damages. See Spomer v. City of Grand Junction, 144 Colo. 207, 355 P.2d 960 (1960). Finally, the cemetery argues punitive damages cannot be awarded in this case because its actions concerning the disinterment were based solely on the advice of counsel, citing Pre-Fit Door, Inc. v. Dor-Ways, Inc., 13 Ariz.App. 438, 477 P.2d 557 (1970). First, we stated the rule in Pre-Fit Door by affirming a jury verdict and judgment in favor of defendants denying both compensatory and punitive damages. Secondly, we have not extended that broad legal principle to any fact situation closely resembling the present case. See Huggins v. Deinhard, 127 Ariz. 358, 360, 621 P.2d 45, 47 (App.1980). Thirdly, the court instructed the jury in this case to consider whether or not the cemetery acted as a reasonably prudent person in relying on the advice of its attorney concerning disinterment. If that reliance could be considered negligence, it cannot at the same time mitigate the punitive damages. The jury heard testimony from the cemetery’s president, employees and its attorney and resolved all conflicting evidence and disputed issues in favor of Tomasits. Finally, since the jury found that the cemetery had acted with reckless indifference to the interests of others and awarded punitive damages, it necessarily found that the cemetery did not act in good faith. Huggins v. Deinhard, supra. Affirmed. LIVERMORE, P.J., and BIRDSALL, J., concur. . The supreme court in Hale v. Brown, 84 Ariz. 61, 323 P.2d 955 (1958), in the only Arizona case dealing with the interference with dead bodies, cites the Restatement in a case dealing with a claim of wrongful embalming, indicating the basis for recovery as primarily for the mental suffering caused by the improper dealing with the body. The court in Hale v. Brown, supra, concluded that the surviving spouse had not shown a claim for wrongful embalming because there was no allegation of mental suffering. However, the court decided the case on other grounds.

OPINION BIRDSALL, Acting Chief Judge. Petitioner has brought this special action to challenge the respondent court’s denial of his motion to dismiss the indictment and to remand for a redetermination of probable cause. Because we believe the court abused its discretion in denying the motion, and because the petitioner is without an adequate remedy by means of an appeal, State v. Agnew, 132 Ariz. 567, 647 P.2d 1165 (App.1982), we assume jurisdiction and grant relief. Petitioner was indicted by the Pima County Grand Jury on one count of kidnapping in violation of A.R.S. § 13-1304. Ms. Vella Hermann, the chief investigating officer in the case, presented the evidence to the grand jury that on November 30, 1982, petitioner was observed grabbing a woman around the neck and waist, apparently forcing her to walk with him. The incident was observed by a young man and woman seated in a nearby car. The man exited the car, chased the petitioner and eventually sub dued him. At the time of the incident, the petitioner was on probation for two rapes which occurred in 1974. He was in the middle of probation revocation proceedings that were initiated after he was accused of attempted robbery in Las Vegas in January 1982. After the incident involved in the instant case, probation revocation proceedings were brought against him on that basis also. The transcript of the grand jury proceedings shows that after petitioner was arrested, he was read his Miranda rights and he stated he wanted to speak to his attorney and his psychiatrist. A grand juror thereupon asked the witness whether petitioner was under psychiatric care during the time of the alleged offense and the following transpired: “GRAND JUROR ROMERO: Romero. Was he under psychiatric care at the time? THE WITNESS: He stated he had a psychiatrist that he wanted to talk to. GRAND JUROR ROMERO: Was it proven that he was under a doctor’s care? MS. JORGENSON: (Prosecutor) Perhaps I could interject. I don’t think that particular line of questioning is relevant to this particular offense. GRAND JUROR MADDUX: Maddux. I would be interested in the same question because it may shed some light on his state of mind as to whether he was knowingly — the culpable mental state. MS. JORGENSON: Fine. If you want to specifically ask about one of the elements of the offense, of course, you’re free to do that. GRAND JUROR MADDUX: Well— Maddux. All right. In your opinion, what was his culpable mental state, and do you have any information on whether any medical treatment he was receiving at the time would shed any light on that? THE WITNESS: In my opinion, his mental state could only be indicated by the statements he made. The statement he made to Mark was yes, he knew what he had done. He had attacked somebody. He also made the statement he was presently awaiting on charges for attacking somebody else. There were the statements he made to Mark at the time he tackled him. The statement he made was: I’m doing this for a friend as a prank. He made an excuse. Also the statement he made to his wife over the phone that he had messed up. He was at the Police Department. He grabbed somebody. GRAND JUROR MADDUX: Maddux again. Is there anything you learned that would indicate that he was out of touch with reality at the time of the offense? THE WITNESS: Nothing that I have learned that I could make a statement on. In my opinion, no, sir.” Prior to giving this testimony, Officer Hermann had been present in the courtroom during the probation revocation proceedings based on the same incident that gave rise to this case when the following occurred: “THE COURT: Do you have any additional witnesses? MS. JORGENSON: No, Your Honor. State rests. THE COURT: Mr. Hirsh, (petitioner’s counsel) State having rested do you wish to present any evidence? MR. HIRSH: Yes, I have a witness which would be Dr. Morris who would testify that this was an involuntary compelled act and an act that would, as I had mentioned to the Court earlier, going to refer the Court to A.R.S. 12-201 and 13-201 says minimum requirements for criminal liability as a performance of conduct, which includes a voluntary act. Voluntary is defined over in 13— MS. JORGENSON: 105. MR. HIRSH: 105. Thank you, very much. In 13-105, and as a body movement performed consciously and as performed effort of determination and this was an act that was an unvolitional act. I have not been able to get him, make him available this afternoon not knowing the time on this and I called over there during the lunch hour and wasn’t able to get a hold of him but he would be willing to testify to the things that I’m not advising the Court of and I’d ask the Court to recess this to a time that he can be heard on it as a defense to the testimony that you’ve heard thus far. ■ It might be rejected, my offer, and we put an end to it. If you feel that’s not germane to the case, I’m not going to proceed with it but— THE COURT: I don’t know what his testimony is going to be. MR. HIRSH: He would render an opinion based with reasonable medical probability that that was Nelson’s mental state at the time that this act occurred. THE COURT: Who’s this doctor? MR. HIRSH: Dr. Larry Morris, who is his treating psychologist.” The deputy county attorney who presented the instant case to the grand jury, Ms. Cindy Jorgenson, was also the deputy county attorney representing the state at the probation revocation proceedings. Officer Hermann was present during the above discussion but was not present subsequently when the stipulation was made concerning what Dr. Morris’ testimony would be. Neither was she present when Dr. Morris testified at the dispositional hearing after petitioner’s probation was revoked. At the revocation proceedings, counsel finally entered into a stipulation as to Dr. Morris’ testimony as follows: “MR. HIRSH: Yes, my understanding is that counsel would stipulate that Dr. Morris, if he were called will testify that he is a certified psychologist, been practicing in Arizona for some period of years and that he has been treating Dale Nelson for approximately 15 months on a regular basis; that he is thoroughly familiar with Dale Nelson’s case. He is thoroughly familiar with the facts in this case and that he would, based on reasonable medical probability, that Dale Nelson’s conduct on November 30, 1982, at the University that is relating to the testimony that has been given in this case was not voluntary; that the actions of Dale Nelson putting his arms around the victim in this case was not a voluntary act in the meaning of A.R.S. § 13-201. It is my understanding that I could present Dr. Morris’ testimony in this fashion and to obviate the appearance, to hasten determination of this proceeding and it was for that reason that I am allowed to give his testimony orally stated for the record rather than calling on the witness, I believe, counsel. MS. JORGENSON: Yes, Your Honor. THE COURT: The court will accept the avowal and stipulation and assume that Dr. Morris will testify as you have indicated.” Later at the dispositional hearing, held prior to the grand jury proceedings and at which Ms. Jorgenson was also present, Dr. Morris testified that petitioner had little or no control over his actions when he attacked and kidnapped the woman in this case and that when he did forcibly restrain her, he probably did not have a conscious intent to do anything beyond that. Petitioner argues that since he was charged with kidnapping under A.R.S. § 13-1304 which requires that the restraining of another person be done “knowingly” with the intent to do one of the various enumerated acts, it was relevant that his acts were not voluntary and that he probably had no conscious intent to do anything beyond restraining the victim. The psychologist’s opinion as to petitioner’s mental state is obviously relevant. The grand jury could have refused to return an indictment against petitioner. See A.R.S. § 13-201. Additionally, the grand jury could have found that a requisite element of kidnapping was not present. See A.R.S. § 13-1304(A)(l-6). The questioning by the two grand jurors indicated that they may have believed petitioner’s mental condition was relevant and material to the jury’s determination of probable cause. It was at this point that the prosecutor interfered with the inquiry, informing the jury that their questions were not relevant. When the questioning was redefined so as to illuminate petitioner’s mental state, the responses forthcoming from the witness were, in their best light, misleading. The most obvious point at which the prosecutor should have set the record straight was when the grand juror asked whether the witness had any information whether any medical treatment the accused was receiving would shed any light on his state of mind. In State v. Baumann, 125 Ariz. 404, 610 P.2d 38 (1980), our supreme court stated: “The duty of a grand jury is to decide whether probable cause exists and that probable cause determination may only be challenged by a motion alleging that the defendant was denied a substantial procedural right or that an insufficient number of grand jurors concurred in the indictment, 17 A.R.S. Rules of Criminal Procedure, Rule 12.9.... Absent a showing of prejudice in these grand jury proceedings, there can be no reversal of error, [citations omitted]. 125 Ariz. at 409 [610 P.2d 38].” The state argues the petitioner was not denied a substantial procedural right since the prosecutor was merely performing her role in advising the grand jury on legal matters. The state argues that the prosecutor was merely expressing her opinion on the legal significance of the evidence. We disagree. What the grand jurors sought was to determine the petitioner’s state of mind, his culpable mental state at the time of the incident, a factor to be weighed in its determination of probable cause. To bar such inquiry denied petitioner a substantial procedural right. Additionally, the state argues that under Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956), indictments are not to be held open to challenge on the ground of inadequate or incompetent evidence. However, this is not a case where petitioner is challenging the sufficiency of the evidence but rather this is a challenge to a limitation of the evidence of the mental state required for a crime to have been committed. Petitioner’s second argument is that since it was shown that the witness perjured herself before the grand jury, United States v. Basurto, 497 F.2d 781 (9th Cir.1974), requires setting the indictment aside. The state responds by citing State v. Jacobson, 22 Ariz.App. 128, 524 P.2d 962 (1974), where we found that the fact situation was distinguishable from that in Basurto. In Basurto it was shown that the testimony before the grand jury was perjured, that the prosecuting attorney knew of such perjury and that the perjured testimony was material to the indictment. In Jacobson, the alleged fabrication was not material to the indictment. The instant case, however, is analogous to Basurto. Here, while we cannot say that the testimony presented was perjured, we can say that the testimony before the grand jury was misleading and that the prosecutor knew of its misleading character. There is a duty of good faith on the part of the prosecutor with respect to the court, the grand jury, and the defendant. United States v. Basurto, supra. In Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), the supreme court stated: “... a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment, [citations omitted]. The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears, [citations omitted]. 360 U.S. at 269 [79 S.Ct. at 1177].” Although the long line of cases quoted in Basurto have as their foundation the use of perjured testimony, we note that it is not the fact that the testimony is perjurious but rather that evidence, whether intentionally or unintentionally false, has been presented to the trier of fact and is used as a basis for finding probable cause. The defendant has no effective means of cross examining or rebutting the testimony given before a grand jury. Therefore, it is particularly incumbent upon the prosecutor, upon witnessing the use of misleading testimony, to correct the record before that body. Since we find that petitioner was denied substantial due process in having an indictment returned against him with the use of misleading testimony, we find that the trial court abused its discretion in denying the motion for remand and a new determination of probable cause. The order denying the motion is vacated and the lower court is ordered to dismiss the indictment and to remand the case to the grand jury for a redetermination of probable cause. Relief granted. KLEINSCHMIDT and MEYERSON, JJ., concur.

FELDMAN, Justice. Petitioners, Robert A. Brown and Mary Ellen Brown and Robert A. Brown Enterprises, Inc. (Brown), bring this special action against respondent insurers (Continental) and several of their employees, alleging that the trial judge abused his discretion and acted contrary to law in denying Brown’s motion to compel production. Having concluded that the petition presents important issues of first impression in this state and that remedy by appeal is inadequate, we accepted jurisdiction. Ariz. Const, art. 6, § 5, and Ariz.R.Sp.Act. 4, 17A A.R.S. The action arose out of a fire loss to Brown’s businesses, Cameo Label and Printing Company and Progressive Rent-a-Car, on August 16, 1980. Brown was insured by Continental for fire damage and various extended coverages. After some negotiation, the physical damage loss was paid, but the company refused to pay the claim based on business interruption, loss of accounts receivable and loss of valuable papers (referred to hereafter as the “loss of earnings claim”). The issues pertaining to the loss of earnings claim were arbitrated by agreement of the parties, but Brown refused to accept the award of the arbitrator. Brown then filed an action in superior court on June 30,1982, alleging that Continental and its agents had acted in bad faith and breached the implied covenant of good faith and fair dealing contained in the insurance policies which covered Brown’s property. The bad-faith allegations pertained only to the handling of Brown’s claim for loss of earnings. On the same day the complaint was filed, Brown served Continental and the other defendants with a request for production pursuant to Ariz.R.Civ.P. 34. The portion of the request at issue in this case sought production of the entire claims file compiled by Continental in handling both the physical damages and loss of earnings claim. Continental objected to production of the file, claiming (1) the portions of the file relating to the property loss claims were irrelevant; (2) much of the file was prepared in anticipation of litigation and was therefore qualifiedly protected from discovery; (3) the file also contained the mental impressions, conclusions, opinions and legal theories of the insurer’s agents and attorneys which were absolutely immune from discovery; and (4) the reports and correspondence of the certified public accountants were privileged and nondiscoverable pursuant to A.R.S. § 32-749. Brown moved for an order compelling production of the file. The trial judge ordered Continental to submit the entire claims file for in camera inspection by the court, along with an itemization of the documents and a statement explaining Continental’s position with respect to each item. The court also ordered Brown to submit an itemization of documents sought from the claims file, along with a statement of legal authority supporting Brown’s position on each of those items. The Browns reported to the court that they were unable to submit such a document because it was not possible for them to determine which documents would be helpful by consulting an inventory prepared by Continental. After reviewing the files, the trial court denied the motion to compel in its entirety, stating that the court had inspected the three volumes of the claims file “page by page and line by line” and had concluded that a substantial portion of the file contained items readily available to Brown and the remainder of the file contained items “which the court feels are not discoverable.” Since the request for production had included all written communications between Brown and Continental, the trial court undoubtedly presumed that Brown had copies of such material and was well within its discretion in denying production of those items. Rules 26(c) and 37(a). It is conceded, however, that the files also contained a large number of items to which Brown would have no access except by utilization of the discovery rules. With respect to these items, the trial court failed to state the reason for denying production, except for the comment that the court “feels” the material was “not discoverable.” Of course, this tells us nothing with respect to the grounds for denying production. Since the trial court did not specify the reasons for finding that the requested material was not discoverable, we must presume that the judge denied the motion to compel discovery on one or all of the grounds asserted by Continental. Continental has not suggested to us that the trial court based its decision on any ground other than those which it had raised. Throughout our review, we are mindful of the principle that in matters of discovery a trial court has broad discretion which will not be disturbed absent a showing of abuse. Cornet Stores v. Superior Court, 108 Ariz. 84, 86, 492 P.2d 1191, 1193 (1972); Jackson v. American Credit Bureau, Inc., 23 Ariz.App. 199, 203, 531 P.2d 932, 936 (1975). The discretion, however, is a legal discretion. It includes the right to decide controverted factual issues, to draw inferences where conflicting inferences are possible and to weigh competing interests. It does not include the privilege of incorrect application of law or a decision predicated upon irrational bases. Richas v. Superior Court of Arizona, 133 Ariz. 512, 652 P.2d 1035 (1982). RELEVANCY Brown requested production of the “complete and entire claims file” compiled by Continental concerning Brown’s policies. A portion of this file deals with the property damage claims. Continental argued that since the property damage claims were satisfied as of October 30, 1980, information pertaining to those claims was irrelevant to a bad-faith action based on Continental’s dealings with the loss of earnings claim. Rule 26(b)(1) permits discovery of information “relevant to the subject matter involved in the pending action.” The requirement of relevancy at the discovery stage is more loosely construed than that required at trial. For discovery purposes, the information sought need only be “reasonably calculated to lead to the discovery of admissible evidence.” Id.; Cornet Stores, 108 Ariz. at 86-87, 492 P.2d at 1193-94; 8 C. Wright & A. Miller, Federal Practice and Procedure § 2008, at 41 (1970). In this case, the trial court conducted an in camera inspection of the claims file after Continental provided an itemization of the documents and the reasons it believed some of them were irrelevant. This procedure placed the trial judge in the best position to determine questions of relevancy. See Jolly v. Superior Court of Pinal County, 112 Ariz. 186, 192, 540 P.2d 658, 664 (1975). While it is possible, if not probable, that information relating to the property damage and loss claims could lead to the discovery of admissible evidence in the bad-faith action concerning the loss of earnings claim, we were not provided access to the material in question and must defer to the trial court. Accordingly, we cannot find that the trial court abused its discretion in denying production of that portion of the claims file relating to the property damage and loss claims. Continental did not argue that the relevancy objection was applicable to the portion of the claims file dealing with the loss of earnings claim. Further, as discussed below, it is apparent that the items in the file which deal with that portion of the claim are relevant. We proceed, therefore, to examine the propriety of the trial court’s order relating to these portions of the file in light of the other objections raised by Continental. TRIAL PREPARATION MATERIALS — QUALIFIED IMMUNITY The major objection which Continental raised to production was that much of the files consisted of “material prepared in anticipation of litigation.” Continental argued that after August 21, 1981, its dealings with Brown over the loss of earnings question made the possibility of litigation clear. Thereafter, Continental argues, all subsequent material in the claims file was “prepared in anticipation of litigation.” Continental argues that such material is entitled to a qualified immunity from discovery. Rule 26(b)(3) does grant such an immunity; it provides that discovery of relevant documents and tangible things which have been “prepared in anticipation of litigation or for trial” may be discovered “only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” We have not before had occasion to formulate the test to determine when materials are “prepared in anticipation of litigation” and thus entitled to the protection of Rule 26(b)(3). One of the leading texts states the problem as follows: Rule 26(b)(3) is entirely in accord with the prior case law in denying work prod uct immunity to documents that were not “prepared in anticipation of litigation or for trial.” Some cases have attributed significance to whether a document was obtained before or after litigation was commenced, but this cannot be sound. Prudent parties anticipate litigation, and begin preparation prior to the time suit is formally commenced. Thus the test should be whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation. But the converse of this is that even though litigation is already in prospect, there is no work product immunity for documents prepared in the regular course of business rather than for purposes of the litigation. Wright & Miller, supra, § 2024, at 197-99 (footnotes omitted). This formulation does more to state the problem than to solve it. Attempts to compel production of an insurance company’s claims file often present situations where the principles favoring work product protection and discovery of all relevant information conflict. For example, while investigation of claims is an integral part of an insurance company’s business, litigation is often likely when these investigations are performed. Thus, courts have taken different approaches in determining when claims investigation material prepared by an insurance company will be characterized as that prepared in the ordinary course of business and therefore freely discoverable, or whether prepared in anticipation of litigation thus protected by Rule 26(b)(3). Id. One line of authority takes the position that unless the insurer’s investigation has been performed at the request or under the direction of counsel, the investigation is conclusively presumed to have been made in the ordinary course of business and not in anticipation of litigation. See McDougall v. Dunn, 468 F.2d 468 (4th Cir.1972); Atlanta Coca-Cola Bottling Co. v. Transamerica Insurance Co., 61 F.R.D. 115 (N.D.Ga.1972); Thomas Organ Co. v. Jadranska Slobodna Plovidba, 54 F.R.D. 367 (N.D.Ill.1972); Henry Enterprises, Inc. v. Smith, 225 Kan. 615, 592 P.2d 915 (1979). The court in Atlanta Coca-Cola Bottling Co., supra, explained the rationale of this approach: [T]he evaluation of claims of its policyholders is the regular, ordinary and principal business of defendant insurance company. Most of such claims result in payment by the defendant; it can hardly be said that the evaluation of a routine claim from a policyholder is undertaken in anticipation of litigation, even though litigation often does result from denial of a claim. The obviously incongruous result of the position urged by defendant would be that the major part of the files of an insurance company would be insulated from discovery. 61 F.R.D. at 118. Correctly, we believe, this approach has been criticized because the plain language of Rule 26(b)(3) rejects the proposition that only materials prepared or requested by counsel are entitled to protection from discovery. The rule protects materials “prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) .... ” Therefore, the ‘direction of counsel approach’ ignores the clear import of the rule and cannot be supported. See Spaulding v. Denton, 68 F.R.D. 342, 345 (D.Del.1975); 4 J. Moore, Moore’s Federal Practice ¶26.-64[3] (Supp.1982-83). Another view is taken by those courts which hold that all statements and information secured by an insurance company after an occurrence which might give rise to a claim against it or its insured are made in anticipation of litigation. See Almaguer v. Chicago, Rock Island & Pacific Railroad Co., 55 F.R.D. 147 (D.Neb.1972); Fireman’s Fund Insurance Co. v. McAlpine, 391 A.2d 84 (R.I.1978); see also Hamilton v. Canal Barge Co., 395 F.Supp. 975 (E.D.La.1974). This absolute approach was explained in Fireman's Fund Insurance Co., supra: In our litigious society, when an insured reports to his insurer that he has been involved in an incident involving another person, the insurer can reasonably anticipate that some action will be taken by the other party. The seeds of prospective litigation have been sown, and the prudent party, anticipating this fact, will begin to prepare his case.... Although a claim may be settled short of the instigation of legal action, there is an ever-present possibility of a claim’s ending in litigation. The recognition of this possibility provides, in any given case, the impetus for the insurer to garner information regarding the circumstances of a claim. 391 A.2d at 89-90. We find this view equally unsatisfactory. The fact that an event has occurred which may require an insurance company to provide payments under its contract with an insured will certainly not always transform an insurance company’s activities into preparation for litigation. This is particularly true where, as here, the claim asserted is not a liability claim against a third party’s insurer, but rather a casualty claim against the claimant’s own insurer. To adopt such an approach would undoubtedly give too broad an application of Rule 26(b)(3), simply because in many circumstances, although claims are expected, litigation is only problematical. See Spaulding v. Denton, supra; Garfinkle v. Arcata National Corp., 64 F.R.D. 688 (S.D.N.Y.1974). Faced with two absolute, but unsatisfactory, rules on this question, we feel it is necessary to examine the purposes behind the protection afforded trial preparation materials and develop a test which will best effectuate these purposes. The primary reasons for the protection given by Rule 26(b)(3) to materials prepared in anticipation of litigation are to maintain the adversarial trial process and to ensure that attorneys are adequately prepared for trial by encouraging written preparation. See Hickman v. Taylor, 329 U.S. 495, 510-12, 67 S.Ct 385, 393-94, 91 L.Ed. 451 (1947); Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 864 (D.C.Cir.1980). Counsel should not be permitted or encouraged to try a case on “wits borrowed from [an] adversary.” Hickman, 329 U.S. at 516, 67 S.Ct. at 396 (Jackson, J., concurring). Further, an attorney or party’s agent should not be deterred from adequately preparing for trial because of the fear that their efforts will be freely disclosed to opposing counsel. Hickman, 329 U.S. at 511, 67 S.Ct. at 393. On the other hand, the rules should be construed to allow discovery of all relevant information, so that issues may be tried on the true facts. Any formula adopted to help determine whether material fits within Rule 26(b)(3) protection should attempt to reconcile these divergent views. Unfortunately, the cases are in considerable confusion in attempting to define the phrase “prepared in anticipation of litigation.” The confusion is well described as follows: Courts have attempted to explain exactly what anticipation of litigation means, but such efforts have not helped to resolve the ... issue. For example, some courts indicate that a party ... anticipates litigation where there is a “substantial probability” of “imminent” litigation or when there is a “prospect” of litigation. Another requirement is that there be “some possibility” of litigation; however, a “mere possibility” of litigation is not enough. Other courts have stated that there must be an “eye” towards litigation or that litigation need only be a reasonable “contingency.” These methods for redefining the word anticipation do little more than say that litigation is anticipated when litigation is anticipated. Note, Work Product Discovery: A Multi factor Approach to the Anticipation of Litigation Requirement in Federal Rule of Civil Procedure 26(b)(3), 66 Iowa L.Rev. 1277, 1277-78 (1981) (footnotes omitted). See also Fontaine v. Sunflower Beef Carrier, Inc., 87 F.R.D. 89, 92 (E.D.Mo.1980); In re Grand Jury Investigation, 599 F.2d 1224, 1229 (3d Cir.1979) (“Courts and commenta tors have offered a variety of formulas for the necessary nexus between the creation of the material and the prospect of litigation.”). Given the complexity and immense variety of business and claim procedures, the variety of factual situations which are presented and the conflicting public policy principles discussed above, we believe that no single test should or could be imposed to determine whether material was “prepared in anticipation of litigation.” In determining this issue, the courts should consider the following factors and any others which may be relevant in the particular case: First, courts should consider the nature of the event that prompted the preparation of the materials and whether the event is one that is likely to lead to litigation. Implicit in such a consideration is the assumption that the more likely it is that litigation may result from a particular event, the greater the likelihood that materials prepared because of that event will have been prepared in anticipation of litigation. Second, courts should determine whether the requested materials contain legal analyses and opinions or purely factual contents in order to make inferences about why the document was prepared. Third, courts should ascertain whether the material was requested or prepared by the party or their representative. ... [W]hen litigation is anticipated it is expected that an attorney or party will [have] become involved. Fourth, courts should consider whether the materials were routinely prepared and, if so, the purposes that were served by that routine preparation. One assumption underlying this factor is that materials prepared in the ordinary course of business are prepared regardless of whether litigation is anticipated. On the other hand anticipation of litigation may be a party’s ordinary course of business; thus it is necessary to determine what purposes a routine preparation serves .... Last, courts should examine the timing of the preparation and ascertain whether specific claims were present or whether discussion or negotiation had occurred at the time the materials were prepared. Note, supra, at 1287 (footnotes omitted). Turning now to the facts of this case, it is apparent that the trial court’s refusal to order production of the portion of the loss of earnings claims file compiled prior to August 21, 1981 was improper. Continental did not claim that it anticipated litigation on this fire loss claim before August 21, 1981. True, it had made a claims investigation, but Continental’s business is handling claims, and not every fire loss claim gives rise to an anticipation of litigation initiated by Continental’s own insured. In view of Continental’s contention that the Brown claim for loss of earnings was transformed from one in the ordinary course of business to one in anticipation of litigation on August 21, 1981, the denial of Brown’s motion to compel with respect to the preAugust 21, 1981 material was unsupported by any proper legal basis and was therefore an abuse of discretion. We must next consider the proposition that portions of the claims file prepared after August 21, 1981 were prepared in anticipation of litigation. In so doing, we apply the factors discussed above. In support of its argument, Continental asserts that on August 14, 1981, over nine months after Brown’s property loss and damage claims had been paid, Brown submitted additional claims for loss of earnings due to the fire. On August 21, 1981, Continental informed Mr. Brown by letter that he had failed to present adequate proof for these new claims. The letter also advised Brown that Continental was reserving all rights under the policies due to a recent finding that Brown had misrepresented certain facts at the time the policies were issued. While the nature of the loss which prompted the investigation in this case — a fire — may not be the type of event which of itself is likely to lead to litigation, the denial of the claim coupled with an assertion that one of the policies might be void because of Brown’s alleged misrepresentations to the company support Continental’s posi tion that on and after August 21 the company’s activity was no longer in the nature of ordinary claims investigation. In addition, Brown had complained to the Director of Insurance, who had written Continental about its handling of the claim. Further, Continental had received a lien claim from the Internal Revenue Service which asserted a right to any loss proceeds which Brown might receive. Shortly after the letter of August 21, denying the claim, Continental hired counsel to represent its interests in these matters. In light of these facts, we hold that the record supports the trial court’s presumptive finding that after August 21, 1981 Continental could well have concluded that litigation on this claim was not merely possible, but quite probable. Thus, after August 21, 1981, the materials in the claims file were “prepared in anticipation of litigation” rather than as part of Continental’s regular business of handling claims; therefore the materials had a qualified immunity and were subject to production only upon a showing of “substantial need” and inability “without undue hardship” to obtain the substantial equivalent through other means. Rule 26(b)(3). SUBSTANTIAL NEED Brown asserted that the nature of its complaint against Continental necessarily established a substantial need for the materials in the claims file and an inability to obtain its equivalent. The trial court apparently rejected this argument; we must determine, therefore, whether this was an abuse of discretion. Brown’s action alleged bad faith on the part of the insurance company by failing to pay Brown’s claim for loss of earnings. Continental conceded at oral argument that the claims file contains a “blow-by-blow” diary of the insurer’s investigation and decision-making process with regard to Brown’s loss of earnings claim. The tort of bad faith arises when an insurance company intentionally denies, fails to process, or fails to pay a claim without a reasonable basis for such action. Sparks v. Republic National Life Ins. Co., 132 Ariz. 529, 538, 647 P.2d 1127, 1136 (1982); Noble v. National American Life Ins. Co., 128 Ariz. 188, 190, 624 P.2d 866, 868 (1981); Farmers Insurance Exchange v. Henderson, 82 Ariz. 335, 338-39, 313 P.2d 404, 406 (1957) (insurer must give equal consideration to both its own interests and the insured’s interests). No matter how the test is defined, bad faith is a question of reasonableness under the circumstances. Sparks, supra. The portions of the claims file which explained how the company processed and considered Brown’s claim and why it rejected the claim are certainly relevant to these issues. Further, bad-faith actions against an insurer, like actions by client against attorney, patient against doctor, can only be proved by showing exactly how the company processed the claim, how thoroughly it was considered and why the company took the action it did. The claims file is a unique, contemporaneously prepared history of the company’s handling of the claim; in an action such as this the need for the information in the file is not only substantial, but overwhelming. APL Corporation v. AETNA Casualty & Surety Co., 91 F.R.D. 10, 13-14 (D.Md.1980). The “substantial equivalent” of this material cannot be obtained through other means of discovery. The claims file “diary” is not only likely to lead to evidence, but to be very important evidence on the issue of whether Continental acted reasonably. Id. at 14. We find, therefore, that the trial court’s denial of Brown’s motion to compel production of any portion of the claims file com piled after August 21, 1981 was unsupported by the record. TRIAL PREPARATION MATERIALS — MENTAL IMPRESSIONS Even if discovery is permitted, Continental maintains that mental impressions and legal theories of their counsel, agents or other representatives are contained in the file and are absolutely protected from disclosure. Continental asserts that the plain language of Rule 26(b)(3) requires absolute immunity for these materials because the rule provides “the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” (Emphasis supplied.) Indeed, some courts have held that without exception such material is immune from discovery. See Duplan Corp. v. Moulinage et Retorderie de Chavanoz, 509 F.2d 730 (4th Cir.1974); In re Grand Jury Proceedings, 473 F.2d 840 (8th Cir.1973). We left this issue open in Longs Drug Stores v. Howe, 134 Ariz. 424, 430 n. 7, 657 P.2d 412, 418 n. 7 (1983). Recognizing that mental impressions and the like are afforded greater protection under Rule 26(b)(3), Longs, 134 Ariz. at 428, 657 P.2d at 416, we do not believe such protection can be absolute in a case presenting issues similar to the one at bench. As we explained above, the reasons the insurance company denied the claim or the manner in which it dealt with it are central issues to Brown’s claim of bad faith. Thus, the strategy, theories, mental impressions and opinions of Continental’s agents concerning the loss of earnings claim are directly at issue. When mental impressions and the like are directly at issue in a case, courts have permitted an exception to the strict protection of Rule 26(b)(3) and allowed discovery. See Donovan v. Fitzsimmons, 90 F.R.D. 583 (N.D.Ill.1981); Truck Insurance Exchange v. St. Paul Fire & Marine Insurance Co., 66 F.R.D. 129 (E.D.Pa.1975); SEC v. National Student Marketing Corp., 18 F.R.Serv.2d 1302 (D.D.C.1974); Bird v. Penn Central Co., 61 F.R.D. 43 (E.D.Pa.1973); Kearney & Trecker Corp. v. Giddings & Lewis, Inc., 296 F.Supp. 979 (E.D.Wis.1969); Bourget v. Government Employees Insurance Company, 48 F.R.D. 29 (D.Conn.1969) (a bad-faith case); Moore, supra, ¶ 26.64[4], at 26-447; Note, Protection of Opinion Work Product Under the Federal Rules of Civil Procedure, 64 Va.L.Rev. 333, 341-42 (1978). We emphasize, however, that this exception will only be permitted where the material sought to be discovered is central to a party’s claim or defense. Accordingly, we find the trial court abused its discretion in refusing to permit discovery of the mental impressions, opinions, conclusions or legal theories of Continental’s representatives which pertain to the loss of earnings claim and are contained in the claims file. ACCOUNTANT-CLIENT PRIVILEGE Continental’s final argument to deny production was that correspondence and reports of certified public accountants hired by the company to investigate the claim were privileged pursuant to A.R.S. § 32-749 and therefore not subject to discovery. A.R.S. § 32-749 provides in part: Certified public accountants ... practicing in this state shall not be required to divulge, nor shall they voluntarily divulge information which they have received by reason of the confidential nature of their employment. Information derived from or as a result of such professional source shall be deemed confidential .... We do not believe this statute protects the material in question. In support of its argument that the material in the file compiled after August 21 was prepared in anticipation of litigation, Continental asserted that it had hired the accountants to investigate Brown’s business accounts and assist them in preparing for the arbitration proceedings. Thus, the accountants’ reports and opinions are protected, if at all, by resort to Rule 26(b)(4), which pertains to discovery of trial preparation material relating to experts, both testimonial and non-testimonial. Continental did not raise this issue in the trial court or this court and we do not decide whether the reports and correspondence are protected under Rule 26(b)(4). See Nick Istock, Inc. v. Research—Cottrell, Inc., 74 F.R.D. 150 (W.D.Pa.1977). We do decide, however, that A.R.S. § 32-749 affords no privilege protection under these circumstances. The privilege applies to communications between accountant and client when those communications pertain to the client’s financial affairs; it does not apply to communications received by the client from an accountant employed as an expert to examine the affairs of a non-client. CONCLUSION The relief requested by Brown is denied with respect to the portion of the claims file concerning the property damage claims; relief is granted, consistent with this opinion, with respect to the portions of the file concerning the loss of earnings claim. Respondent judge is instructed to order production to the extent proper under the principles set forth in this opinion. HOLOHAN, C.J., GORDON, V.C.J., and HAYS and CAMERON, JJ., concur. . Since this is a special action proceeding, we are not furnished with the entire record below. We have only those portions of the record which the parties chose to attach as exhibits to the pleadings filed in this court. The part of the record which we do have does not indicate whether the loss of earnings claim has been terminated. It is possible, but unclear from our record, that Brown is maintaining simultaneous actions or counts for recovery of the loss of earnings coverage under the policy and for damages for the insurer’s alleged bad faith in failing to pay the claim. Should the former terminate adversely to Brown, one would assume that the bad-faith claim must fall. Obviously, there are many problems involved in allowing a claimant simultaneously to pursue both a claim under the coverage provided by the policy and a bad-faith claim based upon the insurer’s refusal to pay the policy claim. One could plausibly argue that the law should not allow such simultaneous actions and that a bad-faith claim can be pursued only after disposition of the underlying policy claim. Neither party has raised this issue nor provided us with the facts necessary to determine whether it exists. Accordingly, we do not address the issue and assume that Brown may maintain the bad-faith claim which, for all our record discloses, is the only claim extant. . The Rules of Civil Procedure will hereinafter be referred to as “Rule__” . The items sought were the following: 3. The complete and entire claims file and other documents on the Plaintiffs, including, but not limited to, the following: (a) The file folder or folders themselves; (b) All inter-office memoranda or other forms of written communication to or from any employee of Defendants relating to the initial processing of the Plaintiffs’ claims when Defendants first received said claims; (c) All inter-office memoranda or other forms of written communication to or from any employee of Defendants relating to the continued processing or denial of the Plaintiffs’ claims; (d) All written communication from Plaintiffs to Defendants, including all proof of loss forms and claim forms; (e) All written communications between Defendants and any third party concerning the processing, acceptance or denial of the Plaintiffs’ claims; (f) All medical and investigative reports concerning Plaintiffs and the Plaintiffs’ claims, and all written communications between Defendants and any third party concerning said report or reports; (g) All written communications from Defendants to Plaintiffs concerning processing and denial of the Plaintiffs’ claims; (h) All photographs, motion pictures, tape recordings, or other products of investigation concerning Plaintiffs taken by or on behalf of Defendants, relating to the processing or denial of the claims listed above; (i) All other written documents pertaining to the processing of the above claims in the possession of Defendant; O') All documents in the claims file, including telephone messages, claim worksheets, copies of checks or drafts, memoranda of telephone calls or conferences, legal or medical researches, etc.; (k) This request includes evidence of written communication between the Defendants and their attorneys, pursuant to United States Auto Ass’n. v. Werley, 526 P.2d 28 (Alaska 1974); (i) If there are files kept by more than one office or department of the Defendants (i.e., home office and regional claims office), this request is for all such files. . A portion of the inventory prepared by Continental follows and illustrates Brown’s difficulty: 22. Memo from Mr. Markis to Mr. Trudell, dated 1/18/82. 23. Memo from Mr. Trudell to Mr. Foote, dated 2/1/82. 24. Memo from Mr. Markis to Mr. Trudell, dated 2/2/82. . Our review is made more difficult by the absence of a statement of the specific grounds for the court’s action. In the future, we encourage trial judges to assist reviewing courts by stating on the record the specific reasons for their actions. . It could be persuasively argued that Brown had not shown the “necessity” for production of the documents or materials compiled subsequent to the date on which Continental denied the claim by letter which stated the specific reasons for denial (lack of documentation and possible misrepresentation). One could argue that the propriety or impropriety of the denial was fixed as of that date and that the portions of the file compiled subsequent to that date were either unnecessary or irrelevant. That argument has not been raised by Continental, was not mentioned by the judge in his order, and cannot be determined on the record before us. Therefore, we do not reach the issue. . Continental does not raise the issue of attorney-client privilege, and we do not address that question. Further, we have no way of determining whether any material in the file is within the privilege. . One could argue that this result is mandated by the language of Rule 26(b)(3), which seems to recognize a different standard with respect to immunity for “true work product.” The rule grants qualified immunity (discovery only upon a showing of substantial need and inability otherwise to obtain) to material prepared “in anticipation of litigation or for trial.” It does not specify which litigation or trial, thereby implying that all trial preparation material is to be given qualified immunity, even though the case for which it was prepared is not the case which is before the court and even though the two cases may not be related. On the other hand, the absolute immunity given true work product (mental impressions, conclusions, opinions and legal theories) is granted only “concerning the litigation” (emphasis supplied), thereby leading to the conclusion that the absolute immunity is only applicable to the work product of the very case being litigated. This interpretation of the rule would certainly resolve the pragmatic problems that would arise in many types of cases if absolute immunity were extended to mental impressions, conclusions, opinions and legal theories accumulated as part of the preparation of cases other than the one being litigated. In the case at bench it is possible, for example, that the insurer denied payment of the claim because of a legal theory (that there was no coverage), a mental impression (that the insured had exaggerated the claim), an opinion (that the fire was attributable to arson), etc. If the file shows such a reason for denial of the claim, this information would go to the very heart of the question of whether the company acted in good or bad faith and must be admissible, and thus discoverable, in a subsequent bad-faith case. Similar considerations would exist in a variety of other actions such as legal malpractice, malicious prosecution, abuse of process and all other cases in which the issue is the motives or reasons for, or the propriety or impropriety of, a party’s actions in handling a prior legal matter or proceeding. Thus, the absolute immunity accorded for the essence of work product— mental impressions, conclusions, opinions or legal theories of the attorney or other representative — would apply only to the case being litigated (here, the bad-faith case) and not to such material prepared for some prior case which is the subject of the instant litigation. Of course, the “true work product,” like all other trial preparation material, will continue to enjoy the qualified immunity even though prepared in another case.

OPINION FROEB, Presiding Judge. Appellant Michael Allen Hunter appeals from his conviction of one count of armed robbery, a dangerous nature offense, with a prior dangerous nature conviction, and sentence of 15.75 years. He raises two issues: (1) whether the trial court violated rule 609, Rules of Evidence, in determining to admit evidence of his prior felony conviction and, if so, whether the trial court abused its discretion in admitting evidence of his prior felony conviction; and (2) whether appellant’s prior conviction was properly proven for purposes of enhancement of sentence pursuant to A.R.S. § 13-604(G). We affirm the conviction but remand for resen-tencing. Briefly stated, the evidence introduced at trial established that on the afternoon of August 24, 1980, while appellant was test-driving a vehicle for sale from Edward Oldsmobile, he threatened the car salesman with a knife-like object, and absconded with the vehicle and the salesman’s billfold. The vehicle was discovered at a Phoenix motel the following day. Appellant had used the salesman’s credit card to check into the motel. When appellant was apprehended and searched, his wallet contained credit cards belonging to the salesman, keys to the stolen vehicle, and a driver’s license in appellant’s name. The room where appellant told police he was living was searched pursuant to a search warrant. That search netted three credit card receipts with the name of the salesman on it, and a key tag which was used by Edward Oldsmobile for the key to the stolen vehicle. The car salesman identified appellant’s photograph in a photographic lineup. At trial, appellant testified, asserting that the car salesman had told him he could keep the car overnight, and gave appellant his credit card for purposes of “having a night on the town”. He admitted making purchases with the salesman’s credit cards, but implied they were pursuant to the salesman’s offer to keep the car for a night to see how he liked it. Appellant claimed that the salesman made up the story about the armed robbery to “cover himself” for letting appellant leave in the car without having first obtained appellant’s address. Prior to trial, the State filed an allegation of prior and/or repetitive convictions pursuant to State v. Hannah, 126 Ariz. 575, 617 P.2d 527 (1980), alleging “any convictions which arise from counts 1, 2 or 3 in CR 119068 ... as prior convictions for sentencing purposes on CR 114860.” On November 25,1981, appellant was convicted of count 2, first degree murder, and count 3, unlawful use of means of transportation in cause number CR 119068. In the present case, appellant denied the allegation of a prior conviction, and objected to the use of the prior felony for impeachment purposes pursuant to rule 609, Rules of Evidence, on the ground that its prejudicial effect outweighed its probative value. At a rule 609 hearing held prior to trial, the court ruled that the prosecutor could ask appellant whether he had a previous felony conviction and the date of that conviction, but could not inquire of appellant the nature of the prior murder conviction. The trial court specifically stated to appellant: [I]f you testify, the State can ask you if you were convicted last month or whatever the date was in case number 119068 of a felony conviction. They will not be able to ask you and you do not have to answer that it was in fact for murder, that you were convicted. However, if you deny that you were convicted of a felony conviction, then the State will be able to later on, and this only would take place if you testify, the State would later be able to bring out whatever records they may have to prove that you in fact were convicted of a felony offense in case number 119068 on whatever the particular date was. Appellant testified at trial and, following his direct examination, the trial court held a conference in chambers wherein the court modified its ruling regarding impeachment with appellant’s murder prior, stating that if appellant did not admit the prior in chambers, the State could go into the fact that it was a murder prior in the jury’s presence. The trial court stated: I will explain to you, Mr. Babbitt, [defense counsel] I think the fact that it’s a murder conviction might be unduly prejudicial to the jury in determining your client’s guilt or innocence for the charge of armed robbery, but I do not feel that and I do not intend to put the State to the requirement of a subsequent trial on the fact that it is a murder conviction for their enhancement purposes, if, in fact, they are able to convict him for robbery at this time. Appellant objected to the procedure, but ultimately admitted to the trial court in chambers that he had been previously convicted of murder. A certified copy of the prior conviction was admitted into evidence. Following this hearing, appellant resumed the witness stand, and on cross-examination was impeached by the prosecutor as follows: Q. You had been convicted on the 25th of November of a felony, haven’t you? A. I was, sir. ADMISSIBILITY OF PRIOR CONVICTION The first issue is whether the trial court abused its discretion in allowing the State to impeach appellant with the fact of his prior conviction. Appellant contends the trial court only minimally complied with rule 609(a) and that the trial court never made an actual finding that the probative value of the prior conviction outweighed its prejudicial effect. He contends that the prior conviction for murder, which does not involve dishonesty or false statement, has considerably less probative value as to credibility than other felony convictions. Finally, he contends that the prejudicial effect of the admission of a prior was compounded by the action of the trial court in allowing impeachment with the fact of the prior felony conviction, but not its nature. He contends that this procedure left the jury free to speculate as to the nature of the prior conviction. Rule 609(a) provides: For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record, if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, and if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted or (2) involved dishonest or false statement, regardless of the punishment. In determining whether to admit evidence of a prior conviction pursuant to rule 609, the trial court must balance the probative value against the prejudicial effect of admission of the evidence of the prior conviction. The preferred practice is for the trial court to “ ‘make an on-the-record finding based on specific facts and circumstances that the probative value of the evidence substantially outweighs the danger of unfair prejudice.’” State v. Ellerson, 125 Ariz. 249, 252, 609 P.2d 64, 67 (1980), quoting United States v. Mahler, 579 F.2d 730, 734 (2nd Cir.1978). The failure to make such findings, however, does not require reversal. State v. Ellerson. Where it is clear from the record that the trial court balanced the probative value and the prejudicial effect of the admission of a prior conviction, the decision of the trial court will be reviewed only for an abuse of discretion. Id. A reading of the transcript in this case shows that the trial court properly considered the matters required by rule 609(a) and did not abuse its discretion in determining to admit evidence of the prior conviction. Appellant specifically argued that the prejudicial effect of admission of the prior conviction outweighed its probative value. The trial court’s determination to preclude the State from proving the nature of the prior conviction demonstrates that the court considered the probative value and the prejudicial effect. Certainly, it is well established in Arizona that any prior felony conviction has probative value on the issue of a defendant’s credibility. State v. Aguirre, 130 Ariz. 54, 633 P.2d 1047 (App.1981). Finally, appellant’s argument that the jury may have ascribed to appellant a prior felony conviction more prejudicial than one of murder is speculative at best. In State v. Watkins, 133 Ariz. 1, 648 P.2d 116 (1982), the supreme court found that the trial court did not err in permitting a defendant to be impeached with mention of his prior felony conviction where the trial court precluded the state from inquiring into the nature of the prior conviction. Without specifically discussing the propriety of not introducing evidence of the nature of the prior conviction, the supreme court found no abuse of discretion in admission of the fact of a prior conviction. We likewise find no error in the present case. ENHANCEMENT PURSUANT TO A.R.S. § 13-604 For his second issue on appeal, appellant argues that his prior conviction was not properly established for enhancement purposes pursuant to A.R.S. § 13-604(K). He contends that his admission on the stand was not sufficient to admit the nature of the prior. He further contends that his admission in chambers was coerced, and was not made in compliance with rule 17, Rules of Criminal Procedure. Therefore, he argues, his sentence was illegal in that the State did not properly establish that he had a prior conviction. A.R.S. § 13-604(K) provides: The penalties prescribed by this section shall be substituted for the penalties otherwise authorized by law if the previous conviction, the dangerous nature of the felony, or the allegation that the defendant committed a felony while released on bond or on his own recognizance as provided in subsection M of this section is charged in the indictment or information and admitted or found by the trier of fact... . Thus, before a sentence may be enhanced pursuant to A.R.S. § 13-604 by a prior conviction, the prior conviction must either be admitted by the defendant or found to be true by the trier of fact. As for admissions, rule 17.6, Rules of Criminal Procedure, provides: Whenever a prior conviction is charged, an admission thereto by the defendant shall be accepted only under the procedures of this rule, unless admitted by the defendant while testifying on the stand. Thus an admission for purposes of A.R.S. § 13-604(K) may occur either in accordance with the provisions of rule 17 or during the defendant’s testimony. Appellee argues, based on State v. McMurry, 20 Ariz.App. 415, 513 P.2d 953 (1973), that appellant’s admission on the witness stand of the fact of a prior felony conviction and the date of the conviction coupled with the introduction into evidence of the minute entry establishing his prior conviction, was sufficient proof of the prior. We agree. In State v. McMurry, this court held that where a defendant admitted on cross-examination that he had a previous felony conviction, and the date of the conviction, the testimony was sufficient to impose an increased sentence under former A.R.S. § 13-1649. In the present case, appellant admitted on cross-examination that he had been convicted of a felony on November 25,1981. Under State v. McMurry, that admission is inherently reliable. We therefore find that appellant’s admission in this case was sufficient to establish that he did have a prior conviction for purposes of A.R.S. § 13— 604(K). The inquiry, however, does not end here. Appellant in this case was sentenced in accordance with the provisions of A.R.S. § 13-604(G) which provides in part: * * * * * * Upon a second conviction of a class 2 or 3 felony involving use or exhibition of a deadly weapon or dangerous instrument or upon conviction of a class 2 or 3 felony when the intentional or knowing infliction of serious physical injury upon another has occurred, the defendant shall be sentenced to imprisonment for twice the sentence and not more than three times the sentence authorized in § 13-701 for the offense for which the person currently stands convicted, and shall not be eligible for suspension or commutation of sentence, probation, pardon or parole, work furlow or release from confinement on any other basis except as specifically authorized by § 31-233, subsection A or B until not less than two-thirds of the sentence imposed by the court has been served. ... Thus, appellant was sentenced for having not simply a prior conviction which he admitted, but rather, for having a prior conviction for a dangerous nature felony. Since appellant’s in-chambers admission to the murder conviction was not made in accordance with rule 17.6, Rules of Criminal Procedure, it cannot be considered voluntary. The question, therefore, becomes whether the evidence was sufficient, absent appellant’s involuntary admission of the prior conviction for murder, to establish that appellant had a prior conviction for a dangerous nature offense. We find that the evidence was sufficient. At the hearing in-chambers during which appellant admitted the prior conviction for murder, the State introduced into evidence, without objection from appellant, the judgment in Maricopa County Superior Court cause number CR 119068, dated November 25,1981, finding appellant guilty of count 2, murder, first degree, a class 1 felony, dangerous, and count 3, unlawful use of means of transportation, a non-dangerous class 6 felony committed on April 12, 1981. The judgment indicates that as to count 2, appellant was sentenced for a period of life without possibility of parole for twenty-five calendar years, and was sentenced for a period of 1.875 years on count 3, the sentence to run consecutive to the sentence on count 2. The judgment thus clearly establishes a prior conviction for murder as a dangerous nature felony. Further, we believe that the determination of the dangerousness of the prior conviction for purposes of A.R.S. § 13-604(G) is a question of law, not of fact, and was therefore properly addressed to the trial court. The finding of dangerousness of a prior conviction pursuant to A.R.S. § 13-604(G) is analogous to the determination which must be made pursuant to A.R.S. § 13-604(1) of whether an out-of-state conviction would constitute a conviction of a felony or a misdemeanor if committed within this state. In making the determination, the trial court could take judicial notice of its own records, in this case, the judgment of the appellant’s conviction for murder, a dangerous nature offense. There is yet a remaining question concerning enhancement of the sentence with the prior conviction. The State, with candor, directs our attention to the fact that A.R.S. § 13-604(G) provides for enhanced punishment upon a second conviction of a class 2 or 3 dangerous nature felony, but not for enhanced punishment upon a conviction of a class 2 or 3 dangerous nature felony with a prior conviction for a class 1 dangerous nature felony. Appellant contends that nowhere in A.R.S. § 13-604 is there any discussion of the effect of a class 1 prior felony conviction upon a subsequent conviction for a class 2 dangerous felony, and that A.R.S. § 13-604(G) must therefore be construed to exclude class 1 felony prior convictions. Appellant contends that if the exclusion constituted an oversight by the legislature, the legislature must correct the oversight. We agree. It is clear that A.R.S. § 13-604(G) speaks only in terms of class 2 or 3 dangerous nature prior convictions, and does not provide for enhancement for a prior conviction of a class 1 felony upon a subsequent conviction of a class 2 or 3 dangerous nature felony. It appears that the omission of enhancement by virtue of a prior conviction for a class 1 dangerous nature felony is a legislative oversight, in that the clear intent of the legislature in enacting A.R.S. § 13-604(G) was to more severely punish persons who repetitively commit dangerous nature felonies. However, we note that all the remaining provisions of A.R.S. § 13-604 provide for enhancement for a prior conviction for “any felony”. For example, A.R.S. § 13-604(F), which deals with a felon who stands convicted of a class 4, 5, or 6 dangerous nature felony provides that such person’s sentence may be enhanced by any prior dangerous nature felony, regardless of its classification. Likewise, A.R.S. § 13— 604(A), (B), (C) and (D) permit enhanced punishment by convictions of any felony, regardless of their classification as serious or regardless of the classification of a prior conviction as dangerous or non-dangerous. See State v. Armendariz, 127 Ariz. 422, 621 P.2d 928 (App.1980). The express language of A.R.S. § 13-604(G), particularly when read in conjunction with the remaining provisions of A.R.S. § 13-604, is to allow enhancement for prior convictions of only class 2 or 3 dangerous nature felonies, and not class 1 dangerous nature felonies (if committed after October 1, 1978). It is not within this court’s au thority to amend A.R.S. § 13-604(G) to provide for enhanced punishment for a prior conviction which the legislature specifically did not include in the provisions of A.R.S. § 13-604(G). If the exclusion was an oversight by the legislature, it is the legislature’s place to correct it, and not the court’s. We conclude that appellant was improperly sentenced pursuant to A.R.S. § 13-604(G) because that statute does not provide for enhancement of sentence for a prior conviction of a class 1 felony. Accordingly, the conviction is affirmed and the case is remanded for resentencing. GRANT and GREER, JJ., concur. . In violation of A.R.S. §§ 13-1901, -1902, -1904, -701, -702, -801 and -604. . The legislature amended A.R.S. § 13-604(G), effective April 23, 1980, to include for enhancement purposes any felony committed prior to October 1, 1978, which, if committed after October 1, 1978, would be a dangerous felony. We note in so doing that the legislature had before it the question of whether a murder committed prior to October 1, 1978, was usable for enhancement purposes, because, under the former A.R.S. § 13-604(G) the only prior convictions for offenses occurring before October 1, 1978, which could be used to enhance were those which carried a life sentence. Yet, when the legislature amended A.R.S. § 13-604(G) to provide for enhancement with any dangerous felony committed prior to October 1, 1978, the legislature still did not amend the remaining language of A.R.S. § 13-604(G) to provide for enhancement with a prior conviction of a class 1 felony.

CAMERON, Justice. The defendant’s conviction of negligent homicide, A.R.S. § 13-1102(A), was reversed by the Court of Appeals, State v. Shumway, 137 Ariz. 600, 672 P.2d 944 (1983), and we granted the state’s petition for review. We have jurisdiction under Ariz. Const, art. 6, § 5(3) and A.R.S. § 12-120.24. We must consider two issues on appeal: 1. Did the trial court's communication with the jury, outside the presence of the defendant and his counsel, constitute reversible error? 2. Did the trial court err in refusing to give the defendant’s requested instruction dealing with the decedent’s duty to yield the right of way? The facts necessary for a determination of these issues are as follows. At approximately 6:45 p.m. on 25 August 1980, the defendant’s Buick stationwagon, which was traveling west in excess of the posted speed limit, collided with the decedent’s Oldsmobile sedan as the decedent attempted to turn left onto 59th Avenue from Northern Avenue in Glendale, Arizona. The driver of the Oldsmobile died at the scene of the accident. Although the defendant passed a field sobriety test, he was voluntarily taken to the Glendale Police Department where a blood-alcohol reading of 0.11 was obtained. At his trial, the defendant argued that (1) the alcohol in his system did not impair his driving skills, (2) his auto’s speed did not ' render him criminally negligent, and (3) the deceased failed to yield to oncoming traffic in making her left hand turn, causing the accident. Defendant’s requested instruction concerning the decedent’s duty to yield the right of way was denied by the trial judge. After the jury deliberation began, the trial judge received a note from the jury asking what blood-alcohol level is considered “illegal” by city and state authorities. The trial judge, without consulting counsel, responded in writing that “[T]here is no law in Arizona that states a specific blood alcohol level that is legal or illegal. The blood alcohol level is one fact to be considered with all of the other facts.” The jury found the defendant guilty of negligent homicide, and after being sentenced to the presumptive four year term, the defendant appealed. Since the jury communication made by the trial judge was without notice to the defendant, the Court of Appeals reversed the defendant’s conviction. First, the Court of Appeals found the communication erroneous, and therefore prejudicial. This finding was based upon the fact that the response was, in part, “an incorrect expression of the law,” under A.R.S. § 28-692(B)(3). This statute provides that a driver is presumed under the influence of alcohol when his blood alcohol content exceeds 0.10. The Court of Appeals also found that the statement contained “an improper expression of [the trial judge’s] opinion concerning the importance of that evidence.” Finally, the Court of Appeals found reversible error in the trial court’s refusal to give the defendant’s requested jury instruction concerning the duty to yield the right of way while making a left turn. We agree with the Court of Appeals’ finding that the instruction should have been given, but disagree with the Court of Appeals determination that the communication between the trial judge and jury outside the presence of counsel was prejudicial to the defendant. JURY COMMUNICATION The law in this state is that a trial judge may not communicate with a deliberating jury unless the defendant and counsel have been notified. State v. McDaniel, 136 Ariz. 188, 197, 665 P.2d 70, 79 (1983); State v. Mata, 125 Ariz. 233, 240-41, 609 P.2d 48, 55-56, cert. denied 449 U.S. 938, 101 S.Ct. 338, 66 L.Ed.2d 161 (1980); State v. Benford, 129 Ariz. 447, 448, 631 P.2d 1105, 1106 (App.1981); Rule 22.3, Arizona Rules of Criminal Procedure, 17 A.R.S. Since neither the defendant nor the attorneys were notified, the communication was plainly error. It is also the rule, however, that erroneous jury communications do not require reversal if it can be said beyond a reasonable doubt that the defendant was not prejudiced by the communication. State v. McDaniel, supra; State v. Mata, supra; State v. Benford, supra. We believe in the instant case that the trial judge’s written response here was non-prejudicial because it did not impart any erroneous information to the jury. The statement could have been material and reversible had this action been a prosecution for driving while intoxicated. This was, however, a prosecution for negligent homicide. As such, the relationship between defendant’s blood alcohol-level and the alleged negligence, while relevant, was merely one of a number of facts, including the speed of the defendant’s vehicle and defendant’s manner of operating the vehicle. The trial judge noted this in the second sentence of his response when he stated that “the blood alcohol level is one fact to be considered along with all other facts.” We believe the trial judge’s response to the jury question, though incomplete, did not incorrectly state the law on the subject of blood-alcohol content at the time of the accident. Under A.R.S. § 28-692(B)(3) as it existed at the time of the accident, when a driver’s blood alcohol level was equal to or greater than 0.10, there was a presumption that the driver was “under the influence of intoxicating liquor.” But that was a presumption only, and not the equivalent of illegal conduct per se. See State v. Zavala, 136 Ariz. 356, 666 P.2d 456 (1983); State v. Burgess, 82 Ariz. 200, 203, 310 P.2d 822, 824-25 (1957). The judge merely stated that it was “one fact to be considered with all of the other facts,” (emphasis supplied) and we find no prejudice to the defendant in that response. Neither do we believe that the court’s response reflects an expression of the trial judge’s opinion as to the importance of any fact in this case. The response did not amount to a comment on the evidence, which occurs when the judge tells the jury his opinion of what the evidence does or does not show. See State v. Parker, 116 Ariz. 3, 7, 567 P.2d 319, 323 (1977). We find no prejudice to the defendant in the judge’s response, even though the judge erred in responding without first notifying counsel and defendant. DEFENDANT’S REFUSED INSTRUCTION The trial judge refused to give the defendant’s requested instruction that The driver of a vehicle within an intersection intending to turn to the left shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard. The trial judge did not state in the record his reason for refusing the proffered instruction. It appears, however, that the trial judge agreed with the state’s argument that contributory negligence is not a defense to a negligent homicide prosecution, and the judge assumed that the only purpose of the requested instruction was to present a defense theory of negated responsibility due to contributory negligence by the decedent. The Court of Appeals disagreed and so do we. While it is true that in a criminal prosecution for negligent homicide the contributory negligence of the deceased is not a defense, State v. Nerison, 28 Wash.App. 659, 661, n. 1, 625 P.2d 735, 737, n. 1 (1981), the trier of fact may still consider the decedent’s conduct when determining whether the defendant’s act was criminally negligent. See Wren v. State, 577 P.2d 235, 238 (Alaska 1978); Williams v. State, 554 P.2d 842, 845 (Okl.Cr.App.1976); State v. Nerison, supra. In the instant case, the decedent’s conduct may be relevant because her failure to yield the right of way could relieve the defendant of criminal responsibility. For example, the defendant might prove that he expected the victim to yield and, therefore, did not slow down as he approached the intersection. The jury might therefore conclude that the defendant’s failure to slow down was not criminal negligence, i.e., “a gross deviation from the standard of care that a responsible person would observe in the situation.” A.R.S. § 13-105(5)(d). A party is entitled to an instruction on any theory of the case reasonably supported by the evidence. State v. Axley, 132 Ariz. 383, 392, 646 P.2d 268, 277 (1982); State v. Miller, 108 Ariz. 441, 445, 501 P.2d 383, 387 (1972). The facts show that the decedent was in the middle of the intersection at the moment of impact, and that the defendant, who was not running a red light, had the right of way in that intersection. We believe, as did the Court of Appeals, that refusal of the defendant’s instruction was erroneous. We acknowledge that the requested instruction was merely a verbatim repetition of the left turn statute. It would have been better, and much clearer to the jury, if such an instruction had been combined with an instruction similar to RAJI, Negligence, 14. Nevertheless, we believe that giving the “bare bones” of the left turn statute would have enabled the defendant to argue the effect of the decedent’s actions on defendant’s culpability. This was apparently his defense in the case, and the instruction should therefore have been given. The decision of the Court of Appeals regarding the trial judgé’s communication to the jury is vacated. As to the treatment of defendant’s requested instruction, the decision of the Court of Appeals is affirmed. The defendant’s conviction is reversed, and the matter is remanded to the trial court for further proceedings not inconsistent with this opinion. HOLOHAN, C.J., GORDON, V.C.J., and HAYS and FELDMAN, JJ., concur.

OPINION KLEINSCHMIDT, Judge. The plaintiff-appellant, Robert W. Collins, appeals from the trial court’s grant of a motion for summary judgment in favor of defendants-appellees, James C. Stockwell and Title Insurance Company of Minnesota. This case of first impression in Arizona involves the question of whether it is necessary to file a notice of lis pendens to preserve a mechanic’s lien after suit to foreclose the lien has been timely filed. We find that once the time has passed to file an action to foreclose a mechanic’s lien it is necessary to file a lis pendens to give constructive notice that litigation affecting title to the property is pending. Robert Collins, a licensed subcontractor, performed tile work for the developer Diplomat Homes, Inc. The developer became insolvent prior to paying the subcontractor for the work. The subcontractor recorded a timely mechanic’s lien on the property on September 21, 1978. At the time that lien was recorded the developer was listed as the owner of the home and the subcontractor served the lien on the developer. Thereafter, on September 26,1978, the subcontractor filed an action to foreclose the lien within the six-month period required by A.R.S. § 33-998. Later, on December 18, 1979, the subcontractor filed a supplemental complaint when he learned that the record owners of the property were Paul and Arlene Blonsky who had purchased from the developer. After the filing of that supplemental complaint in which the Blonskys were named as defendants they, in March 1980, conveyed title to a subsequent purchaser for value, James Stockwell. At the time of the sale from the Blonskys to Stockwell, Minnesota Title prepared a title report and insured the title but failed to find or disclose the presence of appellant’s mechanic’s lien in the records of the Maricopa County Recorder’s Office. The subcontractor subsequently joined and served Stockwell and Minnesota Title as defendants in a supplemental complaint filed in June 1980. The subcontractor, Stockwell and Minnesota Title all filed motions for summary judgment. The trial court granted the motions for summary judgment of Stockwell and Minnesota Title and denied the subcontractor’s motion. The subcontractor’s argument is as follows. A.R.S. § 33-993 requires mechanic’s liens to be recorded with the county recorder of the county in which the property is located. When the subcontractor filed an action to enforce his lien within the six-month period following the recording date as required by A.R.S. § 33-998, he had done all that was necessary to perfect his lien. A.R.S. § 33-416, which provides that instruments required or authorized to be recorded “shall be notice to all persons of the existence of such ... instrument”, gave the appellees notice of the lien and of the possibility that a lien foreclosure action might have been filed during the six-month period. Consequently, the subcontractor argues that the property owner and the title company were not entitled to rely on the absence of a notice of lis pendens six months after the lien filing date to conclude that the lien had been extinguished. We disagree with the appellant subcontractor and affirm the judgment of the trial court. Our lis pendens statute, A.R.S. § 12-1191 provides: A. In an action affecting title to real property, plaintiff at the time of filing the complaint, or thereafter, and defendant at the time of filing his pleading when affirmative relief is claimed in such pleading, or thereafter, may file in the office of the recorder of the county in which the property is situated a notice of the pendency of the action or defense. The notice shall contain the names of the parties, the object of the action or affirmative defense, the relief demanded and a description of the property affected. B. The recorder shall file the notice and record and index it in the names of the parties to the action, and thereafter a purchaser or encumbrancer of the property affected shall be held to have constructive notice of the pendency of the action and the claims therein made. C. If a notice of pendency of action has been recorded pursuant to this section and the action is dismissed without prejudice for lack of prosecution, the plaintiff or plaintiffs of the action shall, within thirty days after such dismissal, issue to the defendant of the action a release of the notice of pendency of action. Such release shall be in the form of a recordable document. Failure to grant such release shall be subject to the penalties prescribed by § 33-712. Although embodied in statute lis pendens is a creature of the common law. At common law, pendency of a suit affecting the title to real property was constructive notice thereof to all the world. The lis pendens statutes are designed to provide a better form of notice to one who may be. interested in a particular piece of real property and affected by the outcome of litigation relating to it. Statutes do not create the doctrine of lis pendens but actually limit its application by making it effective only if the action is indexed in accordance with the statutory requirements. Kelly v. Perry, 111 Ariz. 382, 531 P.2d 139 (1975). They are in essence designed to make it possible to tell if land titles are affected by litigation by looking at a single index. Brandt v. Scribner, 13 Ariz. 169, 108 P. 491 (1910). The statutory scheme relating to mechanic’s liens in Arizona provides for the imposition of liens for labor and materials used in the construction of buildings. A.R.S. § 33-981. The lien constitutes a preference over subsequent encumbrances or over other encumbrances as to which there has been no actual or constructive notice. A.R.S. § 33-992. The lien is perfected if, within a specified time after the completion of construction, the contractor, subcontractor, or supplier files a notice of claim of lien in the office of the county recorder of the county in which the property is located and serves a copy on the owner of the property. A.R.S. § 33-993. Foreclosure of the lien is provided for in A.R.S. § 33-998 which reads as follows: A lien granted under the provisions of this article shall not continue for a longer period than six months after it is recorded, unless action is brought within such period to enforce the lien. If a lien claimant is made a party defendant to an action brought by another lien claimant, the filing within such period of six months of an answer or cross-claim asserting the lien shall be deemed the commencement of an action within the meaning of this section. When a lien is satisfied the lienholder is required to issue a release of lien. A.R.S. § 33-1006. The purpose of the statutory scheme is clear. It provides a means to assure payment to contractors and materialmen for the work they have done to improve property and to give notice to all the world of their claim. It provides a means of giving notice without the necessity of filing a lawsuit and since an encumbrance on title with threat of foreclosure is such a powerful weapon in the hands of contractors and materialmen it may be presumed that the vast majority of claims for which liens are filed are either paid or settled. Those that are not are either made the subject of a timely foreclosure action or are extinguished by operation of law. In resolving this case it is necessary to keep clearly in mind just exactly what the issue is and what it is not. No one claims that the filing of the notice of claim of lien is not constructive notice of its existence until it is extinguished by operation of law. No one suggests that a lien on which a timely foreclosure is begun, but no lis pen-dens filed, ceases to become a lien as to all persons with actual notice thereof. See Smith v. Faris-Kesl Const. Co., 27 Idaho 407, 150 P. 25 (1915). The question is, does the mere filing of the notice of claim of lien give constructive notice beyond the six-month period within which a foreclosure action must be filed? We look first at some general principles of statutory construction. We cite Arizona Gunite Builders, Inc. v. Continental Casualty Co., 105 Ariz. 99, 459 P.2d 724 (1969), not because its facts make it particularly applicable but because it is an excellent exposition of the rules of statutory construction which happens as well to deal with the mechanic’s lien statute. In Arizona Gunite the Arizona Supreme Court drew from the mechanic’s lien statute to ascertain the meaning of the contractor’s license bond statute. In doing so it expressly noted that statutes which deal with the same class of persons or things and have the same purpose are in pari materia. Such enactments must be read and construed together and all parts of the law on the same subject must, if possible, be given effect. In this exercise the courts may look to the general policy of the state and may harmonize statutes dealing with the same matter. Certainly a provision which expressly creates a lien on realty and allows for its foreclosure is an “action affecting title to real property” within the meaning of the lis pendens statute. The lis pendens statute and the mechanic’s lien statute are in pari materia and are in harmony as we construe them. The lis pendens statute does not say that it applies to every action affecting title to real property except actions to foreclose mechanic’s liens. To read the statute as the subcontractor asks us to would read an exception into the lis pendens statute which does not exist. We look next at the practical effect of what would happen if the mere filing of the notice of claim of lien were sufficient to give constructive notice of the foreclosure action. A contractor or materialman could file and record a lien and bring a timely foreclosure action. Six months after the lien was filed persons interested in the title to the property who have examined the recorder’s index would find no pending actions but would observe that a lien had been filed more than six months previously. Such an examiner would likely be led to the conclusion that the lien had expired by operation of law. Of course, it would be possible for the person interested in the title to check every unsatisfied lien ever filed on the property by tracing through the records of the clerk of the superior court to find out if a foreclosure action had been filed and, if so, what the status of it is or the disposition of it was. When one considers that some construction projects garner hundreds of liens running into the millions of dollars with many claims being duplicated and that some lawsuits languish in the courts for many years, this would be a tedious, uncertain and thoroughly unnecessary process. We believe that this is exactly the kind of problem that the lis pen-dens statute was designed to avoid. See Reeder v. Cox, 218 Ala. 182, 118 So. 338 (1928) which squarely holds under a statutory scheme similar to ours that a lis pendens must be filed to effect constructive notice of the lien foreclosure. Reeder was affirmed in First Avenue Coal and Lumber Co. v. Rimer, 222 Ala. 545, 133 So. 589 (1931) with a dissent that articulates the contrary considerations well. See also Glass v. Stark, 156 Wis. 21, 145 N.W. 236 (1914) which appears to hold that a lis pen-dens must be filed to impart constructive notice after lien foreclosure begins. It is uncertain from the report in Glass that the foreclosure was timely filed. The appellant subcontractor has cited several decisions from other jurisdictions that are exactly on point and which reach a different conclusion than we do. Typical of these is Tulloh v. Boyce, 37 Cal.App. 761, 174 P. 680 (1918). The court there considered a foreclosure statute which was similar to ours and held that a lien on which foreclosure was timely begun constituted constructive notice even though no lis pen-dens had been filed. The decision is a rather brief one and we think it is poorly reasoned. The California court simply concluded that since the statute stated that no lien would continue for longer than ninety days unless foreclosure was commenced this meant by implication that the lien continued when the action was brought and that no lis pendens need be filed. We have no doubt the lien continues when the action is filed and is effective as to all who have actual notice of it but the California court leaped too far when it concluded that the original lien notice suffices for constructive notice of the foreclosure action. The California legislature subsequently rectified the problem created by the court in Tulloh v. Boyce by amending its mechanic’s lien statute by adding to the clause requiring proceedings on the lien to be brought within ninety days a provision requiring a lien claimant to file a notice of lis pendens when he brought an action to foreclose. Thereafter, the statute was again amended to provide that notice of the pend-ency of the proceedings may be filed and that only after such filing would a purchaser be deemed to have constructive notice of the pendency of the action. See Packard Bell Electronics Corp. v. Theseus, Inc., 244 Cal.App.2d 355, 362, 53 Cal.Rptr. 300, 304 (1966). Thus, California was required to establish by statute precisely what we arrive at by interpretation of statute. California had to legislate only because the Tulloh court did not interpret properly. We see no reason to imitate an error made over sixty years ago in another jurisdiction. The appellant relies heavily on the language of A.R.S. § 12-1191 for the proposition that the filing of a notice of lis pendens is permissive. This, he says, supports his conclusion that the lien notice is constructive notice without the need to file a lis pendens after a foreclosure complaint is filed because the statute does not say the notice of pendency must be filed. We agree that the lienholder does not have to file a lis pendens to keep his lien alive any more than the grantee of a deed to land needs to record his deed. But he may file and he must do so if he wants to impart constructive notice after the time to file a complaint to foreclose his lien has passed. Appellant also seeks in this appeal to hold Minnesota Title liable for its failure to disclose appellant’s lien to the purchaser Stockwell. While our preceding conclusion renders the issue moot in this case we will briefly address the question. Arizona law is clear that a title company is not liable for any damage suffered by a lienholder as a result of a title report issued to a subsequent purchaser of property, absent privity of contract between the lienholder and the title company. See Phoenix Title and Trust Co. v. Continental Oil Co., 43 Ariz. 219, 29 P.2d 1065 (1934); Arizona Title Insurance and Trust Co. v. O’Malley Lumber Co., 14 Ariz.App. 486, 484 P.2d 639 (1971). Appellant suggests that there is an exception to this rule where a beneficiary of the title policy (Collins) is known to the promisor (Minnesota Title). Arizona law, however, is also clear that the parties in privity of the contract, i.e., appellees Minnesota Title and Stockwell, must intend to specifically benefit a third-party beneficiary such as Collins. Phoenix Title and Trust Co. v. Continental Oil Co., supra. No such intent is evident here. Therefore, we affirm the judgment of the trial court. CORCORAN, J., concurs. . Colorado solved the same problem of judicial misinterpretation by statutory enactment. Compare Laverentz v. Craig, 74 Colo. 297, 225 P. 250 (1923) with Kalamath Investment Co. v. Asphalt Paving Co., 153 Colo. 109, 384 P.2d 938 (1963).

FELDMAN, Justice. This special action was filed after petitioner’s motion for relief from judgment pursuant to Ariz.R.Civ.P. 60(c) was denied by the trial court. Having concluded that the case raises issues of substantive importance and that remedy by appeal is inadequate, we accepted jurisdiction pursuant to Ariz.Const. art. 6, § 5, and Ariz.R.Sp.Act. 4, 17A A.R.S. On May 22, 1981, petitioner filed an action for dissolution of his marriage to the respondent, Dorothy E. Park. A decree of dissolution was entered after trial and petitioner made a timely motion for a new trial. This motion was argued to the trial court on October 1,1982, and taken under advisement. Later that same day, the trial court entered a minute entry denying the petitioner’s motion. This minute entry was never received by petitioner’s attorney. On October 7,1982, respondent’s attorney presented a formal, written order denying the motion for a new trial to the trial judge, who signed the order on that same day. The order did not mention the name of petitioner’s attorney, nor did it contain a certificate of mailing or service. Petitioner’s attorney did not receive a copy of the formal, written order. The trial court signed a minute entry reflecting entry of the formal, written order which was filed with the clerk on October 7, 1982. The deputy clerk who prepared the minute entry did not mail a copy of it to petitioner’s attorney, as required by Rule 77(g), because his name did not appear on the formal written order which had been prepared and submitted by respondent’s counsel. The affidavit of the deputy clerk stated that the standard practice in her office is to obtain the names and addresses of the attorneys to whom minute entries are mailed from the written order or judgment submitted to the court for signature. In early December 1982, petitioner’s attorney contacted the trial judge to discover the status of his motion for new trial. He was informed that the judge was on vacation until December 13. On December 17, the attorney called the court and discovered that the minute entry denying his motion had been signed and filed with the clerk on October 7. Petitioner immediately filed a motion for relief from judgment pursuant to Rule 60(c). Since petitioner had no knowledge of the order denying his motion for new trial and had received no notice of the entry of that order, he had failed to file notice of appeal within thirty days; appeal was therefore precluded. Ariz.R.Civ.App.P. 9. Petitioner therefore moved the court to vacate the order denying the motion for new trial and to reenter it in order to recommence the time period for filing a notice of appeal. Respondent opposed this motion. The trial court heard oral argument on the issue and denied the motion, finding that (1) petitioner’s counsel did not receive the minute entry showing the ruling of October 1, 1982; (2) the formal written order submitted to the court by respondent’s attor ney was sent by respondent but was never seen by petitioner’s counsel; (3) the minute entry reflecting that the order was signed on October 7,1982 was sent to respondent’s attorney but never sent to petitioner’s counsel; (4) in equity the court would have been inclined to grant the relief requested but lacked jurisdiction to do so under the rule of Vital v. Johnson, 128 Ariz. 129, 624 P.2d 326 (App.1980). Based on the denial of his motion, petitioner sought relief in this court. In the usual case, Rule 60(c) is invoked so that a party may obtain relief from a judgment or order in order to assert some defense to the relief granted by that judgment or order. In this case and in Vital, supra, relief was sought under Rule 60(c) for a different purpose — in order to re-start the time period for filing notice of appeal by having the trial court first vacate the order and then reenter it. We accepted the petition in order to examine the decision in Vital, supra, and the interplay between Rules 60(c) and 77(g). In Vital, the appellant brought an action in superior court to obtain a reversal of a decision upholding her discharge from employment. The trial court heard argument on the matter, read the parties’ memoran-da, took the matter under advisement, and entered judgment on March 17, 1980. Neither counsel received a copy of the minute entry or notice of the entry of judgment as required by Rule 77(g). Appellant wrote the clerk of the court on April 29, 1980 to inquire about the appeal, but did not receive a response. On July 3,1980, appellant first found out that judgment had been entered on March 17 and immediately moved to set the judgment aside pursuant to Rule 60(c)(6). The trial court vacated the judgment and then reentered it. Appellant filed a timely notice of appeal from the “new” judgment. The court of appeals dismissed the appeal as untimely. Relying on the language of Rule 77(g) and this court’s decision in Old Pueblo Transit Co. v. Corporation Commission, 73 Ariz. 32, 236 P.2d 1018 (1951), the Vital court found that under all circumstances the trial court lacked authority to vacate a judgment and reenter the same in order to recommence the time for filing a notice of appeal. 128 Ariz. at 132, 624 P.2d at 329. Specifically rejecting the analysis of the federal courts on this issue, the court concluded: “We are not at liberty to change the plainly stated effect of [Rule 77(g) ]; to do so, by reference to Rule 60(c)(6) or any other rule of less specific application, would simply deny the efficacy of Rule 77(g).” Id. at 131, 624 P.2d at 328. Initially we believe the Vital court’s reliance on our decision in Old Pueblo was misplaced. In Old Pueblo, the clerk failed to send the proper notice to the parties. The appellant in that case, however, had actual knowledge of the entry of judgment prior to the expiration of the appeal period yet failed to timely file. The appellant’s only argument, therefore, was that the appeal time should begin to run from the service of the notice required by Rule 77(g) and not from the entry of judgment. We rejected this argument. The holding in Old Pueblo is simply that the time period for appeal begins to run from the date of entry of judgment; notice of the entry is not necessary to start the appeal time running. 73 Ariz. at 36, 236 P.2d at 1021. Thus, Old Pueblo did not address the issue of whether a trial court had authority to set aside a judgment when the parties had no knowledge that it had been entered and the purpose was to allow reentry of judgment so that an appeal could be taken. The federal approach to this issue interprets a trial court’s power to vacate a judgment more broadly than the court in Vital. A brief history of the federal view follows. The authority of a court to set aside a judgment when a party did not have knowledge of the entry of judgment because the clerk failed to send the proper notice was addressed by the United States Supreme Court in Hill v. Hawes, 320 U.S. 520, 64 S.Ct. 334, 88 L.Ed. 283 (1944). In Hill, the clerk of the district court failed to serve notice of the entry of judgment on the parties as required by Fed.R.Civ.P. 77(d). As a result, the losing party did not file his notice of appeal in time and moved the trial court to vacate the judgment and reenter the same in order to recommence the appeal period. The trial court vacated the former judgment and entered a new judgment, following which notice was sent in compliance with Rule 77(d). The Supreme Court held that this action was a proper exercise of the trial court’s discretion because the parties had relied on the notice requirement. Id. at 524, 64 S.Ct. at 336. In response to the decision in Hill, the Advisory Committee on Rules amended Rule 77(d) in 1946 to add a final sentence that “[ljack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed .... ” The Advisory Committee’s notes clearly indicate that the purpose of the amendment was to overrule Hill: Notification by the clerk is merely for the convenience of litigants. And lack of such notification in itself has no effect upon the time for appeal .... It would, therefore, be entirely unsafe for a party to rely on absence of notice from the clerk of the entry of a judgment, or to rely on the adverse party’s failure to serve notice of the entry of judgment. Fed.R.Civ.P. 77(d), advisory committee note. The federal courts have often considered the effect of the amendment to Rule 77(d) in connection with the authority of a trial court to set aside a judgment under Rule 60(b)(6). The consistent view has been that while Rule 60(b)(6) gives a court authority to vacate a judgment for “any other reason justifying relief,” the amendment to Rule 77(d) precludes any relief under Rule 60(b)(6) where the sole reason asserted is the failure to give or receive the notice required by Rule 77(d). Where, however, “compelling reasons” or “unique circumstances” exist, beyond mere lack of Rule 77(d) notice, the federal courts hold that Rule 60(b)(6) permits a trial court to exercise discretion to vacate a judgment and reenter the same in order to perfect an appeal. See Hensley v. Chesapeake & Ohio Railway Co., 651 F.2d 226 (4th Cir.1981); Buckeye Cellulose Corp. v. Braggs Electric Construction Co., 569 F.2d 1036 (8th Cir.1978); International Controls Corp. v. Vesco, 556 F.2d 665 (2d Cir.1977); Kramer v. American Postal Workers Union, AFL-CIO, 556 F.2d 929 (9th Cir.1977); Fidelity & Deposit Co. of Maryland v. USAFORM Hail Pool, Inc., 523 F.2d 744 (5th Cir.1975); In re Morrow, 502 F.2d 520 (5th Cir.1974); Expeditions Unlimited Aquatic Enterprises v. Smithsonian Inst., 500 F.2d 808 (D.C.Cir.1974); Smith v. Jackson Tool & Die, Inc., 426 F.2d 5 (5th Cir.1970); 11 C. Wright & A. Miller, Federal Practice and Procedure § 2864, at 214^15 (1973); 6A J. Moore, Moore’s Federal Practice ¶ 60.03[9] (2d ed. 1982); see also Brendonwood Common v. Kahlenbeck, Ind.App., 416 N.E.2d 1335 (1981); Chowning, Inc. v. Dupree, 6 Kan.App.2d 140, 626 P.2d 1240 (1981). We believe the approach taken by the federal courts to be a sound one and find that Arizona Rules 77(g) and 60(cX6) can be read together. The purpose of rules setting strict time limits for filing appeals and forbidding courts from extending these time periods is to ensure the finality of judgments. Hensley v. Chesapeake & Ohio Railway Co., 651 F.2d at 228; Expeditions Unlimited Aquatic Enterprises v. Smithsonian Inst., 500 F.2d at 809. The need for finality, however, must give way in extraordinary circumstances. See Klapprott v. United States, 335 U.S. 601, 69 S.Ct. 384, 93 L.Ed. 266 (1949); Webb v. Erickson, 134 Ariz. 182, 186, 655 P.2d 6, 10 (1982). Thus, Rule 60(c)(6) “vests power in courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice.” Klapprott, 335 U.S. at 615, 69 S.Ct. at 390. This power, however, does not relieve a party from the “free, calculated and deliberate choices” he or she has made. Roll v. Janca, 22 Ariz.App. 335, 337, 527 P.2d 294, 296 (1974); Wright & Miller, supra, at 214. Further, an attorney has a duty to insure that “matters subject to prescribed time limits are acted upon within those limits, or that other appropriate action is taken to preserve [a] client’s rights.” Kiefer v. May, 22 Ariz.App. 567, 569, 529 P.2d 721, 723 (1974). Rule 77(g) clearly implies that a party has a duty to take legal steps to protect his or her interests and cannot simply rely on the court to provide notice. See Hensley v. Chesapeake & Ohio Railway Co., 651 F.2d at 231. With these competing principles in mind, we reach the following conclusion. Rule 77(g) restricts the power of an Arizona trial court to grant Rule 60(cX6) relief where the only ground is the failure to give or receive the notice required by Rule 77(g). Where, however, an aggrieved party establishes lack of knowledge that judgment has been entered, and asserts additional reasons that are so extraordinary as to justify relief, we hold that the trial court has authority under Rule 60(c)(6) to vacate the judgment and reenter a new judgment in order to allow the party to file a timely appeal. In other words, relief under Rule 60(c)(6) may be considered where the party did not have knowledge from any source that judgment had been entered and where there are extraordinary circumstances. However, where the complaint is only that the party did not have or get the formal notice to which a party is entitled by Rule 77(g), the relief is not available. To the extent the opinion in Vital is inconsistent with our holding today, it is disapproved. An example of circumstances which may justify such relief can be found in Buckeye Cellulose Corp. v. Braggs Electric Construction Co., supra, and Smith v. Jackson Tool & Die, Inc., supra. In Buckeye Cellulose Corp., supra, none of the parties knew that judgment had been entered so none could be said to have relied on the notice of entry of judgment, plaintiff’s counsel had made three inquiries of the clerk’s office to determine the status of the case, and counsel acted diligently after learning of the entry of judgment. Under these circumstances, the court of appeals held that the trial court had authority to vacate the judgment under Rule 60(b)(6) in order to permit the filing of a notice of appeal. 569 F.2d at 1038. In Jackson Tool & Die, supra, counsel for the plaintiff was out of the country when he was advised that a decision had been reached in his client’s case. Counsel immediately contacted the trial judge, requesting that entry of judgment be withheld until his return. Opposing counsel did not object to this request but did submit a form of judgment and the trial judge, without the knowledge of either counsel, entered judg ment. In addition, the clerk inadvertently failed to send the required notice to the parties. When plaintiff’s counsel learned of the entry of judgment, he moved promptly to set the judgment aside. The delay caused no prejudice to the opposing party. Under these circumstances, the court of appeals held it was not an abuse of discretion to vacate the judgment and reenter the same judgment to permit an appeal. 426 F.2d at 8. We do not propose to set out any specific set of circumstances that must exist to qualify as “extraordinary,” “unique” or “compelling” and thus justify relief under Rule 60(c)(6). This determination will be left to the sound discretion of our trial courts. Accordingly, we remand this case to the trial court for a determination of whether the facts of this case are sufficient to justify relief under Rule 60(c)(6). HOLOHAN, C.J., GORDON, V.C.J., and HAYS and CAMERON, JJ., concur. . The Rules of Civil Procedure will hereinafter be referred to as “Rule__” . Respondent’s attorney claimed he mailed a copy of the formal written order to petitioner’s attorney on October 7, 1982, along with two motions to quash writs of garnishment and the corresponding orders. Petitioner’s counsel admitted he received the two motions, but not the copy of the formal order in question. Included in the envelope sent to petitioner’s attorney was a note from respondent’s counsel stating: “Enclosed are orders quashing garnishments.” There was no mention of the formal order. It was not until December 20, 1982 that respondent’s attorney filed a certificate of mailing, stating that on October 7,1982 he had mailed a copy of the formal order to petitioner’s counsel. . The petitioner moved under Rule 60(c)(3) and (6) which read: On motion and upon such terms as are just the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: ... (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; ... (6) any other reason justifying relief from the operation of the judgment. The findings of the trial court preclude any application of clause 3. This opinion is limited to the application of clause 6 under the circumstances set forth in the facts. . Rule 77(g) provides in part: The clerk shall mail copies of all minute entries to all parties. Immediately upon the entry of a judgment as defined in Rule 54(a), the clerk shall mail a notice of the entry of judgment stating the date of entry, in the manner provided for in Rule 5, to every party who is not in default for failure to appear, and shall make a record of the mailing. Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed. (Emphasis supplied.) For purposes of this opinion, the language of Rule 77(g) is substantively the same as Fed.R.Civ.P. 77(d). . At this time, Rule 77(g) read: Immediately upon the entry of an order or judgment the clerk shall serve a notice of the entry by mail in the manner provided for in Rule 5 [§§ 21-321 — 21 — 325] upon every party affected thereby who is not in default for failure to appear, and shall make a note in the docket of the mailing. Such mailing is sufficient notice for all purposes for which notice of the entry of an order is required by these rules; but any party may in addition serve a notice of such entry in the manner provided in Rule 5 [§§ 21-321 — 21-325] for the service of papers. 1939 Ariz.Code Ann. § 21-1908. . At the time Hill was decided, Fed.R.Civ.P. 77(d) read as follows: Immediately upon the entry of an order or judgment the clerk shall serve a notice of the entry by mail in the manner provided for in Rule 5 upon every party affected thereby who is not in default for failure to appear, and shall make a note in the docket of the mailing. Such mailing is sufficient notice for all purposes for which notice of the entry of an order is required by these rules; but any party may in addition serve a notice of such entry in the manner provided in Rule 5 for the service of papers. . For purposes of the issue presented by this case, Fed.R.Civ.P. 60(b)(6) is identical to Ariz. R.Civ.P. 60(c)(6).

OPINION FELDMAN, Vice Chief Justice. Dennis Ingram (petitioner), a registered voter, brings this original special action proceeding seeking this court’s declaration that the real party in interest, Evan Mecham (Mecham), is not a qualified candidate for the office of governor. Petitioner asks us to prohibit the secretary of state from taking any action that would place Mecham’s name on the ballot for the September 1990 primary election. FACTS Mecham was elected governor of Arizona and took office in January 1987. In 1988, the Arizona House of Representatives adopted three articles of impeachment against Governor Mecham; the Arizona Senate then organized as a court of impeachment and adopted rules of procedure for the impeachment trial. Journal of the Senate (Journal), 38th Leg., 2d Reg. Sess. (1988), at 156. Rule 23 of those rules of procedure provided: C. If two-thirds of the senators elected vote to sustain any Article of Impeachment, or any subsection of an Article, the Court of Impeachment shall pronounce judgment of conviction and removal from office by resolution entered upon the Journal of the Court of Impeachment. D. If judgment of conviction is entered, a roll call vote shall be taken on the question of whether the person convicted shall also be disqualified to hold any office of honor, trust or profit under the Constitution and laws of the State. If two-thirds of the Senators elected vote to disqualify, such judgment shall be entered upon the Journal of the Court of Impeachment. Journal, at 161. On April 4, 1988, the Senate sustained articles 1 and 3 of the articles of impeachment by more than a two-thirds majority. Thereafter, in accordance with Rule 23(D), the Senate voted 17-13 to disqualify Governor Mecham from holding “any office of honor, trust or profit in the state.” The vote on future disqualification passed by a majority but not by the two-thirds vote required by the rule; the Senate then resolved that Governor Mecham “is not further disqualified from holding any office of honor, trust or profit in the state” and entered judgment. Sometime later, Mecham announced his intention to seek the nomination of the Republican party for the office of governor in the September 1990 primary election. On June 28, 1990, Mecham timely filed nominating petitions with the secretary of state. For purposes of this case, we must assume the petitions were in proper form and contained the requisite number of signatures to have his name placed on the primary ballot. In addition, Mecham filed the affidavit required by A.R.S. § 16-311, stating that he satisfied all citizenship and residency requirements and would be “qualified at the time of the election to hold the office” of governor. A.R.S. § 16-311(B). The next day, June 29, 1990, petitioner filed this proceeding, arguing that by virtue of his conviction by the Senate sitting as a court of impeachment, Mecham was automatically disqualified from holding any public office in the state of Arizona. Petitioner’s argument is based on the words of the Arizona Constitution, which read in relevant part: No person shall be convicted without a concurrence of two-thirds of the Senators elected. The Governor and other State and judicial officers ... shall be liable to impeachment for high crimes, misdemeanors, or malfeasance in office, but judgment in such cases shall extend only to removal from office and disqualification to hold any office of hon- or, trust, or profit in the State. Ariz. Const, art. 8, pt. 2, § 2 (emphasis added). Petitioner argues that conviction of impeachment “carries with it as an additional [and automatic] penalty the disqualification to hold any office of honor, trust, or profit in the State.” Memorandum in Support of Petition for Special Action, at 24 (quoting State ex rel. DeConcini v. Sullivan, 66 Ariz. 348, 354, 188 P.2d 592, 596 (1948)). The issue before us, therefore, is quite simple: does the constitution require that a state officer convicted in an impeachment trial and removed from office also be automatically disqualified from holding any future office in the state? THIS COURT’S JURISDICTION IN IMPEACHMENT MATTERS Mecham questions this court’s jurisdiction to hear this matter by direct special action, arguing that A.R.S. § 16-351 (“Challenge of Nomination Petitions”) gives original jurisdiction of challenges to nominating petitions to the superior court. Although this may be true in most cases, in our view this case is much more than a “challenge of nomination petitions.” It is, in essence, an effort to ascertain and enforce the correct, interpretation of the impeachment provisions of the constitution. We believe our jurisdiction to hear this case is well founded in the constitutional provisions giving this court original jurisdiction to issue common law writs to state officers and power to issue writs of mandamus, prohibition, and “all other writs necessary and proper to the complete exercise of its ... revisory jurisdiction.” Ariz. Const, art. 6, § 5(1) and (4). Given the separation of powers doctrine, which is nowhere “more explicitly and firmly expressed than in Arizona,” this court’s jurisdiction is quite limited in impeachment proceedings. Mecham v. Gordon, 156 Ariz. 297, 300, 751 P.2d 957, 960 (1988) (citing Ariz. Const, art. 3). Impeachment “is a uniquely legislative and political function. It is not judicial.” Id. at 302, 751 P.2d at 962 (emphasis in original). Our function in the process is “to ensure that the legislature follows the constitutional rules on impeachment.” Id. Petitioner’s argument, of course, is exactly that. He contends that on conviction, the constitution requires both removal and future disqualification. Thus, he argues, the Senate was without power to resolve to the contrary, its attempt to do so was a nullity, and conviction and removal of Mecham worked an automatic future disqualification. Thus, petitioner argues, he does not ask this court to interfere in the impeachment process but merely to enforce the constitutional mandate. This, of course, presents another jurisdictional issue raised by Mecham: how long, if ever, before the legislature’s resolution of a constitutional issue becomes final? Arguably, an action such as the instant case could have been brought when the Senate implemented the bifurcated procedure in 1988. Perhaps the action could have been brought when the Senate entered its judgment, when Mecham announced he would run for office, when he took out nominating petitions, or at any time prior to the date on which he filed the completed petitions. Petitioner argues that the issue was not ripe and the action could not have been filed until Mecham made the issue “real" by filing his nominating petitions. This may be true, but we are concerned by the prospect that an action such as this might be withheld and filed after the person in question had run for and actually been elected to office. Could a person so elected be removed from office or his actions after being sworn in be contested? These questions are indeed perplexing but, we believe, need not be answered in light of our view of the merits. We accept special action jurisdiction to decide this matter because it involves a matter of statewide importance, great public interest, and requires final resolution in a prompt manner. IS FUTURE DISQUALIFICATION AN AUTOMATIC CONCOMITANT OF IMPEACHMENT AND REMOVAL FROM PUBLIC OFFICE, OR MAY THE LEGISLATURE SEPARATE THE ISSUES OF REMOVAL AND DISQUALIFICATION, IMPEACHING AND REMOVING THE OFFICER ON THE ONE HAND, BUT REFUSING TO DISQUALIFY HIM FROM HOLDING FUTURE OFFICE ON THE OTHER? Petitioner bases his arguments for automatic disqualification on what he believes to be the plain meaning of the text of the constitution and on his view of the interpretation of the federal provisions that, he submits, provided the model after which the Arizona provision was fashioned. Thus, petitioner argues, because the federal text and meaning are plain, by adopting the federal model (which petitioner believes provides for automatic disqualification), the framers of our constitution must have intended that in Arizona disqualification from future office automatically follows impeachment and removal from office. The fatal flaw in this position, we believe, is that neither point seems as clear upon contemplation as it does at first glance. First glance seems to have been the origin of this court’s words in 1948 in the Sullivan case. The statement may or may not have been dictum, but it was certainly unsupported by any authority or analysis. See 66 Ariz. at 354, 188 P.2d at 596. The reason for this, no doubt, was that the subject of inquiry in Sullivan was not the consequences of conviction but whether impeachment was the only method of removing a public officer, the legislature having enacted a law that, without benefit of a constitutional impeachment process, automatically removed public officers who had been convicted of a felony. The issue presented by the case before us was neither raised, argued, nor actually before the court for decision. In fact, we find no authority directly on point from any state court nor from the United States Supreme Court. This appears to be the first instance in history in which a legislative body has impeached and removed an officer, expressly refusing to punish by disqualification from future office, and in which the officer removed has sought office and been challenged. The Texas case of Ferguson v. Wilcox, 119 Tex. 280, 28 S.W.2d 526 (1930), that petitioner advances as his strongest case authority is quite different and in some ways quite similar to Sullivan. The language on which petitioner relies clearly states that disqualification automatically follows removal, but again the statement was made without analysis or support. Id. 28 S.W.2d at 534. Governor Ferguson had been impeached, removed, and the Texas Senate had adjudged him disqualified from holding future office. The issue before the Texas court was the constitutionality of a later statute absolving or pardoning Governor Ferguson. Thus, we find no direct legal authority to guide us. Nor do we believe the text of the federal and state constitutions is so clear that it is not capable of both readings. To require that the Senate’s conviction “shall extend only to” removal from office and disqualification is to limit the Senate from doing anything further than those two things. It is not to say that conviction and removal must result automatically in disqualification, nor is it to say the Senate has discretion to do one but not the other. The text is, at best, unclear, leaving room for interpretation. Nor do we find unambiguous guidance for interpretation of the Arizona impeachment provisions in the works of the found ing fathers. The debates of the Constitutional Convention of 1787 contain no reference to the intent of the drafters or of the convention itself on this point, nor does there seem to have been any debate on this precise issue. See S. PADOVER, TO SECURE THESE BLESSINGS, The Great Debates of the Constitutional Convention of 1787, Arranged According to Topics, at 384-91 (1970). Nor are Alexander Hamilton’s comments in The Federalist of great help. Hamilton covered the impeachment question in Federalist Papers Nos. 65 and 66. THE FEDERALIST PAPERS (1982 Bantam Classic edition). In describing the punishment that would follow conviction, Hamilton referred to “perpetual ostracism from ... [the] honors and emoluments,” noting that the officer would still be liable to criminal prosecution. Id. No. 65 (Bantam ed., at 333). Hamilton’s dissertations are far from clear on the precise question before us, though it can certainly be inferred that he may have considered disqualification to automatically follow impeachment and removal. See 1 THE RECORD OF THE FEDERAL CONVENTION OF 1787, at 272 (Farrand ed. 1911, 1937), as cited in Feerick, Impeaching Federal Judges: A Study of the Constitutional Provisions, 39 FORDHAM L. REV. 1, 17-18 (1970). Of course, Hamilton was only one of the founders, and there is no record from which we may infer what the others thought on this point. The debated question was primarily the necessity of providing a procedure for removal from office of those who had betrayed the public trust, leading to adoption of a motion that the officer be “removable on impeachment.” See Debate of July 20, 1787, S. PADOVER, at 384. We are left with the conclusion that Hamilton may have thought disqualification was automatic, but no record exists that he ever stated this in so many words. Nor is there any record that this point was ever the subject of debate at the Constitutional Convention of 1787. As noted, the commentators or scholars do not provide any certainty on the question of automatic disqualification. We do have, however, some guidance for interpretation. First, contrary to petitioner’s position, in the early days of the country it seems that disqualification was not thought to be an integral part of a judgment of impeachment in federal cases. In 1803, the United States Senate (containing members who had been delegates to the Constitutional Convention of 1787) voted to remove Judge John Pickering. The judgment had no provision that Pickering would also be disqualified from future office. 3 A. HINDS, HINDS’ PRECEDENTS ON THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES § 2341, at 709-10 (1907); see also Feerick, supra, 39 FORDHAM L. REV. at 28. Sixty years later, during the impeachment trial of Judge West H. Humphreys, the Senate debated whether removal and disqualification were divisible questions. Using the Pickering case as authority, the presiding officer ruled that separate votes would be taken on removal and disqualification. HINDS’ PRECEDENTS § 2397, at 820; Feerick, supra, 39 FORDHAM L.REV. at 32. The Senate subsequently voted in two stages: voting 38-0 for removal and 36-0 for disqualification. It appears, therefore, to have been the view of the Senate that the provision regarding removal and disqualification presents divisi ble questions. All the precedent cited, of course, falls far short of providing a definitive interpretation of the meaning of the federal judgment clause or the intent of the founders. It does, however, demonstrate that the text of the judgment clause, article I, § 3 of the United States Constitution, can be, and since early in its history has been, read either way. We believe some relevant Arizona history is more telling. Our constitution was written in 1910 and went into effect at statehood on February 14, 1912. The first legislature of this state enacted a provision that read: The judgment [in an impeachment proceeding] may be that the defendant be removed from office or that he be removed from office and disqualified to hold any office of honor, trust or profit under the state. Ariz.Pen.Code 1913 § 804 (emphasis added). This provision, in almost identical language, is still part of our statutes. See A.R.S. § 38-321. While again far from definitive, the passage of the statute certainly provides some evidence that the constitutional provision may be read, and was read, as allowing the legislative body discretion over the issue of future disqualification. It also may provide some evidence as to the intent of some of the framers because at least six members of the first legislature had been delegates to the 1910 Arizona Constitutional Convention. Because interpretation is required, and we deal with an ambiguous text, unexpressed or unarticulated intent of the framers, and a conflicting historical record, we must also consider both purpose and policy. The purpose of the federal judgment clause providing that judgment shall not “extend further than” was to prevent the imposition of discretionary punishments, such as had been the custom of the English Parliament, extending beyond removal and disqualification and including fines, imprisonment, and even death. See, e.g., Feerick, supra, 39 FORDHAM L.REV. at 6 n. 23, 48 n. 273. By limiting discretion, no intent to abolish it can be inferred so as to mandate a particular unitary penalty. Turning finally to policy, we have previously stated that election, the ultimate weapon of democracy, is favored where any doubt exists. See Bolin v. Superior Court, 85 Ariz. 131, 333 P.2d 295 (1958). We believe this is particularly important in impeachment cases. Impeachment, essentially a political process, is not subject to judicial review. Mecham v. Arizona House of Representatives, 162 Ariz. 267, 268, 782 P.2d 1160, 1161 (1989). No appeal for trial error to this or any court lies from the judgment of conviction rendered by the Senate. Id. While the House, which adopts the articles of impeachment and thus prefers the charges, and the Senate, which tries them, are the representatives of the people, the people nonetheless retain the right to speak directly by their votes. On political matters, the will of the majority is determinative. Any appeal from the impeachment conviction lies in the electoral process. Given a choice of interpretation of textual direction in the constitution, we hold that where the Senate has removed an officer but declined to disqualify him, the Arizona Constitution leaves the question of whether the impeached official should again hold public office in Arizona to the will of the people. Relief is therefore denied. Respondent Shumway and real party in interest Mec-ham are allowed their costs; Mecham’s request for attorney’s fees is denied. CAMERON, MOELLER, CORCORAN and LIVERMORE, JJ., concur. GORDON, C.J., did not participate in this decision; pursuant to Ariz. Const, art. 6, § 3, the Honorable LIVERMORE, Judge of the Court of Appeals, Division Two, was designated to sit in his stead. . In Arizona, relief formerly obtained by writs of prohibition, mandamus, or certiorari is now obtained by "special action." Rule 1, Arizona Rules of Procedure for Special Actions, 17B A.R.S. . Those interested in the details of this episode in Arizona history may consult Mecham v. Gordon, 156 Ariz. 297, 751 P.2d 957 (1988); Green v. Osborne, 157 Ariz. 363, 758 P.2d 138 (1988); Londen v. Shumway, 158 Ariz. 255, 762 P.2d 542 (1988); and Mecham v. Arizona House of Representatives, 162 Ariz. 267, 782 P.2d 1160 (1989). . Note, however, that Arizona’s constitution contains no analog to the "case and controversy” requirement found in article III, § 2 of the United States Constitution. . The state and federal provisions are almost identical. The state provision, article 8, part 2, § 2, provides that judgment of conviction "shall extend only to removal ... and disqualification.” The federal analog, article I, § 3, provides that "judgment ... shall not extend further than____" The Arizona Constitution’s provision indicates that only two consequences can result from impeachment: removal and disqualification. The federal provision indicates that no consequence from impeachment can be more serious than removal and disqualification. . See J. ANDREWS, JURISPRUDENCE: CONSTITUTION AND LAWS § 200, at 243 (1908), and H.C. BLACK, HANDBOOK ON AMERICAN CONSTITUTIONAL LAW, at 139 (3d ed. 1910) (authors reach different conclusions as to the extent of the judgment); the Nebraska Supreme Court in State v. Hill, 37 Neb. 80, 55 N.W. 794 (1893), construed its judgment clause, which was identical to the federal clause, to make disqualification a separate sanction from removal. The Nebraska court relied on J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES (1891) for the proposition that the federal constitution seems to make disqualification on conviction discretionary. As petitioner claims, Story may have expressed no more than uncertainty as to the meaning of the clause, but that is exactly the point we make. . Impeachment was covered in the debates of June 2, July 20, and September 8, 1787. The method of impeachment was. agreed on at the June 2 debate, the advisability of having an impeachment clause at all was debated on July 20, and the causes or grounds for impeachment debated on September 8. None of these debates touched at all on the question of automatic disqualification. While Padover's work is based, in part, on J. ELLIOT, DEBATES ... OF THE CONGRESS OF THE CONFEDERATION (1827) and DEBATES IN THE SEVERAL STATE CONVENTIONS (1861) — works subject to some question — there is nothing in any other work that calls into question the portion of Elliot’s work dealing with the impeachment issue. See J.H. Hutson, The Creation of the Constitution: The Integrity of the Documentary Record, 65 TEXAS L.REV. 1 (1986). . See note 5, supra. . A chart of congressional votes on impeachment submitted by Mecham is attached as Appendix A. The details can also be found in Feerick, supra, 39 FORDHAM L.REV. at 23-47. Of particular interest are the 1936 proceedings involving Judge Halsted L. Ritter in which the Senate voted in favor of removal but unanimously against disqualification. Id. at 47.

OPINION HOWARD, Judge. FACTS In the early morning hours of May 29, 1988, police arrested appellant for drivingwhile under the influence. 205 days later, on December 20, 1988, he was tried by a jury and subsequently convicted of four charges: A.R.S. § 28-692(A), driving under the influence of intoxicating liquor (DUI); A.R.S. § 28-692(B), DUI with a blood alcohol content (BAC) of .10 percent or more; A.R.S. § 28-692.02(A), DUI while his license was suspended; and A.R.S. § 28-692.02(A), DUI with BAC of .10 percent or more while his license was suspended. The trial court imposed an enhanced sentence of six years pursuant to § 13-604(A),(C) and § 28-692.01. Concurrent sentences were imposed. We note 43 days of excludable time. See Rule 8.4, 17 A.R.S., Rules of Crim.Proc. ISSUES Appellant contends the trial court violated his right to a speedy trial, erred in giving improper jury instructions and improperly enhanced his sentence. For the following reasons, we reverse in part, affirm in part and remand for resentencing. DISCUSSION 1. Hinson. Appellant argues that the court’s failure to dismiss the state’s charges, with prejudice, violated his right to a trial within 150 days of his arrest. Rule 8.2(a), 17 A.R.S., Rules of Crim.Proc.; Hinson v. Coulter, 150 Ariz. 306, 723 P.2d 655 (1986). The record indicates that the appellant failed to advise the trial court of the impending deadline imposed by Rule 8.1(d). He therefore waives his Hinson claim on appeal. Andre v. Tucson City Court, Ariz., (2 CA-CV 89-0244, filed March 13, 1990). See also State v. Guerrero, 159 Ariz. 568, 769 P.2d 1014 (1989); State v. Techy, 135 Ariz. 81, 659 P.2d 40 (App.1982). Accordingly, we find that the court did not err by proceeding with appellant’s trial. 2. Desmond. Appellant contends that the trial court erred in instructing the jury on presumptions pursuant to A.R.S. § 28-692(E) because no “relation back” testimony establishing appellant’s BAC at the time he was driving was admitted into evidence. Desmond v. Superior Court, 161 Ariz. 522, 779 P.2d 1261 (1989). No objection to the instructions was made by appellant at trial. Pending review of appellant’s case, our supreme court decided Desmond v. Superi- or Court, supra. Desmond held that “[i]n order for the state to receive the statutory presumption instruction in a charge under [A.R.S. § 28-692(A)] or to make a prima facie case under [A.R.S. § 28-692(B)], there must be some evidence relating the BAC back to the time of arrest." 161 Ariz. at 529, 779 P.2d at 1268 (emphasis added). The state argues that the -conviction should be upheld because appellant failed to preserve the issue for appeal and no fundamental error was involved. Second, the state argues that Desmond should not be applied retroactively. The theory of fundamental error is inapplicable as to the charge under A.R.S. §§ 28-692(B) and 28-692.02(A). No objection to the instruction was necessary because the state failed to prove a prima facie case by not presenting evidence relating the blood-alcohol content back to the time of arrest. Desmond, supra. As for the issue of retroactivity, the supreme court did not specifically address this issue as it has done in other cases such as Hinson v. Coulter, supra, and Montano v. Superior Court, 149 Ariz. 385, 719 P.2d 271 (1986). As a general rule, we will apply the law existing at the time of appellate disposition. See Griffith v. Kentucky, 479 U.S. 314,107 S.Ct. 708, 93 L.Ed.2d 649 (1987); State v. Gardfrey, 161 Ariz. 31, 775 P.2d 1095 (1989). See also Bischofshausen v. Pinal-Gila Counties, 138 Ariz. 109, 673 P.2d 307 (App.1983); Ranburger v. Southern Pacific Transportation Company, 157 Ariz. 547, 760 P.2d 547 (App.1986) (application of a change of law to civil cases pending review). But see Wood v. Goodfarb, 155 Ariz. 32, 745 P.2d 90 (1987). Therefore we apply the law of Desmond to appellant’s case. Since there was insufficient evidence to convict appellant of a violation of A.R.S. §§ 28-692(B) and 28-692.02(A) (DUI with BAC of .10 percent while license suspended), it would be improper to remand for a new trial on these charges because of the double jeopardy clause of the Fifth Amendment. See State v. Poland, 132 Ariz. 269, 645 P.2d 784 (1982). His conviction and sentence on these charges are vacated and the charges are dismissed with prejudice. The same result does not apply to violations of A.R.S. § 28-692(A) (driving under the influence) which does not rely totally on intoxylizer results and can be established by other evidence that the accused was driving under the influence. Desmond v. Superior Court, 161 Ariz. at 526-27, 779 P.2d at 1265-66. Here, the arresting police officer testified that: (1) he stopped appellant after observing his erratic driving behavior; (2) he observed an open can of beer at the arrest scene; and (3) appellant failed five proffered sobriety tests. The state presented sufficient evidence of a violation under A.R.S. § 28-692(A) to go to the jury. Desmond v. Superior Court, supra. His failure to object to the instruction did not constitute fundamental error. He therefore waives this claim on review as to these offenses. State v. Barnett, 142 Ariz. 592 691 P.2d 683 (1984). Therefore, we affirm the convictions for violations of A.R.S. §§ 28-692(A) and 28-692.02(A) (DUI with a suspended license). ENHANCEMENT Appellant contends that the trial court improperly enhanced his sentence pursuant to A.R.S. §§ 13-604(A), (C) and 28-692.01. He argues that § 28-692.01 sets forth the only penalties which may be imposed for repetitive offenses committed in violation of § 28-692. We agree. State v. Driggs, 155 Ariz. 74, 745 P.2d 132 (1986), clearly establishes that § 13-604 does not apply to the separate and unique DUI statutes. The trial court therefore erred in its application of § 13-604. Appellant’s conviction and sentence for driving under the influence in violation of A.R.S. §§ 28-692(B) and 28-692.02(A) (DUI with BAC of .10 percent while license suspended) are vacated and the charges dismissed with prejudice. His two convictions for violation of A.R.S. §§ 28-692(A) and 28-692.02(A) (DUI while license suspended) are affirmed and remanded for resentenc-ing. ROLL, P.J., and HATHAWAY, J„ concur.

OPINION CAMERON, Justice. I. JURISDICTION AND ISSUE Twin City Fire Insurance Company (Twin City) petitioned this court to accept jurisdiction of a special action filed directly from the superior court. We granted jurisdiction in this case, and in Hartford Accident & Indemnity Co. v. Aetna Casualty & Surety Co., 164 Ariz. 286, 792 P.2d 749 (1990) to determine what duty, if any, a primary insurer owes an excess insurer with respect to accepting settlement offers. We granted jurisdiction pursuant to Rules 4(a) and 7(a) of the Arizona Rules of Procedure for Special Actions, 17B A.R.S. We have jurisdiction pursuant to Ariz. Const, art. 6, § 5(3). II. FACTS This case arises out of previous litigation entitled Camargo v. The Tanner Companies, Pima County Superior Court, Civil Cause No. 235764. In that case, Camargo sued Tanner for personal injuries. Employers Insurance of Wausau (Wausau) was Tanner’s primary insurer with policy limits of $600,000, including a $50,000 deductible payable by Tanner. Twin City was Tanner’s excess insurance carrier providing coverage for Tanner in the amount of $15,000,000 above Wausau’s limits. Wausau set a $5000 reserve on the ease, which amount was never altered. Wausau defended Tanner and a $991,235 verdict was rendered. The Camargo case was settled by way of a structured payment in which Twin City paid $238,817.81 and Wau-sau paid $596,569.27. Twin City sued Wausau and Tanner alleging that a duty of good faith and fair dealing was owed to Twin City under both an equitable subrogation theory and a direct duty theory. The trial court granted Wausau’s motion to dismiss on the issue of a direct duty, but allowed Twin City to proceed against Wausau on the theory of equitable subrogation. Wausau does not contest Twin City’s right to pursue a claim under an equitable subrogation theory. Twin City petitioned this court for relief seeking reversal of the trial court’s dismissal of its claim based on a direct duty. III. DISCUSSION We have decided this day, in Hartford, that under the doctrine of equitable subro-gation, a primary insurance carrier owes an excess insurance carrier a duty of good faith and fair dealing in accepting settlement offers within policy limits. Under equitable subrogation, the excess carrier steps into the shoes of the insured and gains all the rights of the insured. Id. In this case, we are asked to go a step further and hold that a primary insurance carrier, independent of its obligation under the doctrine of equitable subrogation, owes a direct duty of good faith and fair dealing to an excess insurance carrier. We decline to do so. One of the first cases to recognize a direct duty was Hartford Accident & Indemnity Co. v. Michigan Mutual Insurance Co., 93 A.D.2d 337, 462 N.Y.S.2d 175 (App.Div.1983). In that case, a workman was injured while working for a painting contractor (DeFoe) and its subsidiary (L.A. D.). The workman was also employed by D.A.L., another DeFoe subsidiary. All three entities carried primary insurance with Michigan Mutual and excess insurance with Hartford. The workman sued only DeFoe and L.A.D. for his injuries. Michigan Mutual defended DeFoe and L.A.D. but did not try to join D.A.L. as a third-party defendant. Michigan Mutual’s defense of D.A.L. presumably would have increased its liability, and decreased the excess carrier’s contribution toward settlement. Hartford, the excess carrier, claimed that Michigan Mutual’s failure to name D.A.L. as a third-party defendant was bad faith. The Appellate Division of the New York Supreme Court held that the primary carrier owes the same obligation to the excess carrier as it owes its own insured: As primary insurer, it acts as a fiduciary and is held to an exacting standard of utmost good faith. Any such right of action arises as a result of the independent and direct duty to the excess insurer and is not dependent upon equitable principles of subrogation. Id. at 342, 462 N.Y.S.2d at 178 (citation omitted). In another direct duty case, an insured and primary insurer colluded and wrongfully allocated certain losses to one policy year in order to exhaust the primary insurer’s policy limits for that year and bring excess insurance coverage into play. Kaiser Found. Hosp. v. North Star Reinsurance Corp., 90 Cal.App.3d 786, 153 Cal. Rptr. 678 (1979). The California Court of Appeals held that both the primary insurer and the insured owe the excess insurer a direct duty of good faith and fair dealing. Id. at 792, 153 Cal.Rptr. at 682. In both Michigan Mutual and Kaiser, the courts recognized a direct duty to the excess carrier because equitable subrogation failed to adequately protect the excess insurer’s interests. We do not believe the direct duty theory should be applied to the facts in this case for two reasons. First, in this case, the excess carrier has an adequate remedy under the doctrine of equitable subrogation. Admittedly, there may be times when equitable subrogation is not an adequate remedy for the excess carrier. Under equitable subrogation, an excess insurer, as subrogee of the insured, has no greater rights than its subrogor. See Employers Mut. Liab. Ins. Co. v. Robert E. McKee Gen. Contractors, Inc., 16 Ariz.App. 77, 491 P.2d 27 (1971) (because subcontractor-insured had no claim against general contractor, neither did its insurer-subrogee). Thus, recovery by the excess insurer may be barred in the event of wrongful conduct of the insured. See 8B J. Appleman, Insurance Law & Practice § 4941 (1981). If the insured fails to cooperate with the primary insurer, the primary insurer may assert this as a defense against the insured or its subrogee. See generally Butler & Potter, The Primary Carrier Caught in the Middle With Bad Faith Exposure to its Insureds, Excess Carriers and Reinsurers, 24 Tort & Ins.L.J. 118, 124 (1988). In the instant case, because there were no allegations of fraud or collusion on the part of the insured (Tanner), the primary insurer, Wausau, had no defenses to assert against Twin City that would limit Twin City’s recovery under equitable subrogation. The insured’s conduct was not an obstacle to Twin City’s right to pursue a claim for bad faith under an equitable sub-rogation theory. Second, we believe an excess insurance carrier can protect itself in its contract with the insured. For instance, an excess insurer can provide in its contract that it may control the defense whenever potential for excess liability exists. In addition, an excess insurer can require notice of all lawsuits filed against the insured or at least all lawsuits requesting either no set amount of damages or damages in excess of primary limits. An excess insurer can also reserve to itself the right to approve all settlement offers. We agree with the California Supreme Court on this point: If an excess carrier wishes to insulate itself from liability for an insured’s failure to accept what it deems to be a reasonable settlement offer, it may do so by appropriate language in the policy.... Commercial Union Assurance Co. v. Safeway Stores, Inc., 26 Cal.3d 912, 921, 610 P.2d 1038, 1043, 164 Cal.Rptr. 709, 714 (1980). IV. CONCLUSION We believe that under the facts of this case, the primary insurer does not owe the excess insurer a direct duty with respect to settlement negotiations. See Laper v. Board of Comm’rs, 523 So.2d 926 (La.Ct. App.1988) (primary insurer does not owe excess insurer a direct duty of good faith in settling claims; duty to defend flows from the primary insurer to the insured and not to the excess insurer). The primary insurer’s duty of good faith requires it to give only the insured’s interests equal consideration when an offer to settle is made. See Farmers Ins. Exch. v. Henderson, 82 Ariz. 335, 313 P.2d 404 (1957). Claims for breach of this duty must be asserted by the insured, or one who derives their rights from the insured. We decline in this case and at this time to recognize a direct duty running from the primary insurer to the excess insurer. Special action relief denied. GORDON, C.J., FELDMAN, V.C.J., and MOELLER and CORCORAN, JJ. . For example, the Tanner-Twin City policy required Tanner to provide written notice to Twin City "[w]henever it appears that an occurrence is likely to involve payment under this policy...."

OPINION SARAH D. GRANT, Chief Judge, Court of Appeals. The appellant, William Santiago (Santiago), asks this court to review the court of appeals’ decision affirming the trial court’s entry of summary judgment in favor of Phoenix Newspapers, Inc. (PNI). We granted review to consider whether the trial court correctly found as a matter of law that PNI was not vicariously liable for the injuries Santiago sustained in a collision with a PNI delivery agent. See Rule 23, Ariz.R.Civ.App.P., 17B A.R.S. We have jurisdiction pursuant to Ariz. Const, art. 6, § 5(3) and A.R.S. § 12-120.24. PROCEDURAL HISTORY On April 20, 1986, a car driven by Frank Frausto (Frausto) collided with a motorcycle driven by Santiago. At the time Fraus-to was delivering the Sunday edition of the Arizona Republic on his route for PNI. Santiago filed a negligence action against Frausto and PNI, alleging that Frausto was PNI’s agent. Both parties moved for summary judgment. The court, finding no genuine issues of material fact, concluded that Frausto was an independent contractor. The court of appeals agreed, stating that “[pjarties have a perfect right, in their dealings with each other, to establish the independent contractor status in order to avoid the relationship of employer-employee, and it is clear from the undisputed facts that there was no employer-employee relationship created between PNI and Fraus-to.” Santiago v. Phoenix Newspapers, Inc,, 162 Ariz. 86, 90, 781 P.2d 63, 67 (1988). Santiago seeks review of this ruling. FACTS We view the facts most favorably to Santiago, as the party opposing the summary judgment. See, e.g., Tribe v. Shell Oil Co., 133 Ariz. 517, 652 P.2d 1040 (1982). Frausto began delivering papers for PNI in August 1984 under a “Delivery Agent Agreement,” prepared by PNI. The agreement provided that Frausto was an “independent contractor,” retained to provide prompt delivery of its newspapers by the times specified in the contract. Although Frausto had the right to operate the business as he chose, he could engage others to deliver papers on his route for no more than 25% of the delivery days. He was free to pursue any other business activities, including delivering other publications, so long as those activities did not interfere with his performance of the PNI contract. Frausto was also required to provide PNI with satisfactory proof of liability insurance, a valid driver’s license, and a favorable report from the Arizona Motor Vehicle Division. The contract was for a period of six months, renewable at PNI’s option. Either party could terminate the agreement prior to six months without cause with 28 days notice and for cause with no notice. Under the contract, cause for termination by PNI existed if complaints from home delivery subscribers exceeded an undefined “acceptable” level, or if Frausto failed to maintain “acceptable” subscriber relations or provide “satisfactory service,” defined as banding and bagging newspapers to insure they were received in a dry and readable condition. PNI was also free to breach the agreement if it ceased publishing the paper, defined in the contract as “excusable non-compliance.” There is no correlative definition of cause for termination by Frausto. Customers paid PNI directly and any complaints about delivery were fun-nelled through PNI to Frausto. Additionally, the contract required Frausto to allow a PNI employee to accompany him on his route “for the purposes of verifying distribution, subscriber service, or regular newspaper business.” Early each morning, Frausto drove to a PNI-specified distribution point to load the papers into his car. He then delivered the papers before a PNI-specified time to addresses on a delivery list provided and owned by PNI. He could deliver the papers to listed addresses only. When customers were added to and taken from this list by PNI, Frausto was required to incorporate these changes into his route. According to Frausto, the number of papers delivered fluctuated by as much as thirty papers. For these services, PNI paid Frausto a set amount each week. That amount did not vary when addresses within or beyond the contracted delivery area were added to or taken away by PNI from the delivery list. PNI provided Frausto with health and disability insurance, but did not withhold any taxes. In ruling on the summary judgment motion, the court considered the affidavits of Frausto and David L. Miller, a delivery agent and former employee driver. Fraus-to stated in his affidavit that, despite the contractual nomenclature, he considered himself an employee and delivered the papers any way his supervisor directed him to. This included placing the paper in a particular spot if requested by a customer. If he did not comply with these requests, his supervisor would speak to him and he could be fired. Miller stated in his affidavit that he had been a service driver, later switched to being a delivery agent, and that, in his view, there was no significant difference between the level of supervision provided to those holding the two positions. DISCUSSION The court may grant summary judgment only if no dispute exists as to any material facts, if only one inference can be drawn from those facts, and if the moving party is entitled to judgment as a matter of law. Tribe, 133 Ariz. at .518, 652 P.2d at 1041; Corral v. Fidelity Bankers Life Ins. Co., 129 Ariz. 323, 326, 630 P.2d 1055, 1058 (App.1981). Even when the facts are undisputed, summary disposition is unwarranted if different inferences may be drawn from those facts. Tribe, 133 Ariz. at 519, 652 P.2d at 1042; Smith, Arizona Civil Trial Practice, § 314 at 277 (1986). If the inference in this case is clear that no master-servant relationship exists, the trial court was correct in granting summary judgment; if it is not clear, the case should have been presented to the jury to decide. See Restatement (Second) of Agency § 220 comment c (1958); Northern Contracting Co. v. Allis-Chalmers Corp., 117 Ariz. 374, 376, 573 P.2d 65, 67 (1977). We apply the rule in this case by asking whether the courts below correctly decided that no inferences could be drawn from the material facts suggesting Frausto was acting as PNI’s employee when the accident occurred. Section 220 of the Restatement (Second) of Agency, adopted by Arizona, see Dris-coll v. Harmon, 124 Ariz. 15, 17, 601 P.2d 1051, 1053 (1979); Lundy v. Prescott Valley, Inc., 110 Ariz. 362, 363, 519 P.2d 61, 62 (1974); Throop v. F.E. Young & Co., 94 Ariz. 146, 150-51, 382 P.2d 560, 563 (1963), defines a servant as “a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other’s control or right to control.” The Restatement lists several additional factors, none of which is disposi-tive, in determining whether one acting for another is a servant or an independent contractor. We now review those factors, along with the cases considering them, for evidence of an employer-employee relationship which could preclude the entry of summary judgment. As a prefatory note, we reject PNI’s argument that the language of the employment contract is determinative. Contract language does not determine the relationship of the parties, rather the “objective nature of the relationship, [is] determined upon an analysis of the totality of the facts and circumstances of each case.” Anton v. Industrial Commission, 141 Ariz. 566, 568, 688 P.2d 192, 194 (App.1984); Home Ins. Co. v. Industrial Commission, 123 Ariz. 348, 350, 599 P.2d 801, 803 (1979). Chief Judge Cardozo states that We think there is evidence to sustain the finding of the board that claimant was a servant employed to sell the milk and cream of his employer in return for a commission. The contract is adroitly framed to suggest a different relation, but the difference is a semblance only, or so the triers of fact might find. Glielmi v. Netherland Dairy Co., 254 N.Y. 60, 62, 171 N.E. 906, 906-07 (1930). The fundamental criterion is the extent of control the principal exercises or may exercise over the agent. Central Management v. Industrial Commission, 162 Ariz. 187, 190, 781 P.2d 1374, 1377 (App.1989); Hamilton v. Family Record Plan, Inc., 71 Ill.App.2d 39, 47, 217 N.E.2d 113, 117 (1966); see also Greening v. Gazette Printing Co., 108 Mont. 158, 165, 88 P.2d 862, 864 (1939) (contract terms between carrier and printer not binding on third party; “[i]f one is injured by the servant of another, it is immaterial to him what the terms of the agreement between employer and employee might be. The liability must come from the fact that the employer exercises control over the actions of the person in his employment.”); Femling v. Star Publishing Co., 195 Wash. 395, 405, 81 P.2d 293, 298, set aside on other grounds, 195 Wash. 395, 84 P.2d 1008 (1938) (question of employer-employee relationship was for jury, notwithstanding contractual provision that carrier was not an employee in any sense). In determining whether an employer-employee relationship exists, the fact finder must evaluate a number of criteria. They include: 1. The extent of control exercised by the master over details of the work and the degree of supervision; 2. The distinct nature of the worker’s business; 3. Specialization or skilled occupation; 4. Materials and place of work; 5. Duration of employment; 6. Method of payment; 7. Relationship of work done to the regular business of the employer; 8. Belief of the parties. ANALYSIS OF RELATIONSHIP BETWEEN FRAUSTO AND PNI 1. The extent of control exercised by the master over the details of the work Such control may be manifested in a variety of ways. A worker who must comply with another’s instructions about when, where, and how to work is an employee. See Restatement § 220 comment h. In Throop, 94 Ariz. 146, 382 P.2d 560, the plaintiff’s husband was killed in a collision with a car driven by Hennen, a salesman for the defendant company. Plaintiff sought recovery against the company on a theory of vicarious liability. At the close of evidence, the trial court granted a directed verdict in fayor of the company. On appeal, we examined the record for evidence of the company’s control. Hennen was required to call on accounts in person and to present all inventory items, to submit written reports on these visits and to make collections. Although Hennen had these responsibilities for a seven-year period, he could sell anywhere in the country, visit prospects whenever he chose, use his own vehicle exclusively, and select all prospects himself, visiting the office only a few times a year. Based on these facts, we agreed the trial court properly directed the verdict in the company’s favor because no reasonable juror could find it had exercised sufficient control over Hennen to make him an employee. Missing in Throop was the right to control the details of how Hennen made his sales. Where this right of control exists, the inference of the employer-employee relationship is strengthened. For example, an appellate court overturned the trial court’s finding of no employer-employee relationship in Gallaher v. Ricketts, 187 So. 351, 355 (La.Ct.App.1939). The newspaper carrier in Gallaher provided his own transportation and was paid a commission for every dollar worth of papers delivered on his assigned route. The company conducted training programs, including tips on how to distribute the paper and stimulate sales, reimbursed him for some transportation expenses, and retained the right to terminate him at any time. The court concluded that these indices of control demonstrated that the carrier “was merely a cog in the wheel of the defendant’s enterprise,” and held that Ricketts was an employee. Id. at 355. See also Harris v. Cochran, 288 S.W.2d 814 (Tex.Civ.App.1956) (Court sustained verdict against a publisher for injuries caused by its carrier to a pedestrian. Like Frausto, the carrier was required to throw papers to all patrons on the route, to add customers when necessary, and to use his own transportation in delivery. All payments received by the carrier were turned over to the paper and the carrier did not buy any of the papers for delivery. In addition to the fact that the carrier was paid by the hour, he ran personal errands for the manager, and received waxed paper for the papers on rainy days from the company.). A strong indication of control is an employer’s power to give specific instructions with the expectation that they will be followed. See Cooper v. Asheville Citizen-Times Publishing Co., 258 N.C. 578, 589, 129 S.E.2d 107, 115 (1963) (“It would seem the Publishing Company had the legal right to require that Sumner meet any reasonable request of a subscriber with reference to the manner in which he delivered the newspaper.”); see also Press Publishing Co. v. Industrial Accident Commission, 190 Cal. 114, 121, 210 P. 820, 823 (1922) (“One of the means of ascertaining whether or not this right to control exists is the determination of whether or not, if instructions were given, they would have to be obeyed.”); Femling, 195 Wash, at 409, 81 P.2d at 298 (jury could find carrier was an employee where carrier agreed to abide by rules and conditions contained in contract as well as “any other rules and conditions which may be in effect now or hereafter.”). In deciding whether a worker is an employee we look to the totality of the circumstances and the indicia of control. Central Management, 162 Ariz. at 190, 781 P.2d at 1377. In this case, PNI designated the time for pick-up and delivery, the area covered, the manner in which the papers were delivered, 1. e., bagged and banded, and the persons to whom delivery was made. Although PNI did little actual supervising, it had the authority under the contract to send a supervisor with Frausto on his route. Frausto claimed he did the job as he was told, without renegotiating the contract terms, adding customers and following specific customer requests relayed by PNI. 2. The distinct nature of the worker’s business Whether the worker’s tasks are efforts to promote his own independent enterprise or to further his employer’s business will aid the fact finder in ascertaining the existence of an employer-employee relationship. Tanner v. USA Today, 179 Ga. App. 722, 347 S.E.2d 690 (1986). The agent in Tanner contracted with USA Today to distribute papers. The agent in turn hired carriers to deliver the papers using his trucks. USA Today had no control over the choice of drivers, the trucks used, or the route taken. Under these circumstances, and despite USA Today’s imposition of time parameters for delivery, the court found insufficient evidence to raise the issue of an employer-employee relationship. A concomitant inquiry to this factor also considers whether the worker’s job performance results in a profit or loss for the worker. Thus, where the worker purchases the product and then sells it at a profit or loss, the worker is more likely to be found an independent contractor. See Luedtke v. Arizona Family Restaurants, 158 Ariz. 442, 444, 763 P.2d 262, 264 (1988) vacated in part on other grounds, 160 Ariz. 500, 774 P.2d 804 (1989). Compare Fleming v. Foothill-Montrose Ledger, 71 Cal.App.3d 681, 139 Cal.Rptr. 579 (1977), with Press Publishing Co., 190 Cal. at 119, 210 P. at 822. As far as the nature of the worker’s business, Frausto had no delivery business distinct from that of his responsibilities to PNI. Unlike the drivers in Tanner, Fraus-to had an individual relationship and contract with the newspaper company. Furthermore, he did not purchase the papers and then sell them at a profit or loss. Payments were made directly to PNI and any complaints or requests for delivery changes went through PNI. If Frausto missed a customer, a PNI employee would deliver a paper. 3. Specialization or skilled occupation The jury is more likely to find a master-servant relationship where the work does not require the services of one highly educated or skilled. See Restatement § 220 comment h. PNI argues that its agents must drive, follow directions, and be diligent in order to perform the job for which they are paid. However, these skills are required in differing degrees for virtually any job. Frausto’s services were not specialized and required no particular training. In addition, an agreement that work cannot be delegated indicates a master-servant relationship. Restatement § 220 comment j. In this case, Frausto could delegate work but only up to twenty-five percent of the days. 4. Materials and place of work If an employer supplies tools, and employment is over a specific area or over a fixed route, a master-servant relationship is indicated. Restatement § 220 comment h. In this case, PNI supplied the product but did not supply the bags, rubber bands, or transportation necessary to complete the deliveries satisfactorily. However, PNI did designate the route to be covered. 5. Duration of employment Whether the employer seeks a worker’s services as a one-time, discrete job or as part of a continuous working relationship may indicate that the employer-employee relationship exists. The shorter in time the relationship, the less likely the worker will subject himself to control over job details. See Restatement § 220 comment j. In addition, the employer’s right to terminate may indicate control and therefore an employer-employee relationship. The “right to fire” is considered one of the most effective methods of control. Lassiter v. Cline, 222 N.C. 271, 274, 22 S.E.2d 558, 560 (1942); see also Press Publishing Co., 190 Cal. at 119-20, 210 P. at 823. In this case, the contract provided for a six-month term, renewable as long as the carrier performed satisfactorily. Frausto could be terminated without cause in 28 days and with cause immediately. The definition of cause in the contract was defined only as a failure to provide “satisfactory” service. A jury could reasonably infer that an employer-employee relationship existed since PNI retained significant latitude to fire Frausto inasmuch as the “satisfactory service” provision provides no effective standards. In addition, the jury could also infer that PNI provided health insurance to encourage a long-term relationship and disability insurance to protect itself in case of injury to the carrier, both of which support the existence of an employer-employee relationship. 6. Method of payment PNI paid Frausto each week, but argues that because Frausto was not paid by the hour, he was an independent contractor. Santiago responds that payment was not made by the “job” because Frausto’s responsibilities changed without any adjustment to his pay or contract. Compare Fleming, 71 Cal.App.3d 681, 139 Cal. Rptr. 579, with Press Publishing Co., 190 Cal. 114, 210 P. 820 (finding that carriers who bear the loss for nonpayment are more likely independent contractors than those paid a flat rate for delivery). 7. Relation of work done to the employer’s regular business A court is more likely to find a worker an employee if the work is part of the employer’s regular business. Restatement § 220 comment h. The court of appeals addressed this factor in Anton, 141 Ariz. 566, 688 P.2d 192. The contractor in that case, Perkins, entered into an agreement to harvest certain trees and deliver the lumber to Southwest. Southwest gave Perkins detailed specifications for the wood which Perkins passed on verbatim to his woodcutters. Perkins hired Anton as one of these woodcutters under a written contract. That contract required Anton to fell trees, cut them into logs, stack the logs into cords, and clean up the forest afterwards, all in accordance with the Southwest specifications. Perkins reserved to himself only the task of picking up and delivering the wood to Southwest. During the process, Perkins checked Anton’s work, making sure he cut the logs correctly, selected the correct quality of wood, stacked the timber as directed, cleaned the forest sufficiently, and worked quickly. The court noted that in reality the woodcutters conducted virtually every facet of Perkin’s enterprise related to the Southwest contract. In deciding whether Anton was an employee for purposes of workers’ compensation, the court considered whether the work performed was an integral part of the employer’s regular business. Id. at 572, 688 P.2d at 198. It found Anton was an employee because Perkins had not limited his attempt to contract to a particularly “well-defined incidental activity ... ancillary to the central concerns of his business ... but rather the ongoing basic employment activity” itself. Id. at 573, 688 P.2d at 199. See also Central Management, 162 Ariz. at 190-91, 781 P.2d at 1377-78 (where “operating taxi cabs was the usual and regular course of CMC’s business ... the claimant’s work was not only an integral part of that business — it was the essential core of CMC’s business.”). We find the Anton and Central Management analyses particularly apt here. Home delivery is critical to the survival of a local daily paper; it may be its essential core. As one court explained: Cooper v. Asheville Citizen-Times Publishing Co., 258 N.C. 578, 588, 129 S.E.2d 107, 114 (1963) (quoting Laurel Daily Leader, Inc v. James, 224 Miss. 654, 662, 80 So.2d 770, 772 (1955)). PNI is hard-pressed to detach the business of delivering news from that of reporting and printing it, especially when it retains an individual relationship with each carrier. Compare Tanner, 179 Ga.App. 722, 347 S.E.2d 690. The delivery of newspapers within a reasonable time after publication is essential to the success of the newspaper business. For the greater portion of its income the paper depends on advertising, and the rates for advertising are governed by the paper’s circulation. Circulation is a necessity for success. The delivery boys are just as much an integral part of the newspaper industry as are the typesetters and pressmen or the editorial staff. 8. Belief of the parties As stated above, Frausto believed that he was an employee, despite contract language to the contrary. Even if he believed he was an independent contractor, that would not preclude a finding of vicarious liability. As the Restatement explains: It is not determinative that the parties believe or disbelieve that the relation of master and servant exists, except insofar as such belief indicates an assumption of control by the one and submission of control by the other.” Restatement § 220 comment m. See also Singer v. Star, 510 So.2d 637, 640 (Fla.Dist.Ct.App. 1987). In addition to the parties’ belief, the finder of fact should look to the community’s belief. “Community custom in thinking that a kind of service is rendered by servants ... is of importance." Restatement § 220 comment h. The fact that the community regards those doing such work as servants indicates the relation of master and servant. The newspaper’s customers did not have individual contact or contracts with Frausto. All payments, complaints, and changes were made directly to PNI. From these facts, a jury could infer that the community regarded Frausto as PNI’s employee. Again, analyzing these factors in relation to the facts of this case a jury could determine that an employer-employee relationship existed between PNI and Frausto. CONCLUSION AND DISPOSITION Whether an employer-employee relationship exists may not be determined as a matter of law in either side’s favor, because reasonable minds may disagree on the nature of the employment relationship. A jury could infer from these facts that Frausto was an employee because PNI involved itself with the details of delivery, received directly all customer complaints and changes so as to remove. much of Frausto’s independence, retained broad discretion to terminate, and relied heavily on Frausto’s services for the survival of its business. The jury could also infer that Frausto was an independent contractor because he used his. own car, was subject to little supervision, provided some of his own supplies, and could have someone else deliver for him within limits. Therefore, the trial court erred in finding as a matter of law that Frausto was an independent contractor. Summary judgment on the vicarious liability claim was inappropriate. The opinion of the court of appeals is vacated and the case is remanded to the superior court for proceedings consistent with this opinion. GORDON, C.J., FELDMAN, V.C.J., MOELLER, J., and THOMAS C. KLEINSCHMIDT, Judge, Court of Appeals, concur. CORCORAN and CAMERON, JJ., recused themselves and did not participate in this decision; pursuant to Ariz. Const, art. 6, § 3, SARAH D. GRANT, Chief Judge, and THOMAS C. KLEINSCHMIDT, Judge, of the Court of Appeals, Division One, were designated to sit in their stead. . The trial court granted PNI's motions for summary judgment on the issues of vicarious liability and negligence in hiring and supervising Frausto as its agent. Santiago does not seek review of the court’s decision on the negligent hiring and supervising claim. Frausto is not a party to this petition. . The agreement is drafted with the intent of designating delivery agents, such as Frausto, independent contractors. It specifically labels agents as independent contractors, and recites that [t]he Company is interested only in the results to be obtained by the Delivery Agent as described in this agreement, and the manner and means to be employed by the Delivery Agent are matters entirely within the authority and discretion of the Delivery Agent over which the Company has no jurisdiction. . But see Fleming, 71 Cal.App.3d at 687, 139 Cal.Rptr. at 582, concerning a two-week notice provision: "So long as the right of discharge cannot be invoked capriciously, as here where it can only be invoked if the newscarrier's services are ‘unsatisfactory,’ it is not ‘conclusive evidence negativing independence of the person performing work for another.’ ’’ (Emphasis added.) . We recognize that the law of workers’ compensation carries with it unique historical and statutory provisions which may not be completely applicable to the theory of vicarious liability. See Anton, 141 Ariz. at 569, 688 P.2d at 195. However, because the analysis and considerations of the employee-employer relationship are similar, we discuss these workers’ compensation cases here. . PNI argues that Frausto is "estopped” from asserting or without foundation to assert his understanding of the relationship. This argument is without merit. In determining the relationship between the parties, the court is to take into account all of the evidence. See Ringling Bros. v. Superior Court, 140 Ariz. 38, 43, 680 P.2d 174, 179 (Ct.App.1983). . We also note Rev.Rul. 87.41, in which the Internal Revenue Service has presented a list of twenty factors designed as guides for determining whether an individual is an employee. These factors are: 1. Instructions. A worker who must comply with another’s instructions about when, where, and how to work is ordinarily an employee. 2. Training. .If the worker is required to receive training to learn how to do the work an employment relationship is likely. 3. Integration. The more the worker is integrated into the business operations, the more likely he is an employee. 4. Services rendered personally. This tends to indicate an employment relationship when required. 5. Hiring, supervising and paying assistants. If the worker is responsible for his assistants, this is indicative of independent contractor status. 6. Continuing relationship. A continuing or recurring nature of work suggests employment. 7. Set hours of work. If hours are established by the business, this tends to indicate employment. 8. Full time required. An independent contractor has more freedom as to when and for whom he will work. 9. Doing work on business premises. If this is required, it suggests control by the employer. 10. Order of sequence set. The more this is controlled for, instead of by, the worker, the more employment is suggested. 11. Reporting. The more the worker must report, the greater the control of those supervising him, indicating employment. 12. Payment by time, not job. Independent contractors are more often paid by the job. 13. Payment of traveling expenses. An employer generally retains the right to regulate the employee's business activities. 14. Furnishing of tools. Independent contractors more often furnish their own tools and materials. 15. Investment. Independent contractors more often invest in facilities that are used in performing services. 16. Realization of profit or loss. A worker who can realize a profit or loss from his services is generally an independent contractor. 17. Working for more than one firm at a time. An independent contractor will often perform services for more than one business at a time. 18. Making service available to public. This indicates the status of an independent contractor. 19. Right to discharge. An independent contractor cannot be fired so long as he produces a result that meets contract specifications. 20. Right to terminate. If the worker can terminate services without liability, this indicates an employment relationship. Rev.RuI. 87-41, 1987-23 I.R.B. 7.

OPINION CORCORAN, Justice. The state petitions for review of the court of appeals decision affirming defendant’s convictions and refusing to correct sentencing errors pointed out by the state in its answering brief to defendant’s appeal. The issue we must address is whether, in the absence of an appeal or cross-appeal by the state, an appellate court has subject matter jurisdiction to correct an illegally lenient sentence when a criminal defendant appeals. We have jurisdiction pursuant to Ariz. Const, art. 6, § 5(3), and A.R.S. § 12-120.24. We granted review pursuant to rule 31.19, Arizona Rules of Criminal Procedure. Procedural Background Defendant was convicted by a jury of 8 counts of child abuse, all dangerous crimes against children in violation of A.R.S. § 13-604.01. The trial court imposed 8 presumptive sentences totalling 60 years without possibility of parole for 25 years. Six counts involved the same child; those sentences were imposed concurrently but consecutively to the other two counts, which involved two additional children. The state did not object to this sentencing in the trial court, and did not file an appeal contending that an illegal sentence had been imposed. Defendant appealed from his convictions on grounds not at issue in this review and not relevant to his sentences. The state did not cross-appeal, but pointed out in its answering brief, among other things, that the trial court had erred in calculating the sentences, and had failed to follow the mandatory provisions of A.R.S. § 13-604.01, which require consecutive sentences of life imprisonment without possibility of parole for 35 years on 4 of the 8 counts because defendant’s other counts constituted “predicate felonies” pursuant to A.R.S. § 13-604.01(K)(2). The court of appeals affirmed defendant’s convictions and sentences, in a memorandum decision, rejecting the grounds raised by defendant in his appeal. The court of appeals also addressed one sentencing discrepancy alleged by the state that would have benefited defendant and found no error. However, it refused to address the above error claimed by the state in its answering brief, reasoning as follows: The correct sentence [on count 6], it is alleged, should have been life without parole for 35 years, consecutive to any other sentence imposed. A like argument is made for counts 7, 8, and 1. The prosecution failed to file a cross-appeal, and therefore has waived the alleged sentencing error. State v. Tyree, 109 Ariz. 259, 508 P.2d 335 (1973), rev’d on other grounds, State v. Lewis, 109 Ariz. 466, 512 P.2d 9 (1973); State v. Ambalong, 150 Ariz. 380, 723 P.2d 729 (App.1986). State v. Dawson, 2 CA-CR 87-0572 (Ariz. App. Apr. 6, 1989), mem. dec. at 9-10. Discussion In its petition for review, the state asks us to hold that appellate courts have a duty to correct an illegally lenient sentence that appears on the appellate record, even though the correction results in detriment to defendant as a result of his own appeal, and even in the absence of an appeal or cross-appeal by the state. The state contends that an appellate court’s reliance on the Tyree/Ambalong reasoning that the state has “waived” the error by failing to timely cross-appeal results in a violation of the separation of powers doctrine set forth in article 3 of the Arizona Constitution. We do not decide, in the context of this review, whether the trial court erred in imposing defendant’s sentence, or whether the state’s calculations are correct. We therefore limit our review to whether the court of appeals has the power to decide the issue. For that purpose, we accept as true the state’s allegation that the sentences imposed were illegally lenient under the requirements of A.R.S. § 13-604.01, without so deciding. We believe the threshold issue is whether appellate courts have subject matter jurisdiction to decide issues not properly before them in a direct appeal or cross-appeal. Unless an appellate court has the constitutional or statutory power to act to correct such an error, its refusal to act cannot violate the constitutional doctrine of separation of powers. 1. The State’s Right to Directly Appeal or Cross-Appeal We have long recognized that the right of appeal is a matter of grace given by organic or statutory law, because at common law no right of appeal existed; thus, when an appeal is sought, it must be done within the time and manner provided by law. State ex rel. Murphy v. Superior Court, 25 Ariz. 226, 215 P. 538 (1923). The United States Supreme Court established early that the government could not take an appeal in a criminal case without express statutory authority “sufficiently explicit to overcome the common-law rule that the State could not sue out a writ of error in a criminal case unless the legislature had expressly granted it that right.” United States v. Wilson, 420 U.S. 332, 336, 95 S.Ct. 1013, 1018, 43 L.Ed.2d 232 (1975), citing United States v. Sanges, 144 U.S. 310, 318, 12 S.Ct. 609, 612-13, 36 L.Ed. 445 (1892). This court has acknowledged that appeals by the state in criminal matters are hot favored and will be entertained only when that right is clearly provided by constitution or statute. State ex rel. McDou-gall v. Gerber, 159 Ariz. 241, 242, 766 P.2d 593, 594 (1988). This is because statutes allowing the state to appeal, “being in derogation of common law, should be strictly construed.” 24 C.J.S. Criminal Law § 1675 at 334 (1989). Thus, we presume, in the absence of express legislative authority, that the state lacks the ability to appeal in criminal matters. Arizona v. Manypen-ny, 451 U.S. 232,101 S.Ct. 1657, 68 L.Ed.2d 58 (1981). In the absence of a constitutional provision or statute conferring the state’s right to appeal, an appellate court has no subject matter jurisdiction to consider that appeal. State v. Lelevier, 116 Ariz. 37, 38, 567 P.2d 783, 784 (1977). One of the jurisdictional prerequisites to an appeal by the state is a timely filing of a notice of appeal or cross-appeal. State v. Berry, 133 Ariz. 264, 266, 650 P.2d 1246, 1248 (App.1982). Another jurisdictional prerequisite is that the grounds alleged by the state must be those specified in a jurisdictional statute. See, e.g., State v. Waicelunas, 138 Ariz. 16, 672 P.2d 968 (App.1983) (court had no jurisdiction to entertain discovery error alleged in state’s appeal). The Arizona Constitution provides the legislature with the power to establish intermediate appellate courts and determine the scope of their powers. See Ariz. Const, art. 6, § 1. The Arizona legislature has statutorily provided for prosecutorial appeals in the following limited situations: An appeal may be taken by the state from: 1. An order dismissing an indictment, information or complaint or count of an indictment, information or complaint. 2. An order granting a new trial. 3. An order arresting judgment. 4. A ruling on a question of law adverse to the state when the defendant was convicted and appeals from the judgment. 5. An order made after judgment affecting the substantial rights of the state. 6. A sentence on the grounds that it is illegal, or if the sentence imposed is other than the presumptive sentence authorized by § 13-604 or 13-701. 7. An order granting a motion to suppress the use of evidence. 8. A judgment of acquittal of one or more offenses charged in an indictment, information or complaint or count of an indictment, information or complaint entered after a verdict of guilty on the offense or offenses. A.R.S. § 13-4032 (emphasis added). In this case, the state had the right, pursuant to § 13-4032(6), either to appeal or cross-appeal from the trial court’s refusal to treat defendant’s prior counts as “predicate felonies” for enhancement purposes. See, e.g., State v. Sands, 145 Ariz. 269, 700 P.2d 1369 (App.1985). The trial court’s failure to impose a sentence in conformity with the mandatory provisions of the sentencing statute makes that sentence “illegal” within the meaning of § 13-4032(6), and therefore properly appealable. State v. Gonzales, 141 Ariz. 512, 687 P.2d 1267 (1984). Furthermore, the trial court’s failure to impose a legal sentence is one of those rare situations from which the state can seek review even if it failed to object in the trial court. State v. Vargas-Burgos, 162 Ariz. 325, 783 P.2d 264 (App.1989). Our court of appeals has recently reasoned: Although it is preferable for any question regarding the appropriateness of a sentence to be brought to the trial court’s attention as soon as possible and certainly before the defendant files a notice of appeal, thereby depriving the trial court of jurisdiction to correct the sentence, we do not believe failure to do so waives the issue____ The state may appeal from an illegal sentence under A.R.S. § 13-4032(6) and raised its objection to the sentence imposed in the instant case in a cross-appeal, as it has repeatedly been urged to do____ We believe that the objections to the sentence were properly raised on appeal and were not waived by the state’s failure to object below. Vargas-Burgos, 162 Ariz. at 327, 783 P.2d at 266. Thus, had the state appealed from the sentencing judgment within 20 days or had it cross-appealed within 20 days after service of defendant’s notice of appeal, as provided in rule 31.3, Arizona Rules of Criminal Procedure, the court of appeals would have had the jurisdictional power, pursuant to § 13-4032(6), to consider the error. It also, would have had the statutory power to act to correct the error and modify the sentence to conform to the mandatory minimum statutory requirements of A.R.S. § 13-604.01. See A.R.S. § 13-4036. Had the trial court refused to correct such an error under circumstances in which it had the power to do so, its refusal to act would have been an abuse of discretion, correctable upon review to this court. The problem in this case, of course, is that the state failed to take the procedural steps to confer jurisdiction upon the court of appeals to consider the error. In the absence of a cross-appeal, therefore, the court of appeals was justified in refusing to correct the alleged sentencing error. We note that the court of appeals relied on a “waiver” theory first espoused by this court in State v. Tyree, 109 Ariz. 259, 508 P.2d 335 (1973), and followed by the court of appeals in State v. Ambalong, 150 Ariz. 380, 723 P.2d 729 (App.1986). In Tyree, this court noted that the defendant had received an illegally lenient sentence, but that the state had not appealed. We said, “Since the sentence imposed was not challenged by the state we deem the issue waived,” although we did not condone the sentence. 109 Ariz. at 261, 508 P.2d at 337. In Ambalong, the court of appeals noted that the trial court had erroneously failed to impose restitution, a mandatory requirement of the sentencing statute. The court of appeals did not correct the error, reasoning as follows: We believe that it was the duty of the state to insist upon the imposition of restitution. We originally issued an opinion in this case remanding to the trial court with directions to impose restitution. We vacated that opinion when the opinion in State v. Tyree, 109 Ariz. 259, 508 P.2d 335 (1973) came to our attention. Tyree holds if the state does not cross-appeal, the failure to impose a mandatory sentence is waived. We have reissued our opinion to stress that it is the duty of the state to insist upon the imposition of restitution and the duty of the trial court to impose the same regardless of whether or not the state presses the issue. Ambalong, 150 Ariz. at 381, 723 P.2d at 730. Although we believe that both these cases reached the right result, we find unfortunate their use of a “waiver” theory to support these holdings. “Waiver,” in its normal usage in appellate cases, applies to presumed abandonment of a claim not argued by a party prejudiced by that error, when that party is otherwise properly before the court on appeal. Waiver does not become an issue unless the state’s appeal is jurisdictionally before a court for consideration, which did not occur in either Tyree or Ambalong. As we have discussed above, the state’s failure to timely appeal or cross-appeal acts as a jurisdictional bar to its raising the error in defendant’s appeal. To the extent Tyree and Ambalong rely on “waiver” in any other sense, we disapprove that reasoning. 2. State’s Right of Review of Cross-Issues Without Appealing The state contends that, even in the absence of a jurisdictionally required appeal or cross-appeal, we must consider any illegally lenient sentence that the state raises in its answering brief. We have previously rejected the contention, in the absence of the state’s appeal or cross-appeal, that we are statutorily conferred with the power to consider any error raised by the state that is not in support of the judgment. See State v. Condry, 114 Ariz. 499, 562 P.2d 379 (1977). In Condry, we held as follows: The State directs to our attention in its brief the sentence which was imposed by the court below. It argues that the sentence was improper. We have repeatedly held that a cross-assignment of error in the absence of a cross-appeal can be considered only in support of the judgment. Hence, we do not reach the State’s second argument that defendant’s sentence was not authorized by law. 114 Ariz. at 501, 562 P.2d at 381. See also Hackin v. Gaynes, 103 Ariz. 13, 436 P.2d 127 (1968), and Bowman v. Board of Regents, 162 Ariz. 551, 785 P.2d 71 (App.1989) (both applying the same rule in the context of civil cases). We believe this rule applies to the present case and is supported by strong policy. The Wisconsin Supreme Court has explained its rationale: [W]hen the error complained of, if corrected, would sustain the judgment, order, or portion thereof appealed from, the respondent by common law is entitled to have review of such claimed error by raising the issue in its brief without service of a notice of review or notice of cross-appeal. The reason for this is the accepted appellate court rationale that a respondent’s judgment or verdict will not be overturned where the record reveals that the trial court’s decision was right, although for the wrong reason. An appellate court, consistent with that [precept], has the power, once an appealable order is within its jurisdiction, to examine all rulings to determine whether they are erroneous, and if corrected, whether they would sustain the judgment or order which was in fact entered. State v. Alies, 106 Wis.2d 368, 316 N.W.2d 378, 388 (1982). In this case, the state’s argument that the trial court imposed an illegally lenient sentence in violation of a statutory requirement is not one in support of the trial court’s judgment, and therefore cannot be considered as a cross-issue in the state’s brief in the absence of a cross-appeal. 3. Error Reviewable on an Appellate Court’s Own Motion Some types of error, even though not properly appealed from or raised as a cross-issue in support of a judgment, are nonetheless reviewable within an appellate court’s jurisdiction. Our scope of review has been statutorily broadened to include the entire record when a defendant appeals from a judgment, regardless of the grounds urged in that appeal. See A.R.S. § 13-4035. Thus, we will search the record and correct “fundamental error,” that is, error that goes to the foundation of the case and takes from a defendant a right essential to his defense, even if not raised in the trial court or on appeal. See State v. King, 158 Ariz. 419, 424, 763 P.2d 239, 244 (1988); State v. McGann, 132 Ariz. 296, 645 P.2d 811 (1982). We can review such error if the defendant confers jurisdiction on this court by filing an appeal and we are able to decide the case on its merits from the record. See, e.g., rule 21(b), Arizona Rules of the Supreme Court; State v. Tapp, 133 Ariz. 549, 653 P.2d 6 (1982). Obviously, a judgment not appealed from cannot be corrected by an appellate court no matter how blatantly and publicly that error appears on the face of the record. A defendant’s sentence, right or wrong, becomes subsumed into the final judgment. See State ex rel. McDougall v. Tvedt, 787 P.2d 1077, 1081 (Ariz.App.1989) (state was precluded from seeking special action review to increase defendant’s sentence after appeal time had expired and judgment was final). The judgment becomes final once the time to appeal has passed, unless further post-conviction relief is sought. See, e.g., rules 31.3(b) and 32.1(f), Arizona Rules of Criminal Procedure (providing for a defendant to take a delayed appeal); rule 32, Arizona Rules of Criminal Procedure (providing for post-conviction relief after the appeal time has run). The state argues, however, that appellate courts have a statutory duty similar to that imposed in A.R.S. § 13-4035, to search the record for sentencing error, even that which inures to the detriment of a defendant. The state relies on the following provisions of A.R.S. § 13-4037: A. Upon an appeal by the defendant either from a judgment of conviction or from sentence, if an illegal sentence has been imposed upon a lawful verdict or finding of guilty by the trial court, the supreme court shall correct the sentence to correspond to the verdict or finding. The sentence as corrected shall be enforced by the court from which the appeal was taken. (Emphasis added.) This provision is relevant not to our jurisdiction, but to our scope of review. The statute assumes the existence of subject matter jurisdiction conferred on the court when a defendant appeals from an illegal sentence pursuant to the jurisdictional authority of A.R.S. § 13-4033(3). It does not apply to increase our jurisdiction beyond the limits of A.R.S. § 13-4032 to allow us to correct errors alleged by the state in the absence of an appeal or cross-appeal by the state. We thus do not interpret the provisions of § 13-4037 so broadly as to give an appellate court the authority to increase a defendant’s sentence as a result of his own appeal. We believe this statute was intended to allow an appellate court to reduce an illegally severe sentence — that is, one be- yond the maximum allowed by statute, or one imposed for a greater crime than that for which defendant was convicted. The only statutory power we are afforded to increase an illegal sentence to conform to the judgment of conviction is predicated “[u]pon an appeal by the state.” See A.R.S. § 13-4038 (emphasis added). Indeed, the state has not brought to our attention any reported case in which an appellate court has utilized its power under A.R.S. § 13-4037 to increase a sentence in the absence of an appeal by the state, nor have we been able to find any. Our research in other jurisdictions has revealed that other state appellate courts will not consider such an increased sentence correction in the context of a criminal defendant’s appeal. See, e.g., Walker v. State, 516 So.2d 70, 72 (Fla.App.1987) (in the absence of an appeal by the state, the appellate court had no jurisdiction to correct a sentence to conform to the trial court’s ruling and include a mandatory restitution order); State v. Fraser, 484 So.2d 122 (La.1986) (appellate court does not have duty to correct every illegal sentence; patent error that is favorable to the defendant, in the absence of a cross-appeal, will not be corrected to defendant’s detriment); State v. Marshall, 411 N.W.2d 276, 281 (Minn.App. 1987) (the state’s contention in defendant’s appeal that the trial court committed a sentencing error could not be addressed because the state did not appeal the sentence as it could have under Minn.R. Crim.P. 28.04); State v. Ogar, 229 N.J.Super. 459, 551 A.2d 1037, 1044 (App.1989) (failure to cross-appeal precludes a respondent from attacking an adverse portion of a judgment). See also United States v. Adams, 771 F.2d 783 (3d Cir.1985) (in absence of appeal by the government, court of appeals would not direct a sentence more severe than the one appealed). Cf. State v. Babbell, 770 P.2d 987, 993-94 (Utah 1989) (where the statutory provisions do not provide the state with a right to cross-appeal to raise a sentencing error, and where the state raised the issue in its oral argument or brief in defendant’s appeal, the appellate court would consider the error and remand to require the trial court to impose the minimum mandatory provisions of the sentencing statute). Those courts that have entertained such sentencing errors in the context of a criminal defendant’s appeal have generally either failed to consider the jurisdictional impediment to such an action, or have remanded to correct a sentencing error that would not necessarily result in detriment to the defendant. See, e.g., People v. Benton, 100 Cal.App.3d 92, 161 Cal.Rptr. 12 (1979) (trial court’s error, raised only in state’s brief, in failing to pronounce judgment on 5 priors and in staying part of prison term without justification was the type of unauthorized sentence that can be corrected by remand on defendant’s appeal); People v. Bowers, 92 A.D.2d 669, 461 N.Y.S.2d 900 (1983) (“At the outset, we note that the court failed to fix a minimum term of imprisonment as required by law____ Although the issue is not raised in either brief, we conclude that the matter should be remitted for re-sentencing in compliance with the statute”); Atkins v. State, 437 N.E.2d 114, 119 (Ind.App.1982) (appellate court, on its own motion, remanded one-year sentence for imposition of mandatory two-year minimum; no discussion regarding subject matter jurisdiction to do so). We find these cases either distinguishable or unpersuasive. The Louisiana Supreme Court has taken an approach to this issue with which we agree. In a per curiam opinion in 1983, that court held: When the defendant alone seeks review of a conviction and sentence, the court of appeal should review only those issues raised by the defendant and any patent errors favorable to defendant. The court of appeal erred in this case by reviewing a sentencing error unfavorable to defendant, thereby providing a chilling effect on defendant’s exercise of his right to appeal. State v. Napoli, 437 So.2d 868 (La.1983). A year later, the same court held that, although its rules of criminal procedure at that time allowed an appellate court to take notice of the illegality of a sentence as an error “patent on the face of the record,” an appellate court could not, on its own motion, take cognizance of a sentencing error not properly raised on appeal and render a sentencing judgment less favorable to the defendant than the judgment from which he appealed. State v. Jackson, 452 So.2d 682 (La.1984). The court reasoned: An unsought modification by an appellate court, if the result is a harsher sentence, either is or appears to be retaliatory in nature. Such modifications thus may produce a “chilling effect” on the exercise of the right of appeal. Jackson, 452 So.2d at 683. Following these two decisions, the applicable Louisiana procedural rule was amended in an apparent attempt to overrule these cases and others. See State v. Fraser, 471 So.2d 769, 773 (La.App.1985) (Fraser I). The amendment provided that an illegal sentence could be corrected at any time by an appellate court on review. The amended rule, based in part on former rule 35, Federal Rules of Criminal Procedure (repealed effective November 1, 1987), was interpreted by the Louisiana Court of Appeal to include correction of sentencing errors “even though the result may not be favorable for the defendant.” Fraser I, 471 So.2d at 75-76. In its review of that decision, the Louisiana Supreme Court disagreed, reasoning that the amendment did not suggest that an appellate court had power to correct a sentencing error in the absence of a proper application for review by either the defendant or the prosecutor; the court concluded that “there is no codal or statutory authority for an appellate court to search the record for patent sentencing errors to the detriment of the only party who sought review by the appellate court.” State v. Fraser, 484 So.2d 122, 124 (La.1986) (Fraser II). The court further reasoned: We also base our decision on the proper allocation of functions between the appellate court and the prosecutor. We note that the appearance of an impartial judiciary is not served when an appellate court supplies an objection to the prosecutor who has not complained that the defendant did not receive the harshest minimum sentence under the penalty statute. It is the prosecutor’s duty to protect the state’s interest in obtaining adequate sentences, and the criminal justice system suffers no detriment from the application of time-honored procedur- . al rules which require the parties, and not the appellate court, to complain of some dissatisfaction with the judgment of the lower court in order to obtain any favorable change in the judgment or appeal. We therefore conclude that the amendment to Article 882 did not affect these basic procedural concepts, nor did it modify our holding in the Jackson case. Fraser II, 484 So.2d at 125. We believe similar policy considerations should preclude our interpreting § 13-4037 to include a statutory duty requiring appellate courts to search for error detrimental to the defendant in his own appeal. The state has been afforded specific and ample procedural vehicles to enable it to correct sentencing error both in the trial court, see rule 24.3, and on appeal, see A.R.S. § 13-4032(6). Our power to correct an illegal sentence to correspond to a verdict is predicated on an appeal by the state. It is not the function of an appellate court to expand this process by undertaking to seek out error the state has neglected to pursue through proper jurisdictional channels. Therefore, we will continue to decline correction of illegally lenient sentences in the absence of proper appeals or cross-appeals by the state. We hold that the court of appeals did not err in refusing to correct the alleged sentencing error in the context of defendant’s appeal. Conclusion In the absence of a timely appeal or cross-appeal by the state seeking to correct an illegally lenient sentence, an appellate court has no subject matter jurisdiction to consider that issue. The state cannot preserve the issue for review by raising it in its answering brief in defendant’s appeal, because this is not a cross-issue in support of the trial court’s judgment. An appellate court cannot, within the scope of its own review of defendant’s appeal, correct a sentencing error that inures to the detriment of a criminal defendant. The court of appeals thus correctly refused to consider the sentencing error in this case. The judgment is affirmed. GORDON, C.J., FELDMAN, V.C.J., and MOELLER, J., concur. . The state also has a procedural remedy available to correct an illegal sentence in the trial court. Rule 24.3, Arizona Rules of Criminal Procedure, provides as follows: Modification of Sentence. The court may correct any unlawful sentence or one imposed in an unlawful manner within 60 days of the entry of judgment and sentence but before the defendant's appeal, if any, is filed. The comment to rule 24.3 explains: “An unlawful sentence is one not authorized by law____ [T]he Rule 24.3 motion assumes the correctness of the judgment [of conviction], but attacks the validity of the sentence.” Thus, the state has the opportunity to bring the sentencing error to the trial court’s attention for correction without filing an appeal. We strongly urge the state to utilize this procedure whenever possible before filing an appeal or cross-appeal from an illegal sentence. . La.Act.1984, No. 587, amended La.C.Cr.P. Art. 882 to read as follows: A. An illegal sentence may be corrected at any time by the trial court that imposed the sentence or by an appellate court on review. B. A sentence may be reviewed as to its legality on the application of the defendant or of the state: (1) In an appealable case by appeal; or (2) In an unappealable case by writs of certiorari and prohibition. We note that in a recent case, the Louisiana Court of Appeal, apparently in reliance on this article, considered a sentencing error raised in the state’s answering brief to defendant’s appeal and remanded to the trial court for resentenc-ing. State v. Restrepo, 544 So.2d 512 (La.App. 1989). The Restrepo court distinguished Fraser II as follows: "An illegally lenient sentence may not be corrected by the appellate court on its own motion. State v. Fraser____ However, in a case such as this where the State raises the issue in appellate brief, this issue should be considered.” 544 So.2d at 515. Without engaging in a discourse on Louisiana law, we disagree with the reasoning of the Res-trepo court, and do not believe that the policy considerations set forth in Fraser II support such a distinction. Under Arizona law, as we have previously pointed out, an appellate court cannot consider those issues raised by the state in an answering brief that do not support the judgment from which the defendant appeals. State v. Condry, 114 Ariz. at 501, 562 P.2d at 381.

EHRLICH, Judge. Loren Edward Van Den Berg appeals from his conviction for aggravated assault and endangerment and from the trial court’s denial of post-conviction relief. Van Den Berg was indicted on two counts of aggravated assault and two counts of endangerment committed with a deadly weapon. His first trial began on August 10, 1987. Prior to trial, the prosecutor orally moved in limine to prohibit testimony concerning any juvenile records which the victims may have had. Defense counsel did not object, not knowing of any records, and the trial court granted the motion. The jury was unable to reach a verdict and the court declared a mistrial. Van Den Berg’s second trial began on October 7,1987. The jury found him guilty on each count; it also found that the offenses were of a dangerous nature. The trial court denied Van Den Berg’s pro se motion for a new trial. It sentenced him to five and one-half years imprisonment for each count of aggravated assault and one year imprisonment for each count of endangerment, with all terms to run concurrently. The court also assessed Van Den Berg $400 in mandatory felony assessments. Van Den Berg filed a timely notice of appeal. While the appeal was pending, Van Den Berg filed a petition for post-conviction relief. The trial court summarily denied relief. Van Den Berg filed a motion for rehearing, which was denied. He then filed a timely petition for review. This court consolidated the petition for review with the direct appeal. The facts as taken in the light most favorable to sustaining the verdict, State v. Zmich, 160 Ariz. 108, 109, 770 P.2d 776, 777 (1989), are that, on September 16, 1986, Van Den Berg fired several shots into the air and into the ground to frighten two teenage boys, Shane and Jerry. Shane and Jerry testified that they had been bicycling past Van Den Berg’s residence when they were attacked by his dog. They testified that Van Den Berg came out of his trailer and began shouting at the boys. When they yelled back, Van Den Berg returned to his trailer, came back out with a rifle, pointed the rifle at Jerry, and fired several shots into the air and ground. After the incident, Shane and Jerry contacted the police. Van Den Berg testified at trial, however, that he had heard his dog barking and had gone outside from his trailer. The trailer was parked in a lot where there was a house being remodeled by Van Den Berg. He found three teenagers trespassing on the front porch of that house; he told them to leave. The three boys became abusive and moved towards him in a threatening manner. Van Den Berg went to his trailer, got his rifle, and fired warning shots to drive the trespassers away. His defense at trial was that he was defending his property from burglary and trespass and that he had felt threatened by the teenagers. Van Den Berg was represented by counsel. Van Den Berg’s appeal and petition for review raise the following issues: (1) Did the trial court err in denying Van Den Berg’s petition for post-conviction relief? (2) Was Van Den Berg prejudiced by the lack of disclosure of information that may have shown that Shane had a motive to lie about the incident? (3) Was Van Den Berg prejudiced by the prosecutor’s expression of his personal opinion that Van Den Berg’s conduct constituted endangerment? We grant review and relief in part and remand this case for further proceedings. Prior to the first trial, the prosecutor orally moved in limine to preclude Van Den Berg from introducing any evidence regarding the victims’ possible juvenile criminal records. The trial court granted the motion. Defense counsel made no such references in either trial, apparently believing that there were no such records on either juvenile. After his conviction, however, Van Den Berg hired a private investigator and argued in a petition for post-conviction relief that Shane had an extensive juvenile record, including a number of arrests and convictions for burglary and theft. Van Den Berg contends that the trial court erred by preventing defense counsel from introducing evidence of Shane’s prior juvenile record. Van Den Berg acknowledges that Rule 609(d), Arizona Rules of Evidence, limits the introduction of evidence of juvenile adjudications. He contends, however, that Shane’s prior juvenile adjudications would help to prove Shane’s bias or motive to lie in order to protect his vulnerable status as a juvenile probationer, and therefore would be admissible under Rule 404(b), Arizona Rules of Evidence. See M. Udall and J. Livermore, Law of Evidence, § 84 (2nd ed. 1982). We must consider the admissibility of Shane’s prior juvenile record under Rules 609(d) and 404(b) in light of the United States Supreme Court’s decision in Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). In Davis, the defendant was charged with burglary and grand larceny. At trial, the state’s key witness was a juvenile who, at the time of the burglary, was on probation as the result of a juvenile adjudication for burglary. Davis sought to introduce the juvenile witness’ probationary status to show that the witness had a motive to fabricate a story in order to divert suspicion from himself. The trial court granted a protective order, citing Alaska’s Rules of Children’s Procedures, forbidding Davis from introducing evidence of the witness’ prior juvenile adjudications. The trial court did permit the defendant to attempt impeachment of the witness without reference to the juvenile adjudications. Davis was convicted. The Supreme Court reversed Davis’ conviction, holding that the protective order preventing Davis from introducing evidence of the witness’ status as a juvenile probationer violated Davis’ Sixth Amendment right of confrontation. While counsel was permitted to ask [the witness] whether he was biased, counsel was unable to make a record from which to argue why [the witness] might have been biased or otherwise lacked that degree of impartiality expected of a witness at trial. On the basis of the limited cross-examination that was . permitted, the jury might well have thought that defense counsel was engaged in a speculative and baseless line of attack on the credibility of an apparently blameless witness or, as the prosecutor’s objection put it, a “rehash” of prior cross-examination. On these facts it seems clear to us that to make any such inquiry effective, defense counsel should have been permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. Petitioner was thus denied the right of effective cross-examination which “would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.” [Citations omitted; emphasis original.] Id. at 318, 94 S.Ct. at 1111. The Court concluded that “the right of confrontation is paramount to the state’s policy of protecting a juvenile offender.” Id. at 319, 94 S.Ct. at 1112. Accord State v. Myers, 117 Ariz. 79, 88, 570 P.2d 1252, 1261 (1977); cf. State v. Morales, 120 Ariz. 517, 520-21, 587 P.2d 236, 239-40 (1978) (proper to preclude use of witness’ juvenile record when “sought only for the purpose of attacking his general credibility and did not go to a bias or motive for his trial testimony”). Van Den Berg’s newly-discovered evidence indicates that Shane may have been on juvenile probation in California on the date of the incident. If Shane was on probation, then Davis clearly applies. In this case, as in Davis, the credibility of a key state witness would be seriously damaged by evidence of that witness’ juvenile probation as a motive for fabrication. Shane’s motive for lying would have been stronger than that of the witness in Davis since Van Den Berg’s testimony indicated that he had interrupted Shane and his companions in the act of criminal trespass or attempted burglary. In its order denying Van Den Berg’s petition for postconviction relief, the trial court incorrectly stated that Van Den Berg had failed to request information about the state’s witnesses’ criminal records. Defense counsel filed a standard motion for discovery requesting that the prosecutor divulge “[a]ll material or information which tends to mitigate or negate the defendant’s guilt as to the offense charged, or which would tend to reduce his punishment therefore, including all prior felony convictions of witnesses whom the prosecution expects to call at trial.” This request encompassed Shane's juvenile record. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985). Instead, in making an oral motion in limine to prohibit use of a juvenile’s history, the prosecutor asserted that he did not know whether there even was a juvenile record for either Shane or Jerry but that, if there were, it could not be used for impeachment purposes. [Prosecutor]: Yes, Your Honor, just a motion in limine I guess it would be to preclude the defense counsel from — I don’t know if there’s any information even but if there is prior juvenile history of any of the juveniles under the rule— and I don’t have my book with me — but if there is he can’t bring up the juvenile’s prior record or any prior history of criminal activity if — for impeachment purposes. I’m not — it just struck me. I would just ask for the record that he be admonished not to make any reference to any prior juvenile history or criminal conduct by either of the two juveniles if they exist and that would include any inference to this incident in the questions. If Shane was on probation on September 16, 1986, then Van Den Berg was entitled to know this and to use Shane’s status as a probationer to impeach him. When presented with Van Den Berg’s newly-discovered evidence indicating that Shane may have been on probation on September 16, 1986, the trial court should have inquired whether Shane was in fact on probation. We therefore remand with instructions to the trial court to make a determination as to whether Shane was on probation in Arizona or any other state on September 16, 1986. If Shane was on probation, then the trial court’s order preventing Van Den Berg from introducing evidence of Shane’s juvenile record was a violation of Van Den Berg’s Sixth Amendment right to confrontation, and he must be given a new trial without further order of this court. If he was not on probation, then the conviction stands. In his petition for post-conviction relief, Van Den Berg argues that he received ineffective assistance from trial counsel. The United States Supreme Court set forth the standard for determining effectiveness of counsel in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See also State v. Fisher, 152 Ariz. 116, 118, 730 P.2d 825, 827 (1986). In order to establish ineffective assistance of counsel, a defendant must show that “counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 689,104 S.Ct. at 2064. A defendant must also show that counsel’s ineffectiveness prejudiced him at trial. Id. at 692, 104 S.Ct. at 2067. Defense counsel made the requisite effort on behalf of his client. We find nothing to show that his conduct constituted ineffective assistance of counsel. The above suggests an issue that bears mention to prevent repetition. In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963), the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment irrespective of the good faith or bad faith of the prosecution.” See also State v. Rivera, 152 Ariz. 507, 511, 733 P.2d 1090, 1094 (1987). In this case, the defense counsel made the appropriate discovery request. Bagley, 473 U.S. at 676, 105 S.Ct. at 3380. It appears from the record that the prosecutor failed to comply with the dictates of Brady. This failure precipitated the necessity of a remand in this case to ascertain whether a new trial is necessary. See Bag-ley, 473 U.S. at 676, 105 S.Ct. at 3380. Additionally, the prosecution’s theory at trial was that Van Den Berg endangered Shane and Jerry by firing his weapon in their presence. During closing arguments, the prosecutor stated, without objection: That ladies and gentlemen is substantial risk and also the pointing of a gun at Jerry. Just the fact they’re in the area where the fragments are flying. Remember Mr. Hueske. He said he measured that fragment. They were what made up the bullet. He testified they were high intensity type of bullets and that they had a strong knock down power whatever they hit so was there a substantial likelihood Shane and Jerry were going to be injured or be killed. I think so ladies and gentlemen based on the evidence. [Emphasis added.] It is improper and unethical for an attorney in his closing argument to express his personal opinion as to a defendant’s guilt or innocence. State v. Byrd, 109 Ariz. 10, 11, 503 P.2d 958, 959 (1972). The prosecutor’s comment was more than an expression of his opinion as to the weight of the evidence; he was stating his opinion that the ultimate question at issue had been established. Because defense counsel did not object to the prosecutor’s statement, Van Den Berg waived this issue absent fundamental error. State v. Kreps, 146 Ariz. 446, 450, 706 P.2d 1213, 1217 (1985). In order to constitute fundamental error, the prosecutor’s comment had to be so egregious as to deprive the defendant of a fair trial, and to render the resulting conviction a denial of due process. State v. Dumaine, 162 Ariz. 392, 401, 783 P.2d 1184, 1193 (1989), citing United States ex rel. Shaw v. De Robertis, 755 F.2d 1279 (7th Cir. 1985). Because this was a solitary comment with no objection, and the jury was instructed that the attorneys’ opinions were not evidence, no fundamental error depriving Van Den Berg of a fair trial occurred. Cf. State v. Filipov, 118 Ariz. 319, 323-24, 576 P.2d 507, 511-12 (App. 1978). However, we admonish the prosecutor not to make such statements should a new trial be granted in this case. For the foregoing reasons, this matter is remanded to the superior court with instructions to determine whether Shane was on juvenile probation on September 16, 1986. If the trial court so finds, it is directed to grant Van Den Berg a new trial. GRANT, C.J., concurs.

OPINION FIDEL, Judge. The Industrial Commission found the claimant Clyde Simpson’s industrial injury medically stationary without permanent disability. We review and set aside that award. In the course of our opinion, we consider the fourth edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (“the Guides”), which provides, as previous editions did not, for the rating of chronic pain. We consider whether, by virtue of this revision, the Guides provide the exclusive means for evaluating permanent impairment attributable to persistent residual pain. We conclude that they do not; the Guides do not purport to provide, and may not be assumed by the Industrial Commission to provide, a comprehensive measure of impairment by pain. We hold that the law remains after the fourth edition, as before, that disabling pain resulting from an industrial injury is compensable, even though the degree of impairment may not be ratable pursuant to the Guides. BACKGROUND In 1994, Clyde Simpson, a farm laborer, sustained an industrial back and neck injury when an automobile struck a spray bar on his tractor. Simpson’s workers’ compensation claim was accepted for temporary benefits, and he received physiotherapy and chiropractic treatment for persistent neck and back pain. When his employer’s insurer eventually closed the claim, determining that Simpson had no permanent disability, Simpson requested a hearing. At the hearing, Simpson did not dispute that he was medically stationary, but maintained that his industrial accident resulted in permanently disabling neck pain, which prevented his return to heavy lifting and tractor driving. The parties disputed whether his residual pain symptoms constituted a permanent impairment and, if so, whether the impairment resulted from the present or a pri- or accident. Simpson underwent eight to ten months of medical treatment for neck and low back pain after a 1987 automobile accident. Eventually he returned to his pre-accident employment at a cement block factory notwithstanding the opinion of Dr. Li — then his treating physician — that he should not do so. After returning to work, according to Dr. Li’s medical records, Simpson continued in February 1988 to experience “recurrent pain and discomfort in his neck and low back” and, as of April 1988, had not regained full motion in his neck. After sustaining the present injury in 1994, Simpson was evaluated by Drs. Kelley and Stojic, who testified at the hearing and agreed on all material points but one. Drs. Kelley and Stojic agreed that Simpson suffered from pre-existing multi-level degenerative cervical disc disease related to his 1987 accident, agreed that he had no objective condition that would preclude his return to work, and agreed that he suffered from disabling subjective pain that rendered him unable to resume heavy farm labor. They disagreed in part over the source of his disabling pain. Dr. Kelley attributed Simpson’s neck pain to his 1994 industrial injury. He based this attribution on Simpson’s history of unrestricted heavy labor for a number of years preceding the present injury, during which, according to Simpson, he was not experiencing neck pain. Dr. Stojic differed from Dr. Kelley by attributing Simpson’s symptoms in part to degenerative arthritic changes resulting from his prior injury. Dr. Stojic acknowledged, however, that Simpson’s pain complaints were “related at least in part to the industrial injury.” Faced with some degree of conflict in the medical testimony, the Administrative Law Judge (“ALJ”) resolved it in favor of Dr. Stojic. The ALJ found, and attributed the finding to Dr. Stojic, that Simpson’s inability to return to heavy farm labor is unrelated to his industrial injury. After exhausting the administrative review process, Simpson petitioned this court for appellate review. He argues that the evidence does not support the ALJ’s finding that his inability to return to work is unrelated to his present injury. He also attacks the ALJ’s alternative finding that any disability attributable to his residual pain is noncompensable because it does not constitute a ratable permanent impairment under the Guides. We consider each argument in turn. EVIDENCE OF DISABLING PAIN We take the evidence in the light most favorable to sustaining the award and do not reweigh it. Salt River Project v. Industrial Comm’n, 128 Ariz. 541, 544-45, 627 P.2d 692, 695-96 (1981). We will affirm an award that is supported by any reasonable theory of the evidence. Carousel Snack Bar v. Industrial Comm’n, 156 Ariz. 43,46, 749 P.2d 1364,1367 (1988). In his findings, the ALJ stated: Dr. Stojic testified that even if some of [Simpson’s] continuing pain complaints are related to his 1994 injury, the current work restriction stems entirely from degenerative changes resulting from [Simpson’s] 1987 injury. ... [Simpson’s] current inability to return to his date of injury employment is not causally related to his 1994 injury but instead is the result of other factors, including degenerative changes caused by [Simpson’s] 1987 injury and other conditions ... which are unrelated to the 1994 industrial incident. (Emphasis added.) Simpson argues that the ALJ erred in attributing the opinion to Dr. Stojic that Simpson’s inability to return to heavy farm labor is “entirely” related to his 1987 injury. In making this finding, according to Simpson, the ALJ overlooked the fact that Dr. Stojic attributed Simpson’s inability to work to his symptoms of pain and attributed those symptoms “at least in part” to his 1994 injury. Simpson is correct. On direct examination, Dr. Stojic stated that Simpson had no “indications for the work restrictions” that related to his 1994 industrial injury; Simpson had degenerative cervical changes attributable to his 1987 injury, but had not “ac[c]rued any permanency” from the 1994 injury. From the context of this testimony, it is clear that Dr. Stojic was referring in these opinions to objective, physical indications of permanent impairment. During cross-examination, Dr. Stojic addressed the source of Simpson’s continuing subjective complaints of pain: Q---- Is it fair to say ... that ... [Simpson’s] complaints of pain were more likely related to the old injury rather than the new injury? A. To a certain extent. I cannot negate the fact that [Simpson] sustained a second injury in the second motor vehicle accident. So, complaints of pain ... are always subjective and ... he does have some degenerative changes, ... there was no doubt in my mind that he doesn’t (sic) have pain but the pain itself, I mean, it’s not sufficient as we know to make a decision whether the patient incurred any permanency or not. Q. Under the AMA Guides? A. Correct. Q____ Doctor, you’re saying now that all of these complaints of pain are not all related to the old accident but that you’re conceding that probably some of them are related to the new accident too? A. Yes. Sure____ [Simpson] was seen by many physicians and they have treated his problem. Q____ [Y]ou have no doubt that [Simpson] is limited by the symptoms but you’re saying it’s not related to the [new] injury? A. That’s correct. Q____ [I]f we accept his history or that his statements to you are correct of how he is limited, you would recommend that he not go back ... solely on the symptoms to the heavy work of the farming? A. Heavy labor work; correct. Q. And ... you would include the farming? A Yes. Q. And those symptoms are related at least in part to the industrial injury? A. Subjective symptoms, yes. Because Dr. Stojic frequently shifted focus from objective symptoms to subjective complaints, his testimony is somewhat hard to follow. When these elements are distinguished, however, the doctor’s testimony may be summarized as follows: (1) no objective physical condition prevents Simpson’s return to work; (2) persistent residual pain prevents his return to heavy farm labor; (3) Simpson’s residual pain is related in part to his 1994 injury. A medical condition need not be solely attributable to an industrial accident to be compensable; it suffices that the condition be attributable in part. Allen v. Industrial Comm’n, 124 Ariz. 173,175, 602 P.2d 841, 843 (App.1979). Dr. Stojic’s testimony established a causal relationship between Simpson’s industrial injury, residual pain, and inability to return to heavy farm labor. The ALJ was simply mistaken in attributing to Dr. Stojic the opinion that Simpson’s work restrictions are wholly attributable to his 1987 injury. AMA GUIDES This does not conclude our inquiry; the ALJ provided an alternative basis for his award, concluding that, even if Simpson’s pain complaints are attributable to his industrial injury, they are not compensable because they “do not constitute a ratable impairment under applicable AMA Guidelines.” Simpson argued at the hearing that he was not obliged to establish a permanent impairment pursuant to the Guides, and that he had done so instead on the basis of undisputed medical testimony that his symptoms of pain, though unratable under the Guides, preclude him from returning to his date-of-injury employment. In support of this assertion, Simpson cited Cassey v. Industrial Comm’n, 152 Ariz. 280, 288, 781 P.2d 645, 648 (App.1987), in which this court concluded that a claimant may establish, independent of the Guides, that disabling pain constitutes a permanent impairment by showing (1) a causal relationship between residual pain and an industrial injury and (2) a resulting permanent inability to return to former work. The ALJ dismissed Cassey as applicable only to a prior edition of the Guides that provided no basis for rating impairing pain. The ALJ stated: The Cassey holding is ... inapplicable in this matter since the current edition of the AMA Guidelines (unlike the edition at issue in Cassey) does [provide] for the rating of chronic pain complaints. See Guides to the Evaluation of Permanent Impairment, Chapt. 15 (4th Ed.). When, as in this case, the AMA Guidelines do provide a “fair, accurate measure of the degree of impairment,” there is no need to resort to other factors such as work restrictions to resolve the impairment issue. ... Because the medical evidence establishes that [Simpson’s] current chronic pain complaints do not constitute a ratable impairment under applicable AMA Guidelines, ... [Simpson] is not entitled to permanent benefits. (citations omitted). In drawing this conclusion, the ALJ misread both pertinent case law and the Guides. Our discussion begins with Industrial Commission Rule R20-5-113(D): Upon discharge from treatment the physician shall report any rating of any impairment of function as the result of the injury. Any rating of the ... functional impairment should be in accordance with the standards for the evaluation of permanent impairment as published by the American Medical Association in “Guides to the Evaluation of Permanent Impairment”, if applicable. Arizona Administrative Code (“A.A.C.”) R205-113(D) (Supp.96-4). Pursuant to this rule, impairments “should” be rated under the Guides, “if applicable.” Id. Arizona courts, however, have repeatedly held that “[t]he AMA Guides are not to be blindly applied regardless of a claimant’s actual physical condition.” W.A. Krueger Co. v. Industrial Comm’n, 150 Ariz. 66, 68, 722 P.2d 234, 236 (1986). When the Guides do not cover, or do not permit accurate assessment of, a claimant’s impairment, that does not mean that the impairment is not compensable. It means rather that the impairment may be established by other means. See id. at 68, 722 P.2d at 236; accord Gomez v. Industrial Comm’n, 148 Ariz. 565, 569, 716 P.2d 22, 26 (1986); Smith v. Industrial Comm’n, 113 Ariz. 304, 306-07, 552 P.2d 1198, 1200-01 (1976); Adams v. Industrial Comm’n, 113 Ariz. 294, 295-96, 552 P.2d 764, 765-66 (1976). Smith and Cassey illustrate this general proposition in cases involving the evaluation of disabling pain. In Smith, a partially recovered claimant was limited by permanent residual pain from returning to heavy work. 113 Ariz. at 305, 552 P.2d at 1199. The treating physician testified that he could rate the claimant’s impairment, but had not done so because the Guides provided no methodology for rating subjective pain. Id. at 305-06, 552 P.2d at 1199-1200. The Industrial Commission found that the claimant had failed to establish a permanent impairment, but the supreme court set the award aside. The court held that the inapplicability of the Guides did not preclude evaluating claimant’s impairment; it simply necessitated doing so by other criteria. Id at 307, 552 P.2d at 1201. In Cassey, as in Smith, a partially recovered claimant suffered from residual impairing pain, and the Guides provided no basis for measuring the degree of impairment. 152 Ariz. at 280, 731 P.2d at 645. In Cassey, however, no physician suggested, as the treating physician had in Smith, that the degree of impairment could be evaluated by some other methodology. The Industrial Commission denied compensation, finding that some rating of degree of impairment was necessary. This court set the award aside. We distinguished cases of disabling pain from other cases of permanent impairment. Ordinarily, we explained, the Industrial Commission engages in a bifurcated assessment, first determining “the existence and degree of a permanent impairment,” and then determining the disability — the diminution of earning capacity — attributable to the impairment. Id. at 283, 731 P.2d at 648. We then explained why different treatment is accorded to cases of residual pain: In some cases, however, the claimant must establish the disabling effect of the industrial injury in order to establish a permanent impairment. This is true when residual pain is the permanent injury because pain is compensable as an impairment only when it is disabling____ Because of the intertwined issues when pain is the only residual permanent injury, the claimant must be allowed to introduce evidence of disability in order to show impairment. During the first stage, the claimant meets his burden of proof in showing the existence of a permanent impairment if he shows that the pain is caused by his industrial injury and results in his permanent inability to return to his former work. Once this initial burden has been met, claimant is then entitled to go through the second stage, during which he must show that the pain resulted in lost earning capacity. The claimant cannot be barred from proceeding to this second stage by his failure to provide a rating of impairment when none is applicable. Id. (citations omitted). In this case, the ALJ acknowledged Cassey but found it inapplicable because “the current edition of the AMA Guidelines (unlike the edition at issue in Cassey) [provides] for the rating of chronic pain complaints.” The ALJ erred in treating the revised Guides as providing a comprehensive methodology for evaluating pain. He likewise erred in treating the revised Guides as mooting Cassey as guiding authority in cases of permanently impairing pain. Although the current Guides indeed provide a methodology for rating “chronic pain complaints” that was absent when Cassey was decided, the Guides do not purport to do so for the entire spectrum of disabling pain. To the contrary, the fourth edition of the Guides narrowly defines “chronic pain” and distinguishes it from other forms of pain, including “persistent pain.” Neither Dr. Stojic nor Dr. Kelley testified that Simpson had “chronic pain” as defined by the Guides; nor did either testify that the Guides ’ methodology for evaluating “chronic pain” would permit a fair and accurate measure of Simpson’s form of pain; nor did either testify that Simpson had any other condition to which the Guides ’ methodology might apply. Dr. Kelley did not address the point, and Dr. Stojic merely testified' that “pain itself’ is “not sufficient ... to make a decision whether the patient incurred any permanency or not” under the Guides. This evidence does not support the ALJ’s conclusion that the Guides provided a “fair, accurate measure of the degree of [Simpson’s] impairment.” Rather, it establishes the contrary to be true. The claimant has the burden of proving the existence of an industrially-related permanent impairment. See Brooks v. Industrial Comm’n, 24 Ariz.App. 395, 399, 539 P.2d 199, 203 (1975). Because the Guides were inapplicable in this case, Simpson was entitled to introduce other evidence to meet this burden. See Smith, 113 Ariz. at 306-07, 552 P.2d at 1200-01; Cassey, 152 Ariz. at 282, 731 P.2d at 647. Testimony from both medical experts established that Simpson’s condition is medically stationary, that he suffers from industrially-related residual pain, and that his pain precludes his return to heavy farm labor. This evidence sufficed to establish impairment under Cassey. CONCLUSION For the foregoing reasons, we set the award aside and remand for a new hearing. KLEINSCHMIDT, P.J., and PATTERSON, J., concur. . Because we find Simpson correct on both points, we do not reach his additional argument that the ALJ failed to make specific credibility findings. . The Guides provide in part: Chronic pain represents the nidus of the chronic pain syndrome. Chronic pain may be referred to as "chronic benign pain” to differentiate it from the pain related to a malignant neoplasm. Pain of long duration is properly referred to as "persistent pain,” with the term "chronic pain” being reserved for the devastating and recalcitrant type with major psychosocial consequences. In this chapter, the term "chronic pain” is synonymous with "chronic pain syndrome.” Under the Guides definitions, persistent pain may exist in the absence of chronic pain, but chronic pain always presumes the presence of persistent pain.

OPINION LANKFORD, Judge. Manuel Ochoa (“defendant”) appeals his convictions and sentences for four counts of attempted murder and one count of drive-by shooting, all class 2 dangerous felonies, and one count of assisting a criminal street gang, a class 3 felony. For the reasons that follow, we affirm his convictions and sentences. We view the evidence at trial in the light most favorable to upholding the jury verdicts. State v. Atwood, 171 Ariz. 576, 596, 832 P.2d 593, 613 (1992), cert, denied, 506 U.S. 1084, 113 S.Ct. 1058, 122 L.Ed.2d 364 (1993). On the evening of January 12, 1995, the victim was celebrating his birthday in the yard outside his house in the Sunnyslope neighborhood of Phoenix. Also present were two friends who, like the victim, were members of Northside Los Cuatros Milpas (“LCM”) — a street gang — as well as a third friend who was not a gang member. The victim observed a blue Monte Carlo or Grand Prix drive by. The car was driven by Frank Rodriguez. Defendant was in the passenger seat. As the victim watched, defendant fired a handgun at him and his three companions. The victim was struck by four rounds. The victim’s companion was hit once in the leg. At the scene of the shooting, the victim told police that he had been shot by “PN,” a reference to the Pico Nuevo street gang. Police interviewed Rodriguez, a member of that gang. Rodriguez did not admit involvement in the shooting. However, he informed detectives that his sister had been shot by an LCM member. The day after the shooting, police located a stolen blue Monte Carlo that had been abandoned in the Sunnyslope neighborhood. Officers found 9 mm. shell casings inside the car. After the shooting, officers found bullet fragments and 9 mm. shell casings on the street near the victim’s house. The day after the shooting, Phoenix Police Officer Vincent Bingaman stopped a Plymouth Sundance owned by Michelle Aguilera and driven by defendant. Underneath the passenger seat, where Aguilera was sitting, Officer Bingaman found a 9 mm. semiautomatic pistol. A criminalist testified that shell casings found in the abandoned Monte Carlo were ejected from the handgun found in Aguilera’s car. The criminalist also testified that bullet fragments at the crime scene were fired from that same weapon. Defendant and Rodriguez were tried together. The jury was unable to reach a verdict on any of the charges against Rodriguez, but found defendant guilty of all charges. The jury also found that Counts I through V of the indictment, alleging attempted murder and drive-by shooting, were dangerous offenses. The trial court determined that those five offenses were committed “with the intent to promote, further or assist any criminal conduct by a criminal street gang,” supporting a further sentence enhancement under Ariz.Rev.Stat. Ann. (“A.R.S.”) section 13-604(T) (Supp.1996). The court sentenced defendant to enhanced, presumptive terms of 13.5 years imprisonment on each of Counts I through V and to a presumptive term of 3.5 years imprisonment on Count VI, assisting a criminal street gang. The sentences were ordered to run concurrent to one another. Defendant filed a timely notice of appeal and raises the following issues: 1. Did the trial court err in denying defendant’s motion for judgment of acquittal on the charge of assisting a criminal street gang? 2. Are defendant’s enhanced sentences under A.R.S. section 13-604(T) premised upon statutory provisions that are over-broad and void for vagueness? 3. Do defendant’s sentence for assisting a criminal street gang and his enhanced sentences under A.R.S. section 13-604(T) amount to double punishment? 4. Did the trial court err in denying defendant’s motion to suppress the 9 mm. handgun found in the search of Aguilera’s car? Defendant first argues that the trial court erred in failing to grant his motion for judgment of acquittal on Count VI of the indictment, which charged him with assisting a criminal street gang, a class 3 felony. In pertinent part, A.R.S. section 13-2308 defines that offense: C. A person commits assisting a criminal syndicate by committing any felony offense, whether completed or preparatory, with the intent to promote or further the criminal objectives of a criminal syndicate. F. ... If committed for the benefit of, at the direction of, or in association with any criminal street gang with the intent to promote, further or assist any criminal conduct by the gang, assisting a criminal syndicate is a class 3 felony. The indictment alleged that defendant committed the felony offenses of attempted murder and drive-by shooting to promote or further the criminal objectives of the Pico Nuevo gang. A judgment of acquittal is warranted where there is no “substantial evidence to warrant a conviction.” Rule 20, Arizona Rules of Criminal Procedure. “Substantial evidence is more than a mere scintilla and is such proof that ‘reasonable persons could accept as adequate and sufficient to support a conclusion of defendant’s guilt beyond a reasonable doubt.’” State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990) (quoting State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980)). Under this standard, the trial court did not err in denying the motion for judgment of acquittal. The victim identified defendant as the person who fired at him and his companions. Following his arrest, Rodriguez told an investigating officer that he blamed LCM gang members for shooting his sister and attempting to firebomb a house they believed was his. This provided a possible motive for shooting the victim and his companions, who were members of LCM. Rodriguez also told police of an ongoing feud between LCM and Pico Nuevo, stating: “They do something to us, we do something to them. It started a long time ago.” The State’s expert on street gangs, Officer Christopher Luebkin, identified both defendant and Rodriguez as members of Pico Nue-vo. He testified that a drive-by shooting of rival gang members would further the interest of a criminal street gang by showing that the gang would not back down from confrontation and was ready to retaliate if it were wronged. In support of his argument, defendant emphasizes the testimony of Officer Luebkin on cross-examination that he did not “know” that the shooting was gang-related and that he was unaware of any specific evidence that it was committed to benefit or advance any goal of a gang. The jury, however, was not obligated to credit this expert testimony. “Expert testimony is evidence to be considered together with all of the facts and circumstances of the case, but the trier of fact remains free to make an independent analysis of the facts upon which the opinions of the experts rest.” State v. Sisk, 112 Ariz. 484, 485-86, 543 P.2d 1113, 1114-15 (1975). Nor was the jury compelled to acquit even if it credited this testimony. In this case, the jury could rationally determine beyond a reasonable doubt that defendant was a gang member, that he committed the shooting, that he had a gang-related motive for the shooting, and that the shooting would further the criminal objectives of Pico Nuevo. The judge did not err in denying the motion for judgment of acquittal and submitting Count VI to the jury. We next address defendant’s claim that enhancement of the sentences constituted error because the statutes providing for enhancement are void for overbreadth and vagueness. Defendant’s sentences were enhanced under A.R.S. section 13-604(T), which states: A person convicted of committing any felony offense with the intent to promote, further or assist any criminal conduct by a criminal street gang shall not be eligible for suspension of sentence, probation, pardon or release from confinement on any basis except as authorized by section 31-233, subsection A or B until the sentence imposed by the court has been served, the person is eligible for release pursuant to § 41-1604.07 or the sentence is commuted. The presumptive, minimum and maximum sentence for the offense shall be increased by three years. The additional sentence imposed pursuant to this subsection is in addition to any enhanced sentence that may be applicable. Defendant does not aim his constitutional challenge at this statute, but instead at the definitional statutes. He focuses on A.R.S. sections 13-105(7) and (8), which state: 7. “Criminal street gang” means an ongoing formal or informal association of persons whose members or associates individually or collectively engage in the commission, attempted commission, facilitation or solicitation of any felony act and who has at least one individual who is a criminal street gang member. 8. “Criminal street gang member” means an individual to whom two of the following seven criteria that indicate criminal street gang membership apply: (a) Self-proclamation. (b) Witness testimony or official statement. (c) Written or electronic correspondence. (d) Paraphernalia or photographs. (e) Tattoos. (f) Clothing or colors. (g) Any other indicia of street gang membership. Defendant did not raise this constitutional challenge in the trial court. Nevertheless, we have discretionary authority to consider an argument for the first time on appeal when a defendant asserts that a statute is void. Fuenning v. Superior Ct. in and for the County of Maricopa, 139 Ariz. 590, 594, 680 P.2d 121, 125 (1983); State v. Junkin, 123 Ariz. 288, 290, 599 P.2d 244, 246 (Ariz.App.1979), cert, denied, 444 U.S. 983, 100 S.Ct. 489, 62 L.Ed.2d 411 (1979). As a preliminary matter, we note that, in two cases decided last year, Division Two of this court considered constitutional challenges to gang-related statutes. In State v. McCoy, 187 Ariz. 223, 928 P.2d 647 (1996), the court rejected an argument that provisions of AR.S. sections 13-2301 and -2308, which defined the offense of participating in a criminal syndicate with intent to assist a criminal street gang, were vague and over-broad. In State v. Baldenegro, 229 Ariz. Adv. Rep. 59, 932 P.2d 275 (App. Nov. 1, 1996), the court rejected an argument that sections 13-105(7) and (8) were vague and overbroad. The Baldenegro court held that the defendant lacked standing to mount a vagueness challenge, but also opined that the challenged statutes did not violate his constitutional right to association because it criminalized not gang membership but the promoting or assisting of criminal conduct by the gang. Id. at 61. Defendant’s principal overbreadth challenge to AR.S. sections 13-105(7) and (8) differs from the one presented in Baldenegro. In the present case, defendant asserts that “he is being punished for the criteria established by the legislature as it relates to his speech.” Specifically, he argues that each of the section 13-105(8) indicia of “criminal street gang” membership describes a form of expression protected by the First Amendment. A statute is constitutionally over-broad if it proscribes expression protected by the First Amendment. State v. Weinstein, 182 Ariz. 564, 565, 898 P.2d 513, 514 (Ariz. App.1995). Even if the conduct leading to the criminal charge is not constitutionally protected, and falls within the statute’s legitimate scope, a defendant may raise an over-breadth challenge if the statute “is so drawn as to sweep within its ambit protected speech or expression of other persons not before the Court.” Id. at 566, 898 P.2d at 515 (quoting Doran v. Salem Inn, Inc., 422 U.S. 922, 933, 95 S.Ct. 2561, 2569, 45 L.Ed.2d 648 (1975)). Before a statute will be invalidated as facially overbroad, however, its deterrent effect on legitimate expression must be “not only real, but substantial as well.” Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2917-18, 37 L.Ed.2d 830 (1973). To prevail on his claim defendant must overcome the strong presumption that the challenged statute is constitutional. New Times, Inc. v. Arizona Bd. of Regents, 110 Ariz. 367, 370, 519 P.2d 169,172 (1974). Defendant is unable to meet this burden. Notably, A.R.S. section 13-105(8) contains no express limitation of expression. Rather, the provision enumerates categories of evidence, describing certain modes of expression that bear upon the issue of an individual’s membership in a “criminal street gang.” Using such evidence to establish a sentence enhancement does not violate the First Amendment. In Wisconsin v. Mitchell, 508 U.S. 476, 113 S.Ct. 2194, 124 L.Ed.2d 436 (1993), the Supreme Court considered a challenge to a statute that enhanced a defendant’s sentence on the basis of racial animus against his victim. The Court rejected the argument that the statute was overbroad “because evidence of the defendant’s prior speech or associations may be used to prove that the defendant intentionally selected his victim on account of the victim’s protected status.” Id. at 488, 113 S.Ct. at 2201. The Court stated: The First Amendment ... does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent. Evidence of a defendant’s previous declarations or statements is commonly admitted in criminal trials subject to evidentiary rules dealing with relevancy, reliability, and the like. Id. at 489, 113 S.Ct. at 2201-02. See also Street v. New York, 394 U.S. 576, 594, 89 S.Ct. 1354, 1366-67, 22 L.Ed.2d 572 (1969) (assuming conviction otherwise passed muster on constitutional grounds, “nothing ... would render the conviction impermissible merely because an element of the crime was proved by defendant’s words rather than in some other way.”). Moreover, we agree with the State that defendant lacks standing to raise a vagueness challenge to the criteria listed in A.R.S. section 13-105(8). “One to whose conduct a statute clearly applies may not successfully challenge it for vagueness.” Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 2562, 41 L.Ed.2d 439 (1974); Baldenegro, 229 Ariz. Adv. Rep. at 61. Defendant does not allege that he was unable to ascertain that statutory criteria — like self-proclamation, tattoos, and the possession of gang paraphernalia, which were all used to identify him as a Pico Nuevo member at trial — could be employed as indicia of street gang membership. Instead, defendant’s vagueness argument asserts the First Amendment rights of others. Merely raising this argument, however, does not automatically confer standing upon him. A vagueness challenge premised on the First Amendment rights of others must demonstrate a “real and substantial” deterrent effect upon legitimate expression. Young v. American Mini The-atres, Inc., 427 U.S. 50, 60-61, 98 S.Ct. 2440, 2447-48, 49 L.Ed.2d 310 (1976). Defendant has demonstrated no such effect. As we have explained in our analysis of defendant’s overbreadth claim, a statute which permits the evidentiary use of expression to prove criminal liability does not offend the First Amendment. Apart from issues of standing, we reject defendant’s claim that the definitions of A.R.S. section 13-105(8) are void for vagueness. Vague statutes offend the Due Process Clause of the Fourteenth Amendment. See State v. Western, 168 Ariz. 169, 171, 812 P.2d 987, 989 (1991). When a provision, like the one at issue, does not implicate First Amendment rights, it is not void as long as it gives persons of ordinary intelligence reasonable opportunity to know what is prohibited and provides explicit standards for those who apply it. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362 (1982). The criteria described in A.R.S. section 13-105(8)(a-f) satisfy this standard. Each of the indicia is described specifically in concrete terms that can readily be understood. Defendant does not contend otherwise. In passing, defendant observes that A.R.S. section 13-105(8)(g) — “[a]ny other indicia of street gang membership” — is “so broad as to be almost ludicrous.” We disagree. This “catchall” provision is not void for vagueness because it is narrowed by the statutory definition of “criminal street gang” — i.e., an “an ongoing formal or informal association of persons whose members or associates individually or collectively engage in the commission, attempted commission, facilitation or solicitation of any felony act.” AR.S. § 13-105(7). That definition is suffi ciently explicit to channel the discretion of judges who must apply A.R.S. section 13-105(8)(g) to determine whether to admit or consider evidence offered on the issue of gang membership. Finally, we find no merit in defendant’s assertion that the statute is unconstitutionally vague because “[i]n theory, a criminal street gang member could be almost anyone. For example, ‘self-proclamation’ and ‘clothing or colors’ could encompass a girl or boy scout troop.” This contention overlooks the statutory requirement that the self-proclamation or clothing worn must indicate street gang membership, thus requiring a nexus to an “association ... whose members ... engage in the commission, attempted commission, facilitation or solicitation of any felony act.” A.R.S. § 13-105(7). Accord, Baldenegro, 229 Ariz. Adv. Rep. at 61. Defendant next argues that he was subjected to double punishment because the application of AR.S. section 13-604(T) to enhance his sentences on Counts I through Y was premised on the same conduct that supported his conviction and sentence for assisting a criminal street gang. Defendant does not raise a constitutional argument, but relies instead on A.R.S. section 13-116, which states in pertinent part: An act or omission which is made punishable in different ways by different sections of the laws may be punished under both, but in no event may sentences be other than concurrent. We find no merit to defendant’s argument. The prohibition against double punishment in AR.S. section 13-116 was not designed to cover sentence enhancement. See State v. Greene, 182 Ariz. 576, 580, 898 P.2d 954, 958 (1995); State v. Rodriguez, 126 Ariz. 104, 106-07, 612 P.2d 1067, 1069-70 (Ariz.App. 1980). Moreover, even if it did apply, the statute was not violated: Defendant’s sentence for assisting a criminal street gang was ordered to run concurrently with all of his other sentences. Finally, we address defendant’s argument that the trial court’s failure to grant his motion to suppress the weapon found by police officers in Aguilera’s car was reversible error. Defendant moved to suppress the 9 mm. handgun, arguing that the police lacked “reasonable suspicion” to stop the car he was driving and that they exceeded the scope of a permissible search for weapons when they found the pistol under the front seat. “[I]f police have a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony, then a Terry stop may be made to investigate that suspicion.” United States v. Hensley, 469 U.S. 221, 229, 105 S.Ct. 675, 681, 83 L.Ed.2d 604 (1985). In determining the propriety of an investigatory detention under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), we give deference to the trial court’s factual findings — including findings regarding credibility — but review de novo the court’s ultimate legal determination. State v. Gonzalez-Gutierrez, 187 Ariz. 116, 927 P.2d 776, 778 (1996). There is ample evidence in the trial court record that the stop of defendant was based on reasonable suspicion. Officer Bingaman participated in the investigation of the shooting the previous night. According to a report he prepared after the shooting, but prior to the traffic stop, witnesses at the scene of the shooting observed a Sundance slowly drive past the victim’s house three times shortly before the shooting. Witnesses at the scene identified the car by license plate HHH-638, which was only one number different from the license plate HHH-738 on the Sundance defendant was driving when he was stopped. That information alone may have been sufficient to justify the stop. See State v. Axley, 132 Ariz. 383, 389-90, 646 P.2d 268, 274-75 (1982) (Terry stop supported in part by fact that vehicle matched broadcast description). However, Officer Bingaman knew even more: He knew that the victim’s house had been a location of LCM gang activity. He knew of the animosity between LCM and Pico Nuevo. The day prior to the stop, before the shooting, Officer Bingaman observed four known LCM gang members in the Sundance. These facts all supported the trial court’s conclusion that Officer Bingaman’s stop of the Sundance was based on reasonable suspicion that the occupants may have been involved in the drive-by shooting at the victim’s residence. Cf. State v. Jones, 114 N.M. 147, 835 P.2d 863, 866 (N.M.App.1992) (“[A]n individual’s membership in a gang is a factor which may properly be considered ... in determining whether a stop and frisk is proper.”). Defendant also complains that the police exceeded the scope of a lawful stop of a vehicle by searching for weapons under the front seat of the car. Defendant claims that because he and Aguilera exited the car and were cooperative, the officers lacked an articulable and objectively reasonable belief of potential danger to justify a weapons search. However, Officer Bingaman testified that he considered defendant a threat if defendant were to have returned to his car before it was searched. In State v. Romero, we recognized that such a perception justified a protective search of a vehicle’s passenger compartment, stating: The fact that the suspects are apparently cooperative need not lessen an officer’s reasonable belief that the suspects are dangerous or undermine the appropriateness of an officer’s actions____ Nor does the fact that an investigating officer may have the person “under his control” diminish the vulnerability of the officer in such situations when the individual still could bolt and retrieve any weapon(s) in the vehicle. 178 Ariz. 45, 50, 870 P.2d 1141, 1146 (App. 1994) (citation omitted). The trial court did not err in denying defendant’s motion to suppress. The trial court’s sentencing minute entry for Count VI makes reference to A.R.S. section 13-604(T), even though that provision was not applied to enhance defendant’s sentence on that count. Pursuant to A.R.S. section 13-4036, we modify that minute entry by deleting reference to A.R.S. section 13-604(T). In all other respects, defendant’s convictions and sentences are affirmed. THOMPSON, P.J., and GARBARINO, J., concur. At trial, Officer Luebkin testified that gang graffiti or hand signs fit the criterion.

OPINION WEISBERG, Judge. John Hussain (“defendant”) appeals his conviction and sentence for aggravated assault, a class 3 dangerous felony. We re verse because the trial court erred by denying defendant’s request for a jury instruction on the justification defense of Ariz.Rev.Stat. Ann. (“A.R.S.”) section 13-411. FACTS AND PROCEDURAL HISTORY The victim, “Billy,” first met defendant on the afternoon of April 27, 1995. Later that day, Billy saw defendant sitting in front of a Phoenix motel. Defendant told Billy that he was unable to rent a motel room because he did not have proper identification. Although Billy had no identification either, he convinced another acquaintance, J.S., to rent a room for defendant at the motel. The three men then went to the room and drank beer. J.S. left soon thereafter. Later that evening, Billy purchased two “rocks” of crack cocaine and brought them back to the motel room where he and defendant smoked them. After defendant fell asleep, Billy left the motel room, purchased more beer, and brought another friend back to the room for a drink. After the friend left, Billy fell asleep. The next morning, defendant accused Billy of having stolen $10 from him. When Billy denied stealing the money, defendant picked up a knife and said, “Come into the shower. I want to make this quiet.” Billy attempted to flee, and a struggle ensued. Billy was able to escape, but not before defendant stabbed him four times in the chest. Defendant gave the police a much different version of the stabbing incident. He claimed that he awoke and found a stranger standing in his motel room. He confronted the stranger and demanded to know what he was doing in his room. In response, the man threatened him with a knife. During the ensuing struggle, the stranger was stabbed with the knife. Defendant was indicted on one count of aggravated assault involving the use of a deadly weapon or dangerous instrument. A jury returned a guilty verdict and the trial court sentenced defendant to a prison term of nine years. Defendant timely appealed his conviction and sentence to this court. This court has jurisdiction under Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes Annotated (“A.R.S.”), §§ 12-120.21(A)(1), 13-4031 and 13-4033(A)(1). DISCUSSION I. DENIAL OF REQUESTED JURY INSTRUCTIONS ON JUSTIFICATION Defendant first argues that the trial court erred in denying three of his requested jury instructions on the defense of justification. Defendant had requested that the trial court instruct the jury on justification for the use of physical force (1) in self-defense, see A.R.S. § 13-404; (2) in prevention of the commission of a first- or second-degree burglary, see A.R.S. § 13-411(A); (3) in defense of premises, see A.R.S. § 13-407; and (4) in defense of property, see A.R.S. § 13-408. The trial court denied all but the self-defense instruction, concluding that the evidence did not support the others, and that the self-defense instruction adequately “cover[ed] what the testimony state[d].” We first note that a defendant is entitled to a justification instruction if it is supported by “the slightest evidence.” See State v. Dumaine, 162 Ariz. 392, 404, 783 P.2d 1184, 1196 (1989). A trial court, however, does not err in refusing to give a jury instruction that is an incorrect statement of the law, does not fit the facts of the particular case, or is adequately covered by the other instructions. State v. Lambright, 138 Ariz. 63, 74, 673 P.2d 1, 12 (1983), overruled on other grounds, Hedlund v. Sheldon, 173 Ariz. 143, 146, 840 P.2d 1008, 1011 (1992). Here, the trial court concluded that the refused justification instructions were not supported by the facts, and that they were adequately covered by the self-defense instruction. In this light, we consider each instruction in turn. A. Crime Prevention The trial court denied defendant’s request that it instruct the jury, pursuant to A.R.S. section 13-411(A), that “[a] defendant is justified in threatening or using both physical force and deadly physical force to prevent the commission of the crime of burglary in the first or second degree.” We conclude that the evidence supported this instruction and that the trial court, therefore, erred in denying it. A person commits second-degree burglary by “entering or remaining unlawfully in or on a residential structure with the intent to commit any theft or any felony therein.” A.R.S. § 13-1507(A). If, in addition, the person knowingly possesses a deadly weapon or dangerous instrument, he or she commits first-degree burglary. See A.R.S. § 13-1508(A). The jury heard testimony that defendant awakened to find a man standing in his motel room. When defendant demanded to know what the man was doing, the man threatened him with a knife, and a struggle ensued. Defendant’s motel room qualifies as a “residential structure” within the burglary statute. See A.R.S. § 13-1501(7); State v. Gardella, 156 Ariz. 340, 342, 751 P.2d 1000, 1002 (App.1988). Further, at least according to defendant’s version of the incident, the victim “remained] unlawfully ... with the intent to commit” an assault upon the defendant, see A.R.S. § 13-1507(A), and he knowingly possessed a deadly weapon or dangerous instrument, see A.R.S. § 13-1508(A). Thus, defendant’s version of the incident provided “the slightest evidence” in support of the theory that he was justified in using deadly physical force against the victim to prevent the commission of a burglary in the first- or second-degree. See A.R.S. § 13-411(A). On the face of the statute, then, defendant would be entitled to the requested instruction. But in State v. Thomason, 162 Ariz. 363, 366, 783 P.2d 809, 812 (App.1989), this court, relying on the legislative intent behind section 13-411, held that the justification defense embodied in the statute “is available only when a home, its contents, or the residents therein are being protected by the use of physical force or deadly physical force against another.” Thus, defendant would be entitled to the requested instruction only if his motel room was a “home” within the meaning of A.R.S. section 13-411. The state has not argued that defendant should be treated differently from a registered motel guest because he did not pay for the motel room. It argues only that the “crime prevention” defense is unavailable to him because he was in a motel room, rather than a home. We therefore accept that defendant had a reasonable expectation of privacy in the motel room at the time of the incident. See, e.g., Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978) (the protection of the Fourth Amendment depends on whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place). When interpreting a statute, our goal is “to fulfill the intent of the legislature that wrote it.” State v. Williams, 175 Ariz. 98, 100, 854 P.2d 131, 133 (1993). Fortunately, the legislative intent behind A.R.S. section 13-411 is expressly set forth in a “Declaration of policy” accompanying the statute. That declaration provides in part: A The legislature finds that homes of Arizona residents are being burglarized and violated at an alarming and unacceptable rate that is endangering the residents’ safety, health and property, thereby depriving them of their safe and peaceful enjoyment of their homes. B. It is the legislative intent to establish a policy by this law giving notice to all citizens, law enforcement personnel and the state courts that a person’s home, its contents and the residents therein shall be totally respected and protected in Arizona, and that the law enforcement officials and courts shall apply this and all other applicable criminal laws relating to the protection of the home and its residents promptly and severely so as to restore the total sanctity of the home in Arizona. Ariz.Sess.Laws 1990, ch. 410, § 3. Given the legislature’s intent that “a person’s home, its contents and the residents therein shall be totally respected and protected,” we believe that the legislature intended that those same “residents” and “contents” be afforded equal respect and protection when they reside temporarily within a rented motel room. In other words, for the purposes of A.R.S. section 13-411, we find no meaningful distinction between the security and privacy expected in a longstanding “home” and the security and privacy expected in a motel or hotel room. Certainly, for the period of occupancy, that room serves as a person’s temporary “home,” being that place where the person retires to engage in those personal aspects of life, such as sleep or relaxation, which normally occur in the home. We therefore hold that an occupied motel or hotel room is the equivalent of a “home” for the purposes of the justification defense provided by A.R.S. section 13-411. The state nevertheless argues that the requested A.R.S. section 13-411 instruction was adequately covered by the self-defense instruction given by the trial court. We disagree. A.R.S. section 13-411 differs from the other justification statutes in that it permits a person to employ deadly physical force “if and to the extent the person reasonably believes [it] is immediately necessary” to prevent the commission of any of several enumerated crimes, see A.R.S. § 13-411(A), rather than only in response to another person’s use or attempted use of unlawful deadly physical force, see A.R.S. § 13-405. State v. Korzep, 165 Ariz. 490, 492, 799 P.2d 831, 833 (1990). In addition, pursuant to A.R.S. section 13-411(C), a person is presumed to be acting reasonably if he or she is acting to prevent the commission of any of the offenses listed in A.R.S. section 13-411(A). Thus, the self-defense instruction given to the jury in this case could not have adequately covered the requested instruction premised on A.R.S. section 13-411. See Korzep, 165 Ariz. at 492, 799 P.2d at 833. For these reasons, the absence of the A.R.S. section 13-411 instruction cannot have been harmless error. We therefore conclude that defendant was entitled to the requested jury instruction, and that the trial court committed reversible error in denying it. See id. at 494, 799 P.2d at 835. We next address the remainder of defendant’s arguments because they are likely to recur upon retrial. B. Defense of Premises Pursuant to A.R.S. section 13-407, the use of physical force in defense of premises is justified “to the extent that a reasonable person would believe it immediately necessary to prevent or terminate the commission or attempted commission of a criminal trespass by the other person in or upon the premises.” A.R.S. § 13-407(A). But, a person may use deadly physical force under such circumstances only to defend himself or third persons. A.R.S. § 13-407(B). “Deadly physical force” is “force which is used with the purpose of causing death or serious physical injury or in the manner of its use or intended use is capable of creating a substantial risk of causing death or serious physical injury.” A.R.S. § 13-105(12)(1996). The undisputed evidence established that defendant stabbed the victim four times in the chest. The jury, therefore, could not have reasonably concluded that defendant used anything less than deadly physical force against the victim and, pursuant to A.R.S. section 13-407(B), this “deadly physical force” was justified only if used in self-defense. Accordingly, because the trial court instructed the jury on self-defense, it did not err in denying defendant’s request for a separate defense-of-premises instruction. See State v. McIntyre, 106 Ariz. 439, 445, 477 P.2d 529, 535 (1970) (“The long-established rule is that where requested instructions are adequately covered by other instructions of the trial court, it is not error to refuse them.”). C. Defense of Property A.R.S. section 13-408 provides: A person is justified in using physical force against another when and to the extent that a reasonable person would believe it necessary to prevent what a reasonable person would believe is an attempt or commission by the other person of theft or criminal damage involving tangible movable property under his possession or control!.] The statute further provides that a person may use deadly physical force only in self-defense or the defense of a third person, or to prevent commission of one of the crimes enumerated in A.R.S. section 13-411(A). We need not decide whether the evidence supported giving this instruction because we conclude that, even if it did, the instruction is adequately covered by the self-defense instruction and the crime prevention instruction. As we concluded in the previous section, the jury could only have found that defendant used deadly physical force. Therefore, the requested defense-of-property instruction was adequately covered by the self-defense instruction to the extent the deadly force was based upon self-defense. In addition, to the extent the deadly force was based upon the prevention of a burglary, the defense-of-property instruction would be adequately covered by the crime prevention instruction, which we have concluded the trial court should have given. Accordingly, assuming similar evidence upon retrial, the trial court would not err by refusing to give defendant’s requested defense-of-property instruction. II. DENIAL OF REQUESTED JURY INSTRUCTION ON REASONABLE DOUBT Defendant also argues that the trial court erred in denying his request that it amend the reasonable doubt instruction approved in State v. Portillo, 182 Ariz. 592, 898 P.2d 970 (1995). In Portillo, the Arizona Supreme Court held that, after January 1, 1996, trial courts are required to give the reasonable doubt instruction set forth in that case. Id. at 596, 898 P.2d at 974. Here, the trial court properly gave the Portillo reasonable doubt instruction. We find no error. CONCLUSION Because we conclude that the trial court erred in denying defendant’s request for an A.R.S. section 13-411 justification instruction, we reverse defendant’s conviction and remand for further proceedings consistent with this opinion. KLEINSCHMIDT and VOSS, JJ., concur. . The requested jury instruction addressed only • defendant’s right to use physical force to prevent the commission of a first- or second-degree burglary. We note, however, that defendant’s version of the incident also provided evidence to support an instruction concerning his justification to use physical force to prevent the commission of an aggravated assault under A.R.S. section 13-1204(A)(1) and (2). . This conclusion is consistent with the treatment afforded those occupants of hotel and motel rooms who have a legitimate expectation of privacy under Fourth Amendment search and seizure analysis. See Hoffa v. United States, 385 U.S. 293, 301, 87 S.Ct. 408, 413, 17 L.Ed.2d 374 (1966) ("What the Fourth Amendment protects is the security a man relies upon when he places himself or his property within a constitutionally protected area, be it his home or his office, his hotel room or his automobile.”); State v. Decker, 119 Ariz. 195, 197, 580 P.2d 333, 335 (1978).

OPINION AND ORDER FELDMAN, Justice. On April 19, 1995, the State Bar filed a motion asking this court to summarily suspend Lawrence B. Smith (Respondent) for failure to comply with the mandatory continuing legal education (MCLE) requirements of Rule 45, Rules of the Supreme Court, for the 1992-93 and 1993-94 educational years. In accordance with Rule 45(h), the State Bar sent a notice of noncompliance to Respondent more than thirty days before filing its motion. Respondent first contested the efforts to suspend him by filing a complaint in United States District Court alleging, among other things, that this court lacked authority to impose MCLE requirements, that summary suspension would violate his rights to due process, and that the failure to provide a hearing deprived him of his equal protection rights. The district judge dismissed the action under the abstention doctrine, and the Ninth Circuit Court of Appeals affirmed the ruling by Memorandum. See Smith v. Feld-man, No. 96-15350, 1996 WL 552772 (9th Cir. Sept. 27,1996). Our consideration of the State Bar’s motion was suspended until the federal court case was concluded. Respondent then filed his response to the motion, making the following arguments: A. Imposition of MCLE requirements is a legislative rather than judicial function. B. Requiring Respondent to satisfy MCLE requirements deprived him of due process of law. C. The State Bar Board of Governors’ procedures deprived Respondent of procedural due process and equal protection of the laws. DISCUSSION A. Imposition of MCLE requirements Arguing that this court lacks the authority to impose mandatory continuing legal education requirements, Respondent contends that creating and imposing such requirements is a legislative act that transcends the court’s judicial authority. We disagree. Article III of the Arizona Constitution creates the judicial branch of government, separate and distinct from the other branches. The State Bar exists only by virtue of this court’s rules, adopted under authority of article III and article VI, §§ 1 and 5 of the Arizona Constitution. Thus, Rule 31(a)(1) provides that this court may “perpetuate, create and continue” the State Bar under its “direction and control.” Rule 31(a)(3) prohibits any person from practicing law in this state “unless he is an active member of the state bar” and sets the requirements for continuing as an active member in good standing. Among these is the MCLE requirement of Rule 45. We do not believe these rules transcend the court’s judicial authority. This court has long recognized that under article III of the Constitution “the practice of law is a matter exclusively within the authority of the Judiciary. The determination of who shall practice law in Arizona and under what condition is a function placed by the state constitution in this court.” Hunt v. Maricopa County Employees Merit Sys. Comm’n, 127 Ariz. 259, 261-62, 619 P.2d 1036, 1038-39 (1980) (citations omitted). We conclude, therefore, that Respondent cannot prevail on his separation of powers argument. B. Respondent’s due process rights Respondent argues that imposition of MCLE requirements violates due process of law. But such requirements, we believe, are rationally related to this court’s obligation to serve the public interest. We must ensure, insofar as possible, that those competent when admitted to practice retain that competency while continuing in practice. See Verner v. Colorado, 533 F.Supp. 1109 (D.Colo. 1982), aff'd, 716 F.2d 1352 (10th Cir.1983). Respondent also argues that his due process rights were violated because the rules and regulations applicable to MCLE do not provide a procedure to avoid summary suspension for lawyers who, for excusable reasons, fail to comply. To the contrary, Rule 45(h) provides that the State Bar must send a notice of non-compliance at least thirty days before it files a motion seeking summary suspension. The lawyer may then comply by filing an affidavit of delinquent compliance pursuant to Rule 45(d). No showing is required and nothing need be done except file the affidavit and pay the delinquent fee. See Rule 45(d)(1). Respondent was given this opportunity. In fact, Respondent was sent several notices of his non-compliance; each notice provided an opportunity to correct the non-compliance. The rules also provide a lawyer the opportunity for reinstatement subsequent to any suspension. See Rules 45(h) and 71(b). C. The State Bar Board of Governors’ procedures Respondent alleges that the MCLE rules violate due process because they provide no opportunity to be excused from compliance when or if in ill health. Again he is mistaken. On a showing of undue hardship, Rule 45(b)(6) provides relief by way of exemption or extension. But Respondent did not avail himself of the opportunity for such relief until over sixteen months after the first affidavit deadline for the 1992-93 educational year. When Respondent sought relief for that year, he was granted an extension of time for filing. He still has not complied. His protests that ill health prevents such compliance were not established before the MCLE Committee. We do not find the Committee’s conclusions erroneous, let alone an abuse of discretion. Given the fact that Respondent has actively engaged in litigation, represented himself before the District Court, the Ninth Circuit Court of Appeals, and this court, we see no reason he could not or cannot take fifteen hours per year of MCLE. We see no violation of due process. Nor do we see any violation of equal protection simply because a lawyer who seeks review of the denial of MCLE credit hours has one type of hearing process while one who seeks exemption from MCLE requirements is given a different hearing mechanism. Cf. Warden v. State Bar of California, 53 Cal.App.4th 510, 62 Cal.Rptr.2d 32 (1997) (equal protection violated when no rational basis existed for CLE-exempt classifications of “active” attorneys). ORDER IT IS ORDERED that the State Bar’s Motion for Summary Suspension for Respondent’s failure to comply with the MCLE requirements of Rule 45 for the 1992-93 and 1993-94 educational years is granted. Upon submission of an appropriate order by bar counsel, Respondent will be suspended, subject to the opportunity for reinstatement in accordance with Rules 45(h) and 71(b). ZLAKET, C.J., JONES, V.C.J., and MOELLER and MARTONE, JJ., concur.

OPINION KLEINSCHMIDT, Judge. This case originates in a suit filed by current and former inmates against the State of Arizona, the Department of Corrections, AR-COR Enterprises, Arizona Correctional Industries, and various individuals named in their official capacities. We will refer to the defendants collectively as “the Department.” The inmates claim that they should have been paid the minimum wage for work they did as part of the Department’s industries program. We disagree, and we affirm the summary judgment entered against the inmates. FACTS AND PROCEDURAL HISTORY In 1969, the legislature created “ARCOR,” Arizona Correctional Enterprises, and the correctional industries program. 1969 Ariz. Sess. Laws Ch. 81, § 12, codified at Ariz.Rev. Stat. Ann. (“A.R.S.”) §§ 41-1621 to 41-1630. The program was designed to provide opportunities to use prisoners’ labor in the production of products to be used by the state or to be sold to the public. See A.R.S. § 41-1622. ARCOR later became “ACI,” Arizona Correctional Industries. 1987 Ariz. Sess. Laws Ch. 358, § 2. A number of inmate plaintiffs brought this suit. Summary judgment was entered using representative facts pertaining to three of them. Larry Lynn Hamon was employed in the correctional industries program from August 1985 to December 1986 as a skilled sheet metal worker. His job included supervising inmate employees assigned to the sheet metal shop, organizing and assigning work orders to inmate employees, setting up and adjusting product lines, designing product patterns and layouts, and the fabrication of these products. His initial pay was forty cents an hour, and over time he was given raises to eighty-five or ninety cents an hour. Many of the products Hamon produced were fabricated for private contractors, and went to companies in Tucson, the State of Washington, and New York. Some went to governments of other states and to county governments in California. Raw materials used to produce the products in the sheet metal shop were regularly purchased from out-of-state suppliers. Richard S. Berry worked for a company called C/A Buckles. C/A Buckles was an IOBE — “Inmate Operated Business Enterprise” — established under ARCOR. IOBE has been described thus: As the name suggests, selected inmates in the IOBE program organize and operate their own businesses under ARCOR’s supervision. Workers are selected by the inmate-owner and then apply to the Department of Corrections (“DOC”) for the right to work. The profits from the businesses belong to the inmate owners, and the businesses can be sold. The businesses market their goods to the private sector. The DOC monitors the businesses and exacts a portion of the profits along with a monthly rent. Inmate wages are paid to the DOC, which in turn pays the inmates by depositing the funds into their commissary accounts. Inmates are paid 50 cents an hour for their work. Hale v. Arizona, 967 F.2d 1356, 1360 (9th Cir.1992), vacated, 993 F.2d 1387 (9th Cir.) (en banc), cert, denied, 510 U.S. 946, 114 S.Ct. 386,126 L.Ed.2d 335 (1993). C/A Buckles manufactured and sold custom belt buckles. While Berry worked for C/A Buckles, it had three telephone lines to the outside world. Berry worked principally in retailing and office administration. He took customer orders and shipped products, received supplies and managed the office. He was paid fifty dollars per month, working approximately forty hours a week. The business regularly purchased tools, office and production supplies from gem companies, handicraft manufacturers, metal plants and other suppliers, in and out of state. C/A Buckles had customers in Arizona, California, Kansas, Nevada, and England. It also sold buckles to other retailers, both within and without the state. All goods and supplies C/A Buckles sold and bought were shipped via U.S. Mail or United Parcel Service. Berry’s job regularly entailed handling these shipments. Kenneth Ashelman worked for a private business, Cutter Biological, a division of Script Miles Laboratories. Cutter operated a blood plasma center on prison grounds. Ashelman initially performed menial tasks for twelve dollars per week. He was eventually promoted to centrifuge operator, and was paid twenty dollars per week for forty hours of work. In 1985, the inmates sued the state and various correctional industries officials in federal court, seeking the federal minimum wage for work they performed, based on federal and state law. The federal court ruled against them on their claim under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 to 219. See Hale v. Arizona, 993 F.2d 1387 (9th Cir.) (en banc), cert, denied, 510 U.S. 946, 114 S.Ct. 386, 126 L.Ed.2d 335 (1993); Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320 (9th Cir.1991). The inmates also filed these actions in state court seeking redress under state law. The parties filed cross-motions for summary judgment. The trial court ruled that Ashel-man was entitled to the minimum wage, but declined to award him treble damages. It ruled against all claims represented by Berry and Hamon. The inmates appealed, and the state cross-appealed the court’s ruling as to Ashelman. The state subsequently dismissed its cross-appeal so we need not discuss further the issue raised by the facts of his employment. BERRY AND HAMON WERE NOT ENTITLED TO THE MINIMUM WAGE BECAUSE THEY WERE NOT WORKING UNDER A CONTRACT BETWEEN THE DIRECTOR OF THE DEPARTMENT OF CORRECTIONS AND A PRIVATE PERSON OR ENTITY The Plaintiffs base their claims on A.R.S. sections 31-254 and 41-1623(E) (now repealed). We address them in order. At the time the complaint was filed, AR.S. section 31-254 provided: A. Each prisoner who is engaged in productive work in any state prison or institution under the jurisdiction of the department of corrections as a part of the prison industries program shall receive for his work such compensation as the director of the department of corrections shall determine. Such compensation shall be in accordance with a graduated schedule based on quantity and quality of work performed and skill required for its performance, but in no event shall such compensation exceed fifty cents per hour unless the prisoner is employed in an ARCOR enterprise pursuant to title 41, chapter 11, article 3. If the director enters into a contract pursuant to § 4.1-1624..01 with a private person, firm, corporation or association the compensation shall be as prescribed by the person, firm, corporation or association but shall not be below the minimum wage. Compensation shall not be paid to prisoners for attendance at educational training or treatment programs, but compensation may be paid for work training programs. A.R.S. § 31-254, amended by 1985 Ariz. Sess. Laws Ch. 265, § 1 (footnote omitted) (emphasis added). Berry and Hamon argue that they worked for ARCOR pursuant to private contracts and are therefore covered by this section. Their theory is that the prison sheet-metal program and C/A Buckles both sold some of their products to, and purchased supplies from, private entities. They reason that without the customer contracting and paying for the product, they would have had no jobs. Under the clear language of AR.S. section 31-254(A), the minimum wage requirement applies only when there is a contract between the director of the Department “pursuant to § 41-1624.01 with a private person, firm, corporation or association.” Section 41-1624.01(B) allows the director to contract with “any private person, firm, corporation or association to provide services or labor rendered by prisoners.” The minimum wage requirement of section 31-254(A) is clearly tied to that limited situation. It does not provide for the minimum wage just because a prisoner’s work is a component of a product that is sold to a private person or entity. Hamon worked for the Department, not for a private business. Berry worked for a fellow prisoner; the DOC did not provide his labor to a private person. The inmates are simply wrong in asserting that they are entitled to the minimum wage merely because the entities they worked for had contracts with private parties. Berry makes another somewhat confusing argument in which he alludes to, without actually invoking, the Ashurst-Sumners Act, 18 U.S.C. § 1761(a). This federal statute generally prohibits placing products made by prisoners into interstate commerce. There is an exception for products made in pilot projects under the aegis of the Law Enforcement Assistance Administration (“LEAA”). 18 U.S.C. § 1761(c). The statute requires that the prisoners in such a project “receive[ ] wages at a rate which is not less than that paid for work of a similar nature in the locality in which the work was performed....” 18 U.S.C. § 1761(c)(2) (Supp. 1997). The IOBE program was approved in 1982. Berry claims that in its application for LEAA approval, the Department represented that it would pay the minimum wage to prisoners in the program. There are problems with this argument, not the least of which is that nowhere in the application does the Department promise that IOBE prisoner-workers would be paid the minimum wage. The application states that non-owners “will be employed as an independent subcontractor to the proprietor and shall be paid as such.” It then addresses pay for inmate workers and provides that under certain circumstances inmates will be paid the “prevailing wage,” saying nothing about the “minimum wage.” Berry acknowledges that there is no private cause of action under the Ashurst-Sum-ners Act. See Wentworth v. Solem, 548 F.2d 773, 775 (8th Cir.1977) (no private cause of action for minimum wages under 18 U.S.C. § 1761); Hale, 993 F.2d at 1397 n. 16 (citing Wentworth). He claims not to be suing under the act, and disclaims any rights as a third-party beneficiary to the relationship between the Department and LEAA. He appears to rely on A.R.S. section 31-254: [P]laintiffs here do not sue under that [Ashurst-Sumners] Act. They sue under a state law independently creating the right to a wage, one that says when a contract exists, in this case, the certification grant, the wage is due. More-over [sic], as has been noted, the certification contains the state’s express promise that it will pay the minimum wage. Third party beneficiary theory has nothing to do with it. The state flatly violated federal law with not paying the wage____ We have already held that section 31-254 does not provide the plaintiffs the relief they seek and if we are correct, that is the end of Berry’s claim. ARIZONA REVISED STATUTES SECTION 41-1623 REQUIRES PAYMENT OF THE MINIMUM WAGE ONLY WHEN THE DEPARTMENT LEASES PROPERTY TO A PRIVATE CORPORATION FOR A COMMERCIAL ENTERPRISE THAT USES INMATE LABOR The plaintiffs base their next argument on former A.R.S. section 41-1623(E): Except as prohibited by applicable provisions of the United States Code, inmates of correctional institutions of this state may be employed in the manufacture and processing of products for introduction into interstate commerce, so long as they are paid no less than the prevailing minimum wage. Added by 1978 Ariz. Sess. Laws Ch. 164, § 20 (as subsection (D)); repealed by 1989 Ariz. Sess. Laws Ch. 65, § 1. The inmates argue that Hamon produced, and Berry processed, products that were introduced into interstate commerce and therefore the Department had to pay them the federal minimum wage. The Department argues that subsection E should be interpreted as a restriction on subsection D, which permits the Department to allow private businesses to lease prison property and use prisoner labor. Subsection D provides: The director or his designee, consistent with sound business judgment, may construct, reconstruct or lease one or more buildings or portions of buildings on the grounds of any state correctional institution or location under department control, together with the real estate needed for reasonable access to such buildings, any lease to have a term of not to exceed twenty years, to a private corporation for the purpose of establishing and operating a factory for the manufacture and processing of products or any other commercial enterprise deemed by the director to provide employment opportunities for inmates in meaningful jobs for wages. Each lease negotiated and concluded pursuant to this section shall include and shall be valid only as long as the lessee adheres to the following provisions: 1. All persons employed in the factory or other commercial enterprise operated in or on the leased property, except the lessee’s supervisory employees and necessary training personnel, shall be inmates of the institution where the leased property is located who are approved for such employment by the director or his designee. 2. The factory or other commercial enterprise operated in or on the leased property shall observe at all times such prac tices and procedures regarding security as the lease may specify or as the director may temporarily stipulate during periods of emergency. 3. The factory or other commercial enterprise operated on the leased property shall be deemed a private enterprise and subject to all the laws and lawfully adopted rules of this state governing the operation of similar business enterprises elsewhere. A.R.S. § 41-1623(D) (1992). The inmates respond that there is nothing to indicate that subsection E was intended only as a limit on subsection D. We disagree. Section 41-1623 was added in 1969 and comprised of only subsections A and B.1969 Ariz. Sess. Laws Ch. 81, § 12. Subsections C and D were added by amendment in 1978. 1978 Ariz. Sess. Laws Ch. 164, § 20. The language that was to become subsection E was the last paragraph of subsection D. Id. In other words, the requirement for paying the prevailing minimum wage was indeed a part of subsection D, as it was originally added. It was not until a 1984 amendment that the language was moved to a separate subsection E.1984 Ariz. Sess. Laws Ch. 251, § 34. As mentioned, former subsection E was repealed in 1989, and a new and different provision became subsection E. 1989 Ariz. Sess. Laws Ch. 65, § 1. In the same piece of legislation that added subsection D (including the language of former subsection E), the legislature also amended A.R.S. section 31-254(A). The change added the language providing for paying the minimum wage for prisoners when the director entered into a contract for prisoner labor pursuant to section 41-1624.01. 1978 Ariz. Sess. Laws Ch. 164, § 11. Thus, former subsection E arose as part of subsection D, which came into being with the provision for paying the minimum wage when the prisoner worked under a contract by which the Department provided inmate labor to a private business. This history is a strong indication of the intent of the legislature: former subsection E applied only when the Department leased out space and prisoners’ labor to private businesses. Neither Berry nor Hamon was employed in such an enterprise. The trial court’s ruling was correct. As noted above, the plaintiffs’ § 1983 claim depends on their statutory claims, which we have rejected. They also rely on Piatt v. MacDougall, 773 F.2d 1032 (9th Cir.1985), in which the Ninth Circuit held that if the director of the Department deliberately and as a matter of policy denied prisoners wages that were due them under state statutes, then they were entitled to relief. Because the plaintiffs have not proven themselves entitled to relief under the statutes on which they rely, Piatt does not apply. ASHELMAN IS NOT ENTITLED TO TREBLE DAMAGES Finally, Ashelman claims that the trial court erred when it did not treble the amount it awarded him for his work for Cutter Biological. He relies on A.R.S. section 23-355 (1995): If an employer, in violation of the provisions of this chapter, shall fail to pay wages due any employee, such employee may recover in a civil action against an employer or former employer an amount which is treble the amount of the unpaid wages. An “employee” is “any person who performs services for an employer under a contract of employment____” A.R.S. § 23-350(2) (1995). We find no error. By statute, the inmates here cannot claim employee status nor an employer/employee relationship with the Department: No prisoner compensated under this section shall be considered as an employee or to be employed by the state or the department, nor shall any such prisoner come within any of the provisions of the workers’ compensation provided in title 23, chapter 6 or be entitled to any benefits thereunder whether on behalf of the prisoner or of any other person. A.R.S. § 31-254(J) (Supp.1996) (footnote omitted). The inmate argues that this statute only means that the prisoner cannot claim workers’ compensation. Such a limited interpretation would render the first clause of the second sentence superfluous, and we therefore reject it. See Patterson v. Marico-pa County Sheriffs Office, 177 Ariz. 153,156, 865 P.2d 814, 817 (App.1993). The legislature has made it quite clear that prisoners as laborers are not to be considered employees of the Department. See also A.R.S. § 31-251(E) (1996): Notwithstanding any other law, no prisoner given a work assignment or required to perform any labor by the state department of corrections shall be considered an employee or to be employed by the state or the state department of corrections, regardless of whether the prisoner is compensated or not, nor shall an employee-employer relationship exist between the prisoner and the state department of corrections or the state for any purpose and none of the rights or privileges otherwise accorded to employees by law shall accrue to such prisoners. Ashelman was not entitled to relief under A.R.S. section 23-355. If that were not enough, treble damages are not awardable where the failure to pay wages arises out of a good faith dispute. See A.R.S. § 23-352 (1995) and Schade v. Diethrich, 158 Ariz. 1,12, 760 P.2d 1050,1062 (1988). The judgment of the trial court is affirmed. WEISBERG, P.J., and VOSS, J., concur. . The statute has been amended and the program is now administered by the Bureau of Justice Assistance. 18 U.S.C. § 1761(c), amended by Pub.L. No. 98-473, § 609K(2).

ORDER Petitioner filed a Petition for Review, seeking review of the Court of Appeals denial of his request for a stay of proceedings in the trial court and its order declining to accept jurisdiction of his petition for special action. On April 16,1997, this Court denied Petitioner’s request for stay of trial court proceedings. The Court has been advised that Petitioner’s trial has been continued to July 28, 1997. The issue presented in the Petition for Review is moot. Therefore, IT IS ORDERED that the Petition for Review is dismissed.

OPINION PER CURIAM. Appellant was placed on intensive probation for three years after a jury convicted him of possessing a prohibited weapon, a sawed-off shotgun. On appeal appellant questions the sufficiency of the evidence to convict him and the constitutionality of A.R.S. § 13-3102(A)(3), the prohibited weapons statute. We affirm. In order to determine the sufficiency of evidence, we examine the evidence in the light most favorable to upholding the conviction and resolve all reasonable inferences against a defendant. State v. Neal, 143 Ariz. 93, 692 P.2d 272 (1984). It is not for us to reweigh the evidence, State v. Brown, 125 Ariz. 160, 608 P.2d 299 (1980), but rather to determine whether any rational trier-of-fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Tison, 129 Ariz. 546, 633 P.2d 355 (1981). A weapon prohibited by A.R.S. § 13-3102(A)(3) includes a “shotgun with a barrel length of less than eighteen inches.” A.R.S. § 13-3101(7)(d). A Pima County sheriffs deputy testified to the weapon’s measurements using various points of reference, and his testimony established that the barrel measured approximately 15 inches in length. Under the circumstances, it is impossible for us to consider setting aside this guilty verdict for insufficient evidence. See State v. Arre-dondo, 155 Ariz. 314, 746 P.2d 484 (1987). We also find meritless appellant’s contention that A.R.S. § 13-3102(A)(3) is unconstitutionally vague because it does not define what constitutes the “barrel” of a gun. Merely because the statute lends itself to more than one interpretation does not mean it is unconstitutionally vague but rather that the statute may need interpretation. In State v. Takacs, 169 Ariz. 392, 819 P.2d 978 (App.1991), Division One of this court found that a statute is not to be considered unconstitutionally vague because a term is undefined and susceptible to more than one meaning. 169 Ariz. at 395, 819 P.2d at 981. See also Stoianoff v. Montana, 695 F.2d 1214 (9th Cir.1983). Here the definition of barrel that the deputy sheriff used is consistent with the definition in Webster’s New Collegiate Dictionary (1981 ed.), the “discharging tube of a gun.” We thus find no merit to appellant’s attempt to include other portions of the weapon within the definition in an attempt to stretch the weapon involved here beyond the common usage definition employed. The judgment of conviction and the probationary term imposed are affirmed.

OPINION WEISBERG, Judge. Appellant Arizona Property and Casualty Insurance Guaranty Fund (the Fund) appeals the trial court’s judgment and award of costs and attorneys’ fees entered in favor of Clark Equipment Company (Clark). We affirm. FACTUAL AND PROCEDURAL HISTORY On October 7, 1983, Richard Chavez was seriously injured in an accident involving a forklift manufactured by Clark. Chavez brought suit against Clark in Maricopa County (Chavez claim). On June 20, 1984, Lawson Dossey died as the result of an accident involving a Clark front-end loader. Dossey’s survivors brought suit against Clark in Pima County (Dossey claim). Both claims were covered under a liability insurance policy issued to Clark by CIGNA, which initially undertook the defenses. In May 1986, though, after Clark had exhausted the full amount of its aggregate coverage for the 1983/1984 policy year, CIGNA refused to provide any further coverage for the claims or for their defense. Clark then looked to its next layer of liability coverage, which was provided by Integrity Insurance Company (Integrity). Clark notified Integrity of the Chavez and Dossey claims and complied with all conditions necessary to trigger Integrity’s obligation as insurer. As part of its obligation, Integrity agreed to assume the defense costs. However, on March 24, 1987, the New Jersey Superior Court declared Integrity to be insolvent and placed the company in liquidation proceedings. On March 31, 1987, the Arizona Department of Insurance notified the Fund of Integrity’s insolvency and “formally invoke[d] Arizona’s Property and Casualty Insurance Guaranty Fund law, A.R.S. § 20-661, et seq., in order to provide protection to Arizona residents who may have claims against this foreign insurer.” The Fund appointed Frontier Adjusters (Frontier) to act as the Arizona claims administrator for the Integrity insolvency. On September 21, 1987, Clark filed proofs of claim for the Chavez and Dossey claims with Integrity’s New Jersey liquidator. Amended proofs of claim were filed October 5, 1987 and March 23, 1988. The proofs of claim reflected that the Dossey claim was closed but that the Chavez claim was not. Although the filing of a proof of claim with an insurance company’s liquidator is deemed to be notice to the Fund, Ariz.Rev.Stat. Ann. (A.R.S.) § 20-665(0(4), neither the Fund nor Frontier received actual notice of the claims at that time. After Integrity’s insolvency, Clark independently litigated both the Chavez and Dos-sey claims, paying its own defense and settlement costs. Clark obtained a favorable defense verdict after a jury trial of the Chavez claim. That judgment, however, was reversed by this court and remanded for a new trial. Prior to the new trial, Clark settled the claim for $510,000.00, which it considered to be a favorable settlement since Chavez had undisputed damages in excess of $10,-000,000.00. Clark’s unreimbursed defense costs related to the Chavez claim equalled the sum of $124,472.00. In addition, Clark had settled the Dossey claim for $15,000.00, and paid related unreimbursed defense costs in the amount of $5,078.00. On February 16, 1988, the Fund received actual notice of the Chavez and Dossey claims from a letter written to it by Clark’s in-house counsel, Timothy Wright. Pursuant to the letter, Clark sought reimbursement of its defense and settlement costs for both the Chavez and Dossey claims. On April 20, 1988, Frontier adjustor Ben Maple wrote to Wright and asked for a summary of collateral source payments on the two claims, as well as the relevant policies, declarations, and endorsements. Clark forwarded both the CIG-NA and Integrity policies to Frontier on May 3,1988. On May 8, 1989, Maple prepared a closing report for his file on these claims. He opined that the Fund was not responsible for the claims and that, in any event, adequate primary coverage existed. He did not, however, inform Clark that the claims were closed, and the Fund now admits that his conclusion regarding adequate primary coverage was in error. The file was reopened in March 1990, when Frontier received additional claims materials from Integrity’s liquidator. Maple reclosed the file on April 2, 1990, believing that the cases had been settled by a primary insurer. Again, Clark was not informed of the closure. On June 27, 1991, David Field, another of Clark’s in-house counsel, informed Maple that Clark had been unable to collect from other state guaranty funds, and asked for a determination of liability from the Fund. On August 2, 1991, Maple advised that the file was open and was being referred to the Fund attorneys. On October 10, 1991, Maple wrote to Field and requested additional information and added the following: I finally heard from our attorney and he believes that the Arizona Guaranty Fund does not need to cover the claim being made by yourself on behalf of Clark Equipment Company. However, his opinion was based only on the information I was able to provide. Field provided the requested information, and, on November 27, 1991, again requested a determination of the Fund’s liability. Maple responded that the Fund’s attorney would be contacting Field regarding the claims. On January 14, 1992, Maple prepared an internal interim report for the file. He indicated that the Fund’s counsel had given him a “preliminary response indicating there are several reasons why we may not have to pay” and said that, while he was waiting for a more “thorough opinion,” the file would “definitely” be kept open “for sometime yet.” On May 2, 1992, another of Maple’s interim reports showed that the Fund’s attorney had not yet contacted him regarding the claims. On July 7, 1992, Michael Hanes-worth, another in-house counsel for Clark, wrote to Maple. He said that, although Clark and Frontier had been corresponding since 1988 regarding the claims, Clark had “yet to receive either approval and payment, or a denial of the claims.” He further indicated that Clark had not heard from the Fund’s counsel and that he would like a written statement of Frontier’s position with respect to the claims. Maple prepared another internal interim report in which he stated, “Frankly, I do not think we have enough information yet from the insured to really truly consider this claim in all seriousness.” On July 24, 1992, Maple noted in his file that he had received a letter from the Fund’s counsel indicating that the statute of limitations had expired on any possible suit between Clark and the Fund regarding the Chavez and Dossey claims. The file was closed for a third time on August 18, 1992, again without notice to Clark. On February 18, 1993, Clark’s counsel wrote to Frontier demanding payment of its defense and settlement costs. If it received no response, Clark threatened that it would file suit. On July 16, 1993, the Fund’s attorney wrote to Clark stating that the claims had been, “apparently, previously denied.” On July 19, 1993, Clark filed suit for breach of contract and declaratory judgment against the Fund, and the case proceeded to a bench trial. The Fund defended on the grounds that: 1) the statute of limitations had expired; 2) Clark had breached the cooperation clause of its Integrity policy; 3) Clark was precluded from recovery because it had not complied with A.R.S. section 12-821, the notice of claims statute for claims against the state; 4) any damage award must be offset by any workers’ compensation payments received by Chavez and the Dossey survivors; and 5) that its statutory liability limit of $99,900.00 included any defense fees and costs incurred by Clark. Following trial, the trial court made the following findings: 1. Clark had submitted “covered claims” within the meaning of A.R.S. section 20-661(3); 2. The one-year statute of limitations for liability created by statute, contained in A.R.S. section 12-541, applies to the action; 3. The statute of limitations did not begin to run until the Fund’s denial of coverage, which occurred on July 16, 1993; 4. The notice of claims statute, A.R.S. section 12-821, does not apply to this case; 5. The Fund did not avail itself of the six-month stay of proceedings provided in A.R.S. section 20-676 so that it could take part in the defense of either claim; 6. Clark breached the cooperation provisions of the Integrity policy; 7. The settlement amounts and defense costs for both the Chavez and Dossey claims were, nevertheless, reasonable and necessary; 8. The Fund was not substantially prejudiced by the breach and thus is not excused from paying its portion of the settlement and defense costs; 9. Equity requires that the Fund not pay for defense costs incurred in the Chavez claim from September 21, 1987 (the date the first proof of claim was filed with the Integrity receiver) until February 16, 1988 (the date that Frontier received actual notice of the pending litigation); 10. Clark is entitled to recover the following damages from the Fund: a) the statutory limit of liability, $99,-900.00, for the Chavez settlement, b) unreimbursed defense costs incurred for the Chavez claim prior to the filing of the notice of claim and after the Fund received actual notice of the pending litigation, c) $14,900.00 for settlement of the Dos-sey claim, and d) unreimbursed defense costs in the amount of $5,078.00, incurred for the Dossey claim; 11. The Fund is not entitled to an offset of damages for money paid to Mr. Chavez by worker’s compensation; 12. The Fund’s liability for defense costs is not limited by the $99,900.00 indemnity cap in A.R.S section 20-667(B); and 13. Clark is the prevailing party and is entitled to its reasonable costs and attorneys’ fees incurred in this action, pursuant to A.R.S. sections 12-341 and— 341.01. The trial court subsequently entered judgment for Clark in the amount of $395,606.96 and awarded it attorneys’ fees and costs in the amount of $111,332.50. The Fund now appeals, arguing that: 1. Clark’s cause of action accrued “within a reasonable amount of time” after the filing of its original notice of claim and is now barred by the one-year statute of limitations; 2. Clark did not comply with the notice of claims statute, A.R.S. section 12-821; 3. Clark may not recover from the Fund since its payments to the claimants and the associated defense costs were voluntary; 4. Clark may not recover from the Fund because it failed to cooperate with the Fund in settling the claims; 5. The Fund is entitled to an offset of damages for amounts paid by worker’s compensation to Mr. Chavez; 6. The statutory liability cap of $99,900 includes amounts expended in defense of claims; and 7. The Fund is not liable for an award of costs and attorneys’ fees pursuant to A.R.S. section 12-341.01. DISCUSSION The Fund was created by the legislature to assume the liability of insolvent insurers. Betancourt v. Arizona Property & Casualty Ins. Fund, 170 Ariz. 296, 298, 823 P.2d 1304, 1306 (App.1991). Upon an insurer’s insolvency, the Fund is “deemed the insurer to the extent of its obligation on the covered claims[ ] and to such extent shall have all rights, duties and obligations of the insolvent insurer as if the insurer had not become insolvent.” A.R.S. § 20-667(C); see also Arizona Property & Casualty Ins. Guar. Fund v. Herder, 156 Ariz. 203, 205, 751 P.2d 519, 521 (1988); Betancourt, 170 Ariz. at 298, 823 P.2d at 1306. The parties agree that Clark submitted “covered claims” within the meaning of the statute. Accordingly, at the time the Fund was notified of Integrity’s insolvency, it was required to assume, within the limits set forth in AR.S. section 20-667, Integrity’s obligations to Clark. I. Statue of Limitations The trial court found that the proper limitations period for Clark’s cause of action, a liability created by statute, was one year, see A.R.S. § 12-541(3), which began to run on July 16, 1993, when the Fund denied coverage of Clark’s claims. The Fund, however, argues that the statute of limitations bars the cause of action because 1) Clark judicially admitted that the Fund had breached the policy as early as 1987, and 2) the cause of action must have accrued within a “reasonable amount of time” after Clark’s first proofs of claim were filed. Either way, according to the Fund, since Clark did not file suit until July 19, 1993, the statute of limitation had expired. Clark, on the other hand, argues that the trial court applied the wrong statute of limitation, but that, in any event, the limitation period does not bar its suit because its cause of action accrued on July 16, 1993. We need not decide which limitations period applies since we agree that it did not begin to run until July 16, 1993, only three days before Clark filed suit. For a cause of action to accrue for statute of limitations purposes, “some event in the nature of a breach of contract must have occurred.” Western Casualty & Sur. Co. v. Evans, 130 Ariz. 333, 336, 636 P.2d 111, 114 (App.1981). A judicial admission is [a]n express waiver made in court or prepatory to trial by the party or his attorney conceding for the purposes of the trial the truth of some alleged fact, [and] has the effect of a confessory pleading, in that the fact is therefore to be taken for granted; so that the one party need offer no evidence to prove it and the other is not allowed to disprove it. IX John H. Wigmore, Evidence § 2588 (1981). The Fund argues, citing Starkovich v. Noye, 21 Ariz.App. 324, 519 P.2d 77, vacated on other grounds, 111 Ariz. 347, 529 P.2d 698 (1974), that Clark is bound by a judicial admission, contained in its Rule 26.1 disclosure statement, that the Fund committed anticipatory breach as early as 1987 by failing to investigate, acknowledge, defend, or indemnify the claims. We disagree. First, Clark’s disclosure statement, alleged to contain the admission, does not appear in the documents that were filed with the trial court, and we have not been directed to where in the record the Fund made this argument below. The Fund’s argument regarding Clark’s admission is therefore waived. See United States v. Globe Corp., 113 Ariz. 44, 51, 546 P.2d 11, 18 (1976). Second, we do not agree that, in these circumstances, the disclosure statement constituted a judicial admission. The purpose of disclosure is not to act as a “eonfessory pleading,” but to give each party adequate notice of what arguments will be made and what evidence will be presented at trial. See Ariz. R. Civ. P. 26.1(a), Court and Committee Cmts. to 1991 Amend. A party’s first disclosure is not cast in stone; it may be amended, which Clark apparently did here. See Ariz. R. Civ. Pro. 26.1(b)(2). Even a document which would otherwise act as a judicial admission would no longer have that effect if it is properly amended. We therefore conclude that Clark’s disclosure statement is not a judicial admission. We next consider whether Clark’s cause of action accrued at some point between 1988 and 1991 because the Fund failed either to approve or disapprove Clark’s covered claims. The Fund reasons that Clark should have been aware of a breach, and the consequent accrual of its cause of action, within “a reasonable amount of time” after the proofs of claim were filed. The dissent adds that the Fund’s breach was clear in 1987 or 1988 when Clark was forced to provide its own defense. We, however, disagree. A breach of an insurance contract generally occurs when the insurer denies the insured the relevant coverage. See Holt v. Utica Mut. Ins. Co., 157 Ariz. 477, 482, 759 P.2d 623, 628 (1988) (breach of contractual duty to defend occurs when insurer refuses to defend); Blutreich v. Liberty Mut. Ins. Co., 170 Ariz. 541, 544-45, 826 P.2d 1167, 1170-71 (App.1991) (statute of limitations on action to recover under uninsured motorist coverage begins to run when insurer refuses to pay claim); Evans, 130 Ariz. at 337, 636 P.2d at 115 (cause of action against insurer begins to run when insurer denies coverage). The rationale behind this rule is that the nature and extent of the breach, and the damages flowing from it, can be determined only after a claim has been definitively denied and negotiations between insurer and insured have ceased. See Ness v. Western Sec. Life Ins. Co., 174 Ariz. 497,501, 851 P.2d 122,126 (App.1992). Although in some circumstances an “unreasonable delay in taking action after receiving notice of a claim may constitute a breach,” Holt, 157 Ariz. at 483, 759 P.2d at 629, in others it may be construed as mere “corporate ineptitude.” Id. In either event, the inference to be drawn from an insurer’s failure to take action on a claim is left to the trier of fact, id., whose finding we will not disturb unless it is clearly erroneous and insupportable by any interpretation of the record below, see Board of Regents v. Phoenix Newspapers, Inc., 167 Ariz. 254, 257, 806 P.2d 348, 351 (1991). Here, the trial court found that a breach did not occur until coverage was denied on July 16, 1993, when the Fund’s counsel informed Clark that its claims had been, “apparently, previously denied.” Until then, the Fund merely put Clark off, never advising whether the claims were approved or denied. The trial court therefore found that a breach did not occur until the Fund’s attorney finally told Clark that its claims had been denied. Notwithstanding, the dissent posits that the breach occurred in 1987 or 1988 when the Fund failed to investigate and defend Clark’s claims. While we can agree that the dissent’s interpretation of the relevant facts is plausible, that does not render the trial court’s interpretation implausible, much less “clearly erroneous and insupportable.” See id. In view of the Fund’s failure to notify Clark of the various times the file was “closed,” and its failure to definitively deny coverage, the trial court did not abuse its discretion. Accordingly, we conclude that the Fund’s breach of the insurance contract, and the accrual of Clark’s cause of action against the Fund, occurred on July 16, 1993. II. A.R.S. Section 12-821 The Fund argues that A.R.S. section 12-821 requires Clark to file a notice of its “claims against a public entity ... in the same manner as that prescribed in the Arizona Rules of Civil Procedure, Rule 4(D) within twelve months after the cause of action accrue[d].” A.R.S. § 12-821(A) (1992). Clark responds that no notice of claims statute applied when it filed suit. We agree with Clark. The Fund’s argument refers to the version of A.R.S. section 12-821 that was in effect in 1992. The Arizona Legislature repealed that version of A.R.S. section 12-821 and replaced it with one that applied only to personal injury actions. 1993 Ariz. Sess. Laws ch. 90, §§ 7-8. The new statute became effective on July 17, 1993 and Clark filed suit on July 19, 1993. At that time, no prior notice of claim against the state was required. Accordingly, we hold that Clark was not required to file a notice of claim before bringing this action against the Fund. III. Substantial Prejudice Condition six of the Integrity policy required Clark to cooperate with Integrity in the defense or settlement of any claims. It further provided that any voluntary payment or assumption of obligation by Clark would be done at Clark’s “own cost.” The trial court found that Clark had breached this condition, but that the Fund was not relieved from its obligations under the policy because it had not been “substantially prejudiced” by the breach. The Fund now asserts that the trial court erred in requiring a showing of substantial prejudice. It argues that, because of Clark’s breach alone, it is freed from liability. Further, in the event that a showing of substantial prejudice is required, the Fund argues that the trial court erred by finding none. We, however, agree with the trial court. In Holt v. Utica Mutual Ins. Co., our supreme court discussed the conditions under which an insured’s breach of a policy condition would constitute a defense to an action on the policy. See 157 Ariz. 477, 481, 759 P.2d 623, 627 (1988). [T]o constitute a valid defense, the breach must be material, violating a provision reasonably necessary for the protection of the insurer, and it must substantially prejudice the insurer. Id. (emphasis added). At issue in Holt were cooperation provisions similar to those in the instant case — both required the insured to assist the insurer in the litigation of claims and both prohibited the insured from making any voluntary payments or admissions of liability. Because cooperation provisions in an insurance contract are designed to “protect ] the insurer’s right to a fair adjudication of the insured’s liability [and to] prevent ] collusion between the injured person and the insured,” they are necessary for the protection of the insurer. See id. at 483, 759 P.2d at 629. Accordingly, an insured’s breach of a cooperation provision normally relieves an insurer of liability, but only if the insurer has been substantially prejudiced thereby. Id. at 483-84, 759 P.2d at 629-30. Whether an insurer has suffered substantial prejudice is a question for the trier of fact, id. at 484, 759 P.2d at 630, which may not be disturbed by this court unless it is clearly erroneous, see Board of Regents v. Phoenix Newspapers, Inc., 167 Ariz. 254, 257, 806 P.2d 348, 351 (1991). Here, the trial court found that Clark’s settlements and its related attorneys’ fees and costs were “reasonable and necessary, made in good faith, and [were a] reasonable mitigation of Clark’s damages.” On appeal, the Fund acknowledges that it can “only speculate]” about any prejudice flowing from Clark’s breach, but does assert, without saying how it arrived at the figure, that Clark’s attorneys’ fees exceeded by more than $20,-000.00 those that the Fund itself would have incurred. The Fund further speculates that, if given the opportunity, it might have chosen to settle quickly for its maximum statutory exposure, thereby avoiding most, if not all, costs of defense. We do not find these arguments convincing. First, the clear language of the Integrity policy, under the “Defense Provisions” heading, provides that the insured’s obligation to defend ends only after the liability limit has been paid in satisfaction of “judgments or settlements.” Accordingly, the Fund could not have simply tendered $99,900.00 and abandoned Clark to defend on its own. See Brown v. Lumbermens Mut. Casualty Co., 326 N.C. 387, 390 S.E.2d 150, 153-54 (1990); 7C John A. Appleman, Insur-anee Law and Practice § 4682 at 36-37 (1979 & Supp.1995). Second, $20,000.00 amounts to approximately fifteen percent of the un-reimbursed defense costs and about five percent of the total defense costs for the Chavez claim alone. As the trial court is in the best position to determine whether those costs were “reasonable” or “substantial,” we cannot say that its finding of no substantial prejudice is clearly erroneous. We therefore affirm. Any person having a claim against an insurer under any provision in an insurance policy which is also a covered claim shall be required to exhaust first all rights under such policy. Any amount payable on a covered claim pursuant to this article shall be reduced by the amount of such recovery under the claimant’s insurance policy. IV. A.R.S. Sections 20-673(A) and 20-680 The Fund next argues that, pursuant to A.R.S. section 20-673(A), it is entitled to offset the workers’ compensation benefits received by Chavez against its obligations for that claim. It reasons that, since its maximum liability is $99,900.00, and since Chavez has received workers’ compensation benefits in excess of $1.2 million, it owes nothing on the claim. The Fund relies upon Martinez v. State Workman’s Compensation Ins. Fund, 163 Ariz. 380, 788 P.2d 113 (App.1989), in which this court said that A.R.S. section 20-673(A) permits the Fund to reduce any damages payable to a claimant by the amount the claimant has received in workers’ compensation benefits. Id. at 384-85, 788 P.2d at 117-18. Clark counters by pointing out that the relevant language in Martinez is only dicta and that the Fund is not entitled to an offset for two reasons: 1) workers’ compensation benefits are specifically excluded from the effects of A.R.S. section 20-673(A) by A.R.S. section 20-680; and 2) permitting an offset would be contrary to the legislative intent evidenced in the Fund statutes. We agree with Clark. We first note that the relevant language in Martinez was not essential to the resolution of that case and is therefore mere dicta. Martinez primarily dealt with the rights of a workers’ compensation carrier; its analysis did not depend upon the rights of the Fund. Moreover, the court had no need to consider, and in fact did not consider, what effect A.R.S. section 20-680 would have upon the offset provision of A.R.S. section 20-673(A). A.R.S. section 20-680 provides,in part: This article [creating the fund] shall apply to all kinds of insurance except life, title, surety, disability, credit, mortgage guarantee, worker’s compensation and ocean-marine. (Emphasis added.) Despite this clear language, the Fund argues, without providing authority, that A.R.S. section 20-680 is only an exemption from the administration of insolvencies, and not from the offset provisions of A.R.S. section 20-673. We disagree. When statutory language is clear, it is conclusive and we apply it accordingly. See Siegel v. Arizona State Liquor Bd., 167 Ariz. 400, 402, 807 P.2d 1136, 1138 (App.1991). We find the language of A.R.S. section 20-680 to be both broad and unambiguous: the “article shall apply to all kinds of insurance except ... workers’ compensation.” (Emphasis added.) We therefore hold that, by operation of A.R.S. section 20-680, workers’ compensation recoveries on claims that are also covered claims do not reduce the amount payable by the Fund on that covered claim. We also note that the insurers who provide the types of insurance excluded by A.R.S. section 20-680 are excluded from providing assessments to the Fund as “member insurers.” A.R.S. §§ 20-661(6), -666(A). The Fund pays its “costs, expenses and liabilities” from the assessments of the member insurers. See A.R.S. §§ 20-662, -666(A). If workers’ compensation proceeds were allowed as an offset to Fund obligations, then, effectively, nonmember, exempt insurers would be financing those obligations. Accordingly, we hold that A.R.S. section 20-673 requires an offset to Fund liability only when the other applicable insurance has not been excluded by A.R.S. section 20-680. Workers’ compensation payments may not provide an offset. y. A.R.S. Section 20-667(B) The Fund next argues that 1) it is not liable for Clark’s defense costs because it neither hired nor approved Clark’s counsel pursuant to A.R.S. section 20-664(B)(2), and 2) in the event it is liable for Clark’s defense costs, the recovery against it for each claim, including those defense costs, may not exceed $99,900.00. A.R.S. § 20-667(B). Clark responds that 1) the Fund is not relieved of its obligation for defense costs since it was not substantially prejudiced by Clark’s retention of defense counsel, and 2) only the substantive claims are limited by the liability cap. We agree with Clark on both points. First, Clark’s failure to obtain the Fund’s approval of its defense counsel does not relieve the Fund of its separate obligation, under the Integrity policy, to defend Clark. When the Fund was “deemed the insurer” on the Integrity policy, see A.R.S. § 20-667(0, it assumed all of the “rights, duties and obligations” of Integrity, id., including the obligation to defend. Even though Clark may have incurred defense costs in breach of the insurance contract, the Fund is relieved from its policy obligation to defend only if it has been substantially prejudiced by the breach. Here, the trial court has determined that Clark’s defense costs were reasonable and that the Fund was not substantially prejudiced thereby. Because substantial prejudice is a factual question, Holt v. Utica Mut. Ins. Co., 157 Ariz. 477, 483, 759 P.2d 623, 629 (1988), we may not substitute our judgment for that of the trial court, Board of Regents v. Phoenix Newspapers, Inc., 167 Ariz. 254, 257, 806 P.2d 348, 351 (1991). We therefore conclude that the Fund is liable for Clark’s defense costs. Next, when considering whether Clark’s costs of defense are limited by the liability cap, we are guided by the plain language of the Fund statutes and the Integrity policy. A.R.S. section 20-667(A) provides that the Fund is “obligated to the extent of covered claims.” A “covered claim” is an “unpaid claim ... aris[ing] out of and ... within the coverage of an insurance policy” that is assumed by the Fund. A.R.S. § 20-661(3). The Fund is obligated on the covered claim for amounts between $100.00 and $100,000.00. A.R.S. § 20-667(B). To the extent of that obligation, the Fund “shall have all rights, duties, and obligations of the insolvent insurer as if the insurer had not become insolvent.” A.R.S. § 20-667(C). The Integrity policy provides that the insurer shall “pay on behalf of the insured all sums, as more fully defined by the term ultimate net loss, for which the insured shall become obligated to pay by reason of liability ... arising out of personal injury.” “Ultimate net loss” is “the amount of the principal sum ... actually paid or payable in cash in the settlement or satisfaction of claims for which the insured is liable.” The policy further provides that Integrity “shall in addition to the amount of ultimate net loss payable ... defend any suit against the insured seeking damages on account of personal injury.” (Emphasis added.) Here, the claim that is within the coverage of the Integrity policy, termed the “covered claim” by A.R.S. section 20-661(3), is one for which Clark has “become obligated to pay by reason of liability ... arising out of personal injury.” The settlement amounts for the Chavez and Dossey claims fit within this category. But under the policy, and “in addition to” the settlement amounts for “ultimate net loss,” Integrity has the obligation to “defend any suit against [Clark] seeking damages on account of personal injury.” Because A.R.S. section 20-667(C) requires the Fund to assume all “duties and obligations” of Integrity, including the duty and obligation to defend Clark, we conclude that the Fund’s obligation to pay Clark’s defense costs is in addition to the $99,900.00 liability cap set forth in A.R.S. section 20-667(B). The dissent would resolve this issue differently by finding that A.R.S. section 20-661(3) requires that post-insolvency defense costs incurred by the insured be part of the covered claim. That statute provides: “Covered claim” means an unpaid claim, including one for unearned premium, which arises out of and is within the coverage of an insurance policy to which this article applies____ Covered claim does not include any amount due any reinsurer, insurer, insurance pool or underwriting association as subrogation recoveries or otherwise nor shall it include any obligations of the insolvent insurer arising out of any reinsurance contracts nor shall it include attorney’s fees or adjustment expenses incurred prior to the determination of insolvency. The dissent reasons that, since pre-insolven-cy attorneys’ fees are specifically excluded from the covered claim, post-insolvency fees must necessarily be included. We, however, do not believe that the statute requires that result. When interpreting a statute, the primary objective is to “give effect to the legislative intent.” State v. Superior Court, 183 Ariz. 462, 464, 904 P.2d 1286, 1288 (App.1995). Where there is no explicit statutory language, we “look to other indicia of legislative intent.” Id. Accordingly, since A.R.S. section 20-661(3) neither expressly includes nor excludes post-insolvency defense costs as part of the covered claim, we must consider the “subject matter, effects, consequences, and reason and spirit” of the law. Id. The purpose of the Fund is to assume the liability of insolvent insurers. See Betanc-ourt, 170 Ariz. at 298, 823 P.2d at 1306. The Department of Insurance has stated that the Fund is intended to “protect Arizona residents” who have claims against an insolvent insurer. The categories that A.R.S. section 20-661(3) excludes as not being part of a covered claim, such as preinsolvency attorneys’ fees, are expenses of'an insolvent insurer rather than an insured. That is consistent with the Fund’s purpose to protect Arizona resident insureds, who alone may file claims against the Fund. Conversely, the protection of insurers and those employed by them is not the purpose of the Fund. Since pre-insolvency attorneys’ fees are always outside of the Fund’s control, it is understandable that the Fund is not liable for such costs. But, when the Fund owes a defense, the costs are its responsibility. We see no reason to deny defense costs when they are reasonably incurred by the insured. Accordingly, when the Fund, by its failure to respond to a claim, forces the insured to provide its own defense, it ought not be permitted to reduce the amount of the covered claim by the subsequent defense costs of the insured. Were we to allow a contrary result, the Fund would have no incentive to provide any defense. It could merely ignore the insured when a claim is made, as it did here, and rest secure in the knowledge that, if a court eventually ordered it to accept the claim, it could not be for.any amount greater than $99,900. This would be especially troubling because the Fund is not liable for the bad faith denial of a claim. See Wells Fargo Credit Corp. v. Arizona Property & Casualty Ins. Guar. Fund, 165 Ariz. 567, 572, 799 P.2d 908, 913 (App.1990). We therefore conclude that the Fund is liable for its insured’s reasonably incurred post-insolvency defense costs. VI. A.R.S. Section 12-341.01 and Attorneys’ Fees at Trial The Fund next argues that the trial court’s award of attorneys’ fees and costs to Clark, pursuant to A.R.S. section 12-341.01, is improper. It reasons that, since fees and costs are not “covered claims” within the meaning of A.R.S. section 20-661(3), the trial court had no authority to impose an award of attorneys’ fees and costs against it. This argument, however, has been waived. See United States v. Globe Corp., 113 Ariz. 44, 51, 546 P.2d 11,18 (1976). Nowhere below did the Fund argue that, in the event it was the unsuccessful party, it could not be held liable for an award of attorneys’ fees and costs. Nor did the Fund object to the award after the trial court directed Clark to file a statement of attorneys’ fees and costs. Although, in its reply brief on appeal, the Fund has argued that this issue was not waived because it “was briefed, and discussed prior to the court’s award of same,” the only argument below regarding attorneys’ fees was that the Fund was not liable for defense costs related to the Chavez claim because that total claim would then exceed the statutory liability cap of $99,900.00. See supra § V. That argument is unrelated to whether, pursuant to A.R.S. section 12-341.01, Clark should be awarded its attorneys’ fees and costs as a prevailing party, and does not preserve the issue on appeal. We therefore affirm the trial court’s award of attorneys’ fees and costs. VII. Attorneys’ Fees on Appeal Clark, as the prevailing party, also asks for an award of its attorneys’ fees and costs on appeal pursuant to A.R.S. section 12-341.01(A), which provides that, in “any contested action arising out of a contract, ... the court may award the successful party reasonable attorney’s fees.” The Fund responds that such an award cannot be made against it because 1) this action arises by virtue of statute, rather than contract, and 2) it is precluded by the Fund statutes. We, however, grant Clark’s request. We find that attorneys’ fees are appropriate under AR.S. section 12-341.01(A) because the complaint alleges, and the judgment is based upon, a breach of contract. See ASH, Inc. v. Mesa Unified Sch. Dist. No. 4, 138 Ariz. 190, 192, 673 P.2d 934, 936 (App.1983). “In any contested action arising out of contract,” A.R.S. § 12-341.01(A), allows an award of fees when a contract is the “cause or origin” of the dispute. Id. Here, the “contract was a factor causing the dispute.” Id. Without the insurance contract between Clark and Integrity, there would have been no dispute between Clark and the Fund. Clark’s cause of action was for breach of the contract on which the Fund was “deemed the insurer.” A.R.S. § 20-667(C). Subject to the limitations of AR.S. section 20-667, the insurance contract defined the Fund’s rights and obligations with respect to Clark. Clark brought suit to enforce those rights and the Fund sought to avoid its obligations using contractual defenses. Even though the Fund was created by statute and has assumed Integrity’s obligations because of its statutory duty, the essential nature of this action remains one sounding in contract. Moreover, our courts have recognized that an award of fees under AR.S. section 12-341.01(A) is not precluded merely because an action combines two theories of recovery, one which allows a fee award and one which does not, so long as, “but for” the contract claim, there would be no liability. Ponderosa Plaza v. Siplast, 181 Ariz. 128, 133, 888 P.2d 1315, 1320 (App. 1993). Citing Wells Fargo Credit Corp. v. Arizona Property & Casualty Ins. Guar. Fund, 165 Ariz. 567, 799 P.2d 908 (App.1990), the Fund next argues that A.R.S. section 20-675(A) precludes it from paying any judgment or liability in excess of a “covered claim.” That statute provides: There shall be no liability on the part of, and no cause of action shall rise against, any member insurer, the board or its agents or employees, the director or the representatives of the director for any action taken in performance of their powers and duties pursuant to this article. In Wells Fargo, this court held that A.R.S. section 20-675 immunized the Fund from tort claims, such as bad faith and misrepresentation, reasoning in part that the legislature had not provided a method for the Fund to charge its member insurers in order to fund such liabilities. 165 Ariz. at 572, 799 P.2d at 913. Wells Fargo did not, however, address the question of attorneys’ fees arising out of an insurance policy dispute. Liability for tort claims is dissimilar from liability under A.R.S. section 12-341.01(A). While tort recoveries are intended to compensate for harm intentionally or negligently inflicted by another, A.R.S. section 12-341.01(A) is intended to “mitigate the burden of the expense of litigation to establish a just claim” under contract. A.R.S. § 12-341.01(B). When any insurer, including the Fund, denies a “just claim” under an existing contract, it risks litigation with the insured and the possible imposition of a fee award. We further disagree with the Fund’s argument that it may not pay these expenses because such payments have not been specifically authorized by statute. We conclude that no specific authorizing statute is necessary. Attorneys’ fees, whether incurred on behalf of an insured or in the defense of a claim on an insurance contract, are one of the ordinary expenses of an insurer. A.R.S. section 20-664(B) clearly contemplates that the Fund will be involved in litigation, not just on behalf of an insured, but as a defendant in its own right. That statute provides, in pertinent part, that the Fund may: 1. Appear in, defend and appeal any action on a claim brought against the fund. 2. Employ or retain such persons as are necessary to handle claims and perform other duties of the Fund. 4. Sue and be sued. 6. Perform such other acts as are necessary or proper to carry out the intent of this article. Although the Fund statutes refer to the Fund’s payment of the expenses of handling claims, see A.R.S. §§ 20-664(A)(6), -666(A), and to expenses generally, see A.R.S. §§ 20-662(C), -664(A)(2), — 666(A), they do not specifically authorize the payment of any type of attorneys’ fees by the Fund. Nonetheless, it would be absurd to suggest that the Fund is therefore prohibited from paying any attorneys’ fees because they are not specifically authorized. Here the Fund, like any other entity involved in litigation over the terms of a contract, must expect that it may be liable for the prevailing party’s attorneys’ fees. Furthermore, unlike tort claims, the Fund is empowered to collect assessments from member insurers to pay the costs associated with “handling covered claims,” A.R.S. § 20-666(A), which include payments for attorneys’ fees pursuant to A.R.S. section 12-341.01(A). Moreover, because the Fund, unlike other insurers, is immune from tort claims, Wells Fargo, 165 Ariz. at 567, 799 P.2d at 913, without exposure to A.R.S. section 12-341.01(A), the Fund would be able to shirk its responsibilities to claimants with impunity. There would be little incentive for it to pay, settle, or defend covered claims, absent a court order. This is certainly inconsistent with the Fund’s purpose, as stated by the Arizona Department of Insurance, “to provide protection to Arizona residents who may have claims against [an insolvent] insurer.” In the absence of a specific prohibition, the Fund, like any other political subdivision, agency, or creature of statute, is not shielded from paying an award of attorneys’ fees. See New Pueblo Constructors v. State, 144 Ariz. 95, 111-12, 696 P.2d 185, 201-02 (1985) (attorneys’ fees award against state is proper under AR.S. section 12-341.01 where statutory language is broad enough to allow recovery against “all civil defendants” and no statute expressly precludes it); Maricopa County v. Maricopa County Mun. Water Conservation Dist. No. 1, 171 Ariz. 325, 332, 830 P.2d 846, 853 (App.1991) (attorneys’ fees award against county proper under A.R.S. section 12-341.01(A)). Accordingly, we find that the Fund is not precluded from paying an award of attorneys’ fees. In our discretion, we grant Clark’s request for attorneys’ fees on appeal upon its compliance with Rule 21(c), Arizona Rules of Civil Appellate Procedure. CONCLUSION The judgment of the trial court is affirmed. GRANT, Judge, concurs. . The breakdown of the total judgment against the Fund for the Chavez and Dossey claims was as follows: $ 99,900 Statutory maximum settlement amount for Chavez $119,844 Unreimbursed defense fees and costs for Chavez ($124,472— $4,628 [the amount excluded by the trial court]) $ 14,900 Settlement amount for Dossey $ 5,078 Unreimbursed defense fees and costs for Dossey $ 155,885 Prejudgment interest at 10% per annum simple interest from the _ date of each expenditure $395,607 Total judgment . The Fund's obligation on a covered claim is not "absolutely coextensive” with that of the insolvent insurer. The Fund is liable only for claims that exist within a certain time period relative to the insolvency, A.R.S. § 20-667(A), and for dollar amounts greater than $100 and less than $100,000, A.R.S. § 20-667(B). See Betancourt, 170 Ariz. at 298, 823 P.2d at 1306. . Clark asserts that the correct limitation period for claims on a foreign contract is four years. See A.R.S. § 12-544(3). . Although Clark's notice of amended disclosure is included in the record, the amended disclosure statement is not. . Although the Fund characterizes its October 10, 1991 letter as a denial, the full text of the letter, especially when considered in the context of its later interim reports to the file, indicates that the Fund did not yet consider the claims to have been denied. . Moreover, restricting a trial court's latitude would place insureds in an untenable position; upon an insurer’s failure to approve or deny a claim, the insured would be required to simultaneously assume its own defense and initiate a declaratory judgment action against the insurer. . The Arizona legislature has subsequently amended A.R.S. section 12-821 again and it now applies to "[a]ll actions against a public entity.” See 1994 Ariz. Sess. Laws ch. 162, § 1. . Condition six of Clark's Integrity policy reads, in part: 6. ASSISTANCE AND COOPERATION OF THE INSURED The insured shall cooperate with [Integrity] and with the underlying insurers as required by the terms of the underlying insurance and, upon [Integrity's] request, assist in making settlements in the conduct of suits---- The insured shall not voluntarily make any payment, assume any obligation or incur any expense except at his own cost. . The Fund also argues that Clark violated its statutory duty to cooperate, set out in A.R.S. section 20-672(A). But, since the Fund concedes that Clark’s duties under condition six of the policy and A.R.S. section 20-672(A) are identical, the statutory duty does not merit separate analysis. . The cooperation clause in Holt read, in part, The insured shall cooperate with [the company] and at [the company’s] request ... shall assist ... in the conduct of suits and defense thereof. The insured shall not, except at [its] own cost, make any admission of liability ... assume any obligation or incur any expenses without the written consent of [the company]. Id. at 483, 759 P.2d at 629. . A.R.S. section 20-673(A) provides, in pertinent part:

OPINION THOMPSON, Presiding Judge. Petitioner Carmen Ferreira (Ferreira) seeks special action review of a superior court order denying her motion to dismiss a criminal action against her based on double jeopardy grounds. The issue presented is whether a criminal prosecution following an administrative forfeiture of unclaimed property offends the double jeopardy clause. We hold that it does not and, in accordance with our previous order accepting jurisdiction and denying relief, issue the following opinion. FACTS AND PROCEDURAL HISTORY Between July 24,1992, and August 4,1992, Ferreira and two co-defendants allegedly negotiated with undercover police officers from the Northern Arizona Metro Unit to purchase fifty kilograms of drugs. The defendants gave $44,000.00 to the officers in partial payment for the cocaine. The officers were to later provide the cocaine to Ferreira and her co-defendants in exchange for the balance owed on the drug purchase. Prior to completing the transaction, the officers arrested Ferreira and the other defendants. On September 3, 1992, the state filed a notice of pending forfeiture stating that the $44,000.00 allegedly given to the law enforcement officers by the defendants was subject to forfeiture. Pursuant to Ariz.Rev.Stat. Ann. (A.R.S.) § 13-4309, the attorney for the state made uncontested civil forfeiture “available” to the defendants. This statutory procedure provided that the property would be forfeited if none of the defendants filed a claim with the court, or a petition with the attorney for the state, within thirty days after receipt of notice. Each defendant received notice of the pending forfeiture action by publication or, as in Ferreira’s case, by certified mail. None of the defendants filed a timely petition or claim contesting the pending forfeiture. The state subsequently applied for an order of forfeiture. The state’s application included an affidavit from one of the officers involved in the reverse sting operation, which set forth facts showing probable cause to believe that the $44,000.00 had been the proceeds of an illegal drug transaction and, therefore, subject to forfeiture. The trial court thereafter awarded the $44,000.00 to the state. On September 10,1992, a Coconino County grand jury indicted Ferreira and her co-defendants for conspiracy to possess narcotic drugs for sale, attempted possession of narcotic drugs for sale and conducting an illegal enterprise. Ferreira filed a motion to dismiss these charges, claiming that the double jeopardy clauses of the United States and Arizona Constitutions barred a criminal prosecution following a civil forfeiture proceeding. The trial court denied Ferreira’s motion to dismiss. This special action followed. DISCUSSION The Arizona special action procedure is particularly suited to the constitutionally mandated right to appellate review of claims of double jeopardy. Nalbandian v. Superior Court, 163 Ariz. 126, 130, 786 P.2d 977, 981 (App.1989), cert, denied, 498 U.S. 997, 111 S.Ct. 554, 112 L.Ed.2d 562 (1990). Special action is an appropriate procedural vehicle when a criminal defendant raises an issue prior to prosecution about whether that prosecution will violate her constitutional right to double jeopardy protection. Fitzgerald v. Superior Court, 173 Ariz. 539, 543, 845 P.2d 465, 469 (App.1992). Therefore, we have accepted special action jurisdiction. Ferreira argues that her criminal prosecution will place her twice in jeopardy for the same offense. The double jeopardy clause provides that no person shall be “twice put in jeopardy of life or limb” for the same violation of the law. U.S. Const, amend. V. This constitutional provision has been interpreted to protect against: (1) a second prosecution for the same offense after an acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 1897,104 L.Ed.2d 487 (1989); Fitzgerald, 173 Ariz. at 544, 845 P.2d at 470. The double jeopardy clause is enforceable against the states through the due process clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969); Taylor v. Sherrill, 169 Ariz. 335, 338, 819 P.2d 921, 924 (1991). In the present case, Ferreira argues that she may not be criminally prosecuted for charges arising from the same conduct involved in the prior forfeiture of the $44,-000.00. She contends that such a prosecution would violate the constitutional prohibition against imposing multiple punishments for the same offense. In deciding whether the state’s actions violate the double jeopardy clause, we must consider two questions: (1) whether the civil forfeiture action and the subsequent criminal prosecution constitute “separate proceedings;” and (2) whether an uneontested civil forfeiture constitutes “punishment” under Arizona’s statutes. See United States v. $405,089.23 U.S. Currency, 33 F.3d 1210,1216 (9th Cir.1994). This court recently addressed the first issue in State v. Leyva, 184 Ariz. 439, 909 P.2d 506 (App.1995). In that case, we held that a civil forfeiture action and a criminal prosecution are “separate proceedings” when they involve the same conduct but are instituted at different times, presided over by different judges, tried before different fact finders and resolved by separate judgments. Id. at 441, 909 P.2d at 508. In reaching this conclusion, we relied on earlier Ninth Circuit case law. See $405,089.23, 33 F.3d at 1216; but see United States v. 18755 N. Bay Rd., 13 F.3d 1493, 1499 (11th Cir.1994); United States v. Millan, 2 F.3d 17, 20 (2d Cir.1993), cert denied, Bottone v. United States, 510 U.S. 1092, 114 S.Ct. 922, 127 L.Ed.2d 215 (1994). Here, the record shows that the civil forfeiture action and the subsequent criminal prosecution are clearly separate proceedings under the Leyva standard. Leyva is also instructive in determining whether the uncontested civil forfeiture of the $44,000.00 is considered “punishment.” In Leyva, the state filed a motion for summary judgment, seeking a twenty million dollar in personam civil forfeiture, after the defendant, Francisco Leyva, pled guilty to involvement in a drug smuggling operation. Leyva at 441, 909 P.2d at 508. Leyva argued that any subsequent civil judgment against him would violate the double jeopardy clause. Id. at 441, 909 P.2d at 508. In deciding whether the civil forfeiture was punishment or merely remedial, the court noted: Whether a civil sanction constitutes punishment is determined “only by assessing the character of the actual sanctions imposed on the individual by the machinery of the state.” [Halper] at 447 [109 S.Ct. at 1901]. “In making this assessment, the labels ‘criminal’ and ‘civil’ are not of paramount importance.” Id. Rather, a sanction is punitive when, as applied in the individual case, it serves the goals of punishment. Id. at 448 [109 S.Ct. at 1901-02], Legislative declaration regarding the nature of the sanction is not of paramount importance. Leyva at 443, 909 P.2d at 510. The court in Leyva concluded that the forfeiture judgment in that case violated the double jeopardy clause because it constituted, at least in part, a second punishment. Id. at 445, 909 P.2d at 512. Unlike Leyva, the civil forfeiture in this case preceded the criminal prosecution and no attempts were made by Ferreira to claim the property at issue, either prior to or after forfeiture. Moreover, the forfeiture here involved a discrete, fixed fund which all potential owners were given an opportunity to claim and which was held in police custody at the time the forfeiture proceeding commenced. Conversely, the money judgment obtained by the state in Leyva was recompense for the estimated value of a marijuana field seized from a drug-smuggling organization of which Leyva was a member, for expenses of investigating and prosecuting the drug ring, and for other sums which the state did not possess at the time of the forfeiture but hoped to recover. Id. at 441, 909 P.2d at 508. The twenty million dollars represented damages to the state and ill-gotten gain realized by the criminal enterprise which the state sought to recover not from the criminal enterprise but from Leyva and his wife personally. Id. Most critically, the civil judgment in Leyva was in personam, thereby requiring the specific identification of a wrongdoer from whom the sums sought would be recovered. The $44,000.00 at issue here had been the subject of an in rem forfeiture; Ferreira never claimed the property and no specific owner needed to be identified to properly execute the forfeiture. This case is therefore distinguishable from Leyva on this issue. Indeed, we are presented here with a different, but related issue: whether the administrative forfeiture of unclaimed property constitutes “punishment.” We conclude that it does not. In a companion case to $$05,-089.28, the Ninth Circuit squarely confronted this exact issue. In United States v. Cretacci, 62 F.3d 307 (9th Cir.1995), the Ninth Circuit concluded that “an owner who receives notice of the intended forfeiture and fails to claim an ownership interest in the property has effectively abandoned it.” Id. at 310. The court characterized administrative forfeiture proceedings directed at such unclaimed property as “simply constituting] the taking of abandoned property.” Id. For this reason, the court found that such a taking would not impose punishment for double jeopardy purposes. Id. We find the Ninth Circuit’s reasoning persuasive. The administrative forfeiture procedures in Cretacci are analogous to those in the present case. Under both Arizona and federal procedures, the agency that seized the property must notify potential owners of its intention to forfeit the seized property and, if the property is not claimed within a specified amount of time, the agency may declare it forfeited and sell it. 19 U.S.C. § 1609(a); A.R.S. §§ 13-4309 and 13-4315. Here, Ferreira was notified of the pending forfeiture and did not respond. As a non-party to the forfeiture proceeding, Ferreira could neither be placed in jeopardy nor “punished” in the constitutional sense. Because there is no risk of a determination of guilt in an uncontested administrative forfeiture proceeding, jeopardy does not attach. A later criminal prosecution therefore could not constitute double jeopardy. See, e.g., United States v. Torres, 28 F.3d 1463, 1465 (7th Cir.1994), cert, denied, 513 U.S. 1059, 115 S.Ct. 669, 130 L.Ed.2d 603 (1994); United States v. Walsh, 873 F.Supp. 334, 336-37 (D.Ariz.1994); United States v. Kemmish, 869 F.Supp. 803, 806 (S.D.Cal.1994). The double jeopardy clause “guards against Government oppression, [but] does not relieve a defendant from the consequences of his voluntary choice.” United States v. Scott, 437 U.S. 82, 99, 98 S.Ct. 2187, 2198, 57 L.Ed.2d 65 (1978). Indeed, as a California district court correctly recognized: A person may elect not to file a claim to property for any of a number of reasons. But, in doing so, the person forgoes the opportunity to contest the seizure on any ground or to contest any issue of personal culpability — be it personal guilt, innocence, or negligence. A person who avoids an adjudication of his or her guilt or innocence cannot later claim double jeopardy when the government seeks to obtain such an adjudication in a later proceeding. The Supreme Court has held that where a per son “successfully avoid[s] such a[n] adjudication ... [of] guilt or innocence,” he has been “neither acquitted nor convicted” for purposes of double jeopardy. Kemmish, 869 F.Supp. at 805 (quoting Scott at 99, 98 S.Ct. at 2198.) Upon receiving notice of the impending forfeiture, Ferreira had the option of contesting the forfeiture or allowing the property to be forfeited as unclaimed. Ferreira chose not to make a claim. Consequently, the $44,000.00 could be forfeited based solely upon the state’s belief that the money had been involved in a crime. A.R.S. §§ 13-4305(B), 13-4308(A), 13-4309. The forfeiture of property without any opposition does not place anyone in jeopardy. Thus, as a result of Ferreira’s voluntary choice not to file a claim, no adjudication of her personal culpability occurred. Ferreira argues that she did not voluntarily decline to claim the $44,000.00 in the civil forfeiture proceeding, but rather that she invoked her Fifth Amendment right not to incriminate herself. She asserts that if she had admitted at the forfeiture proceeding that the money belonged to her, this admission could have been used against her as impeachment evidence in the subsequent criminal action. She claims that her option whether or not to make a claim was constrained by her being forced to choose between surrendering her property rights or her freedom from self-incrimination. There is no evidence in the record that Ferreira invoked her Fifth Amendment rights, or that self-incrimination concerns played any part in her failure to make a claim. Without such evidence, we decline to speculate as to why Ferreira did not make a claim and will not credit a post hoc assertion that the threat of impeachment deterred her from making a claim because such assertions are easily manufactured. See State v. Conde, 174 Ariz. 30, 34, 846 P.2d 843, 847 (App.1992) (claim that defendant declined to testify at trial because of threat of improper impeachment not considered). Lastly, Ferreira maintains that at least one federal district court has held that a person is entitled to double jeopardy protection in a subsequent prosecution even though a prior civil forfeiture proceeding was uncontested, citing United States v. McCaslin, 863 F.Supp. 1299 (W.D.Wash.1994). Her reliance on this case is misplaced. As the state correctly points out, the forfeiture action in McCaslin was resolved by a consent judgment; it was not truly uncontested. Id. at 1305 n. 1. This case is therefore not analogous. See United States v. Ursery, 59 F.3d 568, 571-72 (6th Cir.1995) (a forfeiture action resolved by consent decree is an adjudication on the merits and is distinguishable from an uncontested forfeiture). CONCLUSION The state’s uncontested forfeiture of the $44,000.00 imposed no “punishment” upon Ferreira and therefore did not place her in jeopardy. Accordingly, we hold that her subsequent criminal prosecution does not violate the double jeopardy clause. EHRLICH, J., concurs. . See A.R.S. § 13-4301 et seq. (1992). . Although the defendants in Leyva did not initially oppose the state’s summary judgment motion, they later sought to have the judgment set aside after discovering their misapprehension that “the matter had been settled." Id. at 441, 909 P.2d at 508. Ferreira has never actively opposed the forfeiture of the $44,000.00.

OPINION FELDMAN, Justice. The court of appeals declined to accept jurisdiction of a petition for special action by which Phillip Herrell sought to obtain a remand to the grand jury for a new determination of probable cause. See Rule 12.9, Ariz. R.Crim.P. We granted review because we believe that the principles articulated by our previous cases required the trial court and the court of appeals to grant relief. We have jurisdiction pursuant to Ariz. Const, art. 6 § 5(3), Rule 23, Ariz. R.Civ.App.P., and A.R.S. § 12-120.24. FACTS AND PROCEDURAL HISTORY Herrell’s pleadings in this court and the court of appeals allege the following: Her-rell’s 13-year-old daughter was a frequent runaway who associated with gangs. On at least two occasions she was sexually assaulted. After one incident in early 1996, a man was charged in Maricopa County Superior Court with eight counts of sexual misconduct with the daughter. Around the same time, Herrell’s daughter was adjudicated incorrigible by the Maricopa County Superior Court, Juvenile Division, and placed on probation. On the evening of May 7, 1996, shortly after she returned from a probation-required counseling session, Herrell’s daughter asked for a flashlight. A few moments later, Her-rell heard his back door open and close and believed his daughter had run away again. He immediately got into his car and began driving through the neighborhood to search for her, but was unsuccessful and headed back toward his residence. As he approached his house, he saw a car parked near the end of his driveway and his wife running down the driveway, pointing toward the car and yelling their daughter’s name. Because it was dark and the car’s windows were tinted, Herrell did not have a clear view of the interior and saw only the outline of a female head in the front passenger seat. As the car pulled away, Herrell followed it and tried to get the driver to pull over. When it continued to evade him, Herrell pulled in front of the car and forced it to stop. Armed with a C02-powered BB pistol that he aimed at the driver, Herrell got out of his car and approached the other car, demanding to know his daughter’s whereabouts. Instead of responding, the driver backed up and sped away. Herrell jumped back in his car and pursued. The pursuit led Herrell back to his street, where he saw the other car pull into his neighbor’s driveway. It was not until then that Herrell discovered he had made a mistake — the occupants of the other car were his neighbor’s sister, brother-in-law, and their three young children. Both the neighbor and Herrell immediately called 911 to report the incident. Ten days later, the County Attorney’s Office presented Herrell’s case to the grand jury. The officer who testified had responded to the 911 calls, but had only spoken with the victims, not with Herrell. He told the jury that Herrell explained to other officers that he had been having trouble with his 13-year-old daughter, that she had been hanging out with gang members, was on probation, and he thought she may have left with some gang members that night. Shortly after the indictment was handed down, Herrell moved to have the matter remanded to the grand jmy for a new determination of probable cause, pursuant to Rule 12.9, Ariz.R.Crim.P. He argued that the jurors were presented with only the victims’ version of the events and had not been advised of the applicable law. Specifically, his motion asked the judge to: enter an order (1) remanding this matter to a new grand jury for a redetermination of probable cause, (2) directing the Marico-pa County Attorney’s Office to adequately advise the jurors of all the evidence in its possession/knowledge regarding the background of this case and (3) directing that same office to advise the grand jurors of all the appropriate justification statutes, including but not limited to A.R.S. § 13-411, and all the statutes described therein. The trial judge granted Herrell’s motion, concluding “that the State concedes the facts and arguments propounded by Defendant.” However, the judge did not give any specific directions regarding the second presentation to the grand jury. A few days later, Herrell’s attorney sent a letter to several deputy county attorneys involved in grand jury presentations. She requested that during the second presentation the attending deputy advise the grand jurors of all the relevant facts and applicable statutes. Included with the letter were copies of the parties’ Rule 12.9 pleadings and the court’s remand order. Cf. Trebus v. Davis, 189 Ariz. 621, 944 P.2d 1235 (1997). The case was presented to a new grand jury on October 16, 1996. In spite of Her-rell’s request and the trial court’s order, the presentation to the second grand jury was essentially the same as that to the first grand jury. The outcome was also the same: Her-rell was indicted for aggravated assault, a class 3 dangerous felony. The trial judge denied HerrelPs motion for a second remand to the grand jury, stating, “The information which the Defendant suggests should have been presented is exculpatory, but not clearly exculpatory to an extent which would require its presentation to the Grand Jury.” Herrell filed a petition for special action in the court of appeals. A majority of the court declined to accept jurisdiction, with Judge Garbarino dissenting. Believing that in this case the trial court and the court of appeals overlooked our cases pertaining to grand jury presentations, we granted Herrell’s petition for review. DISCUSSION Statutory law provides that “grand jurors are under no duty to hear evidence at the request of the person under investigation, but may do so____ The grand jurors shall weigh all the evidence received by them and when they have reasonable ground to believe that other evidence, which is available, will explain away the contemplated charge, they may require the evidence to be produced.” A.R.S. § 21-412; see also Rule 12.6. When the state uses grand jury procedures, it must present the evidence in a fair and impartial manner. State v. Emery, 131 Ariz. 493, 506, 642 P.2d 838, 851 (1982). We recently held that, on proper request, the prosecutor is obligated to inform the grand jury of any exculpatory matters, thus enabling the jury to make an informed decision under A.R.S. § 21-412. See Trebus, 189 Ariz. at 625, 944 P.2d at 1239. By the time of the second presentation to the grand jury, the prosecutor had the following available: (1) transcripts of the May 17, 1996 grand jury proceedings, (2) transcripts of Herrell’s and the neighbor’s 911 calls, (3) the complaint filed in superior court charging one Ignacio Avila with eight counts of sexual conduct with Herrell’s daughter; and (4) records of the juvenile court hearing at which Herrell’s daughter was adjudicated incorrigible. Information contained in these records could have been but was not made available to the grand jury to assist it in determining whether to indict Herrell. At the second grand jury presentation, the deputy county attorney advised the jurors that A.R.S. §§ 13-105 (definitions), 13-1203 (assault), 13-1204 (aggravated assault), and 13-604(P) (dangerous nature) might assist them in determining whether probable cause existed. According to his records, the statutes had been read to the jurors either July 3 or July 8. He also told the jurors he found in his file a note that he was to refer the jurors to A.R.S. §§ 13-404, 13-405, and 13-411 — “justification statutes____self-defense, use of a deadly weapon and use of force in crime prevention.” Nothing was said about how these three statutes in particular applied to Herrell; nor was there any reference to the several statutes referred to in § 13 — 411. In fact, §§ 13-04 and 13-405 do not relate to Herrell’s situation at all. Those statutes refer to a person’s use of physical or deadly force if the person believes such force is necessary “to protect himself against the other’s use or attempted use of unlawful” physical or deadly force. Thus, reference to the self-defense statutes was incorrect and irrelevant. The third statute mentioned, A.R.S. § 13-411, addresses justification and the use of force in crime prevention and is directly applicable to the facts of this case. However, the prosecutor failed to give the jury the apparently uncontradicted facts that might make § 13—411 and the statutes it refers to relevant and important. Thus, Herrell’s case is indistinguishable from Crimmins v. Superior Court, 137 Ariz. 39, 668 P.2d 882 (1983). Crimmins returned home from work one afternoon to find his house burglarized. Suspecting a neighborhood teenager, Crimmins went out to look for him, eventually finding the suspect and a group of friends at a local arcade. Although he was unable to apprehend his suspect, Crimmins grabbed another member of the group, placed the boy in his vehicle, questioned him, and ultimately obtained the names of the youths possibly responsible for the burglary. The boy managed to flee Crimmins’ vehicle and contact his parents, who called police. Crimmins was indicted for assault and kidnaping. In the trial court, Crimmins contended that the county attorney failed to adequately inform the grand jury of both the facts and the applicable law. When the trial judge denied Crimmins’ motion to remand pursuant to Rule 12.9, he sought special action relief from this court. We held that the citizen’s arrest statutes were part of the applicable law given the facts of the case, and it was the duty of the prosecutor as legal adviser to the grand jury to instruct on that law. The omission of that legal advice, considered with the inaccurate testimony, rendered the presentation of this case less than fair and impartial as is required by State v. Emery. Id. at 42, 668 P.2d at 885. We held that because the grand jury was unable to base its decision upon an accurate set of facts and the applicable law, Crimmins was denied his right to due process and a fair and impartial presentation of the evidence. Id. at 43, 668 P.2d at 886; see generally 38A C.J.S. Grand Juries § 168 (1996) (although prosecutor has wide discretion in presenting case to grand jury, such discretion is not unlimited, and presentation must be fair and impartial). Therefore, Crimmins was entitled to a new determination of probable cause. Given the unique facts of this case and its similarities to Crimmins, we believe it should have been apparent to the deputy county attorney presenting the case the second time that to have a fair and impartial presentation, it was necessary to inform the grand jury about Herrell’s version of the relevant, substantive facts. See generally 38A C.J.S. Grand Juries §§ 75b & 169 (1996) (grand jury should be instructed as to a defense when there is supporting evidence; prosecutor cannot posture handling of case to avoid informing jury of known exculpatory evi dence). The trial judge correctly granted Herrell’s first motion for remand, concluding that the state had conceded the facts contained in Herrell’s first motion. Given that the deputy county attorney presented the second grand jury with virtually the same information that had been given to the first jury, we do not understand how the trial judge could find the second presentation to be fair and impartial. Moreover, we disagree with the trial judge’s holding that the evidence Herrell wished to present was not clearly exculpatory. “Clearly exculpatory evidence is evidence of such weight that it would deter the grand jury from finding the existence of probable cause.” State v. Superior Court (Mauro), 139 Ariz. 422, 425, 678 P.2d 1386, 1389 (1984). Herrell’s motion requesting the second remand stated that “Herrell was clearly attempting to stop what appeared to him to be a surreptitious taking of his underage daughter, probably for the purpose of an illicit sexual encounter, or other type of unlawful assault---- [Herrell] had no idea what was happening inside that car. He reasonably believed, however, that his daughter, the victim of previous sexual assaults, was again being taken from her parent’s home, certainly against their will, and possibly against [hers].” Although somewhat melodramatic, Herrell’s version of the facts is supported by documentary evidence that was available to the county attorney. As we stated in Crimmins: Properly informed as to the facts and instructed as to the citizen’s arrest statutes, the grand jury could have decided the propriety and legal effect of Crimmins’ reliance on the right of a private individual to arrest a criminal suspect. This is a decision that should have been made by the grand jury in weighing the question of probable cause. 137 Ariz. at 43, 668 P.2d at 886. Likewise, in the instant case, the grand jury should have been able to consider whether, under A.R.S. § 13 — 411 and the statutes it refers to, Her-rell was justified in using force to prevent what he perceived was the commission of a serious crime against his daughter. Thus, we believe the evidence was very clearly exculpatory and the order denying remand was clearly erroneous. In both his petition for special action and petition for review, Herrell contends the trial judge’s denial of his second request for remand was without legal authority and/or arbitrary, capricious, and an abuse of discretion. We agree that the judge abused his discretion in failing to grant the second remand motion. The right to an impartial jury applies to both a grand jury and a trial jury. Whether a jury is impartial is “ordinarily a matter that must be left largely to the wise discretion of the trial court. But when the exercise of such discretion in a given cause appears to be clearly erroneous under well-settled principles of law, the appellate court is bound to interfere.” Priestly v. State, 19 Ariz. 371, 374, 171 P. 137, 138 (1918); see State v. Chapple, 135 Ariz. 281, 297 n. 18, 660 P.2d 1208, 1224 n. 18 (1983). CONCLUSION The county attorney failed to present the grand jury with an accurate picture of the substantive facts in both the initial grand jury proceeding and on remand. Thus, Her-rell was denied his right to due process and a fair and impartial presentation of the evidence. We must therefore remand for a determination of probable cause. This court has previously expressed its concerns surrounding the grand jury process: We must bear in mind the potential for abuse and the “devastating personal and professional impact that a later dismissal or acquittal can never undo,” when the prosecutor is allowed to exercise control “over a cooperative grand jury.” Crimmins, 137 Ariz. at 44, 668 P.2d at 887 (Feldman, J., specially concurring). See Tre-bus, 189 Ariz. at 625, 944 P.2d at 1239. Accordingly, the trial court is directed to remand for a new determination of probable cause. ZLAKET, C.J., JONES, V.C.J., and MOELLER and MARTONE, JJ, concur. . We note that the state did not file a response in this court. We therefore must assume the facts alleged in Herrell's petition are true. . We assume he was indicted for aggravated assault, a class 3 dangerous felony, though the actual charge is not part of the record before this court.

ORDERED: Petition for Review — DENIED.

OPINION PELANDER, Presiding Judge. This case presents an issue of first impression in Arizona: does the implied covenant of good faith and fair dealing require an insurance carrier to pay undisputed portions of uninsured motorist (UM) benefits to its insured/elaimant before the latter executes a release or obtains an arbitration award? Concluding that defendants/appellees Farmers and State Farm (the carriers) had no such obligation in this ease, the trial court granted summary judgment for them and against their insured, plaintiff/appellant Kim Voland. For the reasons stated below, we affirm. The parties stipulated to the following facts. In March 1992, plaintiff was injured in an accident caused solely by a negligent uninsured motorist. She made a claim for UM benefits under her State Farm and Farmers auto insurance policies, which had UM limits of $25,000 and $100,000 respectively. In April 1993, plaintiff made a settlement demand for the combined limits of $125,000. By that time plaintiff had submitted to both carriers medical records and bills totalling $5,587.14 and verification for lost wages to-talling $5,130.62. Neither carrier disputed that the medical bills were reasonable and causally-related to the accident or that the lost wages were caused by the accident. By late April 1993, both carriers had determined that the value of plaintiffs UM claim was between $30,000 and $40,000. Farmers’ representative (on behalf of both carriers) wrote to plaintiffs counsel in May, stating “we feel this claim has a fair value of $30,000” and offering to settle for that amount. A few days later plaintiff’s counsel wrote to the carriers, demanding arbitration under their policies and requesting them to pay plaintiff the $30,000 which they had offered. Relying in his letter on Borland v. Safeco Ins. Co., 147 Ariz. 195, 709 P.2d 552 (App.1985), and Filasky v. Preferred Risk Mut. Ins. Co., 152 Ariz. 591, 734 P.2d 76 (1987), plaintiffs counsel requested the carriers to send “drafts totalling the amount of $30,000.00,” stated “[w]e can arbitrate the difference,” and concluded: “Although I believe that your evaluation of this claim at $30,000.00 is without foundation and itself is evidence of bad faith, it is clear that failure to pay the undisputed amount would be bad faith.” At no time during negotiations did the carriers pay the $30,000 plaintiffs counsel had requested, nor did they pay plaintiff for her undisputed medical expenses or lost wage claim. Plaintiff or her counsel, however, never specifically requested the carriers to pay only the amount of the medical bills and lost earnings. After the carriers increased their joint offer to $50,000 and plaintiff reduced her settlement demand to $80,-000 in October 1993, the matter proceeded to arbitration in December and the arbitrators awarded plaintiff $60,000. Plaintiff accepted that award, conditioned on her right to bring this action. Plaintiffs complaint alleged both carriers had an obligation “to pay undisputed amounts owed to her” under their policies, and their failure to do so “constitutes breach of contract and bad faith.” This appeal followed the trial court’s summary judgment ruling which rejected plaintiffs claims. Because the material facts in this ease are undisputed, we determine de novo whether the trial court correctly applied the substantive law to those facts. DeSzendeffy v. Threadgill, 178 Ariz. 464, 465, 874 P.2d 1021, 1022 (App.1994). We will affirm if the trial court’s disposition is correct for any reason. Glaze v. Marcus, 151 Ariz. 538, 540, 729 P.2d 342, 344 (App.1986). In Arizona, insurance contracts include an implied covenant of “good faith and fair dealing,” whereby each party is “bound to refrain from any action which would impair the benefits which the other had the right to expect from the contract or the contractual relationship.” Rawlings v. Apodaca, 151 Ariz. 149, 154, 726 P.2d 565, 570 (1986). “ ‘[T]he relevant inquiry always will focus on the contract itself, to determine what the parties did agree to.’ ” Id., quoting Wagenseller v. Scottsdale Memorial Hosp., 147 Ariz. 370, 385, 710 P.2d 1025,1040 (1985). However, one of the benefits that flow from the insurance contract is the insured’s expectation that his insurance company will not wrongfully deprive him of the very security for which he bargained or expose him to the catastrophe from which he sought protection. Conduct by the insurer which does destroy the security or impair the protection purchased breaches the implied covenant of good faith and fair dealing implied in the contract. Rawlings, 151 Ariz. at 155, 726 P.2d at 571. We have neither been cited to nor found any reported Arizona decisions addressing bad faith allegations relating to a carrier’s handling of a UM claim. We see no reason why the implied covenant of good faith and fair dealing should not apply to the UM context. In that regard, we generally agree with the following observations by the Alabama Supreme Court: Uninsured motorist coverage ... is a hybrid in that it blends the features of both first-party and third-party coverage. The first-party aspect is evident in that the insured makes a claim under his own contract. At the same time, however, third-party liability principles also are operating in that the coverage requires the insured to be “legally entitled” to collect — that is, the insured must be able to establish fault on the part of the uninsured motorist and must be able to prove the extent of the damages to which he or she would be entitled. The question arises: when is a carrier of uninsured motorist coverage under a duty to pay its insured’s damages? There is no universally definitive answer to this question or to the question when an action alleging bad faith may be maintained for the improper handling of an uninsured or underinsured motorist claim; the answer is, of course, dependent upon the facts of each case. Clearly, there is a covenant of good faith and fair dealing between the insurer and the insured, as with direct insurance, but the insurer and the insured occupy adverse positions until the uninsured motorist’s liability is fixed____ LeFevre v. Westberry, 590 So.2d 154, 159 (Ala.1991). Although a UM carrier may assert all defenses which would be available to the uninsured motorist, it still owes a duty of good faith and fair dealing to its insured/claimant. State Farm Mut. Auto. Ins. Co. v. Shrader, 882 P.2d 813, 826-27 (Wyo. 1994), quoting 2 Alan I. Widiss, Uninsured and Underinsured Motorist Insurance § 20.4 at 161-62 (2nd ed. 1992). Plaintiff primarily contends the carriers breached the implied covenant by failing to pay her, in advance, the acknowledged $30,000 “fair value” of her claim. Seizing on the language in the carriers’ written settlement offer, plaintiff claims “$30,000.00 was the minimum ‘fair value’ of the claim as determined jointly by their adjusters.” Based on that premise, she maintains the carriers acted in bad faith by withholding that sum from her while the parties followed the policies’ arbitration procedure to resolve their dispute about value, or until she executed a release. Plaintiffs argument is flawed because it overstates the significance of the carriers’ choice of the term “fair value” in their $30,- 000 settlement offer. Contrary to plaintiffs contention, that the carriers considered her claim’s “fair value” to be $30,000 and therefore offered to settle for that amount does not mean they acknowledged that was “the minimal amount the insurer’s own adjuster ha[d] evaluated as being owed to the insured.” Rather, the settlement offer was simply a proposal to compromise and resolve the claim, nothing more and nothing less. It represented the carriers’ evaluation or best estimate, at that point in time, of what the trier (here, the arbitrators) might award. The carriers’ settlement offer did not bind them if, as it turned out, the claim could not be settled and had to be arbitrated. Nor did it set a “floor” on what the arbitrators had to award or what the carriers ultimately would have to pay. As State Farm correctly notes, “an unaccepted settlement offer does not liquidate the amount of damages or constitute an admission of ‘undisputed amounts’ owed.” If, in order to avoid a bad faith claim, UM carriers were obligated to pay the amount of their lowest settlement offer without obtaining any release and before any arbitration hearing or award, they would have little if any incentive to settle. Imposing such a requirement would have a chilling effect on genuine settlement evaluations and negotiations. The effect would be to deter settlement and foster litigation, whereas our system of justice encourages settlement and discourages litigation. See State Farm Mut. Auto. Ins. Co. v. Peaton, 168 Ariz. 184, 194, 812 P.2d 1002, 1012 (App.1990). As she did during pre-arbitration negotiations, plaintiff relies on Borland and Filasky to support her position. In Borland, the insured made a theft claim under her homeowner’s policy for twelve jewelry items stolen during a burglary of her home. On appeal from a jury verdict for the insured, Division One of this court held that the homeowner’s insurer’s delay in adjusting the insured’s burglary loss claim, for which coverage was not contested, amounted to bad faith and warranted an award of compensatory but not punitive damages. The court ruled that once the insurer determined its policy had been renewed and provided coverage, it easily could have calculated the minimum amount it owed for the stolen jewelry and should have promptly paid that undisputed portion of the claim: Where coverage is not contested but the amount of the loss is disputed, the insurer is under a duty to pay any undisputed portion of the claim promptly. Failure to do so amounts to bad faith. Borland, 147 Ariz. at 200, 709 P.2d at 557. In Filasky, our supreme court upheld a jury’s compensatory damage award for the plaintiff/insured’s bad faith claim. The insured alleged, inter alia, that the carrier unreasonably delayed paying loss of income benefits under her auto insurance policy after an auto accident caused her to miss work. After requesting and reviewing medical records of plaintiffs treating physicians more than a year after the accident, the carrier ultimately paid all lost income benefits due the insured. Nonetheless, the supreme court noted the “lost-benefits claim could have been settled much earlier” and stated: In addition, [the carrier] admitted that some lost-income benefits were due as early as [three months after the accident], but were not paid because the total amount due was questionable. Because the amount of benefits due, rather than coverage, was contested, Preferred Risk had a duty to pay promptly any undisputed portion of the claim. This failure alone amounts to bad faith. Filasky, 152 Ariz. at 597, 734 P.2d at 82, citing Borland, 147 Ariz. at 200, 709 P.2d at 557. Borland and Filasky did not involve UM claims. They are not controlling and do not preclude summary judgment for the carriers here. Unlike the stolen personal property and lost earnings claims involved in those eases, a personal injury claim is unique and generally not divisible or susceptible to relatively precise evaluation or calculation. The “pain and suffering’Vgeneral damage elements of a personal injury claim, for example, are inherently flexible and subject to differing and potentially changing evaluations based on various factors. See LeFevre, 590 So.2d at 163 (recognizing the many variables in evaluating and settling personal injury claims). In short, evaluating personal injury claims, and particularly the “general damage” component, is far from an exact science. Oftentimes it is no more precise or predictable than throwing darts at a board. The out-of-state cases relied on by the court in Borland also are inapposite. Par-rett v. Commercial Union Ins. Co., 512 F.Supp. 1074 (E.D.La.1981); Olson v. Ruglo-ski, 277 N.W.2d 385 (Minn.1979). Olson involved a property insurance claim for two trucks which were totally destroyed by fire, and Parrett involved a claim for lightning damage to a fishing vessel under a marine hull policy. Such property damage claims, unlike personal injury claims, may be accurately appraised without great difficulty or difference of opinion. In addition, the insurer in Olson unreasonably demanded a release before paying the undisputed, minimum amount owed for the fire loss, and a state statute obligated the insurer in Parrett to pay any undisputed claims within sixty days after receipt of the insured’s proof of loss. Those elements are lacking in this case. For the foregoing reasons, we hold the implied covenant of good faith and fair dealing does not require a UM carrier to pay in advance (that is, before the insured executes a release or obtains an arbitration award) the amount of an unaccepted settlement offer which fully covers all aspects of a UM claim (including special and general damages). Cf. LeFevre, 590 So.2d at 162 (holding no bad faith in carrier’s failure to tender UM limits for 15 months “because there was a legitimate dispute concerning the amount of damages”). Accordingly, we reject plaintiff’s contentions that Farmers and State Farm acted in bad faith by declining her demand to pay her, up front, the $30,000 which they offered and she rejected in settlement. Relying on Borland and Filasky, plaintiff alternatively contends that, at the very least, the carriers acted in bad faith by failing to pay in advance her undisputed medical bills and lost wages totaling $10,-717.76. Even if the rationale and holdings of Borland and Filasky extended to “undisputed” special damage elements of a UM claim, the carriers’ failure to pay plaintiff her special damages before arbitration would not constitute bad faith in this case. First, plaintiff never requested, let alone demanded, the carriers to pay her special damages before arbitration. Rather, plaintiff first raised that claim in this action. Second, as noted above, Borland and Filasky are distinguishable and did not mandate voluntary, advance partial payments under all circumstances or on “undisputed” elements of UM claims. Nor did those cases sufficiently foreshadow such a requirement. There simply is no direct or controlling authority supporting plaintiffs present position, requiring UM carriers to make gratuitous advance payments which the insured does not request. Third, there is no claim the carriers delayed or improperly conducted their investigation, delayed the arbitration process, or engaged in any questionable tactics detrimental to plaintiff. The type of evidence suggesting bad faith in the cases plaintiff relies on is noticeably absent here. See, e.g., Rawlings, 151 Ariz. at 161, 726 P.2d at 577 (carrier attempted to prevent insureds’ suit against the tortfeasor in order to protect its own financial interests, indifferent to the insureds’ fire loss, and pursued that objective “by deceit, nondisclosure, reneging on promises, violation of industry custom and deliberate attempts to obfuscate”); Filasky, 152 Ariz. at 597, 734 P.2d at 82 (insurer’s reasons for delaying settlement of insured’s three claims “were groundless or inadequately investigated”); Borland, 147 Ariz. at 198-99, 709 P.2d at 555-56 (carrier allegedly “had intentionally denied coverage and failed to adjust the loss in good faith,” and the “main thrust of [plaintiff’s] claim went to the inordi nate delay involved in getting the loss paid”). This is not a case where the carriers “intentionally denie[d], fail[ed] to process or pay a claim without a reasonable basis for such action.” Noble v. National Am. Life Ins. Co., 128 Ariz. 188, 190, 624 P.2d 866, 868 (1981). Under the circumstances, any obligation the carriers had to gratuitously pay plaintiff UM benefits in advance for her special damages was, as a matter of law, “fairly debatable.” Noble, 128 Ariz. at 190, 624 P.2d at 868. See also Lasma Corp. v. Monarch Ins. Co., 159 Ariz. 59, 63-64, 764 P.2d 1118, 1122-23 (1988); Rawlings, 151 Ariz. at 156, 726 P.2d at 572. Because the carriers had a reasonable basis for their actions, they cannot be liable for bad faith. Aetna Cas. & Surety Co. v. Superior Court, 161 Ariz. 437, 440, 778 P.2d 1333, 1336 (App.1989); cf. Bu-choltz v. Safeco Ins. Co., 773 P.2d 590 (Colo. App.1988) (no bad faith where UM carrier stopped negotiating toward settlement after insured demanded arbitration). Finally, the insurance policies did not require the carriers to offer or make advance payments of UM benefits, for allegedly “undisputed” damages or otherwise, but rather specifically provided for binding arbitration of disputed UM claims. See LeFevre, 590 So.2d at 162 (rejecting contention that insurer “acted in bad faith in refusing to make advance payments” under UM coverage and noting even if insured had requested advance payments, carrier “had no contractual obligation” to make them). In any event, there is no evidentiary support for plaintiffs breach of contract claim, which appears to be based solely on her meritless bad faith claim. Affirmed. DRUKE, C.J. and MCGREGOR, C.J., Division One, concur. . The UM sections of both policies, in virtually identical language, obligated the insurer to pay damages for bodily injury an insured is "legally entitled to collect” (or recover) from the owner or driver of an uninsured motor vehicle, so long as the injury was caused by an accident involving such a vehicle. The policies also provided that if the insurer and insured could not agree on whether the insured is legally entitled to recover damages or the amount of damages, those issues would be submitted for binding arbitration to a three-person panel. . In Nationwide Mut. Ins. Co. v. Stevens, 166 Ariz. 372, 802 P.2d 1071 (App.1990), this court held that plaintiff’s bad faith claim against his UM insurer was premature because the uninsured motorist’s legal liability had not yet been determined in arbitration. . Evaluation of a personal injury (including UM) claim often takes into account such factors as any liability issues (including negligence and causation); the claimant’s out-of-pocket expenses, or "special damages”; up-dated medical reports or discovery of old medical records showing pre-existing injury or prior claims; evidence of malingering, subsequent accidents or new injuries; qualifications, appearance and demeanor of the claimant and his or her witnesses; reputation and effectiveness of counsel; findings from any surveillance efforts; and selection and background of the arbitrators. . We recognize, however, that "an insurer can be held liable for bad faith even when it does not violate any express provision of the insurance contract.” Lloyd v. State Farm Mut. Auto. Ins. Co., 189 Ariz. 369, 377, 943 P.2d 729, 737 (Ct. App.1996), citing Taylor v. State Farm Mut. Auto. Ins. Co., 185 Ariz. 174, 176, 913 P.2d 1092, 1094 (1996); Deese v. State Farm Mut. Auto. Ins. Co., 172 Ariz. 504, 508, 838 P.2d 1265, 1269 (1992); Rawlings, 151 Ariz. at 157, 726 P.2d at 573.

OPINION MOELLER, Justice. FACTS AND PROCEDURAL HISTORY Robert Getz (defendant) was charged with and convicted of conspiracy to commit sexual exploitation of a minor (count five), three counts of sexual exploitation of a minor (counts three, four, and ten), and four counts of sexual abuse (counts six through nine). He was sentenced to presumptive sentences, some concurrent and some consecutive, requiring him to serve 72.5 years. On appeal, the court of appeals reversed two of the convictions, and remanded for resentencing. The bases of defendant’s convictions are that he videotaped a three-year-old and a four-year-old lewdly exhibiting their genitals, and also videotaped himself touching and having oral contact with the breasts of a sixteen-year-old consenting female. On this petition for review, only the counts relating to the sixteen-year old are at issue; thus we confine our discussion to those counts. The four counts relating to the sixteen-year-old alleged that defendant committed sexual abuse on her in violation of A.R.S. § 13-1404(A) by touching her breasts (count six), having oral contact with her left breast (count seven), having oral contact with her right breast (count eight), and again touching her breasts (count nine). A.R.S. § 13-1404(A), at the time, read: “A person commits sexual abuse by intentionally or knowingly engaging in sexual contact with any person fourteen or more years of age without consent of that person or with any person who is under fourteen years of age if the sexual contact involves only the female breast.” 1990 Ariz. Sess. Laws, 39th Leg.2d Reg. Sess. Ch. 384, See. 1 [hereinafter Ch. 384] (current version at A.R.S. § 13-1404(A) (Supp.1996)). Before trial, defendant moved to dismiss the four counts involving the sixteen-year-old. His theory was that, because the alleged victim was sixteen, the state had to prove lack of consent. The state countered with the theory that the affirmative defense statute, A.R.S. § 13-1407(B), negated consent as a defense where the victim was fourteen, fifteen, sixteen or seventeen unless the defendant did not know and could not reasonably have known the victim’s age. A.R.S. § 13-1407(B) provides: It is a defense to a prosecution pursuant to sections 13-1404 and 13-1405, in which the victim’s lack of consent is based on incapacity to consent because the victim was fourteen, fifteen, sixteen or seventeen years of age, if at the time the defendant engaged in the conduct constituting the offense the defendant did not know and could not reasonably have known the age of the victim. Ch. 384, Sec. 3. .Defendant argued that reading section 13-1407(B) into section 13-1404 would render the latter statute unconstitutionally vague. The trial court denied defendant’s motion to dismiss. The state then moved to exclude consent as a defense altogether, contending that a sixteen-year-old was legally incapable of giving consent to having her breasts touched. The trial court also denied the state’s motion, ruling instead that the state needed to prove either lack of consent or that defendant knew that the victim was under eighteen. The trial evidence showed that the girl was sixteen and consented to the acts. Defendant moved for a directed verdict of acquittal, contending that the state did not prove that defendant knew the age of the victim. The directed verdict was denied. The trial court instructed the jury in the language of both A.R.S. §§ 13-1404(A) and 13-1407(B). Given the jury’s guilty verdict, it must be assumed the jury rejected defendant’s argument that he did not know the girl was only sixteen, an unremarkable conclusion given the fact he had known her since she was eleven. On appeal, the court of appeals disposed of the issue as follows: “It is next argued that consent should be a defense to the sexual abuse charges. We have previously decided otherwise. State v. Superior Court, 154 Ariz. 624, 744 P.2d 725 (App.1987).” State v. Getz, No. 2 CA-CR 94-0184/ 2 CA-CR 95-0543-PR (Consolidated), (Ariz.Ct.App. July 30, 1996) (memorandum decision at 4). We granted defendant’s petition for review limited to the single issue of whether consent is a defense under section 13-1404 if the •victim-participant is fourteen, fifteen, sixteen or seventeen years of age. We did so in the hope of providing some guidance concerning the proper interpretation of these confusing statutes and the equally confusing case law they have produced. We have jurisdiction pursuant to Arizona Constitution article VI, section 5(3) and Arizona Rules of Criminal Procedure 31.19. ISSUE Whether the trial court erred in ruling that the state need not prove lack of consent in a prosecution for sexual abuse under A.R.S. § 13-1404(A) where the victim/participant is fourteen, fifteen, sixteen, or seventeen years of age. II. Standard of Review DISCUSSION I. Introduction We restate the statutory definition of the crime of sexual abuse: A person commits sexual abuse by intentionally or knowingly engaging in sexual contact with any person fourteen or more years of age without consent of that person or with any person who is under fourteen years of age if the sexual contact involves only the female breast. Ch. 384, See. 1, supra (emphasis added) (current version at A.R.S. § 13-1404 (Supp. 1996)). The term “sexual contact” referred to in section 13-1404 is defined in A.R.S. § 13-1401(2) and includes touching, fondling or manipulating the female breast by any part of the body. At first blush, the statute’s treatment of victims under fourteen seems anomalous. However, the seeming anomaly is explained by the fact that, with respect to victims under fourteen, sexual activities considered more serious than female breast contact are dealt with in other statutes. See, e.g., Ch. 384, Sec. 4, supra (current version at A.R.S. § 13-1410 (Supp.1996)) (Molesting a child under the age of fourteen by directly or indirectly touching the private parts of such child or causing the child to touch the private parts of the person is a class two felony.); Ch. 384, Sec. 2, supra (current version at A.R.S. § 13-1405 (Supp.1996)) (Sexual intercourse or oral contact with a minor under fourteen years of age is a class two felony.). In recent years, the legislature has amended the sexual abuse statute twice. An earlier version of the sexual abuse statute established the age of consent as fifteen, but the legislature amended the age to fourteen in 1990, presumably as a result of our decision in Matter of Pima County Juvenile Appeal No. 74802-2, 164 Ariz. 25, 790 P.2d 723 (1990). The statute has since been amended again in 1993, reverting to the original age of consent of fifteen. Hereafter, in referring to A.R.S. § 13-1404, we will be referring to the 1990 version, the law in existence at the time defendant committed the charged acts. We are resolving an issue of statutory interpretation. Therefore, we review the trial court’s conclusion de novo. See Chaparral Dev. v. RMED Int'l, Inc., 170 Ariz. 309, 311, 823 P.2d 1317,1319 (App.1991). III. Statutory Interpretation A. Fundamental Rules of Statutory Construction Section 1-211(C) of the Arizona Revised Statutes states that penal statutes must be construed according to the fair import of their terms. We have held that where the language of the statute is clear and unequivocal, the court must abide by the language of the statute. In Matter of Pima Cty. Juv. App. No. 74802-2, 164 Ariz. 25, 790 P.2d 723 (1990), we stated: We are guided by the fundamental rules of statutory construction. It is our duty to ascertain the intent of the legislature in interpreting a statute. The best and most reliable index of a statute’s meaning is its language and, where the language is clear and unequivocal, it is determinative of a statute’s construction. Id. at 33, 790 P.2d at 731 (citations omitted); see also Canon Sch. Dist. No. 50 v. W.E.S. Constr. Co., 177 Ariz. 526, 529, 869 P.2d 500, 503 (1994) (“[W]here the language is plain and unambiguous, courts generally must follow the text as written.”). We are not at liberty to impose our view about the way we feel things should be “simply because that’s what must have been intended, otherwise no statute, contract or recorded word, no matter how explicit, could be saved from judicial tinkering.” Kilpatrick v. Superior Ct., 105 Ariz. 413,422,466 P.2d 18,27 (1970). B. Interpreting A.R.S. § 13-1404 The language of AR.S. § 13-1404 is plain on its face. See Matter of Pima Cty. Juv. App. No. 74802-2, 164 Ariz. at 33, 790 P.2d at 731. A.R.S. § 13-1404(A) states that a person commits sexual abuse “by intentionally or knowingly engaging in sexual contact with any person fourteen or more years of age without consent of that person.” Ch. 384, Sec. 1, supra (emphasis added). A.R.S. § 13-1401(5) defines “without consent” as including any of the following: (a) The victim is coerced by the immediate use or threatened use of force against a person or property. (b) The victim is incapable of consent by reason of mental disorder, drugs, alcohol, sleep or any other similar impairment of cognition and such condition is known or should have reasonably been known to the defendant. (c) The victim is intentionally deceived as to the nature of the act. (d) The victim is intentionally deceived to erroneously believe that the person is the victim’s spouse. A.R.S. § 13-1401(5) (Supp.1996). “Without consent” is not defined as occurring because one is under eighteen. The state argues that reading the affirmative defenses found in A.R.S. § 13-1407 in conjunction with A.R.S. § 13-1404 leads to the conclusion that the legislature intended that no person under the age of eighteen could consent. A.R.S. § 13-1407(B) states that it is a defense to prosecution under sections 13-1404 and 13-1405, in which the victim’s lack of consent is based on incapacity to consent because the victim was fourteen, fifteen, sixteen or seventeen years of age, if at the time the defendant engaged in the conduct constituting the offense the defendant did not know and could not reasonably have known the age of the victim. Ch. 384, Sec. 3, supra, (current version at A.R.S. § 13-1407(B) (Supp.1996)). Numerous problems exist with the state’s proposed rationale. To read the statute as the state does creates some confusing results. For example, a person touching the breast of a female between the ages of fourteen and seventeen with her consent would be guilty of a class 5 felony. But if that person had consensual sexual intercourse or oral sexual contact with the same female, he would only be guilty of a lesser class 6 felony. See Ch. 384, Secs. 1 & 2, supra (current versions at A.R.S. §§ 13-1404(B), 13-1405(B) (Supp.1996)). Additionally, under the 1993 amendments, a person has an affirmative defense to sexual intercourse or oral sexual contact with a minor as defined in A.R.S. § 13-1405 “if the victim is of the age of fifteen, sixteen or seventeen, the defendant is less than nineteen years of age or attending high school and is no more than twenty-four months older than the victim and the conduct is consensual.” A.R.S. § 13-1407(F) (Supp. 1996). This affirmative defense does not apply to A.R.S. § 13-1404. Under the state’s construction, a female minor between the ages of fourteen and seventeen is incapable of consenting to the touching of her breasts and the toucher is guilty if he knew her age. But if he had sexual intercourse or oral sexual contact with the same girl, he would have a complete defense available to him if he met the requirements of A.R.S. § 13-1407(F). The state acknowledged at oral argument and in its brief that its suggested reconciliation of the statutes will lead to patently anomalous results. As the state noted, the legislative history “is riven with instances of redundancies, inconsistencies, and backfill-ing.” The fact is that the statutes cannot be fully reconciled. The court of appeals summarily disposed of this issue by stating that it had previously decided it in State v. Superior Court (Puig), 154 Ariz. 624, 744 P.2d 725 (App.1987). However, the reasoning in Puig exemplifies the confusion that is created when the affirmative defense statute is incorporated into the definition of the crime. First, the court of appeals stated in Puig that the legislature broadened the definition of “without consent” but “chose not to include the victim’s minority or incapacity to consent.” 154 Ariz. at 627, 744 P.2d at 728. This statement gives the impression that a minor has the capability of consenting unless a statute provides otherwise. Later in the opinion, however, the court holds that “[wjhere the contact is consensual and the defendant knew or should have known the age of the 15-, 16- or 17-year-old victim, the defendant is guilty of sexual abuse.” Id. at 628, 744 P.2d at 729. Yet after reaching this conclusion, the court holds that ‘“without consent’ means something more than merely establishing the victim’s minority.” Id. at 629, 744 P.2d at 730. The two apparent holdings of Puig are themselves incompatible. Although Puig pointed out that the consent statute, A.R.S. § 13-1401(5), made no reference to minority, the legislature has not altered the consent statute to include minority, even though it has made other amendments to the statutes covering sexual offenses and defenses. Although the court of appeals cited the 1987 Puig case, it did not cite the 1993 case of State v. Witwer, 175 Ariz. 305, 856 P.2d 1183 (App.1993). Witwer admittedly did not involve a minor victim. Nevertheless, in Witwer, Division One of the court of appeals, in discussing the adequacy of the jury instructions on the defendant’s intent, stated: “We hold that in a prosecution for sexual abuse, the state must prove that the defendant intentionally and knowingly engaged in sexual contact and that the defendant knew that such contact was without the consent of the victim.” Witwer, 175 Ariz. at 308, 856 P.2d at 1186. To the extent that Puig suggests that AR.S. § 13-1404 criminalizes sexual contact with a consenting fourteen-, fifteen-, sixteen-, or seventeen-year-old, we disapprove it. Such a holding goes against the express language of section 13-1404. If the legislature wishes to make such conduct a crime, it can easily do so by changing the age of consent in the statute. It has done so twice in recent years, lowering the age from fifteen to fourteen in 1990, see Ch. 384, Sec. 1, supra, and raising the age from fourteen back to fifteen in 1993. See A.R.S. § 13-1404 (Supp.1996). If the legislature intended to implicitly raise the age to eighteen by enacting section 13-1407(B), which we doubt, it can do so explicitly by amending section 13-1404. There is yet another reason that leads us to apply section 13-1404 as written. We are concerned about the constitutional ramifications of superimposing the affirmative defense statute into the definitional statute. “The crime, and the elements constituting it, must be so clearly expressed that the ordinary person can intelligently choose, in advance, what course it is lawful for him to pursue.” State v. Miller, 100 Ariz. 288, 292, 413 P.2d 757, 760 (1966). The language must be clear enough to inform “a person of ordinary or average intelligence of the prohibited conduct.” Barbone v. Superior Ct., 11 Ariz. App. 152, 154, 462 P.2d 845, 847 (1969). We believe section 13-1404 is clear and that persons of ordinary intelligence reading it would conclude that, if the victim is fourteen or over, the state must prove lack of consent. Accepting the state’s argument would, at a minimum, insert a serious constitutional issue into the case, and we have an obligation to interpret our statutes so as to uphold their constitutionality, where possible. Business Realty of Arizona, Inc. v. Maricopa Cty., 181 Ariz. 551, 559, 892 P.2d 1340, 1348 (1995). We acknowledge that it is not possible to completely reconcile the statutes. We are aware that our reading renders a portion of section 13-1407(B) inoperative because it will be inapplicable to prosecutions under section 13-1404, although it says it is applicable. However, section 13-1407(B) will still apply to prosecutions under A.R.S. § 13-1405, sexual conduct with a minor. With or without case law interpretations, AR.S. § 13-1407(B) is not the only section of the affirmative defense statute that is partially meaningless in its application. Under the 1990 amendments, A.R.S. § 13-1407(F) states that it is a defense to prosecution under sections 13-1404 and 13-1410 if both the defendant and victim were fourteen, fifteen, sixteen or seventeen and the conduct was consensual. However, section 13-1410 involves molestation of a child, and only applies to children under the age of fourteen. Therefore, section 13-1407(F) has no application to section 13-1410, although it purports to. CONCLUSION AND DISPOSITION Criminal offenses must be defined sufficiently to give fair notice to a person of ordinary intelligence “that his contemplated conduct is forbidden by the statute.” State v. Limpus, 128 Ariz. 371, 375, 625 P.2d 960, 964 (App.1981); Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926); State v. Varela, 120 Ariz. 596, 599, 587 P.2d 1173, 1176 (1978). Injecting the affirmative defense statute into A.R.S. § 13-1404 raises grave constitutional issues about proper notice to potential defendants. If one read both A.R.S. § 13-1404 (sexual abuse) and A.R.S. § 13-1401 (definition of consent), one would clearly be led to believe that a person between the ages of fourteen and seventeen could consent for purposes of section 13-1404. The state acknowledges that, in this case, the undisputed evidence shows that the victim/participant consented to the touching of her breasts. Therefore, the trial court should have granted judgments of acquittal on counts six, seven, eight and nine, and it is now so ordered. The memorandum decision of the court of appeals is vacated insofar as it addresses the issue dealt with in this opinion and the balance of the memorandum decision is approved. We remand for resentencing on the two remaining convictions. This opinion does not affect the convictions on counts three and ten for sexual exploitation of a minor, class two felonies. The seventeen-year-sentence imposed on count three is affirmed, as is the twenty-eight-year sentence on count ten, which shall be served consecutively to the sentence on count three. ZLAKET, C.J., JONES, V.C.J., and FELDMAN and MARTONE JJ., concur. . The petition for review stated the question as: “It was error not to allow Appellant to argue consent as a defense to counts six through nine." We believe our formulation of the issue more accurately states the issue this case presents. . We note that for some sexual crimes involving children, consent or lack thereof is immaterial. See, e.g., A.R.S. § 13-1405(A) (sexual conduct with a minor); A.R.S. § 13-1410 (molestation of a child); Ch. 384, Sec. 1, supra (current version at A.R.S. § 13-1404(A) (Supp.1996)) (sexual abuse of a person under fourteen years of age). . A.R.S. § 13-1407(F) has been changed substantially, as discussed, supra. It no longer applies to A.R.S. § 13-1404 or § 13-1410 and has different age restrictions. See A.R.S. § 13-1407(F)(Supp.l996). . In so holding, we are aware that we have ourselves said in dicta that section 13-1407 can provide a defense to a section 13-1404 prosecution. See Matter of Pima Cty. Juv. App. No. 74802-2, 164 Ariz. 25, 29, 790 P.2d 723, 727 (1990). That will no longer be the case under this opinion. That comment was made in a case challenging the statute as unconstitutional if applied to young defendants and was made in the context of noting that while the legislature enacted provisions geared to the ages of victims, it had not done so in the case of defendants.

OPINION TOCI, Judge. In December 1996, the Arizona Corporation Commission (“Commission”) adopted new rules governing competition in the provision of electricity. Nine interested parties filed motions for reconsideration of the deci sion adopting the rules; the motions were denied by operation of law. Although the parties then filed appeals both in superior court and in this court, they have filed motions to dismiss the appeals here on the ground that we have no direct appellate jurisdiction. We conclude that because these appeals do not concern “rate” cases, they do not fall within the terms of Ariz.Rev.Stat. Ann. (“A.R.S.”) section 40-254.01, which grants limited appellate jurisdiction to this court over decisions of the Commission. We therefore grant the motions to dismiss. DISCUSSION In 1994, the Commission staff began preparing for a transition from a non-competitive to a competitive electric market, and in 1996, filed proposed new procedural rules to govern electric services. Following a public comment period, in Decision No. 59943 on December 26, 1996, the Commission adopted the Electric Competition Rules, Arizona Administrative Code (“A.A.C.”) R14-2-1601 through R14-2-1616. The appellants filed motions for reconsideration with the Commission, which were deemed denied. In the motions to dismiss these appeals, the appellants contend that we lack jurisdiction over a direct appeal from Decision No. 59943 pursuant to A.R.S. section 40-254.01. We now turn to that statute. By statute, the legislature granted this court jurisdiction over direct appeals from Commission orders as follows: The attorney general ... or any party to a proceeding before the commission who is dissatisfied with any order of the commission involving public service corporations and relating to rate making or rate design pursuant to §§ 40-243, 40-246, 40-250 and 40-251 may file within thirty days after a rehearing is denied or granted, and not afterwards, a notice of appeal in the court of appeals to vacate, set aside, affirm in part, reverse in part or remand with instructions to the commission the order if the court of appeals determines upon a clear and satisfactory showing that the order is unlawful or unreasonable. A.R.S. § 40-254.01(A) (emphasis added). This statute represents an exception to the general requirement that dissatisfied parties appeal Commission decisions first to superior court and eliminates de novo review by that court. Consolidated Water Utils., Ltd. v. Arizona Corp. Comm’n, 178 Ariz. 478, 481, 875 P.2d 137,140 (App.1993). We decline to interpret the statute to give this court jurisdiction over direct appeals from a Commission’s procedural order, such as this, that will only indirectly affect rates or that makes pro forma reference to one of the above enumerated statutes. Such an interpretation would essentially eliminate most appeals to the superior court and exceeds what we believe the legislature intended. Instead, we conclude that A.R.S. section 40-254.01 provides a limited avenue of direct appeal to this court if the order appealed from is an order in a rate case. See A.A.C. R14-2-103 (filing requirements and time limits for rate cases, which involve setting rates and determining fair value of property and reasonable rates of return). We find additional support for this interpretation in the legislative history. The legislature believed that AR.S section 40-254.01 would eliminate the “large amount of time and expense ... [from] what is now required to be trial de novo in superior court if any party of interest wants to appeal a rate case.” See Consolidated Water, 178 Ariz. at 481, 875 P.2d at 140 (citing Minutes of Senate Committee on Judiciary, April 16,1991 at 10). The Commission argues that the superior court may not review Decision No. 59943, but that issue is not yet before us. We hold only that this court does not have jurisdiction over direct appeals from the Commission order promulgating the rules. We, therefore, dismiss the appeals for lack of jurisdiction. GERBER, P.J., and SULT, J., concur. . We have sua sponte consolidated these appeals in order to address the single issue raised in each of them.

LANKFORD, Presiding Judge. Following a transaction privilege (sales) tax audit for the period between November 1985 and March 1990, the Department of Revenue (“DOR”) concluded that Valencia Energy Company owed $4.98 million in taxes plus interest. Valencia succeeded only in part when it administratively challenged the assessment of back taxes, so it appealed to the tax court. In a published opinion, the tax court granted summary judgment in favor of DOR, upholding the assessment of back taxes and interest. Valencia Energy Co. v. Arizona Dep’t of Revenue, 178 Ariz. 251, 872 P.2d 206 (Tax 1994). Valencia timely appealed. Valencia presents four issues on appeal: 1. Are Valencia’s coal transportation and coal handling business activities taxable as incidental to its retail coal sales? 2. Is DOR estopped from assessing back taxes against Valencia because a DOR agent had advised that revenue from coal transportation and handling was not taxable? 3. Should DOR’s new interpretation of the tax as applied to Valencia’s retail coal sales be enforced prospectively only? 4. Was Valencia entitled to exclude freight costs from its taxable revenue? We have appellate jurisdiction pursuant to Ariz.Rev.Stat. Ann. (“A.R.S.”) section 12-2101(B) (1994). We affirm. Our review of a summary judgment is de novo. United Bank of Ariz. v. Allyn, 167 Ariz. 191, 195, 805 P.2d 1012, 1016 (App. 1990). The tax court’s entry of summary judgment was proper if the record reveals no genuine dispute of material fact and if, based on the undisputed facts, DOR was entitled to judgment as a matter of law. Pritchard v. State, 163 Ariz. 427, 433, 788 P.2d 1178,1184 (1990). I. We first address whether Valencia’s coal transportation and coal handling activities were nontaxable services. We hold that both the transportation and handling of coal were taxable activities. A. We begin by discussing Valencia’s activities in supplying coal. Valencia entered into contracts with Alamito Company, the owner of one unit of the Springerville Generating Station, a coal-fired electric power plant located in Arizona. Valencia contracted to purchase, transport, handle and store coal for burning. The agreement, entitled “Fuel Burn Agreement,” required Valencia to supply Alamito “all fuel required in and for the operation” of Alamito’s power generating unit. Alamito purchased the coal “as delivered” to its Springerville facility. Valencia obtained the coal from mines in New Mexico. The cost of coal accounted for half or more of Valencia’s total costs. The remainder of its costs included transportation and handling of the coal. Valencia computed the amount of sales tax due Arizona based only on the amount it paid for the coal, excluding revenue it attributed to its transportation and handling of the coal. The Valencia-Alamito contract provided for an initial price of $54 per ton. The parties agreed to review the price annually and to attempt to negotiate price adjustments. If negotiations failed, the parties agreed, binding arbitration would fix the price. Valencia sent monthly invoices. The invoices indicated the quantity of coal, the price per ton, and the resulting total sales price. Valencia produced affidavits in the trial court stating that the invoice prices were based on “tariff sheets” showing Valencia’s component costs in providing the coal, including the coal, transportation, and a “management fee” of $1.25 per ton. However, Valencia’s evidence failed to explain how this description of the pricing method comported with the contract, which provided for a price of $54 per ton and annually negotiated adjustments. In any case, Alamito contracted to purchase “as delivered” coal, and Valencia invoiced the coal in this manner. Neither the parties’ contract nor Valencia’s invoices provided for separate charges to Alamito for the coal and its transportation, processing, testing, handling and storage. B. Was Valencia obligated to pay sales taxes on the full amount it charged Alamito, or only on the amount it paid for the coal? We conclude that Valencia was obligated to pay Arizona sales tax based on the full amount it charged Alamito, not merely on the amount Valencia paid for the coal. Arizona imposes a “transaction privilege tax” on “the volume of business transacted by persons on account of their business activities....” A.R.S. § 42-1306(A) & (C) (1991). Among other activities, the tax ap plies to “the business of selling tangible personal property at retail.” A.R.S. § 42-1310.01(A) (Supp.1995). The tax base for the sale of retail goods is “the gross proceeds of sales or gross income derived from the business.” Id. Valencia contends that its tax should be based on what it paid the mines for coal, not on the price at which it sold the as-delivered coal to Alamito. The first difficulty with this approach is a fundamental conceptual one: The transaction privilege tax is imposed on Valencia’s gross receipts from sales, not its cost of purchasing materials. Valencia’s argument focuses on the wrong transactions— its purchases of coal. The second problem with Valencia’s argument is a practical one. Valencia asks that the tax be calculated based on the costs of coal because it did not separately price the sale of coal and the related services. The process of calculation, however, is itself uncertain, complex and burdensome for the tax collector. The impracticability of this method of computing the tax argues strongly against it. The difficulty is that the price of a typical product sold at retail includes much more than the costs of the raw materials used to produce it. The price also includes other costs of production, including labor and capital equipment. It includes administrative and other overhead costs and, of course, profit. Valencia’s proposal requires either of two unacceptable practices. First, the tax could be computed on the cost of coal alone. By omitting the other factors in the retail price, this approach would substantially understate the price and thus understate the taxpayer’s liability. Secondly and alternatively, the tax could be computed by adding the cost of coal to overhead, profit and other components of a retail price. To verify that amount, however, the tax collector would face a Herculean task. Instead of examining one set of books — Valencia’s sales records — the tax authority would have to examine the gamut of taxpayer’s financial records. What were the taxpayer’s overhead, profit, labor and capital costs? Moreover, the tax collector would be forced to answer difficult, subjective questions which the taxpayer might easily choose to dispute and litigate. For example, what portion of the taxpayer’s profit or overhead is attributable to its materials costs, and what portion to its other costs? Even in the best case, Valencia’s approach is impracticably burdensome. The practicality, efficiency and convenience of administrative enforcement is taken into consideration by courts when interpreting tax statutes. 3A Norman J. Singer, Sutherland Stat. Const. § 66.06 at 33 (5th ed.1992). Valencia nevertheless argues that transportation and handling of the coal are not taxable because they involve the sale of a service, not of personal property. “Services rendered in addition to selling tangible personal property at retail” are not subject to the sales tax. A.R.S. § 42-1310.01(A)(2). On the other hand, the tax base for the sales tax derives from the gross proceeds of the sale of the retail good. A.R.S. § 42-1310.01(A). “ ‘Gross proceeds of sales’ means the value proceeding or accruing from the sale of tangible personal property without any deduction on account of the cost of ... expense of any kind____” A.R.S. § 42-1301(5) (Supp.1995) (emphasis added). By statute, Valencia cannot avail itself of the exception for services. Simply put, Valencia cannot reduce the amount of gross sale proceeds by the amount attributable to services because it failed to keep separate sales records. A.R.S. section 42-1310.01(H) provides: If a person is engaged in an occupation or business to which subsection [the services exception] applies, the person’s books shall be kept so as to show separately the gross proceeds of sales of tangible property and the gross income from sales of services, and if not so kept the tax shall be imposed on the total of the person’s gross proceeds of sales of tangible personal property and gross income from services. (Emphasis added). The exception does not apply because Valencia did not keep separate sales records. Its contract and its invoices all priced “as-delivered” coal: i.e., coal and the related transportation and other services were sold together for a single amount per ton. Although Valencia points to its records of coal purchases as separate records, those are not the records of the relevant transactions, which are the sales. Valencia’s argument is no more than that a hypothetical separate retail price for coal can be constructed from Valencia’s purchase records. We think it plain that this is not what the Legislature intended when it required taxpayers to keep separate books of sales of goods and services. Valencia relies on two prior cases, but we do not believe that these decisions apply here. In the first case, the supreme court held that the taxpayer’s services as a purchasing agent were not included in its gross receipts from the contracting business. Ebasco Services Inc. v. Arizona Tax Comm’n, 105 Ariz. 94, 459 P.2d 719 (1969). This case principally involved the meaning of “gross receipts,” not whether an exception to gross receipts applied. The court held that because the contractor acted as a purchasing agent, it did not sell the equipment to the owner. Id. at 96, 459 P.2d at 721. Accordingly, the owner’s payments for the equipment were not taxable “gross receipts." The court also stated that engineering and design services were not part of the taxable contracting business. Id. at 98, 459 P.2d at 723. However, the taxpayer had entered into separate contracts for construction and for engineering services. See Arizona Tax Comm’n v. Holmes & Narver, Inc., 113 Ariz. 165,168, 548 P.2d 1162,1165 (1976). Because the case at hand involves no separate books of sales and no separate contracts, Ebasco does not apply. The second decision on which Valencia relies is Holmes, supra. That case also involved whether engineering services constituted gross receipts from contracting. The supreme court held that the taxpayer need not have had separate contracts if it had “separately accounted[ed] and bill[ed] for design and engineering and construction services.” Holmes, 113 Ariz. at 168, 548 P.2d at 1165. A prerequisite to avoidance of a tax on the entire contract was that “it can be readily ascertained without substantial difficulty which portion of the business is for nontaxable professional services----” Id. at 169, 548 P.2d at 1166. Although the court referred to the taxpayer’s records as reflecting its “costs,” the contract was “a cost plus fixed fee contract____” Id. Thus, the taxpayer’s records reflected the sales price for its services and not merely its costs. Holmes does not apply here. Valencia did not maintain separate sales records. It neither entered into separate sales contracts nor billed separately for goods and services. Its records of costs cannot — as we discussed above — permit the tax collector to “readily aseertain[ ] without substantial difficulty” the portion of sales representing services. Our view is strengthened by a Missouri decision, Southern Red-E-Mix Co. v. Director of Revenue, 894 S.W.2d 164 (Mo.1995). That court did not have the benefit of the Arizona statute which expressly requires that the taxpayer maintain separate books. Nevertheless, the court held that the entire sales price of delivered, ready-mix concrete was taxable. It emphasized that, unlike other eases in which services had been held not taxable, the concrete seller had not billed separately for transportation services. Id. at 166,167 (citing Kurtz Concrete, Inc. v. Spradling, 560 S.W.2d 858 (Mo.1978) and Brinson Appliance, Inc. v. Director of Revenue, 843 S.W.2d 350 (Mo.1992)). Moreover, the court flatly rejected the argument, made here by Valencia, that a charge for the services could be identified from cost records. Red-E-Mix, 894 S.W.2d at 168. As the Arizona Tax Court noted, Valencia was not in the business of simply selling coal; rather, it was in the business of selling “ready-to-burn coal.” Valencia, 178 Ariz. at 255, 872 P.2d at 210. Valencia did not contract, bill or account separately for the coal and the services of processing, transporting and storing it. Under the circumstances, section 42-1310.01(H) requires that Valencia’s gross receipts be taxed without exception. Although we employ different reasoning, we conclude that the tax court correctly held that Valencia’s entire proceeds were subject to taxation. II. The second issue presented by Valencia is whether DOR is estopped from assessing back sales taxes against Valencia. A DOR agent had advised that Valencia’s revenue from coal transportation and handling was not taxable. We affirm the tax court’s decision that estoppel is not available under the facts of this case. Valencia presented evidence that it was informed by Gerald Deemer, a tax analyst with DOR, that Valencia would not be required to pay sales tax on that part of its revenues deriving from transportation of the coal. After meeting with representatives of the owners of the power plant, Deemer wrote them a letter indicating that only the purchase of the coal was taxable. Because Deemer’s letter did not address whether the sales tax applied to another product sold by Valencia to Alamito — oil used for flame stabilization — the owners of the power plant asked for clarification. Deem-er’s response referred to “additional information concerning the degree of nexus Valencia Energy Co. has with Arizona.” Based presumably on this additional information, Deemer then advised that revenues from transporting the coal were taxable. Now concerned about Deemer’s conclusion that the transportation costs were taxable, the owners of the power plant contacted Deemer again and asked him to revisit it. Deemer’s return letter was worded identically to his second letter except that it deleted “Transportation” from the list of taxable line items and included “Transportation — Title passes in New Mexico” among the “remaining line items” that would not be subject to tax. Valencia also provided evidence that it relied to its detriment on Deemer’s opinion: Valencia had failed to collect sales taxes on the full price charged to Alamito because of Deemer’s advice. This Court recently discussed the availability of estoppel against DOR in PCS, Inc. v. Arizona Dep’t of Revenue, 186 Ariz. 539, 925 P.2d 680 (App. 1995). In doing so, we resolved against Valencia’s position most of the arguments it now presses. In PCS we held that Ariz. Const. Art. 9, section 1, Crane Co. v. Arizona State Tax Comm’n, 63 Ariz. 426, 163 P.2d 656 (1945), overruled on other grounds, Duhame v. State Tax Comm’n, 65 Ariz. 268, 179 P.2d 252 (1947), and Duhame v. State Tax Comm’n, supra, prevent DOR from being equitably estopped by its incorrect representations that the tax did not apply. We distinguished Freightways, Inc. v. Arizona Corp. Comm’n, 129 Ariz. 245, 630 P.2d 541 (1981), on which Valencia relies, because it was not a tax case and “did not implicate article 9, section 2 [sic, 1] of the Arizona Constitution or the concerns for the revenue expressed in Crane and Duhame.” PCS, 186 Ariz. at 544, 925 P.2d at 685. We distinguished Tucson Electric Power Co. v. Arizona Dep’t of Revenue, 174 Ariz. 507, 851 P.2d 132 (App.1992), on which Valencia extensively relies, on the ground that it permitted estoppel only as to representations concerning the procedures for claiming tax benefits that the taxpayer was entitled to receive as a matter of substance. Like the taxpayer in PCS, Valencia rests its estoppel argument on a DOR agent’s pri- or incorrect representations that Valencia's activities were not subject to the tax. PCS forecloses this argument. III. The next issue is whether our interpretation of the tax as applied to Valencia’s retail coal sales should not be enforced against Valencia, but instead applied prospectively only. We find no reason to do so. Arizona courts have discretionary authority in extraordinary circumstances to prospectively apply holdings affecting taxation. E.g., Southern, Pac. Co. v. Cochise County, 92 Ariz. 395, 407, 377 P.2d 770, 778 (1963); Arizona Tax Comm’n v. Ensign, 75 Ariz. 376, 377, 257 P.2d 392, 392-93 (1953). We have characterized such actions as based on “fairness.” People of Faith, Inc. v. Arizona Dep’t of Revenue, 171 Ariz. 140, 152, 829 P.2d 330, 342 (App.1992). Some cases state that “in tax matters, when a previous decision is overruled, the new decision is given prospective effect only.” City of Tempe v. Del E. Webb Corp., 14 Ariz.App. 228, 229, 482 P.2d 477, 478 (App.1971) (citing Duhame v. Arizona Tax Comm’n, 65 Ariz. 268, 179 P.2d 252 (1947); Arizona Tax Comm’n v. Ensign, 75 Ariz. 376, 257 P.2d 392 (1953); Southern Pac. Co. v. Cochise County, 92 Ariz. 395, 377 P.2d 770 (1963)). There is also authority for the idea that the preference for prospectivity in tax matters also applies to administrative interpretations that are changed or overruled. Southern Pac. Co. v. Cochise County, 92 Ariz. at 407, 377 P.2d at 778. In this case, however, we do not overturn any previous authority. We apply a statute, section 42-1310.01(H), to reach a legislatively mandated result. No administrative interpretation is overruled. Accordingly, we decline to exercise our discretion to apply the tax prospectively. IV. The final issue is whether Valencia was entitled to exclude freight costs from its taxable revenue. We hold that the freight cost exemption is inapplicable. A.R.S. section 42-1302(A)(2) excludes from the gross proceeds of a sale of a retail good: Freight costs billed to and collected from a purchaser by a retailer for tangible personal property which, upon order of the retailer, is shipped directly from a manufacturer or wholesaler to the purchaser. Valencia asserts that the term “directly” in subsection (A)(2), which is undefined, is ambiguous in the context of this case. It argues that the term should be interpreted in accordance with the federal law principle that “interstate commerce continues until it reaches the point where the parties originally intended that the movement should end,” citing Southern Pac. Co. v. Arizona, 249 U.S. 472, 39 S.Ct. 313, 63 L.Ed. 713 (1919). We disagree. “Words and phrases shall be construed according to the common and approved use of the language.” A.R.S. § 1-213 (1995). “Directly” means “in a direct manner.” Webster’s New Collegiate Dictionary 320 (G. & C. Merriam Co.1980). Webster’s first definition of “direct” is “proceeding from one point to another in time or space without deviation or interruption: STRAIGHT.” Id. The coal Valencia ultimately sold Alamito went from the mines in New Mexico to Valencia’s agents in that state, who shipped it to Valencia’s own leased premises at Alami-to’s plant in Springerville. Valencia then unloaded it, crushed it with machinery that it leased, and only then turned it over to Alami-to. In ordinary speech, one would not say that this coal was shipped “directly” from the mines in New Mexico to Alamito in Springer-ville. The tax court correctly held that Valencia was not entitled to exclude its freight costs from its sales tax base. The judgment is affirmed. The opinion of the tax court, reported at 178 Ariz. 251, 872 P.2d 206, is vacated. KLEINSCHMIDT and SULT, JJ., concur. . The arbitrators were directed to consider a number of factors in setting a price, including: (1) the price of coal; (2) the charges paid the Atchison, Topeka and Santa Fe Railroad; (3) the cost of leasing and maintaining the Springerville and Coronado rail lines; (4) the cost of maintenance of the ash handling facilities and the coal storage and handling facilities; (5) the cost of ash disposal; and (6) a charge for services performed by Valencia at the power plant relating to storage and handling of coal. . The parties may have modified their original agreement, performed the original agreement in this way, or simply not followed the agreement: The record is simply unclear on this point. . The current versions of the applicable statutes were not in effect during the entire audit period in this case, but all the provisions applicable at any point in this case were virtually identical in substance. For simplicity, this opinion cites the versions currently in effect. . We recognize that in this case, the only production processes involved were the testing and crushing of the coal. We also acknowledge that there was evidence that Valencia made no profit in this contract. However, our other observations apply. Moreover, we must consider what is workable as a general rule. There is no warrant for fashioning a special rule of taxation for Valencia alone. . Valencia might have been able to avoid taxation of the services by selling coal separately from the services. However, the fact that a taxpayer might have been able to reduce its tax liability by structuring its transactions differently, but failed to do so, is no ground for relief. See Brink Elec. Const. Co. v. Arizona Dep't of Revenue, 184 Ariz. 354, 362, 909 P.2d 421, 429 (App. 1995). We do not suggest, however, that Valencia would avoid the tax by structuring its transactions differently; we have not reached that question. . We are not unmindful that -a DOR employee advised Valencia that only some of its gross receipts were taxable. However, DOR has no authority to waive taxes. See, e.g., PCS, 186 Ariz. at 543-544, 925 P.2d at 684-685. Also, no evidence showed that this agent’s opinion represented an administrative interpretation by DOR. Moreover, part of the agent’s advice — applying the use tax rather than the transaction privilege tax — was patently and grossly erroneous and not worthy of any reliance. Nor was the agent’s advice accompanied by any statutory citations or analysis. Finally, Valencia’s argument is functionally equivalent to a claim of estoppel, a claim we have rejected.

OPINION VOSS, Judge. Taxpayer ADVO System, Inc. (the taxpayer or ADVO), brought this action in the tax court for a refund of $358,346.67 paid under protest on an assessment for City of Phoenix privilege license taxes, penalties and interest for the audit period January 1984 through December 1989. The City counterclaimed for an additional $64,268.89 in taxes that was abated during the administrative process. The taxpayer appeals, and the City cross-appeals, from a judgment entered on cross-motions for summary judgment. These issues are presented: 1. Whether those portions of ADVO’s business receipts that ADVO paid out as U.S. postage for mailing its customers’ advertising materials were part of ADVO’s gross income from the business activity of “local advertising”; 2. Whether the tax court erred in holding that ADVO was entitled to exclude sums from its local advertising gross income equal to those of ADVO’s job printing charges to which its subcontractors added reimbursement charges for their own job printing business privilege taxes; and 3. Whether the tax court erred in holding that ADVO was entitled to exclude sums from its local advertising gross income equal to its expenditures for printed materials on which it paid City of Phoenix use taxes. FACTS AND PROCEEDINGS BEFORE THE TAX COURT ADVO is in the business of direct mail marketing. Direct mail marketing consists of preparing printed material for delivery to the United States Postal Service for third-class bulk mailing on behalf of local businesses who wish to deliver information to particular population segments. ADVO enables its customers to target their messages to households in any or all of the country’s 35,000 + ZIP code areas by using its proprietary computer data base of over 104 million residential addresses. ADVO does a portion of its business in the City of Phoenix. ADVO assembles, addresses, and mails two categories of advertising products for its customers, “marriage mail” and “solo mail.” Solo mail is a single item mailed by ADVO for a particular customer. Marriage mail is made up of written advertisements for a number of ADVO’s customers that are loosely combined inside a larger “wrap” piece to reduce the costs that ADVO’s customers would otherwise incur for separate mailings. ADVO’s customers and subcontractors deliver all advertisements to ADVO’s facility. For marriage mail, ADVO mechanically collates the individual advertisements into packages, each of which contains a detached address label. Solo mail is labeled by machine and mailed according to a program tailored to the customer’s marketing needs. Using its proprietary mailing data base, ADVO sorts all mail by ZIP code, mail carrier route, and walk-sequence order, thereby eliminating intermediate processing that the U.S. Postal Service usually performs. Where ADVO subcontracts the job printing work for a particular mailing, its customer invoices either state a single price for ADVO’s services, with no breakdown into components such as job printing, or separately state a job printing charge. ADVO’s separately-stated job printing charges reflect a mark-up over ADVO’s actual job printing costs. Before August 1990, some of ADVO’s job printing subcontractors passed along their job printing taxes to ADVO. The City gave ADVO a credit for any job printing taxes imposed on subcontractors by the City of Phoenix. When ADVO uses an out-of-state job printing subcontractor and charges a single price to its advertising customer without separately stating a job printing charge, ADVO sometimes pays Arizona and City of Phoenix use taxes computed on the price it paid the subcontractor. Where ADVO uses an out-of-state job printing subcontractor and separately states a job printing charge on its customer invoice, however, ADVO pays no Arizona or City of Phoenix use taxes. ADVO’s invoices to its customers for solo mailings separately state postage charges. Marriage mail invoices do not. Postage for solo mail is sometimes paid using the customer’s postage permit. ADVO otherwise pays postage charges for its mailings using its own prepaid permit. From January 1984 through December 1989, ADVO charged some $36.8 million in postage for marriage mail and $7.59 million in postage for solo mail against its prepaid permit. The combined postage cost of $44.39 million was 48% .of ADVO’s gross revenues of $92.4 million. The City audited ADVO for the period January 1984 through September 1988. The City assessed a deficiency of $645,290.74 against ADVO for that period under the advertising classification. ADVO paid $261,-284.91 of the assessment, but protested the balance of $384,005.83 because the gross income figure on which the City based its assessment included the portion of ADVO’s gross receipts that it had used to pay mailing costs. ADVO’s protest was heard before a hearing officer of the City’s Audit Department on January 8, 1991. At the hearing, the City and ADVO agreed to include a new assessment for the period October 1988 through December 1989 in ADVO’s protest. The hearing officer ruled that ADVO’s business activities were within the Phoenix City Code’s definition of “advertising” under both former section 14-1 and current section 14-405(a). He further held that ADVO’s total collections on customer invoices that did not separately state postage charges consti tuted gross income from the business of advertising. The hearing officer also held that where ADVO’s customer invoices separately stated postage charges, the portion of its receipts that corresponded to the postage charges did not constitute advertising gross income. Finally, the hearing officer held that ADVO failed to carry its burden of demonstrating that the advertising tax was inapplicable to sums from its business receipts that it expended for outside printing services. The hearing officer added: ... Furthermore we see no double taxation. The tax charged by printers is a tax on the printer[s’] business activities. Under former Code § 14-40(r), e.g., the printer may have qualified for an exemption. Here, the assessment is on this Taxpayer’s business activities. The City issued an adjusted assessment in accordance with the hearing officer’s ruling. ADVO paid the total due under the adjusted assessment under protest and brought this action for a refund pursuant to Phoenix City Code § 14-575. The City filed a counterclaim for recovery of the amounts originally assessed on which the hearing officer had found for ADVO. On cross-motions for summary judgment argued on September 22, 1992, the tax court ruled that ADVO’s business activities constituted advertising within the City’s privilege taxing provisions. The court further ruled: ... [ADVO’s] gross revenues for the purpose of the measuring of the tax are not subject to a reduction for its mailing costs. ... [W]here the Taxpayer has paid a Phoenix transaction privilege tax on job printing, whether an in-city tax or a use tax for printing obtained out-of-eity, it is entitled to a deduction from the gross revenues by which the City’s tax is measured to the extent of the cost to the Taxpayer of the printing upon which it has paid a tax. The agreed upon facts in this case reflect that the City has given the Taxpayer a credit for in-city sales tax paid, but has given no benefit for use tax paid. The Court can see no distinction between the two taxes for purposes of a credit. Granting a credit for the tax paid, however, is not an appropriate recognition by the City of the tax previously paid. Since the tax on job printing is at a higher rate than the tax on advertising, a credit for the tax paid or the printing reduces the tax liability beyond the point where there is double taxation. For this reason a deduction from the gross income of the basis for the earlier tax is more appropriate. The City filed a motion for reconsideration and/or clarification in November 1992. After a status conference in June 1993, the tax court stated it had not intended to distinguish between marriage mail and solo mail, and further: The Court also held that the taxpayer was entitled to consideration for printing taxes passed on to the taxpayer by the printer with whom it contracted. This is true regardless whether the printer paid the tax to the City of Phoenix or to some other taxing source. The transaction tax on printing imposed by the City of Phoenix is imposed at a higher rate than the transaction privilege tax imposed by the city on the taxpayer. For that reason, a credit of the tax paid would not be appropriate. The ruling of the court was that the taxpayer is entitled to a reduction from its gross revenues for printing on which it paid transaction privilege taxes at a rate as high as or higher than the transaction privilege tax on advertisers. Otherwise it is entitled to a reduction in the cost of printing that is proportionate to the differ ence between the Phoenix advertising tax rate and the tax rate actually paid for the printing. ADVO filed its own motion for reconsideration and/or clarification of the tax court’s initial minute entry ruling on July 2, 1993. This motion was never heard. Instead, over three years later, the City lodged a form of judgment on which the parties jointly agreed. This was entered October 10, 1996. ADVO timely appealed and the City timely cross-appealed. We have jurisdiction pursuant to Arizona Revised Statutes Annotated section (A.R.S. § ) 12-210KB). ANALYSIS Status of ADVO’s Business Receipts Paid Out for U.S. Postage The Applicable Taxing Provisions Effective April 1, 1987, Phoenix City Code § 14-400(a)(1) imposes “a Privilege Tax upon persons on account of their business activities, to the extent provided elsewhere in this Article, to be measured by the gross income of persons, whether derived from residents of the City or not, or whether derived from within the City or from without.” Before April 1, 1987, former Phoenix City Code § 14-2 imposed a privilege tax in substantially similar terms. Current § 14-400 imposes a presumption that all gross income is subject to the tax until the taxpayer establishes the contrary. Current Phoenix City Code § 14-405(a) levies a 0.5% privilege tax on “the business of ‘local advertising’ by billboards, direct mail, radio, television, or by any other means.” Section 14-405(a) further provides that, except for six specific exclusions not applicable here, “[a]ll delivery or disseminating of information directly to the public or any portion thereof for a consideration shall be considered ‘Local Advertising ’____” Before April 1, 1987, former Code § 14 — 2(a)(1) taxed “advertising,” defined by former Code § 14-1 as “[t]he business of delivering or disseminating information directly to the public or any portion thereof for another for consideration by media doing business in the City.” Former Code § 14-1 defined “media” as: The person or business entity disseminating the advertising for compensation to the public, being the intended taxpayer hereunder. Media shall include newspapers, billboard companies, television or radio stations, handbill mailers or distributors and similar entities. The Merits ADVO contends the tax court erred in sustaining the City’s determination to include in its local advertising tax base those of its business receipts during the audit period that it paid out in U.S. postage costs in mailing advertising materials for its customers. It correctly observes that a transaction or business privilege tax may be imposed only on gross income that is (1) actually earned by the taxpayer (2) from the business subject to the tax. ADVO’s central contention is that the service it performs for its customers in mailing their advertisements and advertisement packages via the U.S. Postal Service after having sorted and labeled them constitutes no part of the “local advertising” business activity subject to the City’s tax. ADVO argues: ... The means of communicating an advertisement by mail ... is not part of the advertisement, and the funds collected and separately accounted for such mailing are not part of the gross income from the advertisement. ... ADVO does not create the message. ADVO merely disseminates messages created by its customers through its bundling ' and mailing activities. In this case, ADVO’s “advertising” activities are its packaging, collating, addressing, and sorting of solo and marriage mail. ADVO’s relationship with the USPS is such that revenues from mailing the message are distinct from any revenues generated in the packaging, collating, addressing, and sorting of the message. This mailing or postage revenue should not be taxed as advertising. Opening Brief at 8,11. ADVO is mistaken. Its analysis is plausible only to the extent one accepts its implicit premise that the term “advertising” is to be accorded a narrow, colloquial meaning and not the broader one assigned to it in the Phoenix City Code. The Code does not restrict the business of local advertising to that of creating commercial messages and reducing them to a concrete form. Current Code § 14-405(a) expressly defines the taxable business of local advertising as “[a]ll delivery or disseminating of information directly to the public or any portion thereof for a consideration” “by billboards, direct mail, radio, television, or by any other means.” Former Code § 14-2(a)(l) defined the business of “advertising” similarly. The portion of ADVO’s business activities through which it makes its processed advertising materials available to members of the public by “direct mail,” as a “handbill mailer[] or distributor[],” fits quite comfortably within these definitions. Nevertheless ADVO contends that it was in reality a mere conduit for postage payments made by its customers. It argues: ... The City of Phoenix is, in essence, taxing postage paid by a customer merely because the customer pays ADVO to pass the money on to the USPS. If a customer had its own permit number and ADVO provides all other services, the City could not tax ADVO on the postage its customer paid to the USPS. Therefore, ADVO should not be taxed just because it collects the postage as an agent for the USPS. Opening Brief at 12. We observe, however, that the record contains no evidence that any “conduit” or “agency” relationship actually existed between ADVO and the U.S. Postal Service or ADVO’s customers. The Arizona cases on point make it clear that on taxation questions form is sometimes as significant as substance. In Ebasco Servs., Inc. v. Arizona State Tax Commission, 105 Ariz. 94, 459 P.2d 719 (1969), Ebasco entered into a formal purchasing agent relationship with its client under which it purchased heavy equipment in the client’s name for installation at a power generating station Ebasco was building for the client. The Commission assessed additional state transaction privilege taxes against Ebasco, taking the position that the client’s payments for the equipment Ebasco had purchased as its agent constituted part of Ebasco’s taxable contracting income. The supreme court disagreed, accepting Ebasco’s analysis: ... Under the agency theory, materials and equipment are furnished by the owner for use by the contractor. Since there is no purchase by the contractor with an ultimate reimbursement by, or resale to, the owner, there is nothing received by the contractor in the nature of a “gross receipt” either in an accounting or in a tax sense. 105 Ariz. at 96, 459 P.2d at 721. In contrast to the situation in Ebasco, ADVO was able to demonstrate no agency relationship either with the U.S. Postal Service or with its customers under which it could be viewed as a mere postage conduit. The record reveals only that ADVO paid postage costs on its own account, billed its customers for its services and sometimes its postage costs, and later received payment. ADVO’s situation is closer to that of the taxpayer in Brink Electric Constr. Co. v. Arizona Department of Revenue, 184 Ariz. 354, 909 P.2d 421 (App.1995). In Brink, the tax court held that the Department of Revenue violated the taxpayer-contractors’ equal protection rights in requiring a purchasing agency relationship between a contractor and an owner as a condition to allowing a retail transaction privilege tax exemption for equipment the taxpayers bought and incorporated into the owner’s project. This court reversed. We stated: Although neither Brink nor Ball had purchasing agent agreements, they argue that they should be taxed as if they did. They argue that proceeds from their contracts attributable to large pipes and electrical transmission materials and equipment should be regarded merely as reimbursements by the project owners for procuring retail-tax exempt items. They contend that requiring such an agreement is arbitrary and a violation of their right to equal protection of the laws. Brink and Ball claim that the purchasing agent requirement has no rational basis. However, this presupposes the first step of the equal protection analysis, which is whether Brink and Ball were treated differently from other taxpayers____ They were not. Like any other contractor, Brink and Ball were free to take advantage of the retail exemption by including a purchasing agent agreement in their contract. We cannot hold that ADOR arbitrarily discriminated against them by refusing to allow them the exemptions in the absence of such an agreement. 184 Ariz. at 362, 909 P.2d at 429. Like Brink and Ball, ADVO is not entitled to be taxed as if its business were structured differently than it actually is. ADVO contends in addition that those portions of its receipts from customers that it uses to pay postage charges should be excluded as a freight charge. ADVO reasons that its postage payments are analogous to a freight charge that is part of the sale but that the seller pays directly to the carrier and separately states on the contract or invoice, which A.C.A. R15-5-1820(a) provides is not part of the sales price. We disagree. A tax regulation is not a case law principle that may be applied beyond its origins by broad analogy. Its validity is circumscribed by statute, and it can apply only according to its terms. ADVO calls to our attention no similar or analogous provision of the Phoenix City Code. A.C.A. R15-5-1820(a) is wholly immaterial to this litigation. ADVO also argues that its compensation from its customers for the mailing services it performs should be excluded from its gross income under State Tax Commission v. Holmes & Narver, Inc., 113 Ariz. 165, 548 P.2d 1162 (1976). We recently applied Holmes & Narver in City of Phoenix v. Arizona Rent-A-Car Sys., Inc., 182 Ariz. 75, 893 P.2d 75 (App.1995). Holmes & Narver held that the taxpayer firm’s receipts from performing design and engineering services on a job where it was also the prime contractor were not part of its gross income from the taxable contracting business. Arizona Rent-A-Car Systems held that the taxpayer’s receipts from charges for refueling rental cars returned by its customers with less than a full tank constituted part of its gross receipts from the taxable short-term car rental business and not separate, non-taxable charges. Both cases applied a three-part analysis the supreme court developed in Holmes & Narver: ... Where it can be readily ascertained without substantial difficulty which portion of the business is for non-taxable professional services (design and engineering), the amounts in relation to the company’s total taxable Arizona business are not inconsequential, and those services cannot be said to be incidental to the contracting business, the professional services are not merged for tax purposes into the taxable contracting business and are not subject to taxation. 113 Ariz. at 169, 548 P.2d at 1166. The Holmes & Narver court defined “incidental” as “inseparable from the principal business and interwoven in the operation thereof to the extent that they are in effect an essential part of the major business...” Id. at 168, 548 P.2d at 1165. In Arizona Rent-A-Car Systems, we found “integral to” equivalent to “incidental to” in Holmes & Narver. 182 Ariz. at 79, 893 P.2d at 79. Here, the sums ADVO receives from its customers and spends on postage charges can be determined without substantial difficulty. Those sums are certainly not inconsequential in relation to ADVO’s local advertising business in the City of Phoenix. Unlike the situation in Holmes & Narver, however, ADVO’s mailing services are an integral part of its taxable business, both as a matter of fact and as a matter of definition under the Phoenix City Code. City Code § 14-405(a) defines the local advertising business as including “[a]ll delivery or disseminating of information directly to the public or any portion thereof for a consideration” “by billboards, direct mail, radio, television, or by any other means.” As we have held, the mailing component of ADVO’s business falls squarely within that definition. Moreover, the ultimate end of the processing ADVO performs on its customers’ advertisements is to configure, organize, and label them so that they may be conveyed rapidly and efficiently to the customers’ market bases through the U.S. Postal Service. In view of that, it makes perfect sense to characterize the logical conclusion of ADVO’s activities for a given customer — placing the processed advertisements in the hands of the U.S. Postal Service and funding their delivery — as an integral and essential part of its major business. ADVO lastly contends, “The City of Phoenix imposes its transaction privilege tax on the postage ADVO pays the USPS for mailing without regard to whether that mail is addressed to locations outside of Phoenix. This violates the Model City Tax Code, a version of which the City of Phoenix adopted in 1987.” Opening Brief at 16 (footnote omitted). As the City points out, ADVO never presented this contention in the tax court. Accordingly, we decline to address it for the first time on appeal. Effect of ADVO’s Payment of Use Taxes on Printed Materials and Indirect Payment of Job Printing Taxes Incurred by Outside Job Printers On cross-appeal, the City contends the tax court erred in holding that ADVO was entitled to exclude from its local advertising gross income all sums it paid for outside job printing services where (1) the job printer passed along to ADVO a charge representing reimbursement for its own job printing privilege taxes, or (2) ADVO itself paid a Phoenix use tax for job printing that it obtained out-of-city. Where ADVO buys a printing job from a subcontractor subject to a job printing privilege tax, ADVO’s total cost for the job will likely include a charge designed to reimburse the job printer for the tax. As we understand the record, the City gave ADVO a credit for such reimbursements during the audit period when the job printing privilege tax was imposed on its subcontractor by the City of Phoenix. Phoenix City Code § 14-425. It did not do so when the tax was imposed by any other governmental entity. The tax court held that where the job printing tax that ADVO’s subcontractor passed through was at a rate “as high as or higher than” the City’s advertising tax rate, ADVO was entitled to exclude from its advertising tax base a sum equal to the subcontractor’s charge for the printing job. The tax court did not explain why this was so. ADVO supports the tax court’s ruling as follows: ... The tax involved here is a transaction privilege tax, imposed upon the privilege of engaging in a transaction. A given print job is only a single transaction. Once a taxpayer has paid the highest tax the City imposes upon the privilege of engaging in that transaction, it is both unjust and unreasonable for the City to attempt to levy another tax on the same taxpayer for the same transaction, simply because that transaction also happens to fit one of the other broad definitions of activity subject to taxation under another section of the code. Reply Brief at 5. ADVO is wrong and the tax court erred. Regardless of the jurisdiction that imposes it, a job printing transaction privilege tax is a “tax” only to the job printer who is subject to it. The incidence of a job printing privilege or excise tax is on the job printer only. To the job printer’s customer, the price of the printing job, including any privilege taxes passed through by the printer, is strictly a business expense. As we stated in Carriage Trade Management Corp. v. Arizona State Tax Commission, 27 Ariz. App. 584, 557 P.2d 183 (1976) in an analogous context: The transaction privilege tax is levied upon the person who is exercising the privilege of engaging in an enumerated busi-ness____ A.R.S. § 42-1302 allows the person or business to pass the tax levied upon them to their customers as any other cost is passed on. Therefore, each business in question is being taxed only once. 27 Ariz.App. at 587, 557 P.2d at 186. In this case, ADVO uses the output of its subcontractors’ printing jobs in its local advertising business. The amounts it pays its subcontractors for these printing jobs are among its business expenses. Phoenix City Code § 14-405(a) imposes a privilege tax on ADVO’s “gross income” from the local advertising business. Section 14-200(c) provides: No deduction or exclusion is allowed from gross income on account of the cost of the property sold, the time value of money, expense of any kind or nature, losses, materials used, labor or service performed, interest paid, or credits granted. The tax court’s holding that ADVO was entitled to exclude from its advertising gross income amounts it paid for outside printing jobs lacked any foundation in the controlling taxing provisions and cannot stand. The City’s cross-appeal can also be read to challenge the tax court’s holding that ADVO was entitled to exclude from its local advertising gross income all sums it paid for outside services that yielded printed materials on which ADVO later paid a Phoenix use tax. The City’s argument includes the following references to the use tax: In those cases in which ADVO contracted with a third party printer and the printer did not charge a tax on job printing and ADVO did not self-assess, the City of Phoenix assessed a use tax on ADVO for job printing. Phoenix City Code Sections 14-600,14-610, and 14-620 (Appendices P, Q&R). Rather than pay an advertising tax on its gross income, the taxpayer took the position at the administrative level that when a printer engaged by ADVO pays a tax on job printing to the City of Phoenix which it may pass on to ADVO (or ADVO self assesses a use tax in those cases in which there is no tax on job printing in the state involved) ADVO has complied with the City of Phoenix advertising tax. This is clearly not the case. Answering BriefrCross-Appeal Opening Brief at 24, 25 (emphasis added). The balance of the City’s analysis focuses exclusively on ADVO’s contention, which we have rejected above, that it was entitled to exclude from its local advertising tax base sums equal to payments for job printing services that included pass-through charges for the job printers’ own business taxes. Thus, it effectively equates the job printing privilege tax and the use tax. ADVO’s response does so as well. Both the City and ADVO are mistaken in taking that approach. As we stated above, the incidence of the job printing tax is exclusively on the job printer. As passed along to ADVO, it is just another business expense— not a tax. In contrast, the City’s use tax is an excise on the privilege of storing or using tangible personal property in the city, calcu lated on the property’s cost. Although the occasion for use tax liability arose from ADVO’s purchase of printed materials from out-of-state job printing subcontractors, the incidence of the use tax was exclusively on ADVO. Despite this distinction, ADVO was not thereby subjected to double taxation. In putting these printed materials to use in Phoenix, ADVO concurrently exercised two distinct taxable privileges. The first was the privilege of storing or using tangible personal property within the City on which a Phoenix retail privilege tax had not been paid. The second was the privilege of engaging in the business of local advertising within the City. ADVO’s liability for both taxes is no more anomalous than, hypothetically, its concurrent liability for Phoenix local advertising taxes and for federal excise taxes on purchases of tires for trucks used to convey marriage-mail runs to the U.S. Post Office. ADVO’s use tax liability on printed materials prepared by out-of-state job printers was a cost of doing business. Phoenix City Code § 14-200(c) accordingly vitiates its claim that those portions of its gross income which it expended to meet that cost were not subject to taxation under City Code § 14-405(a). ADVO has called our attention to no contrary authority. None appears in the tax court’s minute entry ruling. Our own research reveals none. CONCLUSION The judgment is affirmed on ADVO’s appeal and reversed on the City’s cross-appeal. * The matter is remanded to the tax court with directions to enter judgment in accordance with this opinion. RYAN, P.J., and GARBARINO, J., concur. . Section 14-575 provides in relevant part: (b) The tax collector may seek judicial review of all or any part of a hearing officer's decision by initiating an action in the appropriate court of this county. (c) An action for judicial review shall not be commenced more than thirty days after receipt of notice by the taxpayer of any refund or assessment recalculated or reduced to conform to the hearing officer’s decision. Failure to bring the action within thirty days shall constitute a waiver of any right to judicial review, except as provided in subsection (f) below, (f) After the initiating of any action in the appropriate court by either party, the opposite party may file such counterclaim as would be allowed pursuant to the Arizona Rules of Civil Procedure. . Effective April 1, 1987, Phoenix City Code § 14-200 provided: (a) Gross income includes: (1) the value proceeding or accruing from the sale of property, the providing of service, or both. (2) the total amount of the sale, lease, license for use, or rental price at the time of such sale, rental, lease, or license. (3) all receipts, cash, credits, barter, exchange, reduction of or forgiveness of indebtedness, and property of every kind or nature derived from a sale, lease, license for use, rental, or other taxable activity. (4) all other receipts whether payment is advanced prior to, contemporaneous with, or deferred in whole or in part subsequent to the activity or transaction. (b) Barter, exchange, trade-outs, or similar transactions are includable in gross income at the fair market value of the service rendered or property transferred, whichever is higher, as they represent consideration given for consideration received. (c) No deduction or exclusion is allowed from gross income on account of the cost of the property sold, the time value of money, expense of any kind or nature, losses, materials used, labor or service performed, interest paid, or credits granted. . Advo cites ten Arizona decisions in support of this uncontroversial proposition. We find it unnecessary to discuss any of them on that point. See generally Ebasco Servs. Inc. v. Arizona State Tax Comm'n, 105 Ariz. 94, 459 P.2d 719 (1969); Phoenix City Code §§ 14-200, 14-400(a), 14-405(a). . The City does not offer any explanation for this and we need not explore whether any legal rationale for this credit existed. . Where a person or business buys tangible personal property from a retailer who has separately charged the City’s retail privilege tax in connection with the sale, the purchaser is not subject to the City’s use tax. Code § 14-620.

OPINION THOMPSON, Presiding Judge. Can a property owner introduce an Arizona Department of Transportation (ADOT) appraisal and portions of a stipulated agreement as an admission against interest on value after a partial taking? We find such evidence is barred as evidence of compromise under Arizona Rule of Evidence 408 if not already statutorily precluded by Ariz.Rev. Stat.Ann. (A.R.S.) § 12-1116(J). Relief granted. I. JURISDICTION Petitioner ADOT urges us to accept special action jurisdiction to address the trial court’s denial of two of its motions in limine. The motions sought to preclude an appraisal review and valuation approval (the Appraisal) prepared by an ADOT employee and the stipulation agreement (the Agreement) between the property owners and ADOT. Admission of the Appraisal and Agreement at trial, ADOT claims, would result in reversible error. ADOT partially condemned real party in interest Stephens’s property in Arrowhead Ranch for highway construction in February 1987. Recognizing the magnitude of this condemnation, our supreme court stated: “[A]DOT’s exercise of eminent domain against the condemnees in these proceedings is the largest in Arizona history and will result in at least 9 separate condemnation trials____” State ex rel. Miller v. Filler, 168 Ariz. 147, 148, 812 P.2d 620, 621 (1991) (addressing another evidentiary issue on special action). Six years after Filler and ten years after the condemnation, six of those cases still await resolution — including Stephens’s case. Special action relief is reserved for those instances where there is no other equally plain, speedy or adequate remedy and is appropriately granted on pure questions of law where the issue is a matter of first impression and of statewide importance; this is one of those cases. See Orme School v. Reeves, 166 Ariz. 301, 303, 802 P.2d 1000, 1002 (1990); Arizona Rules of Procedure for Special Actions 1. II. ISSUES We grant review of the following evidentiary issues: 1. Whether the Appraisal and Agreement are precluded from use at trial by Ariz. R.Evid. 408 (Rule 408) as evidence of compromise or an offer to compromise. 2. Whether the Appraisal and Agreement are precluded from use at trial under A.R.S. § 12 — 1116(J) as evidence of a stipulation for immediate possession or to prejudice ADOT. We review legal questions de novo. Libra Group, Inc. v. State, 167 Ariz. 176, 179, 805 P.2d 409, 412 (App.1991). III. FACTUAL AND PROCEDURAL HISTORY The facts before us are undisputed. ADOT is the plaintiff in multiple lawsuits arising from condemnations in the Arrowhead Ranch area. On January 12, 1987, a stipulated agreement for immediate possession was reached between ADOT and some of the property owners, including Stephens. Pursuant to the Agreement, the signatory property owners agreed to make no objection to “ADOT’s initiation, maintenance and prosecution of condemnation actions.... ” ADOT agreed to seek immediate possession and to deposit $30,795,000 as the “value estimated by ADOT to be the fair value of the fee interest in the Property.” The Agree ment provided that the property owners could withdraw the funds deposited. The value estimated by ADOT was supported by Exhibit C to the Agreement; the bases for Exhibit C were the 1986 appraisal and the resulting January 9, 1987 appraisal review by ADOT employee Mike Chierighino (Chierighino). On February 13,1987, ADOT initiated condemnation proceedings in superior court. ADOT took immediate possession of a portion of Stephens’s property around Beardsley Road and 59th Avenue. The only viable issue for trial is the value of the property and the property owners’ damages. Each party plans to offer expert testimony at trial on the value of the land. ADOT’s recent valuations are lower than the amounts indicated in the Appraisal and Agreement. Therefore the property owners seek to introduce the Appraisal and Agreement as evidence relevant to value; they claim that these documents are “admissions against interest” by ADOT. ADOT made motions in limine to preclude the Appraisal and Agreement. In support of its motions, ADOT introduced Chieri-ghino’s sworn affidavit that appraisal reviews are generally done for two pin-poses: (1) as a basis for the acquisition offer, and (2) to set the deposit amount for immediate possession. Chierighino’s sworn statement says that his January 9, 1987 appraisal review was specifically prepared for the purposes of making an offer and setting the deposit amount. The trial court found the Appraisal and Agreement admissible in its October 30,1996 minute entry, which reads in pertinent part: As to Plaintiffs Motion in Limine re. State’s Deposit and Chierighino Appraisal, the Court notes that all parties agree that the amount of the deposit is not admissible. As to the issue of whether the review appraisal prepared by Chierighino dated 1/9/87 and the Summary and Distribution of ADOT Values dated 1/12/87 are admissible, the State seeks to preclude these documents based on ARS 12-1116(J) and seeks to preclude any witness from testifying about any figures included in those documents. The Defendants argue that the values included in these reports are admissible as the State’s determination of value per ARS 28-1865 now (J), then (I) and, therefore, as an admission against interest under Rule 801(d)(2), Rules of Evidence. The Court finds that the statutory determination of value is admissible as an admission against interest. Only the valuation figures are admissible, however. IT IS ORDERED allowing into evidence the schedule of values from the 1/12/87 agreement. Following this ruling, ADOT filed the special action petition now before us. IV. DISCUSSION The Arizona Constitution requires “just compensation” be paid to property owners prior to a taking. Ariz. Const, art. 2, § 17. “Just compensation” puts the property owner in the position he would have been in if no taking had occurred. Filler, 168 Ariz. at 149, 812 P.2d 620. “Just compensation” in partial takings is measured by (1) the fair market value of the property actually taken and (2) the diminution of the value of the remaining property. Id.; A.R.S. § 12-1122(A). “Fair market value” is the price a willing buyer would pay and a willing seller would accept. Defnet Land & Inv. Co. v. State ex rel Herman, 103 Ariz. 388, 389, 442 P.2d 835, 836 (1968). ADOT asserts two distinct bases supporting preclusion of the Appraisal and Agreement: (1) A.R.S. § 12-1116(J), and (2) Rule of Evidence 408, which pertains to evidence of settlement negotiations. Property owners argued to the lower court that: (1) the appraisal report was statutorily required under A.R.S. § 28 — 1865(J) to support the price for acquisition and therefore is a party admission under Rule 801(d)(2); (2) California law formed the basis for Arizona eminent domain law and, property owners argue, would have allowed for admission of the appraisal under a similar statute; (3) the evidence was not introduced under A.R.S. § 12-1116(J) and therefore, the prohibition is irrelevant; and (4) Rule 408 is inapplicable. 1. Statutory Preclusion under A.R.S. § 12-1116(J) ADOT maintains that both A.R.S. § 12-1116(J) and Rule 408 preclude the Appraisal and Agreement. Property owners claim that because no evidence was ever “introduced” pursuant to A.R.S. § 12-1116(J), the prohibition is irrelevant. A.R.S. § 12-1116 is entitled “Actions for condemnation; immediate possession; money deposit” and details the procedure whereby immediate possession may be taken of condemned property. A.R.S. § 12-1116(J) reads: No stipulation which is made nor ány evidence which is introduced pursuant to this section shall be introduced in evidence or used to the prejudice of any party in interest on the trial of the action. The statute explicitly precludes the use of either the stipulation or evidence introduced pursuant to the stipulation. Property owners assert that (1) A.R.S. § 12-1116(J) is inapplicable because it is the exhibits and not the Agreement itself which property owners wish to introduce; and (2) because the stipulation agreement happened privately and without a judicial hearing the protections of the statute no longer apply. To apply the property owners’ interpretation would be to read the statute too narrowly. We find that the stipulated agreement for immediate possession is a “stipulation” covered under the statute and Chierighino’s appraisal review is “evidence” produced to show probable damages in court or used to effectuate that stipulation. Furthermore, we agree that any use of the Appraisal and Agreement at the trial on valuation would be highly prejudicial to ADOT. 2. Compromise Evidence under Rule 408 Rule 408 of Evidence reads, in part: Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. We find that the Appraisal was prepared either: (1) for the purposes of negotiating a stipulation between ADOT and the property owners to receive immediate possession without court intervention; or (2) to provide a court with evidence to determine probable damages after application for immediate possession under A.R.S. § 12 — 1116(J). Rule 408 precludes the evidence in, at least, the former situation; A.R.S. § 12-1116(J) surely precludes the evidence in the latter situation. Rule 408 precludes more than the “offer” to compromise; conduct and statements made in the pursuit of a settlement are also precluded. The Appraisal by Chierighino falls squarely within the scope of “conduct and statements” because it was done to effectuate either the stipulation or a court determination for immediate possession. In Ramada Dev. Co. v. Rauch, the Fifth Circuit Court of Appeals upheld the trial court’s exclusion of an architect’s report which detailed the investigation into alleged defects in a hotel built by Ramada for Rauch, on the basis that Rule 408 precluded its admission. 644 F.2d 1097, 1106-07 (5th Cir. 1981). After reviewing Rule 408, the court concluded that the architect “was commissioned by Ramada to prepare a report that would function as a basis of settlement negotiations regarding the alleged defects in the motel ... that could then be discussed in monetary terms in the negotiations.” Id. at 1107. The Court of Appeals found the architect’s report was not within the “otherwise discoverable” exception of Rule 408 because “such an exception does not cover the present case where the document, or statement, would not have existed but for the negotiations____” Id. (emphasis added). That court further stated “[t]he rule does not indicate that there must be a pretrial understanding or agreement between the parties regarding the nature of the report.” Id. We find that the architect’s report in Ramada Dev. Co. is substantially similar to the Appraisal by Chierighino. In Berthot v. Courtyard Properties, Inc., a letter from plaintiff was excluded under Rule 408 where there was testimony that the letter allowed defendants a financial “credit” on their debt solely to get matters settled quickly. 138 Ariz. 566, 568, 675 P.2d 1385, 1387 (App.1983). Here, Chierighino’s affidavit states the purpose of the Appraisal was for offer and deposit purposes, both of which fall under the purview of Rule 408. 3. California Law Property owners indicate that, because Arizona’s current eminent domain statutes were based on earlier California statutes, we should follow old California case law interpreting these outdated California statutes which allowed appraisals in evidence at trial. We disagree for the following reasons. First, it must be noted that California has long since changed its statute to explicitly exclude appraisal reports or other statements made in connection to a deposit or withdrawal of funds. See California Code of Civil Procedure (C.C.P.) § 1255.060. The current California statute explicitly says “nor shall such a report or statement and summary be considered to be an admission of any party.” C.C.P. § 1255.060(b). Far from being nearly identical statutes, as the property owners claim, a comparison of the relevant sections from Arizona and California shows clear differences. A.R.S. § 12-1116(J) states: No stipulation which is made nor any evidence which is introduced pursuant to this section shall be introduced in evidence or used to the prejudice of any party in interest on the trial of the action. The old California statute read: (a) The amount deposited or withdrawn pursuant to this chapter shall not be given in evidence or referred to in the trial of the issue of compensation. We read the old California statute as more limited than A.R.S. § 12-1116(J) and note that it completely fails to address anything outside the actual amount of the deposit or withdrawal. The Arizona statute precludes not only the stipulation itself from being introduced but also “evidence which is introduced pursuant to this section.” The Arizona statute even refers to the “prejudice” that may beset a party against whom such interim value estimates are introduced at trial on the issue of final valuation. We decline to adopt an outdated rule from another jurisdiction when its statute is not even similar to our own. Further, we agree with the California Commission’s policy-based comment that the new rule precluding appraisals ensures that the state will not make inadequate deposits to protect itself and find it equally persuasive here in Arizona. 4. A.R.S. § 28-1865 Property owners next argue the Appraisal was conducted as statutorily required by A.R.S. § 28-1865(J) to justify ADOT’s acquisition of the properties, and is therefore a party admission not excluded by Rule 408. The only evidence supporting the assertion that the Appraisal is, in fact, the A.R.S. § 28-1865(J) memorandum is an ADOT employee’s answer to a convoluted deposition question. We find that even if the A.R.S. § 28-1865 appraisal constitutes an “admission” under Rule 801(d)(2), its status as an admission merely obviates a hearsay objection. Even if the Appraisal contained “admissions” under Rule 801(d)(2), they remain inadmissible as settlement matters under Rule 408. “Admissions” made in settlement offers are not admissible for policy reasons under Rule 408. Rule 801(d)(2) does not trump Rule 408. We are unpersuaded that the Appraisal by Chierighino is the A.R.S. § 28-1865(J) review, but we do not find that it would make a significant difference in the result here if it were. Finally, we determine that as a matter of policy when an agency is required to take steps to protect public funds, as here in requiring analysis of the financial worth of property, the agency should not be punished by being subject to the admission of that document at trial. See United States v. Two Tracts of Land, 412 F.2d 347, 350 (2nd Cir. 1969), cert, denied, sub nom. Sailors Haven Fire Island, Inc. v. United States, 396 U.S. 906, 90 S.Ct. 222, 24 L.Ed.2d 183 (1969) (appraisal required for federal funding not admissible in determining damages at trial). V. CONCLUSION For the above stated reasons we reverse the trial court’s ruling that the Appraisal and Agreement are admissible. GRANT and VOSS, JJ., concur. . A.R.S. § 12 — 1116(J) controls the introduction of stipulation agreements and related evidence at any subsequent trial on value. . ADOT’s motion did not focus on the "Agreement” itself, but rather on information contained in Exhibit C to the Agreement which states the number of square feet in each parcel and makes an appraisal based on price per square foot. . We refer to these documents collectively as "the Appraisal and Agreement.” . We refer to real parties in interest Stephens as Stephens and refer to the other real parties in interest as "properly owners.” . For example, ADOT's recent appraisals value Stephens’s land, parcel 7-4064, at $4.50 a square foot. The Appraisal and Agreement valued it at $6.00 a square foot. Compensation and damages accrue as of the date of the summons and the land’s actual value on that date is the measure of compensation and damages. A.R.S. § 12-1123(A). . The property owners have termed this an “admission against interest”; we refer to it, as does Rule 801(d)(2), as an admission by party opponent. Rule 801(d)(2) defines statements which are not hearsay; Rule 804(b)(3) concerns the hearsay exception for statements against interest when the declarant is unavailable. . A.R.S. § 28-1865(J) (Supp.1996) requires the ADOT Director to have an appraisal report justifying the economic basis for the condemnation of any property for transportation purposes valued at over $2500. In 1987 this section was A.R.S. § 12-1865(1). . California has case law, prior to the 1975 Code amendments, allowing the admission of appraisal reports. See People v. Cowan, 1 Cal.App.3d 1001, 81 Cal.Rptr. 713 (1969) (holding that it was reversible error to deny property owner opportunity to call state appraiser who appraised the property when state had relied on appraisal in determining the deposit for the condemned property); People v. Douglas, 15 Cal.App.3d 814, 93 Cal.Rptr. 644 (1971). Both of these cases have been explicitly overruled by the new statute. . The Law Revision Commission Comment to the 1975 Addition to C.C.P. § 1255.060 states in part: [T]he purpose of [the new changes are] to encourage the plaintiff to make an adequate deposit by protecting the plaintiff from the defendant’s use of the evidence upon which the deposit is based in the trial on the issue of compensation. If such evidence could be so used, it is likely that the plaintiff would make an inadequate deposit in order to protect itself against the use at the trial of evidence submitted in connection with the deposit____ . To this end property owners also claim that an A.R.S. § 28-1865(J) report is admissible under the theory that "what a public officer does pursuant to a statutory obligation is admissible, except cases of statutory exclusion or confidentiality.” In support of this theory property owners cite Killingsworth v. Nottingham, 18 Ariz.App. 356, 501 P.2d 1197 (1972). Ariz.R.Civ.P. 44(a) provides that records of public officials “shall be received in evidence as prima facie evidence of the facts therein stated.” Arizona cases addressing Rule 44(a) and its predecessors hold that ”[t]he statute making certain public records admissible in evidence was prompted by the rule ... of expediency of accepting hearsay testimony of public officers” and that the government documents are still subject to the general rules of admissibility. State v. Stracuzzi, 79 Ariz. 314, 318, 289 P.2d 187, 190 (1955) (superseded by statute as stated in State v. Bradley, 102 Ariz. 482, 433 P.2d 273 (1967)) (state mental hospital records in defendant’s murder trial); Douglass v. State, 44 Ariz. 84, 95, 33 P.2d 985, 989 (1934) (military discharge forms were hearsay and not admissible to show mental defect); Mutual Benefit Health & Accident Ass’n v. Neale, 43 Ariz. 532, 547-49, 33 P.2d 604, 610-11 (1934) (industrial commission records not admissible to show how injury occurred). Furthermore, as property owners concede this rule does not apply where there is a statutory exclusion, as in A.R.S. § 12-1116(J). . Mr. Helmandollar was ADOT’s former Assistant Chief Right-of-Way Agent from 1983 to 1988, and its Chief Right-of-Way Agent from 1989 to 1994. When asked at deposition ”[W]hether or not a determination of value was made pursuant to the statute, the determination that was made is based upon Mike Chierighino’s review appraisal as concurred in by the chief right-of-way agent, the assistant chief right-of-way agent, and the manager of appraisals?” Helmandollar replied "I believe you are right.”

OPINION FELDMAN, Justice. John Trebus moved to remand a grand jury’s indictment for a new determination of probable cause. See Rule 12.9, Ariz. R.Crim.P. Trebus contends the trial judge abused his discretion by refusing to remand this case because the prosecutor had deprived him of the right to make a written request to present explanatory evidence to the grand jury pursuant to A.R.S. § 21-412. We granted review to examine the responsibility of a prosecutor who learns that a defendant wishes to present exculpatory evidence or testify before a grand jury. We have jurisdiction pursuant to Ariz. Const, art. 6, § 5(3) and Rule 23, Ariz.R.Civ.App.P. FACTS AND PROCEDURAL HISTORY In February 1994, Trebus’ stepdaughter told Salinas, California police that Trebus had sexually molested her in early 1991 while the family lived in Tucson. The Salinas police gave this information to the Pima County Sheriffs Department, which conducted a limited follow-up investigation and interviewed Trebus. After the interview, Trebus retained a lawyer who wrote a letter to the deputy county attorney in charge of the Sex Crimes Unit of the Pima County Attorney’s Office. This letter was hand-delivered to the Office where it was stamped as received. In the letter, Trebus’ lawyer asked to meet with the county attorney to discuss the case before a criminal prosecution was authorized. The lawyer further indicated that Trebus had exculpatory evidence he wanted to present and stated that the letter was to serve as a formal request under A.R.S. § 21412 to make the exculpatory evidence available to the grand jury. The lawyer also asked that, if the county attorney decided not to meet with him, she give him advance notice of the date and time the case would be presented to the grand jury so that Trebus could exercise his rights under A.R.S. § 21-412. No one from the Pima County Attorney’s Office responded to the letter. Without notice to Trebus or his lawyer, the case was presented to the grand jury and an indictment was issued on February 20, 1996, accusing Trebus of twelve assorted dangerous crimes against children. Trebus filed a motion to dismiss or, alternatively, to remand to the grand jury for a new determination of probable cause. He claimed his due process rights were violated because the county attorney ignored his request to present information to the grand jury and because the state presented false and misleading information to the grand jury. In response, the county attorney claimed that she never received the letter. The trial judge denied the motion, and Trebus filed a petition for special action seeking review of that decision. See Rule 7, Ariz.R.Sp.Act. The court of appeals, without explanation, declined to accept jurisdiction of the special action. This court granted Tre-bus’ petition for review. DISCUSSION A. Responsibility of the prosecutor Pursuant to A.R.S. § 21-412, a person under investigation by a grand jury may present evidence to that grand jury. In relevant part, A.R.S. § 21 — 412 states: The grand jurors are under no duty to hear evidence at the request of the person under investigation, but may do so. ... The grand jurors shall weigh all the evidence received by them and when they have reasonable ground to believe that other evidence, which is available, will explain away the contemplated charge, they may require the evidence to be produced. (Emphasis added.) A defendant’s right to request the grand jury to consider his evidence is implicit in the statute. It is even more clearly implicit in Rule 12.6, Ariz. R.Crim.P. While the statute and rule make clear that the grand jury may but need not consider any evidence proffered by the defendant, they leave open the question of how the grand jury is to be informed that the defendant has evidence available or has requested to appear. Although the county attorney is not explicitly assigned the task of informing the grand jury that the defendant wishes to appear or submit exculpatory evidence, we have recognized that due process may require the county attorney to do so, especially when requested. Crimmins v. Superior Court, 137 Ariz. 39, 43-44, 668 P.2d 882, 886-87 (1983) (Feldman, J., specially concurring); see generally 38A C.J.S. Grand Juries §§ 168 & 169 (1996) (citing Crimmins and other cases for proposition that prosecutor’s presentation must be fair and impartial; although prosecutor need not actually present exculpatory evidence, he must inform grand jury of its existence and give grand jury opportunity to order its production). In Crimmins, a kidnaping and assault case, the prosecutor not only failed to instruct the grand jury on applicable statutes and allowed a prosecution witness to testify in a misleading manner, but also ignored the defendant’s request to present his side of the incident. We held that due process compels the prosecutor to make a fair and impartial presentation to the grand jury. Crimmins, 137 Ariz. at 41, 668 P.2d at 884. This requires the prosecutor to instruct the grand jury on all the law applicable to the facts of the case, even if the grand jury does not make any specific request for additional legal instruction. Id. at 42, 668 P.2d at 885. This court noted that “[t]he grand jury is neither an arm nor a servant of the prosecution,” and “the prosecutor’s discretion is to be used ‘in assisting the grand jury.’ ” Id. at 43-44, 668 P.2d at 886-87 (quoting Gershon v. Broom-field, 131 Ariz. 507, 509, 642 P.2d 852, 854 (1982)). See Sigmund G. Popko, Arizona’s County Grand Jury: The Empty Promise of Independence, 29 Ariz. L.Rev. 667, 681-83 (1987). [W]here the defendant has indicated his willingness to waive his right to remain silent and has volunteered to discuss the case with the prosecutor, one might assume there is a reasonable possibility that he would waive the fifth amendment and testify before the grand jury. The prosecution here failed to notify defense counsel that the case was going to the grand jury and also faded to notify the grand jury that the defendant might be willing to appear and testify. The prosecution thereby deprived the defendant of the right to make a written request of the grand jury to allow him to appear (see Ariz.R.Crim.P. 12.6) and deprived the grand jury of its right to determine whether the defendant’s testimony might be “other evidence, which is available, [and] will explain away the contemplated charge.... ” The rule, the statute, and the concept of an independent grand jury give the grand jury, not the prosecution, the right to make these determinations. Crimmins, 137 Ariz. at 44, 668 P.2d at 887. Thus, by failing to inform the grand jury of the defendant’s willingness to come forward, a prosecutor may effectively control the outcome of a given proceeding, thereby usurping the grand jury’s role and depriving a defendant of the due process right to an independent grand jury. Popko, supra, 29 Ariz. L.Rev. at 683. Although we realize there are arguably other means by which the defense can communicate information to the grand jury, such as by notifying the presiding judge, the only pragmatic, realistic conduit is the county attorney — the grand jury’s assistant and advis- or. See Gershon, 131 Ariz. at 510, 642 P.2d at 855 (“The prosecutor’s duty is to assist the grand jury in its investigations; the prosecutor may not exercise dominion over those investigations by evading the grand jury’s will.”). Nor is it odd, as Justice Martone’s dissent describes it, to place this duty on the “investigated person’s adversary, the prosecutor.” Dissent, infra, at 627, 944 P.2d at 1241. California, for example, has recognized such a duty. In Johnson v. Superior Court, the California Supreme Court found that under section 939.7 of the California Penal Code, which is similar to A.R.S. §§ 21-408 and 21-412, the prosecutor was obliged to inform the grand jury of the nature and existence of evidence reasonably tending to negate a defendant’s guilt. The court reasoned that the grand jury cannot be expected to request evidence of which it is ignorant. The court stated: The People contend the proper construction of section 939.7 is that “the impetus for the presentation of exculpatory evidence must originate in the grand jury, not the district attorney.” However, unless so informed by the district attorney, the grand jury ordinarily has no “reason to believe that other evidence within its reach will explain away the charge.” ... The defendant’s right to bring exculpatory evidence to the attention of the grand jury by letter is illusory unless he knows his ease will be under consideration by them. Because the proceedings of the grand jury are held in secret without notice to the defendant, the construction of section 939.7 urged by the People would nullify its protective role. 15 Cal.3d 248, 124 Cal.Rptr. 32, 36, 539 P.2d 792, 796 (1975) (citations omitted). With regard to the prosecutor’s adversarial role, the court noted that the adversary system does not extend to grand jury proceedings. As has been explained, if the district attorney does not bring exculpatory evidence to the attention of the grand jury, the jury is unlikely to learn of it. We hold, therefore, that when a district attorney seeking an indictment is aware of evidence reasonably tending to negate guilt, he is obligated under section 939.7 to inform the grand jury of its nature and existence, so that the grand jury may exercise its power under the statute to order the evidence produced. Id. The prosecutor, as an officer of the court as well as the lawyer for the state, is not just an adversary of the person under investigation. The interests of the prosecutor and the state are not limited to indictment but include serving the interests of justice; thus, the prosecutor’s obligation to make a fair and impartial presentation to the jury has long been recognized. See Crimmins, 137 Ariz. at 41, 668 P.2d at 884; see also State v. Emery, 131 Ariz. 493, 506, 642 P.2d 838, 851 (1982). Our statutes and rules give the grand jury, not the prosecutor, the right and obligation to decide whether to hear a defendant or his exculpatory evidence. We therefore see nothing odd in requiring the prosecutor to tell the grand jury about possible exculpatory evidence. After all, if the exculpatory information had been provided by the police, the law requires that it be presented to the grand jury. Cf. Herrell v. Sargeant, 189 Ariz. 627, 944 P.2d 1241 (1997). Why should the rule be different when the prosecutor receives such information from a defendant? Given the power of the prosecutor in the grand jury system, the statutory right of the grand jury to decide whether to hear evidence from the defendant, and the defendant’s right to request appearance before the grand jury, we hold the county attorney must inform the grand jury that the defendant has requested to appear or has submitted exculpatory evidence. Without such a responsibility, A.R.S. § 21-412 and Rule 12.6 are rendered meaningless. The grand jury is, of course, free to either grant or deny the defendant’s request, but this choice is for the grand jury and not for the county attorney. See State v. Just, 138 Ariz. 534, 540, 675 P.2d 1353, 1359 (App. 1983) (“The purpose of [A.R.S. § 21-412] is obviously to give the grand jury the opportunity to hear the evidence it deems necessary to make its probable cause determination.”). Turning now to the case at bar, we must decide whether the letter written by Trebus’ lawyer was sufficient to trigger the county attorney’s duty to inform the grand jury of Trebus’ willingness to present exculpatory evidence or to testify. B. The letter The county attorney is not obligated to present all exculpatory evidence to the grand jury absent a request by the grand jury, but must present only “clearly exculpatory” evidence. State v. Coconino County Superior Court (Mauro), 139 Ariz. 422, 425, 678 P.2d 1386,1389 (1984). Clearly exculpatory evidence is evidence of such weight that it might deter the grand jury from finding the existence of probable cause. Id. (citing United States v. Ciambrone, 601 F.2d 616, 623 (2d Cir.1979)). Trebus concedes that this is not an exculpatory evidence case. The evidence Trebus sought to present concerned his stepdaughter’s veracity and credibility and highlighted inconsistencies in her various allegations. We believe, however, that issues such as witness credibility and factual inconsistencies are ordinarily for trial. See Mauro, 139 Ariz. at 425-26, 678 P.2d at 1389-90 (exploring insanity defense not well suited to primary function of grand jury and is best left for petit jury). The grand jury’s primary function is to determine “whether probable cause exists to believe that a crime has been committed and that the individual being investigated was the one who committed it.” State v. Baumann, 125 Ariz. 404, 408, 610 P.2d 38, 42 (1980). Simply put, the grand jury is not the place to try a case. Thus, the county attorney in this ease was not required to present the proffered evidence, whatever it may have been. While there may be exceptions to the “clearly exculpatory” evidence limitation, this case does not permit us to recognize or apply any exception. The letter from Trebus’ lawyer is vague, does not refer to any specific exculpatory evidence, and is non-committal about Trebus’ desire to testify before the grand jury. No evidence is described, no offer to testify is made. At oral argument in this matter, Trebus’ lawyer still could not tell this court what evidence, other than credibility issues, Trebus wished to have the grand jury consider; nor was he yet sure whether Trebus would testify before the grand jury if given the opportunity. In short, we do not believe that the letter was sufficient to require the county attorney to inform the grand jury that Trebus wished to present evidence or testify. If we were to hold otherwise, we believe county attorneys might well be inundated with meaningless letters seeking to muddy the waters. While we seek to preserve the function of the grand jury process, we do not wish to open the door to game-playing and meaningless posturing from either side. Under A.R.S. § 21-412 and Rule 12.6, the grand jury is to decide if it wishes to hear a defendant or his evidence. It can make an informed decision only if, on the one hand, the defendant’s request provides information with some degree of detail, at least as to the subject and outline of the proposed evidence, and, on the other hand, if the prosecutor conveys that information to the grand jury. We believe the statute and rule contemplate both requirements. As we stated in Mauro: [We have] not, and will not today, set out a mechanical test to be applied to find whether the state has complied with due process requirements because “what is required to make a ‘fair presentation’ to the grand jury .., will vary from case to case.” However, we think the guidelines set out today will more clearly define the prosecutor’s duties before the grand jury. 139 Ariz. at 424, 678 P.2d at 1388 (citations omitted). CONCLUSION For the reasons set forth above, we approve the trial court’s denial of Trebus’ Rule 12.9 motion to remand this ease to the grand jury. ZLAKET, C.J., and JONES, V.C.J., concur.. MOELLER, J., did not participate in this decision; pursuant to Ariz. Const, art. 6, § 3, TOCI, C.J., of the Court of Appeals, Division One, was designated to sit in his stead. . Rule 12.6, Ariz.R.Crim.P., "Appearance of Person Under Investigation,” states in relevant part: A person under investigation by the grand jury may be compelled to appear or may be permitted to appear before the grand jury upon the person's written request.... . The suggestion in Justice Martone’s dissent that the defendant’s request be relayed through the presiding judge presents several difficulties. Although the presiding judge convenes the grand jury and may instruct the jurors on the general conduct of a grand jury when they first meet, the judge otherwise has no contact with the grand jury, has no knowledge of which cases are presented to the grand jury, when they are to be presented, or which county attorney is presenting the cases. Presiding judges, particularly those in the larger counties, have enough to do without giving them the burden of ministerial supervision of each case in the grand jury system. From a practical as well as legal standpoint, it is surely not too much to require the county attorney handling a specific case to give the grand jury the information the law says it has a right to know so that it can exercise its statutory discretion.

OPINION SWANN, Judge: ¶ 1 In Kobold v. Aetna Life Ins. Co., 233 Ariz. 100, 309 P.3d 924 (App.2013) (“Kobold /”), we held that 5 U.S.C. § 8902(m)(l) of the Federal Employee Health Benefits Act (“FEHBA”) did not preempt Arizona law forbidding subrogation in personal injury cases. After the Arizona Supreme Court denied review, the Office of Personnel Management (“OPM”) promulgated new regulations, set forth in 5 C.F.R. § 890.106, that construe § 8902(m)(l) to include subrogation and reimbursement terms in FEHBA contracts. In light of the new regulations, the United States Supreme Court vacated our opinion and remanded the ease for reconsideration of the preemptive effect of the FEH-BA. Aetna Life Ins. Co. v. Kobold, — U.S. -, 135 S.Ct. 2886, 192 L.Ed.2d 918 (2015). We hold that the statutory interpretation embodied in the new federal regulations is entitled to deference in accordance with Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and, accordingly, we are bound to interpret the FEHBA as preempting Arizona anti-subrogation law. We therefore reverse the superior court’s entry of summary judgment for Kobold, and remand with instructions to grant Aetna’s cross-motion for summary judgment. FACTS AND PROCEDURAL HISTORY ¶2 Kobold was injured in a motorcycle accident in 2006. Aetna paid Kobold’s medical providers almost $25,000 for his treatment related to the accident. Kobold later recovered $145,000 in a settlement with the parties allegedly responsible for the accident. ¶ 3 Under the terms of the insurance plan, and contrary to Arizona law, Aetna was entitled to subrogation and reimbursement in the event that Kobold recovered from a responsible third party. Relying on these contractual provisions, Aetna asserted a lien on the settlement proceeds for the medical expenses it had paid. The alleged tortfeasors deposited the disputed portion of the settlement sum with the superior court, and filed an interpleader action against Kobold and Aetna. ¶ 4 Kobold and Aetna filed cross-motions for summary judgment in which they disputed whether § 8902(m)(l) applies to subrogation and reimbursement provisions. The superior court ruled that the question had been resolved in Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 126 S.Ct. 2121, 165 L.Ed.2d 131 (2006), and granted summary judgment for Kobold. Aetna appealed. ¶ 5 Concluding that McVeigh had not in fact decided the issue, we affirmed based on our own interpretation of the statute. Applying principles of statutory construction, we held that subrogation and reimbursement provisions do not fall within the scope of § 8902(m)(l). We rejected Aetna’s argument that we were required to defer to a contrary interpretation set forth in a position letter sent from the OPM to FEHBA carriers, holding that the letter was not entitled to deference under Chevron or otherwise. We now reconsider the issue of § 8902(m)(l)’s reach in view of the new OPM regulations. DISCUSSION ¶ 6 Aetna and amicus curiae contend that the new regulations are entitled to Chevron deference and are dispositive. We agree. ¶ 7 As an initial matter, the regulations are proeedurally eligible for Chevron deference. “[Ajdministrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority,” U.S. v. Mead Corp., 533 U.S. 218, 226-27, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001), as the result of a formal adjudication or rule-making procedure, Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000). The OPM is specifically tasked with “preserib[ing] regulations necessary to carry out [the FEHBA],” 5 U.S.C. § 8913(a), and the regulations at issue here were the product of a formal notice-and-comment rule-making process. ¶ 8 The fact that the regulations postdate our decision in Kobold I does not deprive them of authority. An earlier judicial construction “trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.” Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005); see also Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735, 740-41, 116 S.Ct. 1730, 135 L.Ed.2d 25 (1996). This is true even when the agency’s interpretation of the same statutory language changes over time. See Brand X, 545 U.S. at 981, 125 S.Ct. 2688 (“Agency inconsistency is not a basis for declining to analyze the agency’s intei’pretation under the Chevron framework.”). In view of the Supreme Court’s own recognition of the statute’s ambiguity in McVeigh, 547 U.S. at 698, 126 S.Ct. 2121, it cannot be said that our interpretation in Kobold I was the product of such clear statutory language. ¶ 9 Further, the OPM regulations qualify substantively for Chevron deference. “[I]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Chevron, 467 U.S. at 843, 104 S.Ct. 2778. The relevant inquiry is whether the agency’s interpretation is reasonable. E.g., Mead, 533 U.S. at 229, 121 S.Ct. 2164. The court must defer to an agency’s reasonable interpretation even when the agency’s interpretation is unwise or when it is not the most reasonable interpretation. Id.; Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 218, 129 S.Ct. 1498, 173 L.Ed.2d 369 (2009). “Statutory ambiguities will be resolved, within the bounds of reasonable intei’pretation, not by the courts but by the administering agency.” City of Arlington v. F.C.C., — U.S.-, 133 S.Ct. 1863, 1868, — L.Ed.2d - (2013). Chevron deference therefore compels us to apply OPM’s interpretation even though we view the analysis of Kobold I and Nevils as more faithful to the text of the statute. ¶ 10 Section 8902(m)(l) provides that the terms of an FEHBA contract “which relate to the nature, provision, or extent of coverage or benefits (including payments with respect to benefits) shall supersede and preempt any State or local law, or any regulation issued thereunder, which relates to health insurance or plans.” The statute does not directly reference reimbursement or subrogation provisions. Accordingly, as McVeigh recognized, the statute is susceptible to multiple “plausible constructions” with respect to whether it encompasses such provisions. 547 U.S. at 698, 126 S.Ct. 2121. ¶ 11 The new regulations construe the statute expressly and expansively. The regulations provide that “[a]ny FEHBA carriers’ right to pursue and receive subrogation and reimbursement recoveries constitutes a condition of and a limitation on the nature of benefits or benefit payments and on the provision of benefits under the plan’s coverage,” and that “[a] carrier’s rights and responsibilities pertaining to subrogation and reimbursement under any FEHBA contract relate to the nature, provision, and extent of coverage or benefits (including payments with respect to benefits) within the meaning of 5 U.S.C. 8902(m)(l)____notwithstanding any state or local law, or any regulation issued thereunder, which relates to health insurance or plans.” 5 C.F.R. § 890.106(b)(1), (h). ¶ 12 The regulations hinge upon a broad reading of § 8902(m)(l)’s use of the teim “relate to.” The regulations construe “relate to” to include connections beyond those that are direct and immediate. Though our interpretation in Kobold I differed, we cannot say that “relate to” may not reasonably be argued to include the relationship between an insured’s receipt of benefit payments and an insurer’s contractual right to effectively recall the payments by subrogation or reimbursement after the insured has been compensated by a third party. Cf. Northwest, Inc. v. Ginsberg, — U.S. -, 134 S.Ct. 1422, 1428, 1430-31, 188 L.Ed.2d 538 (2014) (holding that “related to,” as used in the Airline Deregulation Act’s preemption provision, “expresses a ‘broad pre-emptive purpose,’ ” and that its scope, defined as “related to a price, route, or service of an air carrier,” included a claim seeking reinstatement in a frequent-flyer program that provided benefits such as mileage credits and upgrades (citation omitted)); FMC Corp. v. Holliday, 498 U.S. 52, 58, 111 S.Ct. 403, 112 L.Ed.2d 356 (1990) (holding that “relate to,” as used in the Employee Retirement Security Act’s preemption provision, is used in a “broad sense” to include state anti-subrogation laws (citation omitted)). The connection between issuing benefit payments and seeking subrogation and reimbursement is not so attenuated as to make the regulations’ interpretation unreasonable. We further recognize that the regulations’ interpretation promotes uniform treatment of federal employees under FEH-BA plans nationwide, and that one of the goals of § 8902(m)(l) is to assure uniformity of benefits and rates. H.R.Rep. No. 105-374 at 9 (1997); see also Helfrich v. Blue Cross & Blue Shield Ass’n, 804 F.3d 1090, 1099 (10th Cir.2015). CONCLUSION ¶ 13 In view of 5 C.F.R. § 890.106, we reverse the superior court’s grant of summary judgment to Kobold. And because there is no genuine issue of material fact, we remand with instructions for the entry of summary judgment in favor of Aetna. See Anderson v. Country Life Ins. Co., 180 Ariz. 625, 628, 886 P.2d 1381, 1384 (App.1994) (recognizing court of appeals’ authority to vacate summary judgment for one party and enter it for another where the issues can be decided as a matter of law). We deny Kobold’s request for attorney’s fees and costs. . In Nevils v. Group Health Plan, Inc., the Missouri Supreme Court agreed with our decision in Kobold I, and held that the FEHBA did not preempt Missouri’s anti-subrogation doctrine. 418 S.W.3d 451 (Mo.2014). The United States Supreme Court similarly vacated and remanded that decision in the wake of the OPM’s new regulations. Coventry Health Care of Missouri, Inc. v. Nevils, — U.S.-, 135 S.Ct. 2886, 192 L.Ed.2d 918 (2015). . Kobold briefly argues that § 8902(m)(l) is "probably unconstitutional” under the Supremacy Clause because it gives preemptive effect to contract terms rather than federal law. FEHBA contract terms are, however, circumscribed by the terms of the FEHBA and the standards prescribed by the OPM. See 5 U.S.C. § 8902. As relevant here, the OPM has now dictated that "[a]ll health benefit plan contracts shall provide that the Federal Employees Health Benefits (FEHB) carrier is entitled to pursue subrogation and reimbursement recoveries.” 5 C.F.R. § 890.106(a). . Kobold contends that McVeigh’s recognition of multiple "plausible” constructions does not equate to recognition of multiple "reasonable” constructions. We see no meaningful distinction between the quoted terms for purposes of the Chevron analysis. See Rust v. Sullivan, 500 U.S. 173, 184, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991) (holding that under Chevron, "[t]he Secretary’s construction of Title X may not be disturbed as an abuse of discretion if it reflects a plausible construction of the plain language of the statute and does not otherwise conflict with Congress’ expressed intent”). But even assuming that McVeigh's dictum reflects a more tentative characterization of § 8902(m)(l)’s ambiguity, such expression would not foreclose the existence of multiple reasonable interpretations.

OPINION HOWARD, Presiding Judge: ¶ 1 Sierra Tucson, Inc., Rainier Diaz, Scott Davidson, and Kelley Anderson (collectively, “Sierra Tucson”) seek special action review of the respondent judge’s order denying Sierra Tucson’s motion seeking change of venue in a wrongful death action. Sierra Tucson argues the respondent erred in finding inapplicable the venue selection provision contained in a contract between Sierra Tucson and the decedent, Richard Lecce, and in otherwise concluding venue was proper in Pima County. As to the first issue, we accept special action jurisdiction and deny relief. As to the second, we decline jurisdiction. Factual and Procedural Background ¶ 2 In January 2015, Richard arranged for treatment at Sierra Tucson, a psychiatric hospital and behavioral health facility. When he arrived at Sierra Tucson, and again when transferred from the psychiatric hospital to a residential treatment facility, he signed contracts that included a venue selection provision stating that “any dispute” arising from Richard’s “participation at Sierra Tucson ... shall be heard exclusively in a State of Arizona Superior Court in Pinal County.” WTiile under Sierra Tucson’s care, Richard died, allegedly committing suicide. Real-party-in-interest, Lindsey Lecce, Richard’s widow, sued Sierra Tucson for wrongful death in Pima County Superior Court “on her own behalf, and on behalf of their two children, son Garret Lecce and daughter Morgan Lecce. She also brings this action on behalf of the Estate of Richard Lecce.” The complaint alleged, inter alia, claims of negligence and claims based on the Consumer Fraud Act. ¶ 3 Sierra Tucson applied to transfer venue to Pinal County, arguing the venue selection provision constituted “good and sufficient cause” for a change of venue pursuant to A.R.S. § 12-406(B)(3). Lecce objected, asserting venue was proper in Pima County, the venue selection provision did not apply to the statutory beneficiaries, and the provision was in any event unconscionable. In response, Sierra Tucson contended the provision was binding and enforceable, and additionally asserted for the first time that venue transfer was appropriate under § 12-406(B)(2) based on “the convenience of witnesses and the ends of justice.” ¶4 The respondent judge denied Sierra Tucson’s request to change venue to Pinal County. The respondent concluded that Sierra Tucson had not shown transfer was appropriate pursuant to § 12-406(B)(2) and that the venue selection provision “is not binding upon the surviving beneficiaries that bring this wrongful death action,” citing Dueñas v. Life Care Centers of America, Inc., 236 Ariz. 130, 336 P.3d 763 (App.2014). The respondent granted Sierra Tucson’s request to stay the trial court proceedings, and this petition for special action followed. Jurisdiction ¶ 5 We have discretion to accept special action jurisdiction to address venue rulings. See Sierra Tucson, Inc. v. Lee, 230 Ariz. 255, ¶ 6, 282 P.3d 1275, 1277 (App.2012); see also Ariz. R. P. Spec. Actions 1(a). The enforcement of a forum selection provision is a legal issue. Bennett v. Appaloosa Horse Club, 201 Ariz. 372, ¶ 11, 35 P.3d 426, 429 (App.2001) (enforceability of forum selection clause is reviewed de novo); see also Estate of DeCamacho v. La Solana Care & Rehab, Inc., 234 Ariz. 18, ¶ 9, 316 P.3d 607, 609 (App.2014) (validity and enforceability of contractual arbitration provision reviewed de novo). As such, it is particularly appropriate for special action review. See Sierra Tucson, Inc., 230 Ariz. 255, ¶ 6, 282 P.3d at 1277. And special action review is proper when, as in this case, the issue is a question of first impression and of statewide importance. See Chartone, Inc. v. Bernini, 207 Ariz. 162, ¶ 9, 83 P.3d 1103, 1107 (App.2004). Accordingly, we accept special action jurisdiction to address whether the respondent judge erred in concluding the venue selection provision did not require venue be transferred to Pinal County. ¶ 6 Whether venue should be changed pursuant to A.R.S. § 12-406, however, is left to a trial court’s discretion. Curtis v. Richardson, 212 Ariz. 308, ¶ 8, 131 P.3d 480, 483 (App.2006). And that determination may require a court to resolve factual disputes and weigh competing interests of the parties, see § 12-406(B)(1)-(3), and thus is less appropriate for review pursuant to special action, see State ex rel. Montgomery v. Rogers, 237 Ariz. 419, ¶ 6, 352 P.3d 451, 453 (App.2015) (special action jurisdiction appropriate when issue “does not turn on the resolution of disputed facts”). Thus, we decline to accept special action jurisdiction of any issue unrelated to the venue selection provision. Discussion ¶ 7 Sierra Tucson argues that forum selection provisions are presumptively enforceable and the respondent judge erred in relying on Dueñas. In Dueñas, this court determined an arbitration agreement was not enforceable against statutory beneficiaries in a wrongful death action who were not parties to the agreement. 236 Ariz. 130, ¶¶ 23-29, 336 P.3d at 771-72. We noted, first, that “ ‘a party is bound to arbitrate only those disputes which it has contractually agreed to arbitrate.’ ” Id. ¶ 26, quoting Smith v. Pinnamaneni, 227 Ariz. 170, ¶ 22, 254 P.3d 409, 415 (App.2011). This conclusion is consistent with the longstanding general rule that only parties to a contract are subject to or may enforce its terms. See Lofts at Fillmore Condo. Ass’n v. Reliance Commercial Constr., Inc., 218 Ariz. 574, ¶ 5, 190 P.3d 733, 734 (2008), citing Treadway v. W. Cotton Oil & Ginning Co., 40 Ariz. 125, 138, 10 P.2d 371, 375 (1932); cf. Carroll v. Lee, 148 Ariz. 10, 13, 712 P.2d 923, 926 (1986) (“Mutuality of obligation” required for valid contract and exists only when both parties bound). ¶ 8 Second, we observed that the wrongful death claims did not belong to the decedent but instead belong to the statutory beneficiaries. 236 Ariz. 130, ¶ 27, 336 P.3d at 772. We acknowledged that a statutory beneficiary cannot bring a claim that is barred—such as by a previous settlement by the decedent—and that a defendant is entitled to raise any defenses against the statutory beneficiary that could have been raised against the decedent. Id. But, we concluded, those principles address the viability of the claim on the merits and not “the question of whether the forum for such a claim may be restricted by the decedent.” Id. ¶ 9 Applying the same reasoning to the venue selection clause and the parties here, the statutory beneficiaries did not sign the agreement containing the venue selection clause and are not parties to the contract. Furthermore, their wrongful death claims are not derivative of Richard’s claims. See id. Thus, the statutory beneficiaries are not bound by the venue selection provision. ¶ 10 Sierra Tucson, however, contends the reasoning in Dueñas does not apply to venue selection provisions because arbitration agreements “result in the waiver of a party’s Arizona constitutional right to a jury trial” instead of “merely changing] the location of a case within the superior court system.” But, in Dueñas, we did not address the right to a jury trial or whether it was pertinent to whether an arbitration provision should be enforced. ¶ 11 And this distinction does not make our reasoning in Dueñas inapplicable to venue selection provisions. The critical factors in Dueñas are present: the lack of a contractual relationship between the statutory beneficiaries of a wrongful death action and the fact that the statutory beneficiaries’ right to recover is not derivative of any claims the decedent could have brought. And it implicates a plaintiffs right to choose the venue, a choice that should not lightly be disturbed. See Cal Fed Partners ex rel. Cal Fed Syndications v. Heers, 156 Ariz. 245, 246, 751 P.2d 561, 562 (App.1987). ¶ 12 Sierra Tucson also argues the respondent judge erred by concluding the venue selection provision was not binding because Richard’s estate “is a plaintiff to this action in regards to the Consumer Fraud Act claim,” as well as the claims Lindsey brought as personal representative of Richard’s estate. Sierra Tucson reasons that the estate is bound by Richard’s agreement and, thus, that the venue selection provision must be enforced. Sierra Tucson further argues that provision must then be enforced against the other statutory beneficiaries. But, because Sierra Tucson did not raise these arguments below, we decline to address them on review. Yarbrough v. Montoya-Paez, 214 Ariz. 1, n. 6, 147 P.3d 755, 762 n. 6 (App.2006) (“Generally, issues not raised or urged below or on review are deemed waived.”). ¶ 13 Sierra Tucson further suggests that claims based on the Consumer Fraud Act (CFA), unlike the wrongful death claims, are “wholly derivative” of claims Richard could have brought and, thus, are governed by the venue selection provision. In support, Sierra Tucson cites Estate of DeCamacho for the proposition that “claims that are derivative of a decedent’s rights are subject to the arbitration agreement signed by the decedent.” 234 Ariz. 18, ¶ 25, 316 P.3d at 614. ¶ 14 In that case, we addressed whether an action brought by the decedent’s estate pursuant to the Adult Protective Services Act (APSA) was subject to an arbitration provision agreed to by the decedent. Id. ¶¶ 3, 5, 13, 19. The action was derivative of the decedent’s rights because, unlike claims brought pursuant to the wrongful death statute, the APSA expressly provided that claims survived the decedent. Id. ¶¶ 21-23. We concluded, then, that derivative claims were subject to the arbitration provision. Id. ¶¶ 24-27. ¶ 15 A claim based on the CFA, however, may be brought by the statutory beneficiaries in a wrongful death action, as this case was. See Maurer v. Cerkvenik-Anderson Travel, Inc., 181 Ariz. 294, 295, 297-98, 890 P.2d 69, 70, 72-73 (App.1994) (CFA claim brought as wrongful death action permits recovery when “damage resulting from the alleged violation is death”); see also A.R.S. §§ 12-611 through 12-613. That action permits recovery by the statutory beneficiaries “[w]hen death of a person is caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action to recover damages.” § 12-611; see also § 12-612(A) (identifying statutory beneficiaries). And, a claim of wrongful death by the statutory beneficiaries is independent of any claim Richard could have brought while alive; therefore, they are not bound by a venue selection provision to which he agreed. Dueñas, 236 Ariz. 130, ¶ 27, 336 P.3d at 772; Estate of DeCamacho, 234 Ariz. 18, ¶ 27, 316 P.3d at 614. ¶ 16 Finally, Sierra Tucson urges us to adopt the reasoning of “several other courts” purportedly finding forum selection clauses “can apply to non-signatories ... if the claims are closely related to the agreement.” Only two of the cases Sierra Tucson cites discuss forum selection provisions in the context of a wrongful death action. None convince us we should abandon the general rule that only parties to a contract are bound by its terms. See Treadway, 40 Ariz. at 138, 10 P.2d at 375. ¶ 17 In the first case cited by Sierra Tucson, the New York Supreme Court, Appellate Division, applied a forum selection provision in a wrongful death action against the non-signatory plaintiff. Couvertier v. Concourse Rehab. & Nursing, Inc., 117 A.D.3d 772, 985 N.Y.S.2d 683, 683-84 (N.Y.App.Div.2014). But the court’s decision contains no reasoning, citing three cases and summarily concluding that “[t]his Court has upheld nonnegotiated forum selection clauses.” Id. at 684. Of those cited cases, the sole case addressing a forum selection provision involving a non-signatory determined only that the provision could be enforced by a non-signatory with a sufficiently close relationship with a signatory—there, a doctor retained by the defendant to treat the injured individual. Bernstein v. Wysoki, 77 A.D.3d 241, 907 N.Y.S.2d 49, 55-57 (N.Y.App.Div.2010). The other ease cited by Sierra Tucson that involves a wrongful death action does not meaningfully analyze the issue, much less suggest that we should evaluate that question based on the closeness of relationship between the decedent and the plaintiffs. See Brenner v. Nat’l Outdoor Leadership Sch., 20 F.Supp.3d 709, 716 (D.Minn.2014). ¶ 18 Two other cases cited by Sierra Tucson evaluate the relationships of the non-signatory to a contracting party in determining whether a forum selection provision can be enforced. In Manetti-Farrow, Inc. v. Gucci Am., Inc., the Ninth Circuit Court of Appeals determined a forum selection provision would apply to non-signatories because the “alleged conduct of the non-parties is so closely related to the contractual relationship.” 858 F.2d 509, 514 n. 5 (9th Cir.1988). But the court did not consider whether statutory beneficiaries were bound by the forum selection provision. Rather, the non-parties to the forum selection provision were co-defendants in contractual relationships with the signatory defendant, had been involved in the conduct leading to the litigation, and in one instance had consented to and ratified the contract containing the forum selection provision. See id. at 510-12. Similarly, in Net2Phone, Inc. v. Superior Court, the California Court of Appeals enforced a forum selection provision against a non-signatory because the non-signatory was “ ‘closely related to the contractual relationship,’ ” there, a statutory representative under California’s unfair competition law “challenging certain contractual terms.” 109 Cal.App.4th 583, 135 Cal.Rptr.2d 149, 150, 152-53 (2003). ¶ 19 In this case, the statutory beneficiaries were not involved in the relevant events and have no contractual relationship with Richard, much less one that relates to the issues raised in this litigation. Nor is the contract between Richard and Sierra Tucson the core of the dispute. Thus, even if we agreed with Sierra Tucson that Arizona should adopt a rule similar to that applied in the cited cases, it plainly would not apply here. Disposition ¶ 20 The respondent judge correctly determined that the venue selection provision did not require that venue be moved to Pinal County. We accept jurisdiction of that issue and deny relief. We otherwise decline jurisdiction. . Despite its claim to the contrary in its petition for special action, Sierra Tucson did not move to change venue based on A.R.S. § 12-404(A), allowing a change of venue if the action has not been "brought in the proper county.” . A forum selection provision typically involves "consent to a particular court’s exercise of personal jurisdiction.” Desarrollo Immobiliario y Negocios Industriales de Alta Tecnología de Hermosillo, S.A. de C.V. v. Kader Holdings Co., 229 Ariz. 367, ¶ 11, 276 P.3d 1, 5 (App.2012). Consent to personal jurisdiction is not implicated in this case because the superior court of Arizona is a "single unified trial court of general jurisdiction.” Marvin Johnson, P.C. v. Myers, 184 Ariz. 98, 102, 907 P.2d 67, 71 (App.1995). However, because the choice of venue has less impact on the parties’ rights than consent to personal jurisdiction, based on the facts and issues presented in this case, we see no reason the general principles governing enforcement of a forum selection provision would not apply to a venue selection provision. Thus, like a forum selection provision, a venue selection provision "is enforceable as long as it is not the result of unfair bargaining or so unreasonable that the plaintiff would be deprived of his or her day in court.” Bennett, 201 Ariz. 372, ¶ 19, 35 P.3d at 431. . To the extent the complaint could be read to allege a CFA claim not based on wrongful death. the real party in interest has avowed "[t]he entire case is a wrongful death action.”

OPINION VÁSQUEZ, Presiding Judge: ¶ 1 Following a jury trial, Rock Ingram was convicted of misconduct involving weapons. On appeal, he argues the trial court erred in denying his request for a peremptory change of judge pursuant to Rule 10.2, Ariz. R. Crim. P. In addressing this issue, we first must determine whether the court’s ruling may be challenged on direct appeal or must be reviewed in a special action. Ingram also contends the state presented insufficient evidence to support his conviction. For the following reasons, we affirm. Factual and Procedural Background ¶2 We view the facts and all reasonable inferences therefrom in the light most favorable to upholding Ingram’s conviction. See State v. Almaguer, 232 Ariz. 190, ¶2, 303 P.3d 84, 86 (App.2013). In August 2012, officers received information that Ingram, who had an outstanding felony arrest warrant from Wisconsin, was at a house in Maricopa. Because the U.S. Marshals Service had warned that Ingram was possibly armed with a .40-caliber pistol and “would use it to elude capture,” the officers called for backup. They then entered the house, detained Ingram, and found a .40-caliber bullet in his front left pocket. ¶ 3 N.H., who was renting the house, told the officers that Ingram was staying there, along with N.B. and her children. N.B. informed the officers that there was a gun in the house, and N.H. consented to a search. With N.B.’s assistance, the officers found a .40-ealiber semi-automatic pistol in a briefcase, which was located in an empty television box in the master-bedroom closet. The pistol had seven rounds in the magazine and one loaded in the chamber. The briefcase also contained a box of .40-caliber ammunition, a gun-cleaning kit, and an empty prescription pill bottle belonging to Ingram. ¶ 4 A grand jury indicted Ingram for one count of misconduct involving weapons by knowingly possessing a deadly weapon as a prohibited possessor. The week before trial, the case was reassigned to the tidal judge by an “immediately distributed” order dated January 29, 2015. Ingram filed a notice of change of judge as a matter of right pursuant to Rule 10.2 on February 2, 2015, the day before trial. The court denied the notice as untimely. ¶ 5 Ingram was convicted as charged, and the trial court sentenced him to a presumpfive term of imprisonment of 2.5 years. We have jurisdiction pursuant to AR.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1). Change of Judge ¶ 6 Ingram contends the trial court erred by denying his request for a peremptory change of judge pursuant to Rule 10.2. The state responds that “this court lacks jurisdiction to consider [Ingram’s] argument” because he should have challenged the court’s ruling by special action. We conclude that Ingram’s challenge to the court’s ruling is not reviewable on direct appeal. ¶ 7 Rule 10.2(a) provides: “In any criminal case, each side is entitled as a matter of right to a change of judge.” To exercise this right, a party must file a notice of change of judge signed by counsel, avowing that the request is made in good faith. Ariz. R. Crim. P. 10.2(b). The rule provides time frames for filing the notice depending on the stage of the proceedings. Ariz. R. Crim. P. 10.2(c). The question presented here is whether a ruling on a Rule 10.2 notice of change of judge must be challenged by special action or can be reviewed on direct appeal from the final judgment of conviction. ¶ 8 Our supreme court’s reasoning in Taliaferro v. Taliaferro, 186 Ariz. 221, 921 P.2d 21 (1996), guides our analysis here. There, the court was faced with the same question in the context of a civil action: whether a party could challenge by appeal the trial court’s denial of his notice of peremptory change of judge filed pursuant to Rule 42(f), Ariz. R. Civ. P., the civil analog to Rule 10.2. Taliaferro, 186 Ariz. at 222, 921 P.2d at 22. The court noted that errors occurring when the trial court fails to honor the notice—for example, when the court “rules that the notice is untimely, when it is indeed timely”— “are not well suited to an appeal after final judgment.” Id. at 223, 921 P.2d at 23. It explained that “there is no way a party could show prejudice from the error on appeal,” unlike when a for-cause request for change of judge is denied. Id. The court reasoned that a peremptory change of judge essentially is a “ ‘matter of grace’ ” that could be converted to “a trump card which would later destroy the validity of the entire proceeding.” Id., quoting Hickox v. Superior Court, 19 Ariz.App. 195, 198, 505 P.2d 1086, 1089 (1973). The court thus concluded that “a party must seek review by way of special action.” Id. ¶ 9 The reasoning of Taliaferro applies equally to notices filed under Rule 10.2 in criminal cases. See State ex rel. Thomas v. Gordon, 213 Ariz. 499, ¶ 31, 144 P.3d 513, 518 (App.2006) (“[0]ur supreme court has held the rules of law pertaining to change of judge are essentially the same in civil as in criminal cases.”). Because Rule 10.2 permits a change of judge “merely upon request,” without the need to show judicial bias or interest, it would be difficult on appeal for a party to show any resulting prejudice from that court’s denial of the notice. Anagnostos v. Truman, 25 Ariz.App. 190, 192, 541 P.2d 1174, 1175 (1975). Once a defendant has been convicted and sentenced, “it is too late in the day to be worrying about who tried the case, short of trae challenges for cause.” Taliaferro, 186 Ariz. at 223, 921 P.2d at 23. ¶ 10 A system providing a peremptory change of judge must also afford prompt review—by way of special action—of a ruling on such a request. See id. Although special-action review is discretionary, “that is all a party is entitled to on a rale-driven ‘matter of grace.’ ” Id. at 223-24, 921 P.2d at 23-24, quoting Hickox, 19 Ariz.App. at 198, 505 P.2d at 1089. “The administration of justice, already under great weight, needs no further burden.” Id. at 223, 921 P.2d at 23; see also People v. Hull, 1 Cal.4th 266, 2 Cal.Rptr.2d 526, 820 P.2d 1036, 1040-41 (1991) (immediate review of judicial disqualification orders “ ‘fosters judicial economy by eliminating the waste of time and money which inheres if the litigation is permitted to continue unabated’ ”), quoting Guedalia v. Superior Court, 211 Cal.App.3d 1156, 260 Cal.Rptr. 99, 103 (1989). ¶ 11 Relying on State v. Keel, 137 Ariz. 532, 672 P.2d 197 (App.1983), Ingram nevertheless maintains we may address on appeal whether the trial court erred in denying his notice of change of judge. He asserts that a special action is an appropriate avenue for raising such a challenge but it is not “the exclusive ... way.” ¶ 12 In Keel, this court set aside the defendant’s conviction for attempted theft because the trial court had “failed to honor” his notice of peremptory change of judge. 137 Ariz. at 532-33, 672 P.2d at 197-98. The state argued that “the error [was] not properly reviewable on appeal” and should have been brought by special action. Id. at 533, 672 P.2d at 198. We rejected this argument, reasoning that “relief could have been granted by special action,” but it was not required. Id. Without explanation, we concluded the situation was “inapposite” to a challenge to grand-jury proceedings, which must be brought by special action. Id.; see Bashir v. Pineda, 226 Ariz. 351, ¶¶ 4-6, 248 P.3d 199, 201 (App.2011). We also pointed to cases in which our supreme court had addressed Rule 10.2 arguments on appeal. Keel, 137 Ariz. at 533, 672 P.2d at 198. ¶ 13 But Keel was decided prior to our supreme court’s decision in Taliaferro. See State v. Dungan, 149 Ariz. 357, 361, 718 P.2d 1010, 1014 (App.1985) (previous decisions of this court considered persuasive unless clearly erroneous or conditions have changed). Moreover, in Taliaferro, while acknowledging that the analogy between a grand-jury proceeding and a peremptory change of judge “is not exact,” the court found it sufficiently similar to extend the special-action requirement to the latter. 186 Ariz. at 223, 921 P.2d at 23. Thus, the Arizona Supreme Court in Taliaferro rejected this court’s reasoning in Keel. ¶ 14 We acknowledge that Taliaferro did not explicitly overrule Keel and that a defendant like Ingram may have believed, based on Keel, that he could bring this issue by appeal. However, even if this were a special action, Ingram would not be entitled to relief. When a new judge is assigned less than ten days before trial, Rule 10.2(c) requires a notice of change of judge to be filed “on the next business day following actual receipt of notice of the assignment.” Ingram acknowledges that his attorney’s office received the reassignment order on January 29, 2015, but maintains that he had until February 2, 2015, to file his notice of change of judge because his attorney was out of the office and did not actually see the reassignment order until January 30, 2015. In Lee v. State, 218 Ariz. 235, ¶10, 182 P.3d 1169, 1171 (2008), our supreme court stated “that an ‘actual receipt’ requirement ... is compatible with the mail delivery rule,” which is based on “the long-held understanding that mail properly sent will reach its destination.” Thus, under that rule, “proof of the fact of mailing will, absent any contrary evidence, establish that delivery occurred.” Id. ¶ 8. All Rule 10.2(c) requires is “actual receipt,” which occurred here on January 29. See Receipt, Black’s Law Dictionary 1459 (10th ed. 2014) (“The act of receiving something, esp. by taking physical possession.”). The trial court therefore did not err in denying the notice as untimely. See State v. Poland, 144 Ariz. 388, 394, 698 P.2d 183, 189 (1985). ¶ 15 Ingram also asserts that “it was impossible for counsel to file a special action” because the denial of his Rule 10.2 request occurred the first day of trial. Although filing a petition for special action may have been difficult under the circumstances, it was not impossible. See Ariz. R. P. Spec. Actions 7(c) (allowing for stay of trial court proceedings if appellate court cannot address issue raised in special action “immediately”); cf. State v. Mincey, 130 Ariz. 389, 409, 636 P.2d 637, 657 (1981) (state filed special action in middle of trial; this court stayed trial while it resolved issue raised in special action). ¶ 16 In sum, we conclude that a challenge to the denial of a notice of peremptory change of judge filed pursuant to Rule 10.2 must be brought by special action. A defendant cannot challenge the trial court’s denial of his request for a peremptory change of judge on direct appeal. Cf. State v. Just, 138 Ariz. 534, 542, 675 P.2d 1353, 1361 (App.1983) (defendant cannot challenge grand-jury proceedings on appeal). Sufficiency of the Evidence ¶ 17 Ingram also argues the trial court erred in denying his motion for a judgment of acquittal pursuant to Rule 20, Ariz. R. Crim. P., because the state presented insufficient evidence to support his conviction. “The sufficiency of the evidence is a question of law we review de novo.” State v. Snider, 233 Ariz. 243, ¶4, 311 P.3d 656, 658 (App.2013). “ ‘[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” State v. West, 226 Ariz. 559, ¶ 16, 250 P.3d 1188, 1191 (2011), quoting State v. Mathers, 165 Ariz. 64, 66, 796 P.2d 866, 868 (1990). We will reverse only if no substantial evidence supports the conviction. State v. Sharma, 216 Ariz. 292, ¶ 7, 165 P.3d 693, 695 (App.2007). “Substantial evidence is such proof that ‘reasonable persons could accept as adequate and sufficient to support a conclusion of [a] defendant’s guilt beyond a reasonable doubt.’” Id., quoting Mathers, 165 Ariz. at 67, 796 P.2d at 869. ¶ 18 A person commits misconduct involving weapons by knowingly “[pjossessing a deadly weapon ... if such person is a prohibited possessor.” AR.S. § 13-3102(A)(4). A prohibited possessor is any person “[w]ho has been convicted within or without this state of a felony ... and whose civil right to possess or carry a gun or firearm has not been restored.” AR.S. § 13-3101(A)(7)(b). ¶ 19 The parties stipulated that Ingram had been convicted of a felony in Wis eonsin in August 1989. An officer also testified that Ingram told him during his post-arrest interrogation that “he’s not allowed to touch a gun or have a gun.” The state thus presented sufficient evidence that Ingram was a prohibited possessor, see Sharma, 216 Ariz. 292, ¶ 7, 165 P.3d at 695, and Ingram does not argue to the contrary on appeal. ¶ 20 However, Ingram contends the state “did not present sufficient evidence to prove that [he] ‘possessed’ the gun.” “‘Possess’ means knowingly to have physical possession or otherwise to exercise dominion or control over property.” A.R.S. § 13-105(34). “Possession may be actual or constructive.” State v. Gonsalves, 231 Ariz. 521, ¶ 9, 297 P.3d 927, 929 (App.2013). Because the pistol was not found on Ingram’s person, our inquiry turns to whether the evidence was sufficient to establish constructive possession. ¶ 21 “Constructive possession exists when the prohibited property ‘is found in a place under [the defendant’s] dominion [or] control and under circumstances from which it can be reasonably inferred that the defendant had actual knowledge of the existence of the [property].’ ” State v. Cox, 214 Ariz. 518, ¶ 10, 155 P.3d 357, 359 (App.2007), quoting State v. Villavicencio, 108 Ariz. 518, 520, 502 P.2d 1337, 1339 (1972) (alterations in Cox). “The terms ‘dominion’ and ‘control’ carry their ordinary meaning, such that dominion means ‘absolute ownership’ and control means to ‘have power over.’ ” Id. ¶ 9, quoting State v. Tyler, 149 Ariz. 312, 316, 718 P.2d 214, 218 (App.1986). ¶ 22 The state may use direct or circumstantial evidence to prove constructive possession. State v. Donovan, 116 Ariz. 209, 213, 568 P.2d 1107, 1111 (App.1977). “[Hinder a theory of constructive possession, two or more persons may jointly possess a prohibited object; possession need not be ‘[e]x-elusive, immediate and personal.’ ” Gonsalves, 231 Ariz. 521, ¶ 9, 297 P.3d at 929, quoting State v. Carroll, 111 Ariz. 216, 218, 526 P.2d 1238, 1240 (1974) (second alteration in Gonsalves); see also Villavicencio, 108 Ariz. at 520, 502 P.2d at 1339. “However, a person’s mere presence at a location where a prohibited item is located is insufficient to show that he or she knowingly exercised dominion or control over it.” Gonsalves, 231 Ariz. 521, ¶ 10, 297 P.3d at 929. ¶ 23 Here, the officers had been informed by the U.S. Marshals Service that Ingram was possibly armed with a .40-caliber pistol. Ingram was staying at the house where he was arrested, and the officers found a loaded .40-caliber semi-automatic pistol in a briefcase in the master-bedroom closet. When asked if the briefcase looked familiar, Ingram responded, “I have one like it, but I don’t know if that one is mine.” The officers never told Ingram where they had found the briefcase, but he stated that his was “in the closet.” ¶ 24 In the briefcase, along with the pistol, officers found a box of .40-caliber ammunition and a prescription pill bottle with Ingram’s name on the label. The label was dated less than two months prior to the date of Ingram’s arrest. In addition, Ingram had a .40-caliber bullet in his front left pocket. Although Ingram contends the bullet “is not relevant” because “it was not placed into evidence,” he did not object when the officers testified they had found it on his person when they searched him after his arrest. Contrary to Ingram’s assertion, the bullet is circumstantial evidence linking the .40-eali-ber pistol to him. ¶ 25 Moreover, the outside of the briefcase had a “tag,” which included a reference to Racine, Wisconsin. Ingram’s prior felony was from Wisconsin, and he was born there. Nothing in the briefcase indicated someone else owned it. As for the pistol, Ingram admitted “touchfing] a gun like that.” Viewed collectively, there was sufficient evidence to establish that Ingram had constructive possession of the pistol. See Sharma, 216 Ariz. 292, ¶ 7, 165 P.3d at 695. Accordingly, the trial court did not err in denying Ingram’s motion for a judgment of acquittal. See Snider, 233 Ariz. 243, ¶ 4, 311 P.3d at 658. Disposition ¶ 26 For the foregoing reasons, we affirm Ingram’s conviction and sentence. . During trial, the parties stipulated that Ingram had been convicted of a felony in Wisconsin in August 1989. . "[T]he word jurisdiction’ means different things in different contexts.” Taliaferro v. Taliaferro, 186 Ariz. 221, 223, 921 P.2d 21, 23 (1996). Here, the state appears to use the word to mean our “authority to do a particular thing,” not our statutory or constitutional power to entertain a particular action. Id. . The rule, as relevant here, provides: [I]f a new judge is assigned to a case fewer than ten (10) days before trial (inclusive of the date of assignment), a notice of change of judge shall be filed, with appropriate actual notice to the other party or parties, by 5:00 p.m. on the next business day following actual receipt of notice of the assignment, or by the start of trial, whichever occurs sooner. Ariz. R. Crim. P. 10.2(c). . Although neither party directly cited Taliaferro, two of the cases relied upon by the state do. See State ex rel. Thomas v. Gordon, 213 Ariz. 499, ¶ 7, 144 P.3d 513, 515 (App.2006); Bergeron ex rel. Perez v. O’ Neil, 205 Ariz. 640, ¶ 11, 74 P.3d 952, 957 (App.2003). And, in any event, our review is not limited to the authorities cited by the parties. See State v. Zaman, 190 Ariz. 208, 211, 946 P.2d 459, 462 (1997) (court considering own research); State v. Emanuel, 159 Ariz. 464, 467, 768 P.2d 196, 199 (App.1989) (same). . Notably, after Taliaferro, challenges to the denial of a Rule 10.2 notice of change of judge in criminal cases generally have been reviewed by special action. See, e.g., Reed v. Burke, 219 Ariz. 447, ¶ 2, 199 P.3d 702, 703 (App.2008); Bolding v. Hantman, 214 Ariz. 96, ¶ 1, 148 P.3d 1169, 1170 (App.2006); Medders v. Conlogue, 208 Ariz. 75, ¶ 1, 90 P.3d 1241, 1242 (App.2004); but see State v. Manuel, 229 Ariz. 1, ¶¶ 1, 5, 270 P.3d 828, 830 (2011). . Although this appears to be hearsay, Ingram did not object on that basis at trial. See State v. McGann, 132 Ariz. 296, 299, 645 P.2d 811, 814 (1982) (“[I]f hearsay evidence is admitted without objection, it becomes competent evidence admissible for all purposes."). Instead, he argued the testimony lacked proper foundation. See State v. Lopez, 217 Ariz. 433, ¶ 4, 175 P.3d 682, 683 (App.2008) ("[A]n objection on one ground does not preserve the issue on another ground.”). . One of the officers testified that the bullet could have been placed in the box of ammunition recovered from the briefcase when the evidence was impounded.

THUMMA, Judge: ¶ 1 Accepting jurisdiction in this special action, this court grants relief because attorneys’ fees imposed as sanctions pursuant to Arizona Revised Statutes (AR.S.) section 12-349 (2016) and Ariz. R. Civ. P. 11 are not “damages awarded” for purposes of calculating a supersedeas bond pursuant to AR.S. § 12-2108(A) and Ariz. R. Civ.App. P. 7(a)(4)(A). FACTS AND PROCEDURAL HISTORY ¶ 2 The superior court dismissed on motion Petitioner Frank D. Kresock Jr.’s civil claims against the Real Parties in Interest Rosemary DePaoli, Gregory J. and Jane Doe Meell, and Abram, Meell & Candióte, P.A As sanctions pursuant to AR.S. § 12-349 and Ariz. R. Civ. P. 11, the judgment awarded attorneys’ fees to the Real Parties and against Kresock, his attorney Petitioner Richard W. Hundley and Hundley’s law firm Petitioner Berens, Kozub, Kloberdanz and Blonstein, P.L.C. Petitioners’ appeal from that judgment is pending before this court. ¶ 3 Petitioners unsuccessfully asked the superior court to stay enforcement of the judgment, claiming no supersedeas bond was required because the judgment awarded no damages. The same day the superior court denied that requested stay, Petitioners sought a similar stay from this court in the appeal. This court denied that motion without prejudice to Petitioners filing a special action. This is that special action. DISCUSSION ¶ 4 Given the nature of a supersedeas bond, and the unique procedural background of this case, exercising special action jurisdiction is appropriate. See Ariz. R.P. Spec. Act. 1(a); see also City Ctr. Exec. Plaza, LLC v. Jantzen, 237 Ariz. 37, 39 ¶ 2, 344 P.3d 339, 341 (App.2015) (citing cases). Accordingly, this court accepts special action jurisdiction. ¶ 5 The relevant portion of the supersedeas bond statute provides: If a plaintiff in any civil action obtains a judgment under any legal theory, the amount of the bond that is necessary to stay execution during the course of all appeals or discretionary reviews of that judgment by any appellate court shall be set as the lesser of the following: 1. The total amount of damages awarded excluding punitive damages. 2. Fifty per cent of the appellant’s net worth. 3. Twenty-five million dollars. A.R.S. § 12-2108(A) (emphasis added); accord Ariz. R. Civ.App. P. 7(a)(4)(A) (similar). Jantzen held that attorneys’ fees awarded pursuant to A.R.S. § 12-341.01 are not “damages” for purposes of setting a supersedeas bond under A.R.S. § 12—2108(A)(1) (enacted in 2011) and Ariz. R. Civ.App. P. 7(a)(4)(A) (promulgated in 2012). 237 Ariz. at 42 ¶ 13, 344 P.3d at 344. Jantzen has been applied or construed in other contexts. See Bobrow v. Superior Court, 239 Ariz. 180, 181-83 ¶¶ 2, 10, 12, 367 P.3d 84, 85-87 (App.2016) (applying Jantzen in denying, on special action review, relief from order requiring supersedeas bond in full amount of family court decree awarding one spouse living expenses and value of a house); Wells Fargo Bank N.A. v. Superior Court, 239 Ariz. 106, 108-110 ¶¶ 11-18, 366 P.3d 583, 585-87 (App.2016) (discussing Jantzen in construing Ariz. R. Civ.App. P. 7(a)(2), which authorizes superior court to “enter any further order, in lieu of or in addition to the [supersedeas] bond, which may be appropriate to preserve the status quo or the effectiveness of the judgment”). No decision has applied Jantzen in considering whether attorneys’ fees imposed as sanctions are “damages” for purposes of setting a supersedeas bond under A.R.S. § 12-2108(A)(1). ¶ 6 Although both parties agree the supersedeas bond statute applies, they argue it directs diametrically different results. Petitioners argue attorneys’ fees imposed as sanctions are not “damages” under the supersedeas bond statute “according to [the] ‘peculiar and appropriate meaning’ ” the term “damages” has “in the law.” Jantzen, 237 Ariz. at 41 ¶ 13, 344 P.3d at 343 (citing authority). Accordingly, Petitioners argue, because “[n]o damages were awarded” to the Real Parties, “no actual supersedeas bond is required” to stay enforcement of the judgment. The Real Parties counter that attorneys’ fees imposed as sanctions are “damages,” relying on cases cited in Jantzen, a law review article, cases construing Fed. R.Civ.P. 11 and Ariz. R. Civ. P. 11, and A.R.S. § 12-349. The authorities the Real Parties cite, however, either do not support their argument, or support Petitioners’ argument. ¶ 7 Jantzen stated: In Arizona, courts generally do not construe “damages” to include attorneys’ fees. We see no reason to diverge from the general rule here. This is not a case where attorneys’ fees are a legal consequence of an original wrongful act or any of the other situations where attorneys’ fees can be considered damages. See Desert Mountain Prop. Ltd. P’ship v. Liberty Mut. Fire Ins. Co., 225 Ariz. 194, 209 ¶ 61, 236 P.3d 421 [436] (App.2010) (“[W]hen one party’s breach of contract places the other in a situation that makes it necessary to incur expenses to protect his interest, such costs and expenses, including attorneys’ fees, should be treated as the legal consequences of the original wrongful act and may be recovered as damages.”). 237 Ariz. at 41-42 ¶ 13, 344 P.3d at 343-344 (citations omitted). The Real Parties argue that attorneys’ fees imposed as sanctions are akin to the fees sought in Desert Mountain, meaning they are damages for purposes of the supersedeas bond statute. ¶8 For certain types of substantive claims, attorneys’ fees may be recovered as a component of damages. See Jantzen, 237 Ariz. at 42 ¶ 13, 344 P.3d at 343 (citing and distinguishing authority); Desert Mountain, 225 Ariz. at 209 ¶ 61, 236 P.3d at 436 (citing cases); see also State Bar of Arizona, Arizona Attorneys’ Fees Manual §§ 7.1-7.5 (5th ed. Supp. 2014) (listing examples of claims where attorneys’ fees are damages, including “tort of another;” wrongful repudiation of insurance coverage; and fees caused by wrongful injunction, attachment, garnishment or execution). No such claim is present here. The attorneys’ fees awarded were not incurred as a result of “one party’s breach of contract,” in a damages award made by a finder of fact or in a damages award in an order resolving a dispositive motion. As in Jantzen, the attorneys’ fees imposed here were not “a legal consequence of an original wrongful act or any of the other situations where attorneys’ fees can be considered damages.” 237 Ariz. at 42 ¶ 13, 344 P.3d at 343 (citing Desert Mountain). Accordingly, the cases relied upon by the Real Parties that Jantzen distinguished are just as distinguishable here. ¶ 9 The Real Parties argue that Ariz. R. Civ. P. 11 sanctions are meant to be remedial, citing a 1986 law review article discussing competing rationales for sanctions available under then-recent changes to Fed.R.Civ.P. 11: Rule 11 sanctions can be imposed on the lawyer, the client, or both. The sanctions are viewed by some as primarily compensatory and by others as primarily punitive; the tension between these two views cannot be completely reconciled. On the one hand, sanctions are a form of cost-shifting, compensating a party for expenses incurred because of an opponent’s unnecessary, wasteful, or abusive conduct. On the other hand, they are a form of punishment, imposed only on those who violate the rule. Whatever the rationale for imposing sanctions, their frequent use is likely to be a significant deterrent. Melissa F. Nelken, Sanctions Under Amended Federal Rule 11-Some “Chilling” Problems in the Struggle Between Compensation and Punishment, 74 Geo. L.J. 1313, 1314 (1986). Although the Real Parties rely on the portion of the quote indicating sanctions are a form of cost shifting, the same can be said for fee shifting under A.R.S. § 12-341.01. Jantzen, however, held that fees awarded under A.R.S. § 12-341.01 were not “damages” under the supersedeas bond statute. And the alternative basis for awarding sanctions listed in the quote—that they are a form of punishment—clearly takes such awards outside of the supersedeas bond statute, which expressly excludes “punitive damages” when calculating the amount of a bond. A.R.S. § 12-2108(A)(1). More broadly, this law review article does not address whether fees imposed as Fed.R.Civ.P. 11 sanctions are damages for purposes of a supersedeas bond statute. Nor have the Real Parties cited any case construing Fed.R.Civ.P. 11 or Ariz. R. Civ. P. 11 that supports such a proposition. ¶ 10 Finally, the primary basis for the sanctions imposed here was A.R.S. § 12-349. When applicable, that statute provides that a court “shall assess” as sanctions “reasonable attorney[s’] fees, expenses and, at the court’s discretion, double damages of not to exceed five thousand dollars against an attorney or party.” A.R.S. § 12-349(A). Thus, this statute differentiates between “attorney[s’] fees” (which were imposed as sanctions here) and “damages” (which were not). Given this dichotomy, it is impossible to read the term “damages awarded” in A.R.S. § 12-2108(A) to conclude a supersedeas bond must include both “attorney[s’] fees ... and ... damages” in AR.S. § 12-349(A). See, e.g., State ex rel. Montgomery v. Harris, 234 Ariz. 343, 344 ¶ 8, 322 P.3d 160, 161 (2014) (“ ‘[T]he best and most reliable index of a statute’s meaning is its language and, when the language is clear and unequivocal, it is determinative of the statute’s construction.’ ”) (quoting State v. Hansen, 215 Ariz. 287, 289 ¶ 7, 160 P.3d 166, 168 (2007)); Bilke v. State, 206 Ariz. 462, 464 ¶ 11, 80 P.3d 269, 271 (2003) (“The court must give effect to each word of the statute.”); P.F. West, Inc. v. Superior Court, 139 Ariz. 31, 34, 676 P.2d 665, 668 (App.1984) (stating different statutory terms or phrases are not treated as synonymous unless context permits no other meaning). CONCLUSION ¶ 11 This court accepts special action jurisdiction and grants relief by ordering that the award of attorneys’ fees as sanctions pursuant to A.R.S. § 12-349 and Ariz. R. Civ. P. 11 are not “damages awarded” for purposes of calculating a supersedeas bond pursuant to A.R.S. § 12-2108(A) and Ariz. R. Civ.App. P. 7(a)(4)(A). Given this conclusion, the Real Parties’ request for costs and attorneys’ fees incurred in this special action is denied. . Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated. . No such "further order in lieu of” a supersede-as bond is at issue here. . It is at least arguable that A.R.S. § 12-349 is the sole basis for the sanctions, given the superi- or court’s observation that the statutory sanction "is a reasonable sanction for the Rule 11 violation.” In any event, there is no showing that Ariz. R. Civ. P. 11 provides an adequate, independent basis for the sanctions imposed, let alone that the outcome in determining damages under the supersedeas bond statute would differ if such a showing had been made.

OPINION JONES, Judge: ¶ 1 Lisa Summers appeals from a judgment (1) in favor of Appellees (collectively Gloor) on their counterclaim for unjust enrichment, and (2) awarding Gloor attorneys’ fees and costs. We conclude Gloor was not precluded from seeking equitable relief as an alternative to her defenses of recoupment and offset to Summers’ contract claim under the circumstances presented, and the award to Gloor on her counterclaim was consistent with the evidence presented and the jury’s verdict and interrogatory response. We further find the trial court acted within its discretion in deeming Gloor the successful party and awarding attorneys’ fees and costs. For these reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 In June 2011, Summers, who owned a successful fruit stand business, filed a complaint alleging Gloor breached a contract between them by failing to repay more than $400,000 in loans Summers had made to Gloor and seeking specific performance of an alleged agreement that Gloor would give Summers a fifty percent partnership interest in her bakery business. Gloor acknowledged Summers had loaned her money to help with her bakery but denied promising Summers any ownership interest in the bakery in exchange. Gloor also maintained she had substantially repaid Summers by providing labor and bakery product to Summers’ fruit stand and asserted affirmative defenses to Summers’ contract claim, including recoupment and offset, as well as a counterclaim for unjust enrichment arising from the value of the goods and services Summers received. ¶ 3 Summers acknowledged receiving labor and bakery product from Gloor, but denied any agreement to accept goods or services as repayment for the loans. Summers further argued any value received from Gloor’s labor and bakery product was outweighed by the value of fruits and vegetables Summers provided to Gloor’s bakery. ¶ 4 Summers’ contract claim proceeded to a jury trial in February 2014. The jury was not asked to consider Gloor’s equitable counterclaim in any respect; rather, the parties agreed the equitable claim would be decided by the court after the jury returned its verdict. See Ariz. R. Civ. P. 39(j) (“Issues not demanded for trial by jury ... shall be tried by the court.”). Following the presentation of evidence and argument, the jury was instructed upon the elements of a claim for breach of contract, as well as Gloor’s affirmative defenses of recoupment and offset as follows: Gloor claims the defense of recoupment. The defense of recoupment reduces, satisfies, or eliminates any damages Summers might have in the amount proven by Gloor. Gloor claims that any damages Summers claims are subject to the affirmative defense of setoff or offset. The right of setoff or offset allows people or entities that owe each other money to apply their mutual debts against each other, thereby avoiding the absurdity of making A pay B when B owes A. ¶ 5 Acknowledging the jury’s verdict could be dispositive on the equitable claim, the parties agreed to propound certain special interrogatories to the jury. The relevant interrogatory provided: Defendant Gloor claims that she provided bakery products that were sold by Plaintiff Summers at Summers Fruit Barn. In reaching] a verdict on Plaintiffs claims, did you give credit to Defendant Gloor for bakery products allegedly provided by her and allegedly sold at Summers Fruit Barn? During its deliberations, the jury requested clarification of the meaning of the word “credit,” and was advised “[i]n this context ‘credit’ means to reduce an amount you would have otherwise found due and owing to Summers.” ¶ 6 The jury returned a verdict in favor of Summers on the breach of contract claim and awarded her damages in the amount of $346,854, but found Summers had not proven Gloor agreed to transfer any ownership interest in the bakery to her. It also responded, “no,” to the special interrogatory, thus clarifying that it did not reduce its verdict to account for any bakery product Gloor provided to Summers. The jury was not asked to further elaborate and did not do so. ¶ 7 After the jury returned its verdict, Summers unsuccessfully moved to dismiss Gloor’s equitable claim for unjust enrichment on the basis that the evidence of the value of the bakery product was too uncertain to support an award of damages. The parties then presented additional evidence and argument, after which the trial court issued its order finding in favor of Gloor on her unjust enrichment counterclaim and awarding her $280,000. ¶ 8 Summers filed a motion for new trial and motion for judgment notwithstanding the verdict, arguing the trial court’s ruling on the counterclaim was unsupported by the evidence and inconsistent with the jury’s response to the special interrogatory. The motions were denied. ¶ 9 Both parties requested an award of attorneys’ fees and costs pursuant to Arizona Revised Statutes (A.R.S.) section 12-341.01, each asserting she was the successful party in a contract action. The trial court determined Gloor was the successful party and ordered Summers pay her attorneys’ fees and costs in the total amount of $108,456. Judgment entered, and Summers timely appealed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), -2101(A)(1) and (A)(5)(a). DISCUSSION I. The Trial Court’s Ruling is Not Inconsistent with the Jury’s Verdict. ¶ 10 Summers first argues the trial court erred in denying her motion for new trial because its order in favor of Gloor on her unjust enrichment claim is inconsistent with the jury’s verdict in favor of Summers on her contract claim. Specifically, Summers asserts that “by rejecting [Gloorj’s affirmative defenses of offset and recoupment, the jury found that [Summers] had not received a benefit from [Gloor],” and therefore, Gloor was unable to recover on a theory of unjust enrichment. We review a trial court’s decision denying a motion for new trial for an abuse of discretion. Styles v. Ceranski 185 Ariz. 448, 450, 916 P.2d 1164, 1166 (App. 1996). ¶ 11 Summers is correct that, to recover under a theory of unjust enrichment, the proponent must demonstrate, among other things, that the other party received a benefit. See Freeman v. Sorchych, 226 Ariz. 242, 251, ¶ 27, 245 P.3d 927, 936 (App.2011) (citing Murdock-Bryant Constr., Inc. v. Pearson, 146 Ariz. 48, 53, 703 P.2d 1197, 1202 (1985)). However, we disagree that the jury’s response to the special interrogatory in resolving the contract claim foreclosed a later finding by the trial court that Summers received a benefit from the bakery product Gloor provided to the fruit stand for purposes of Gloor’s unjust enrichment claim. ¶ 12 Although the jury heard testimony regarding Gloor’s theory that she had repaid Summers with labor and bakery product, it was not advised of or asked to consider Gloor’s unjust enrichment claim and was, instead, only instructed on and asked to decide Summers’ contract claim. Assuming the jury followed those instructions, as we must, Hyatt Regency Phx. Hotel Co. v. Winston & Strawn, 184 Ariz. 120, 140, 907 P.2d 506 (App.1995) (citing Perkins v. Komarnyckyj, 172 Ariz. 115, 119, 834 P.2d 1260, 1264 (1992)), two distinctly different conclusions could be drawn from the jury’s decision not to award Gloor a contractual offset or recoupment for the bakery product she provided Summers. ¶ 13 First, the jury could have accepted Summers’ testimony that any value she received from Gloor’s goods and services was outweighed by the value of fruits and vegetables Summers provided to Gloor’s bakery— essentially that Gloor should not receive any credit. Encompassed within this interpretation is the conclusion Summers now proffers: that Summers did not benefit from Gloor’s bakery product and therefore was not entitled to an offset. ¶ 14 Second, the jury could have accepted Summers’ testimony that she never agreed to accept bakery product as payment for the loans—essentially that Gloor could not receive a credit even if it found Summers benefited from the bakery product, because this method of repayment was not contemplated by the parties’ oral contract. See Fain Land & Cattle Co. v. Hassell, 163 Ariz. 587, 593, 790 P.2d 242, 248 (1990) (rejecting argument that the state could accept payment in-kind for sale of trust property where the constitution unambiguously requires payment in cash). Such a finding would not preclude the trial court from later determining Summers received and benefitted from Gloor’s bakery product and, more broadly, that Gloor was entitled to an unjust enrichment award under principles of equity, notwithstanding the jury’s rejection of payment in-kind against the outstanding loan obligation. ¶ 15 Summers argues this second interpretation is impermissible because the doctrine of unjust enrichment does not apply where the parties’ relationship is governed by a specific contract. See Trustmark Ins. v. Bank One, Ariz., N.A., 202 Ariz. 535, 542, ¶ 34, 48 P.3d 485, 492 (App.2002) (quoting Brooks v. Valley Nat’l Bank, 113 Ariz. 169, 174, 548 P.2d 1166 (1976)). According to Summers, once the jury found a contract existed between the parties, Gloor was precluded from seeking equitable relief. ¶ 16 We agree with the parties that had the jury responded “yes” to the special interrogatory and given Gloor any credit for the bakery product, her right to compensation would have been addressed, and she would be foreclosed from seeking equitable relief. See Brooks, 113 Ariz. at 174, 548 P.2d at 1671 (“A person is not entitled to compensation on the grounds of unjust enrichment if he receives from the other that which it was agreed between them the other should give in return.”) (citing Restatement (First) of Restitution § 107, cmt. a (1937)). However, we do not accept Summers’ position that the mere assertion of contract defenses of recoupment or offset enjoins a defendant from seeking alternative equitable relief. ¶ 17 At the most basic level, contract law is designed to ensure each contracting party receives what the other has promised, and no more. See id.; Restatement (First) of Restitution § 107, cmt. a (1937). On this principle, this Court rejected the plaintiffs attempt in Trustmark to recover more than it had specifically bargained for by pursuing a claim for unjust enrichment. 202 Ariz. at 543, ¶ 37, 48 P.3d at 493; see also Johnson v. Am. Nat’l Ins., 126 Ariz. 219, 223, 613 P.2d 1275, 1279 (App.1980) (affirming dismissal of a claim for unjust enrichment that would “relieve [a party] of the effects of express provisions of the terms of the loan commitment”). Here, however, the jury apparently rejected door’s claim that the loan contract contemplated repayment in-kind. The parties’ relationship relative to the bakery product was therefore not governed by any contract, and Gloor was entitled to seek equitable relief as an alternative. See Adelman v. Christy, 90 F.Supp.2d 1034, 1045-46 (D.Ariz.2000) (permitting plaintiff to pursue an unjust enrichment claim as an alternative to his breach of contract claim, subject to a single recovery, where he would have no other remedy to recover payment for services rendered if the contract was found invalid). Indeed, the jury’s acceptance of Summers’ testimony that she never agreed to allow Gloor to satisfy the loan through a means other than monetary repayment would have foreclosed the possibility of offset or recoupment and confined Gloor to arguing equitable principles of recovery. ¶ 18 Summers also argues the trial court was required to request clarification from the jury where the possible inferences to be drawn from its conclusion vary. But that is not the law, particularly where, as here, neither party requested clarification, nor argued the jury’s general verdict and its answer to the interrogatory were inconsistent. See Ariz. R. Civ. P. 49(h) (noting the court “may return the jury for further consideration of its answers and verdict” where its responses are inconsistent). Moreover, this position is inconsistent with that taken by Summers on appeal, where she argues the jury’s “yes” or “no” response to the special interrogatory was immaterial, and the only fact of import was the jury’s recognition of a contract—any contract—between the parties. See supra ¶ 15. ¶ 19 Finally, we reject Summers’ contention that the trial court’s recognition of two equally valid and competing inferences is “judicial double-talk which serves no meaningful purpose.” A reviewing court is obligated to search for a reasonable way to view the jury’s verdict “as expressing a coherent view of the case.” Standard Chartered P.L.C. v. Price Waterhouse, 190 Ariz. 6, 39, 945 P.2d 317, 350 (App.1996) (citing Toner v. Lederle Lab., 828 F.2d 510, 512 (9th Cir.1987)). In eases such as this, it is appropriate for the trial court, as the factfinder on the equitable claim considered and adjudicated after the jury returned a verdict on the contract claim, to choose among reasonable, competing inferences to be drawn from the jury’s verdict and response to an interrogatory. See Goff v. Guyton, 86 Ariz. 349, 352, 346 P.2d 286 (1959) (“[I]f two inferences may be drawn [from a judgment] we must accept the one chosen by the trial court.”) (citing Stewart v. Schnepf, 62 Ariz. 440, 444, 158 P.2d 529 (1945)); Lillywhite v. Coleman, 46 Ariz. 523, 526, 52 P.2d 1157 (1935) (noting the reviewing court accepts reasonable inferences to be drawn from the jury’s answer to an interrogatory “as representing the true facts of the case”); see also Coronado Co. v. Jacome’s Dep’t Store, Inc., 129 Ariz. 137, 139, 629 P.2d 553, 555 (App.1981) (noting all findings necessary to sustain a judgment are implied therein so long as they are “reasonably supported by the evidence, and not in conflict with the express findings”) (citing In re Adoption of Holman, 80 Ariz. 201, 208, 295 P.2d 372 (1956)). Moreover, the record reflects Summers agreed to limit the jury’s consideration to the contract claim, agreed to the verdict form, agreed to the special interrogatory, and, when afforded the opportunity to request additional information from the jury on this issue, declined to do so. Given these concessions, she cannot rightfully claim error in failing to request more or different information from the jury. See Data Sales Co. v. Diamond Z. Mfg., 205 Ariz. 594, 601, ¶¶ 31-32, 74 P.3d 268, 275 (App.2003) (holding a party who does not object to a jury instruction or the verdict form waives its right to assert error on appeal). ¶ 20 Although two different conclusions could be drawn from the jury’s verdict, neither party requested clarification before the jury was discharged, and the trial court apparently accepted Summers’ contention that the parties did not contemplate repayment in-kind as part of their contract. Therefore, any benefit to Summers could not, regardless of magnitude, constitute a legal defense of the breach of contract claim to reduce Gloor’s debt. This conclusion neither negates nor resolves Gloor’s equitable claim. The court thus, as the factfinder, determined Gloor was entitled, in equity, to a judgment for the value of the bakery product Summers received. We find no error where, as here, the court’s conclusions are consistent with both the jury’s verdict and its response to the special interrogatory and are supported by the evidence. II. The Trial Court Acted Within its Discretion in Determining Gloor was the Successful Party. ¶ 21 Summers also argues the trial court erred in determining Gloor was the successful party for the purpose of awarding attorneys’ fees under A.R.S. § 12-341.01, which provides in pertinent part: In any contested action arising out of a contract, express or implied, the court may award the successful party reasonable attorney fees. If a written settlement offer is rejected and the judgment finally obtained is equal to or more favorable to the offeror than an offer made in writing to settle any contested action arising out of a contract, the offeror is deemed to be the successful party from the date of the offer and the court may award the successful party reasonable attorney fees. “The decision as to who is the successful party for purposes of awarding attorneys’ fees is within the sole discretion of the trial court, and will not be disturbed on appeal if any reasonable basis exists for it.” Sanborn v. Brooker & Wake Prop. Mgmt., Inc., 178 Ariz. 425, 430, 874 P.2d 982, 987 (App.1994) (citing Schwartz v. Farmers Ins. Co. of Ariz., 166 Ariz. 33, 38, 800 P.2d 20, 25 (App.1990)). ¶ 22 Summers asserts the trial court misapplied AR.S. § 12-341.01 in considering Summers’ rejection of a settlement offer made before Summers filed her complaint and, arguably, before the matter became a “contested action,” for purposes of determining who was the successful party. We need not and therefore do not address this contention because the record reflects: (1) Gloor made a written offer to Summers in December 2013, well after the filing of the complaint, offering to pay Summers $50,000 in full satisfaction of all claims between them; and (2) the net judgment finally obtained against Gloor, $41,602, was more favorable to Gloor than had Summers accepted her offer of settlement. ¶ 23 Under these circumstances, A.R.S. § 12-341.01 dictates the offeror, Gloor, “is deemed to be the successful party” and authorizes the trial court to award fees to Gloor. Therefore, Summers has not shown the court abused its discretion in applying the statute and awarding attorneys’ fees to Gloor. CONCLUSION ¶ 24 The trial court’s orders are affirmed. ¶ 25 Both parties request an award of attorneys’ fees pursuant to AR.S. § 12-341.01. As the prevailing party, Gloor is awarded her reasonable attorneys’ fees and costs on appeal upon compliance with ARCAP 21(b). . We view the facts and all reasonable inferences to be drawn therefrom in the light most favorable to upholding the trial court’s orders. Bennett v. Baxter Grp., Inc., 223 Ariz. 414, 417, ¶2, 224 P.3d 230, 233 (App.2010) (citing Sabino Town & Country Estates Ass’n v. Carr, 186 Ariz. 146, 148, 920 P.2d 26, 28 (App.1996)). . Although offset and recoupment are somewhat different concepts, see Nogales Serv. Ctr. v. Atl. Richfield Co., 119 Ariz. 552, 554, 582 P.2d 642, 644 (App.1978), the parties did not argue before the trial court and have not argued on appeal that those differences are of consequence in this case. .Additional claims and counterclaims and related requests for relief were sought, none of which are relevant to this appeal. . Despite Summers’ assertion that this was "an odd sum that was never supported by any evidence,” the record reflects bakery sales from Summers’ fruit stand from 2006 to 2010 totaled $329,896. Deducting fifteen percent profit, which Gloor testified she realized from her own bakery sales, from this figure results in a valuation of the bakery product at $280,411.60, which rounds to $280,000. . Absent material revisions from the relevant date, we cite a statute’s current version. . Summers also raises several new arguments within her reply brief. These arguments have been waived, and we decline to consider them. See Dawson v. Withycombe, 216 Ariz. 84, 111, ¶ 91, 163 P.3d 1034, 1061 (App.2007) (“We will not consider arguments made for the first time in a reply brief.”) (citing Muchesko v. Muchesko, 191 Ariz. 265, 268, 955 P.2d 21, 24 (App.1997)). We likewise reject Summers' suggestion that the trial court’s ruling "essentially fashioned a new contract for the parties which did encompass a repayment in kind arrangement between the parties.” Although the net monetary effect may be the same, the obligations at issue—Gloor’s legal obligation to repay the loan and Summers’ equitable obligation to pay for the bakery product— are separate and distinct and were addressed in that fashion by the trial court as the parties had understood and agreed prior to trial.

OPINION MILLER, Judge: ¶ 1 After a jury trial, Bruce Wayne O’Laughlin Jr. was convicted of burglary and possession of burglary tools, and sentenced to concurrent prison terms totaling nine years. On appeal, O’Laughlin contends the trial court erred by adding “and/or” to the list of burglary tools on the verdict form and, in the alternative, that the indictment was duplicitous. Although we discourage the omission of a conjunction in a charging document and the use of “and/or” in jury instructions to remedy the ambiguity caused by the missing conjunction, in this case we find no error and affirm. Factual and Procedural Background ¶2 “We view the facts in the light most favorable to sustaining the jury’s verdicts.” State v. Guarino, 238 Ariz. 437, n. 1, 362 P.3d 484, 486 n. 1 (2015). In February 2014, a witness called 9-1-1 to report a burglary after she observed O’Laughlin and his eodefendant, Sandy McClure, engaging in suspicious behavior at her neighbor’s home. They were standing in the open door of her neighbor’s truck and had bicycles nearby. They then rode away with O’Laughlin carrying a “briefcase ... a box or something,” across his chest. The responding officer searched the neighborhood and found two bicycles on the sidewalk in front of a house a few blocks away. As the officer exited his vehicle, he saw O’Laughlin getting out of a truck parked in the driveway. McClure also stepped out from behind another truck in the driveway. The owner of the first truck gave the officer permission to look inside. The officer found a briefcase and a bone-handled knife that matched the items missing from the victim’s truck. ¶ 3 Police found a flashlight and one latex glove in McClure’s pockets. Additional latex gloves were located in the first truck underneath the middle console. O’Laughlin and McClure were arrested and charged with three counts of third-degree burglary and one count of possession of burglary tools, “to wit: flashlight, knife, gloves.” McClure pleaded guilty and testified at O’Laughlin’s trial. At the state’s request, two of the burglary charges were dismissed as to O’Laughlin, and he was convicted and sentenced as described above. This appeal followed. Possession of Burglary Tools Indictment and Verdict Form ¶ 4 O’Laughlin argues the lack of a conjunction in the indictment’s list of burglary tools—“flashlight, knife, gloves”—should have been read to mean “and”; therefore, the trial court erred by adding “and/or” before “gloves” on beverdict form. In the alternative, he argues that if “and/or” is the proper interpretation of the indictment, it is duplicitous because there was a danger the jurors were not unanimous as to which tool he possessed. We generally review the trial court’s decisions regarding verdict forms for an abuse of discretion, State v. Larin, 233 Ariz. 202, ¶ 29, 310 P.3d 990, 998-99 (App.2013), and where, as here, no objection was made to the allegedly duplicitous indictment before trial, we review for fundamental, prejudicial error, see State v. Payne, 233 Ariz. 484, ¶ 80, 314 P.3d 1239, 1262-63 (2013). Ultimately, both issues Ula question of statutory interpretation, which statreview de novo. State v. Brown, 217 Ariz. 617, ¶ 7, 177 P.3d 878, 881 (App.2008). ¶ 5 We begin with the question of whether the indictment was duplicitous because it guides our analysis of the other arguments. A duplicitous indictment is one that on its face alleges multiple distinct and separate offenses in one count. State v. Klokic, 219 Ariz. 241, ¶ 10, 196 P.3d 844, 846 (App.2008). Duplicitous indictments may prejudice a defendant by not providing adequate notice of the charge to be defended, presenting the risk of a non-unanimous jury verdict, and making impossible the precision needed to assert double jeopardy in a later prosecution. State v. Whitney, 159 Ariz. 476, 480, 768 P.2d 638, 642 (1989). An indictment is not duplicitous, however, if a count alleges only one offense, even if that offense may be committed in different ways. See State v. Cotten, 228 Ariz. 105, ¶ 6, 263 P.3d 654, 657 (App.2011); State v. Paredes-Solano, 223 Ariz. 284, ¶¶5, 9, 222 P.3d 900, 903, 904 (App.2009); State v. Winter, 146 Ariz. 461, 464-65, 706 P.2d 1228, 1231-32 (App.1985), abrogated on other grounds by State v. Kamai, 184 Ariz. 620, 623, 911 P.2d 626, 629 (App.1995); State v. Dixon, 127 Ariz. 554, 561, 622 P.2d 501, 508 (App.1980); see also Andersen v. United States, 170 U.S. 481, 500-01, 18 S.Ct. 689, 42 L.Ed. 1116 (1898) (indictment not duplicitous where murder may have been accomplished by different means). ¶ 6 Possession of “burglarious instruments” has been subject to criminal liability since territorial days, see Ariz. Pen. Code § 424 (1901), but the parties cite to no cases, and our research discloses none, that discuss whether A.R.S. § 13-1505 involves separate offenses based on the nature or type of tool or a single offense. Nor does the language indicate whether possession of multiple tools at the same time constitutes multiple crimes. One indication of legislative purpose is its placement in the criminal code—currently and in 1901—in a chapter addressing property crimes such as trespass and burglary. See § 13-1505 (located in title 13, chapter 15, entitled “Criminal Trespass and Burglary”); Ariz. Pen. Code § 424 (1901) (located in title 13, entitled “Of Crimes Against Property”). This shows the legislature considered it a crime against property. Moreover, because the statute is directed at preventing burglary using one or many tools, the allowable unit of prosecution is unaffected by the number of tools. See State v. Jurden, 237 Ariz. 423, ¶ 14, 352 P.3d 455, 459-60 (App.2015) (resisting arrest statute in chapter with other crimes against state authority, indicating allowable unit of prosecution was each arrest resisted rather than each officer resisted), review granted (Ariz. Jan. 5, 2016). The harm to be prevented is the property crime itself. ¶ 7 Several recent duplicity cases illustrate that the distinction between a single-offense and multiple-offense statute often relies on the harm resulting from the crime. In Paredes-Solano, the defendant was charged with sexual exploitation of a minor under AR.S. § 13-3553 arising from acts described in paragraphs (A)(1) and (A)(2) of that section. 223 Ariz. 284, ¶ 16, 222 P.3d at 906. The state regarded the acts as describing a single offense, arguing to the jury it did not have to differentiate between or agree on acts described in (A)(1) versus (A)(2). Id. ¶ 14. Based on statutory analysis and legislative history, we concluded the legislature separated (A)(1) and (A)(2) acts in order to create two separate offenses, albeit described in a single statute. Id. ¶¶ 9-15. Paragraph (A)(1) involves harm to a child by creating a sexually exploitive image, whereas (A)(2) involves perpetuating the harm by distributing the image. Id. ¶ 10. Because the jury was permitted and encouraged to reach non-unanimous decisions involving separate offenses that were charged in a single count, the defendant’s right to a unanimous verdict was violated. Id. ¶¶ 18, 22. That violation of a constitutional right constituted fundamental and reversible error. Id. ¶ 22, citing Ariz. Const. art. II, § 23. ¶ 8 In contrast, State v. Delgado illustrates the lack of duplicity when an offense is a single crime. 232 Ariz. 182, ¶¶ 20-24, 303 P.3d 76, 82-83 (App.2013). In that case, the defendant was charged with aggravated assault pursuant to AR.S. § 13-1204(B), a subsection specifically addressing strangulation or suffocation. 232 Ariz. 182, ¶¶ 20-21, 303 P.3d at 82. There were three means of committing the offense: intentionally, knowingly, or recklessly causing physical injury; intentionally placing the other person in reasonable apprehension of imminent physical injury; or, knowingly touching another with intent to injure. Id. ¶ 21. This mirrors the language of the simple assault statute, which has been interpreted as listing three separate crimes. Id. ¶ 22. Unlike a simple assault, however, where the harm could be injury, apprehension of injury, or touching with intent to injure, see A.R.S. § 13-1203(A), there was a single harm under § 13-1204(B)— impeding the normal breathing or circulation of blood of another person. Delgado, 232 Ariz. 182, ¶¶ 2223, 303 P.3d at 82-83. The court held that § 13-1204(B) was a single offense and the jury was not required to agree on the underlying “ ‘form’ ” of assault. Delgado, 232 Ariz. 182, ¶ 24, 303 P.3d at 83. ¶ 9 Similarly, in Payne, 233 Ariz. 484, ¶¶ 80, 88, 314 P.3d at 1262, 1263, the defendant was charged with child abuse because he allowed a child to starve to death or he failed to seek medical attention. The court determined that each count of the indictment charged just one crime of child abuse, “essentially by neglect,” and “he was not entitled to a unanimous verdict on the manner in which the act was performed.” Id. ¶ 90. Although there were multiple factual scenarios charged, there was just one crime and therefore no duplicity. Id. ¶¶ 88, 90. ¶ 10 Here, the purpose of the burglary tools statute is to prevent a person who has formed the intent to commit burglary from possessing any tool that will aid him in unlawfully entering a structure to commit a theft or other felony. See State v. Brown, 97 Hawai'i 323, 37 P.3d 572, 583 (Haw.Ct.App. 2001) (“ ‘[T]he purpose of all [burglary tools] statutes is to deter or prevent the commission of burglary and related offenses by enabling enforcement authorities to act before the prospective burglar has had the opportunity to gather his [or her] tools, weapons, and plans and strike in secret.’ ”), quoting Validity, Construction, and Application of Statutes Relating to Burglars’ Tools, 33 AL.R.3d 798, 805 (1970 & Supp.2001); cf. Model Penal Code § 5.06(1) (“A person commits a misdemeanor if he possesses any instrument of crime with purpose to employ it criminally.”). Whether a person with the intent to commit a burglary possesses a flashlight, gloves, or a knife does not alter the harm. See Payne, 233 Ariz. 484, ¶ 88, 314 P.3d at 1264. ¶ 11 We find support for this conclusion in Dixon, a case addressing the theft statute. In that case, a defendant charged with theft under A.R.S. § 13-1802 requested two separate verdicts because the jury was instructed that theft could involve controlling property with the intent to deprive or controlling property knowing or having reason to know that it was stolen. 127 Ariz. at 560-61, 622 P.2d at 507-08. The trial court denied Dixon’s request for separate verdicts. Id. at 561, 622 P.2d at 508. In affirming the conviction, the court held that the offense of theft was a single act of “controlling the property of another” under differing circumstances or states of mind. Id. at 562, 622 P.2d at 509. Therefore, individual jurors could have reached differing conclusions about whether Dixon intended to deprive the owners of their property or simply knew it was stolen, as long as all twelve agreed he knowingly controlled the property under one of those conditions. Id. at 561-62, 622 P.2d at 508-09. ¶ 12 Dixon guides our classification of § 13-1505 as a single offense that can be committed with multiple tools. Because it is a single offense, the indictment was not duplicitous. Further, the jury was instructed that possession of burglary tools required proof that O’Laughlin “possessed any tool, instrument, or other article adapted or commonly used for committing burglary; and ... intended to use or permit the use of such an item in the commission of a burglary.” This correctly stated the law and was sufficient to ensure that all jurors concluded beyond a reasonable doubt that he possessed a burglary tool with the requisite mental state. ¶ 13 O’Laughlin also argues the verdict form listing the burglary tools as “flashlight, knife, and/or gloves” did not properly reflect the indictment, which contained no conjunction. He contends the “common rules of grammar” dictate that the commas in the list replace the word “and,” citing as an example the sentence, “he is a strong, healthy man.” But that example only illustrates how a comma can separate coordinate adjectives to modify their shared target noun. See Bryan A. Garner, The Redbook: A Manual on Legal Style § 1.7 (2d ed.2006); The Chicago Manual of Style § 6.39 (15th ed.2003). The example does not imply inclusion of “and” where there is a list of items. The general rule is that commas assume the character of the conjunction used before the last item. See Palmer v. Martinez, 42 So.3d 1147, 1153-54 (La.Ct.App.2010) (“when there is a final conjunction (e.g., ‘and’ or ‘or’) in the series used before the last term, the comma should be read as an ‘and’ or ‘or,’” respectively). This interpretive rule is unhelpful if a conjunction is missing from the sentence. ¶ 14 As a rhetorical device, the conjunction is purposefully omitted to create an asyndeton. The asyndeton can speed up a sentence, suggest unity of the listed items, or indicate disorder. See Encyclopedia of Rhetoric and Composition 41 (Theresa Enos ed., 1996) (examples include Caesar’s declaration, “I came, I saw, I conquered,” and, from Abraham Lincoln’s Gettysburg Address, “The government of the people, by the people, for the people shall not perish from this earth”); see also Linda L. Berger, Studying and Teaching “Law as Rhetoric”: A Place to Stand, 16 Legal Writing: J. Legal Writing Inst. 3, 51 n.179 (2010). In legal texts, the general rule interpreting asyndetic sentences is to imply “and” as the final coordinating conjunction. Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 119 (2012). But as Garner and Justice Scalia note, “[S]uch a construction could be read as a disjunctive formulation, [therefore] most drafters avoid it.” Id. at 119. Indeed, the general rhetorical rule does not appear to apply in the interpretation of non-persuasive legal texts such as contracts or statutes. See, e.g., Preis v. Lexington Ins. Co., 508 F.Supp.2d 1061, 1070 (S.D.Ala.2007) (missing conjunction in insurance contract read as “or” where any other reading would have absurd result); compare 7 U.S.C.A § 136(hh)(3)(B) n.2 (annotation suggests missing word should be “or”), and 8 U.S.C.A. § 1324a(b)(l)(B) n.l (same), until 12 U.S.C.A. § 1715z-14(b) n.l (annotation suggests missing word should be “and”), and 15 U.S.C.A § 5201(b) n.l (same). We conclude that because the charge omitted a conjunction, it could be read in the conjunctive or disjunctive. Thus, the trial court did not abuse its discretion by denying O’Laughlin’s implied request that the word “and” be added to the verdict form and granting the state’s request to include “and/or.” Sufficiency of the Evidence ¶ 15 Finally, O’Laughlin argues there was insufficient evidence to support a conviction on the burglary tools count. We review a claim of insufficient evidence de novo. State v. West, 226 Ariz. 559, ¶ 15, 250 P.3d 1188, 1191 (2011). The test is “ ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Id. ¶ 16, quoting State v. Mathers, 165 Ariz. 64, 66, 796 P.2d 866, 868 (1990). The evidence required for a conviction may be circumstantial or direct. State v. Pena, 209 Ariz. 503, ¶ 7, 104 P.3d 873, 875 (App.2005). ¶ 16 Because the jury could have understood the form of verdict to require proof that O’Laughlin possessed all three items with the requisite intent, we examine the arguments for each tool. The flashlight was found on McClure’s person, and she admitted she had used it to look in the back of the truck at some point during the burglary. The state focused on accomplice liability with regard to the burglary tools in its closing argument. O’Laughlin argues on appeal that he lacked the mens rea necessary to be found guilty as an accomplice to possession of the flashlight as a burglary tool, contending the use of tools is not a “reasonably foreseeable” consequence of entering an unlocked car. See A.R.S. § 13-303(A)(3) (defining accomplice liability). But McClure testified that “it wasn’t quite light” yet when she looked in the truck with the flashlight and burglarized it, making use of the flashlight reasonably foreseeable. Further, O’Laughlin contends the state did not present evidence that a flashlight is a tool “commonly used for committing any form of burglary.” See § 13-1505(A)(1). But whether such a tool is a burglary tool “depends on the use to which the object is put,” State v. Smith, 103 Ariz. 490, 492, 446 P.2d 4, 6 (1968) (analyzing former burglary statute), and here the flashlight was used in the burglary. ¶ 17 Regarding the gloves, O’Laughlin argues there was no direct evidence O’Laughlin used gloves in the burglary. However, there was circumstantial evidence. An eyewitness saw O’Laughlin and McClure stand in the open door of her neighbor’s truck and then ride away on bicycles. When a police officer found them, McClure had one glove in her pocket, and more gloves were found in the truck near where O’Laughlin had been sitting. Items missing from the neighbor’s truck were also found near O’Laughlin. There was sufficient evidence O’Laughlin possessed the gloves with intent to use them in a burglary, as required by the statute. § 13-1505(A)(1). ¶ 18 O’Laughlin argues the knife was not a burglary tool because it was stolen from the truck, not used to enter the truck. However, there was evidence some sort of tool was used to pry open the metal lock on the briefcase during the burglary, as well as evidence the briefcase and knife were stolen from the same truck. The state presented sufficient evidence to support a guilty verdict for possession of burglary tools. Disposition ¶ 19 We affirm O’Laughlin’s convictions and sentences. . The state argues any error in the verdict forms was invited because O’Laughlin's objection was unclear. When the state requested “and/or” be added to the forms, O’Laughlin responded, "Notice is only given of flashlight, knife and gloves. He can argue one or all.” Although the second sentence was arguably confusing, it does not constitute invited error. See State v. Lucero, 223 Ariz. 129, ¶¶ 20-21, 220 P.3d 249, 256 (App.2009) (party must take "independent affirmative unequivocal action to initiate” error before invited error rule applies). . Section 13-1505(A) consists of separate paragraphs for (1) "any explosive, tool, instrument or other article” and (2) “a motor vehicle manipulation key or master key.” Because this case did not involve any kind of key, we do not consider paragraph (2) in our analysis. . “A person commits possession of burglary tools" under § 13—1505(A)( 1) by "[pjossessing any explosive, tool, instrument or other article adapted or commonly used for committing any form of burglary ... and intending to use or permit the use of such an item in the commission of a burglary.” .Delgado addresses a duplicitous charge rather than a duplicitous indictment. See 232 Ariz. 182, ¶¶ 18, 24, 303 P.3d 76, 82, 83 (App.2013), quoting Klokic, 219 Ariz. 241, ¶ 12, 196 P.3d at 847. But the potential hazards of a non-unanimous jury verdict and impossibility of pleading prior jeopardy remain the same in either instance. Klokic, 219 Ariz. 241, ¶ 12, 196 P.3d at 847. . The Payne court relies in part on State v. Dann, 220 Ariz. 351, ¶¶ 76-81, 207 P.3d 604, 619-20 (2009). Payne, 233 Ariz. 484, ¶ 81, 314 P.3d at 1263. Although Dann involved a capital crime aggravating factor, the issue raised was whether a verdict form allowed a non-unanimous verdict because multiple factual scenarios were listed for a single aggravating factor. 220 Ariz. 351, ¶¶ 76-78, 207 P.3d at 619-20. The form asked jurors "if the state proved beyond a reasonable doubt that the murder of either of the other victims 'or both’ was committed during the murder at issue.” Id. ¶ 77. There was no risk of a non-unanimous verdict because the jury could reach the verdict based on "a combination of alternative findings," so long as there was unanimity that "at least one other murder occurred during the murder at issue.” Id. ¶ 79. . Our holding that § 13-1505 involves a single offense necessarily means that the usual conjunction is "or.” This conclusion, however, does not necessarily foreclose the state from being required to prove the entire list of tools if the charge uses "and,” because to do otherwise might mislead the defendant and confuse the jury. For this reason, we address whether this charge could have reasonably been interpreted to imply "and.” . Although the addition of “and/or” did not create legal error, its use is discouraged because the reader is not informed whether the conjunctive or disjunctive applies. See Scalia & Garner, supra, at 125 (criticizing “and/or” as "unfortunate” and “a drafting blemish”); Bryan A. Garner, Garner's Dictionary of Legal Usage 57-58 (3d ed.2011) (noting "and/or has been vilified for most of its life—and rightly so”); William Strunk Jr. & E.B. White, The Elements of Style 40 (4th ed.2000) (defining “and/or” as "[a] device, or shortcut, that damages a sentence and often leads to confusion or ambiguity”).

OPINION HOWARD, Presiding Judge: ¶ 1 Peter Kaniowsky appeals from the trial court’s denial of relief in his special action challenging the Pima County Justice Court’s denial of his request for a jury trial on five unlawful imprisonment charges. Kaniowsky argues he is entitled to a jury trial because unlawful imprisonment was a jury-eligible offense at common law. Because we agree with Kaniowsky, we vacate the court’s order and remand for further proceedings. Factual and Procedural Background ¶ 2 The relevant facts are not in dispute. Kaniowsky was charged in justice court with five counts each of assault and unlawful imprisonment. He filed a motion requesting a jury trial for the false imprisonment counts, which the court denied. He then filed a complaint for special action in superior court, arguing he was entitled to a jury trial because false imprisonment was a jury-eligible offense at common law. The superior court accepted jurisdiction but denied relief. It reasoned that Amancio v. Forster; 196 Ariz. 95, 98, 993 P.2d 1059, 1062 (App.1999), which concluded that unlawful imprisonment was not a jury-eligible offense based on its seriousness, was controlling and thus Kaniowsky was not entitled to a jury trial. We have jurisdiction over Kaniowsky’s appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1). See Ariz. R.P. Spec. Actions 8(a). Applicability of Amando ¶ 3 Kaniowsky argues that the superior court erred by relying on Amando because it did not reach the question of whether unlawful imprisonment had a jury-eligible counterpart in common law. When the superior court accepts jurisdiction of a special action, but denies relief, we review for an abuse of discretion. Merlina v. Jejna, 208 Ariz. 1, ¶ 6, 90 P.3d 202, 204 (App.2004). Whether a defendant is entitled to a jury trial, however, is a question of law we review de novo. Urs v. Maricopa Cty. Attorney’s Office, 201 Ariz. 71, ¶2, 31 P.3d 845, 846 (App.2001). An error of law may constitute an abuse of discretion. State v. Wall, 212 Ariz. 1, ¶ 12, 126 P.3d 148, 150 (2006). ¶ 4 At the time Amando was decided, our supreme court had identified three factors as relevant to determining a defendant’s right to a jury trial, any one which could independently give rise to jury eligibility. See Derendal v. Griffith, 209 Ariz. 416, ¶ 5, 104 P.3d 147, 149 (2005) (overruling Rothweiler v. Superior Court, 100 Ariz. 37, 410 P.2d 479 (1966)). The existence of a jury-eligible common law antecedent was one factor and the seriousness of the offense was another. Id. ¶ 5 The defendant in Amando argued the seriousness of the offense entitled him to a jury trial and conceded that unlawful imprisonment did not have a jury-eligible common law antecedent. 196 Ariz. 95, ¶ 7, 993 P.2d at 1060. The court, in its analysis, thus focused solely on the seriousness of the offense. Id. ¶¶ 7-15. ¶ 6 The defendant’s concession deprived the court of “the opportunity to address [the] argument that” unlawful imprisonment had a jury-eligible common law antecedent, thus waiving the issue for review. Harris v. Cochise Health Sys., 215 Ariz. 344, ¶ 18, 160 P.3d 223, 229 (App.2007); see also State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) (insufficient argument on appeal waives claim). That waiver meant the court was not “fully advised on the question.” Creach v. Angulo, 186 Ariz. 548, 552, 925 P.2d 689, 693 (App.1996). Consequently, the court’s statement that “there was ... no entitlement to a jury trial under the common law,” Amancio, 196 Ariz. 95, ¶ 16, 993 P.2d at 1062, was dictum, Creach, 186 Ariz. at 552, 925 P.2d at 693; see also Town of Chino Valley v. City of Prescott, 131 Ariz. 78, 81, 638 P.2d 1324, 1327 (1981) (court’s statement on question not necessarily decided in case is dictum). And in any event, based on the following analysis, we conclude that any statement in Amancio indicating unlawful imprisonment does not have a common law antecedent is an incorrect statement of the law. False Imprisonment at Common Law ¶ 7 Kaniowsky argues that unlawful imprisonment pursuant to AR.S. § 13-1303 is the modern day analog to the jury-eligible, common law offense of false imprisonment. Our supreme court has delineated a “two step process” to determine whether a defendant is guaranteed a right to a jury trial for a particular’ offense. Derendal, 209 Ariz. 416, ¶¶ 36-37, 104 P.3d at 156; see also Ariz. Const. art. 2, § 23; Ariz. Const. art. 2, § 24. Under the first step, a court must determine whether the offense “has a common law antecedent that guaranteed a right to trial by jury at the time of Arizona statehood.” Derendal, 209 Ariz. 416, ¶ 36, 104 P.3d at 156; see also Ariz. Const. art. 2, § 23. If the charged offense has a common law antecedent for which a jury trial right existed, the inquiry ends and “the defendant’s right to a trial by jury is established.” Derendal, 209 Ariz. 416, ¶ 36, 104 P.3d at 156. If this first prong is not satisfied, the court, under the second prong, “must analyze the seriousness of the offense under Article 2, Section 24.” Id. ¶ 37. ¶ 8 The test for determining whether a common law offense is the antecedent of a modern offense is whether the modern offense contains “comparable” or “substantially similar” elements to the common law offense. Id. ¶¶ 10-11; see also Sulavka v. State, 223 Ariz. 208, ¶ 9, 221 P.3d 1022, 1024 (App.2009). Importantly, the two offenses do not need to be “identical, or [even] nearly so,” but rather must share a “fundamental character.” Crowell v. Jejna, 215 Ariz. 534, ¶¶ 16, 22, 161 P.3d 577, 581-83 (App.2007). ¶ 9 Unlawful imprisonment is committed by knowingly “restrict[ing] a person’s movements without consent, without legal authority, and in a manner which interferes substantially with such person’s liberty, by either moving such person from one place to another or by confining such person.” AR.S. §§ 13-1303(A), 13-1301(2). At common law, false imprisonment required “[t]he detention of the person” and “[t]he unlawfulness of such detention.” 3 William Blackstone, Commentaries *127; 4 Blackstone, Commentaries *218; see also William C. Robinson, Elementary Law § 219 (1882) (“False imprisonment is the unlawful detention of the person of another.”); 19 Cyclopedia of Law and Procedure 376 (William Mack, ed., 1905) (“The gist of [false imprisonment] is the actual and unlawful restraint or detention of one person against his will by another.”). ¶ 10 Unlawful imprisonment and common law false imprisonment are clearly “substantially similar” offenses, Derendal, 209 Ariz. 416, ¶¶ 10, 39, 104 P.3d at 150, 156, and share the “fundamental character” of prohibiting the unlawful detention, or restriction, of another person’s movement, Crowell, 215 Ariz. 534, ¶¶ 16, 22, 161 P.3d at 581-83. We therefore conclude that common law false imprisonment is the direct antecedent of unlawful imprisonment pursuant to § 13-1303. See Derendal, 209 Ariz. 416, ¶¶ 10, 39, 104 P.3d at 150, 156. ¶ 11 The state, however, argues the offenses are not comparable because false imprisonment at common law was a misdemeanor, but unlawful imprisonment is a felony “unless the victim is released voluntarily by the defendant without physical injury in a safe place before arrest in which ease it is a class 1 misdemeanor.” § 13-1303(C). Thus, the state concludes, “the common law antecedent for our felony was a misdemeanor, while our misdemeanor is different from the common law antecedent because it requires additional facts to become a misdemeanor.” ¶ 12 The state’s argument does not undermine our conclusion that the fundamental character of unlawful imprisonment is the same now as at common law. The analysis of whether the common law offense is the antecedent of the modern offense, is whether “the modern offense contains elements comparable to those found in the common law offense.” Derendal, 209 Ariz. 416, ¶ 10, 104 P.3d at 150 (emphasis added). And whether the victim was safely released is not an element of unlawful imprisonment, but a mitigating factor the defendant bears the burden of proving. State v. Eagle, 196 Ariz. 188, ¶¶ 9-11, 994 P.2d 395, 397-98 (2000) (mitigating factors affecting classification not statutory element of crime; safe release of victim not element of unlawful imprisonment); see also § 13-1303(C). The state has not cited any authority, nor have we found any, supporting the proposition that courts must additionally compare the classification of the modern and common law offense, as well. Because the statutory elements of unlawful imprisonment are substantially similar to those of common law false imprisonment, we reject the state’s argument. ¶ 13 We next turn to whether common law false imprisonment was a jury-eligible offense at common law. Derendal, 209 Ariz. 416, ¶36, 104 P.3d at 156. Kaniowsky argues that because false imprisonment was an “indictable” offense at common law, it required a jury trial. See Urs, 201 Ariz. 71, n. 3, 31 P.3d at 847 n. 3 (“ ‘Indictable offenses’ at common law were jury-eligible crimes.”); see also District of Columbia v. Colts, 282 U.S. 63, 73, 51 S.Ct. 52, 75 L.Ed. 177 (1930). The state, however, argues that, contrary to Urs and Colts, “indictable” does not indicate whether an offense was jury-eligible, only that it was “cognizable as a crime.” ¶ 14 The state contends that because misdemeanors, such as false imprisonment, could be indictable at common law, and misdemeanors were sometimes handled summarily by a judge without a jury trial, we cannot rely on the fact that false imprisonment was “indictable” to determine whether it was jury-eligible. It relies on Felix Frankfurter & Thomas G. Corcoran, Petty Federal Offenses and The Constitutional Guaranty of Trial by Jury, 39 Harv. L. Rev. 917, 937-68 (1926), which discussed the numerous offenses at common law that were tried to a court without a jury. ¶ 15 At one time, all offenses at common law required a jury trial. Schick v. United States, 195 U.S. 65, 80, 24 S.Ct. 826, 49 L.Ed. 99 (1904) (Harlan, J., dissenting); see also Frankfurter & Corcoran, supra, 923-24 (“To the Englishman of the fourteenth century ... it had already become an ‘ancient prerogative’ to have twelve laymen stand between him and the vengeance of the king in a criminal prosecution of any kind, whether the charge were tippling at the inn or murder.”); 4 Blackstone, Commentaries *280 (common law “is a stranger to” summary proceedings); William H. MacNamara, Paley’s Law and Practice of Summary Convictions 3-4 (6th ed., 1879). Offenses were divided into three classes: treason (which was also the only crime in its class), felonies, and misdemeanors. Robinson, supra, §§ 394-97; see also 1 William L. Clark & William L. Marshall, A Treatise on the Law of Crimes 9 (1900). “The common law felonies were murder, manslaughter, rape, sodomy, robbery, larceny, arson, burglary, and ... mayhem.” Clark & Marshall, supra, 12. All other crimes were misdemeanors. Id. at 17; see also Robinson, supra, § 397. ¶ 16 Misdemeanors were further classified into two categories: “(1) Those which were of a heinous nature and which might therefore be punished corporally, and (2) those which were not heinous.” State v. Kelly, 218 Minn. 247, 15 N.W.2d 554, 564 (1944). False imprisonment fell into the first category, as it was considered a “heinous public crime.” 3 Blackstone, Commentaries *127; 4 Blackstone, Commentaries *218 (“the law ... demands public vengeance for the breach of the king’s peace, for the loss which the state sustains by the confinement of one of its members, and for the infringement of the good order of society”). Misdemeanors in the latter category—those that were not “heinous”—were considered “petty.” Kelly, 15 N.W.2d at 564; see also State v. Lytle, 138 N.C. 738, 51 S.E. 66, 68 (1905); 22 The American and English Encyclopaedia of Law 760 n. 2 (David S. Garland & Lucius P. McGehee eds., 2nd ed., 1902) (“petit misdemeanors” were “trivial breaches of the peace” generally “meriting] no higher punishment than three dollars”). ¶ 17 In the interest of judicial efficiency, English law began allowing for petty misdemeanors, arising from legislative enactments, to be handled summarily without an indictment or jury trial. Schick, 195 U.S. at 80, 24 S.Ct. 826 (Harlan, J. dissenting) (summary proceedings for petty offenses authorized by “an act of Parliament” and were exceptions to “rule at common law that all crimes must be tried by a jury”); see also Duncan v. Louisiana, 391 U.S. 145, 159, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) (“So-called petty offenses were tried without juries both in England and in the Colonies.”); see also Colts, 282 U.S. at 72-73, 51 S.Ct. 52; Callan v. Wilson, 127 U.S. 540, 555-57, 8 S.Ct. 1301, 32 L.Ed. 223 (1888); Pendleton Howard, The Rise of Summary Jurisdiction in English Criminal Law Administration, 19 Cal. L. Rev. 486, 487 n.4 (1931); Frankfurter & Corcoran, supra, 925-26; 4 Blackstone, Commentaries *281, *310-11; MacNamara, supra, 50 (offenses subject to summary proceedings “must be the subject of a special law”). Examples of these petty offenses include “common swearing, drunkenness, vagrancy [and] idleness.” 4 Blackstone, Commentaries *281; see also Frankfurter & Corcoran, supra, 928-29. Common law offenses which were indictable, however, continued to require jury trials. Callan, 127 U.S. at 555-56, 8 S.Ct. 1301; see also Colts, 282 U.S. at 73, 51 S.Ct. 52; see also Howard, supra, 487; 4 Blackstone, Commentaries *283 (offenses not subject to summary proceedings “fall ... under the general rule, and can only be convicted by indictment”), *350 (if defendant pled not guilty to indictment, sheriff required to assemble jury to hear case). ¶ 18 The state, therefore, is correct that some misdemeanors at common law were handled summarily without a jury, while other misdemeanors required a trial by jury. Contrary to the state’s contention, however, “indictment” is a term of art that is crucial to understanding the procedures afforded a defendant charged with a particular offense. Howard, supra, 487 (“Crimes are classified as non-indictable and indictable, a practical distinction based upon the mode of trial.”). Non-indictable, or petty, offenses could be heard without a jury, while indictable offenses required a jury trial. See Colts, 282 U.S. at 73, 51 S.Ct. 52 (distinguishing between petty offenses triable without a jury and those “indictable at common law” requiring jury trial); District of Columbia v. Clawans, 300 U.S. 617, 624-25, 57 S.Ct. 660, 81 L.Ed. 843 (1937) (right to jury trial at common law turned on whether offense “indictable at common law” or petty offense); How ard, supra, 487 (distinguishing between “those offenses which can only be dealt with summarily, and those indictable offenses which cannot, under any circumstances, be disposed of except before a judge and jury”); see also Pendleton Howard, Criminal Prosecution in England. I. Police Prosecutions, 29 Colum. L. Rev. 715, 721 n. 13 (1929) (At common law, non-indictable, petty offenses tried without juries, while indictable offenses “triable only before juries.”). Because false imprisonment was a “heinous public crime” requiring an indictment, a defendant charged with that offense was therefore entitled to a jury trial. 3 Blackstone, Commentaries *127; 4 Blackstone, Commentaries *218; see also 7 The American and English Encyclopaedia of Law 785 (David S. Garland & Lucius P. McGehee eds., 2nd ed., 1899). ¶ 19 Historical evidence further shows that defendants who were in fact indicted for false imprisonment in England and its colonies were afforded a trial by jury. See Old Baily Proceedings, London Lives 1690-1800, LMSMPS506810176 (June 1778) (noting jury found defendant guilty of false imprisonment), available at http://www.londonlives. org/browse.jsp?div=LMSMPS50681PS506 810176; see also R. v. Aga Kurboolie Mahomed, (1843) 18 Eng. Rep. 459 (Sup. Ct. Calcutta) (same), available at http://www. commonlii.org/uk/cases/EngR/1843/850.pdf; R. v. Birnie, (1832) 172 Eng. Rep. 941 (K.B.) (same), available at http://www.commonlii. org/uk/cases/EngR/1832/448.pdf; R. v. Osmer, (1804) 102 Eng. Rep. 1086 (K.B.) (same), available at http://www.commonlii. org/uk/cases/EngR/1804/262.pdf; 4 Blackstone *362-64 (“if the jury find[s the defendant] guilty, he is then said to be convicted”; discussing punishment of persons “convicted” of false imprisonment). More recently, in relative terms, a defendant in Pennsylvania was granted a jury trial after being indicted of common law false imprisonment. Commonwealth v. Brewer, 109 Pa.Super. 429, 167 A. 386, 386, 388-89 (1933); see also Smith v. State, 63 Wis. 453, 23 N.W. 879, 880, 883-84 (1885) (defendant convicted by jury of common law false imprisonment and not state’s statutory false imprisonment). ¶ 20 Many of the cases and treatises cited in the preceding paragraphs were decided or published many years before Arizona became a state in 1912. But we have not found any authority indicating that the common law requirement of a jury trial had changed between the time of these cases and treatises and Arizona’s statehood. Accordingly, we conclude they remain good authority for the proposition that false imprisonment was jury-eligible at common law when Arizona became a state. See Derendal, 209 Ariz. 416, ¶ 36, 104 P.3d at 156 (we determine if crime “has a common law antecedent that guaranteed a right to trial by jury at the time of Arizona statehood”). ¶ 21 False imprisonment was an indictable, jury-eligible offense at common law. See Bosworth v. Anagnost, 234 Ariz. 453, ¶¶ 7-8, 323 P.3d 736, 738-39 (App.2014) (citing three cases from Old Bailey Courthouse as sufficient evidence shoplifting afforded jury trial at common law). Consequently, Kaniowsky is entitled to a jury trial on the five false imprisonment charges as a matter of law. See Derendal, 209 Ariz. 416, ¶ 36, 104 P.3d at 156. The superior court therefore abused its discretion in denying Kaniowsky relief in his special action requesting a jury trial. See Merlina, 208 Ariz. 1, ¶ 6, 90 P.3d at 204; see also Wall, 212 Ariz. 1, ¶ 12, 126 P.3d at 150. Disposition ¶ 22 For the foregoing reasons, the trial court’s order denying Kaniowsky’s request for a jury trial is vacated and this case is remanded for further proceedings consistent with this opinion. . Our supreme court has found that misdemean- or assault is "the equivalent of a simple battery at common law, which was not a crime requiring a jury trial.” Bruce v. State, 126 Ariz. 271, 273, 614 P.2d 813, 815 (1980). Kaniowsky has not attempted to challenge that conclusion.

OPINION DOWNIE, Judge: ¶ 1 Michael Soto and Julie Kunstler Soto appeal from an order granting a new trial that became effective after Michael rejected a remittitur of damages awarded by a jury. We hold that the Sotos’ appeal is timely and affirm the new trial order. FACTS AND PROCEDURAL HISTORY ¶2 The Sotos were passengers in a cab driven by Anthony Sacco when it collided with another vehicle. The Sotos sued Sacco, Discount Enterprises Inc., and Total Transit, Inc. d/b/a Discount Cab (collectively, “Defendants”). Defendants admitted Sacco’s negligence and respondeat superior liability. A jury trial ensued solely on the issue of damages. ¶ 3 Trial evidence established that Michael sustained multiple fractures to the humerus of his dominant arm that required surgery to implant a plate and screws. Witnesses testified that Michael no longer enjoyed certain activities he participated in before the accident, and he experienced significant pain and emotional distress as a result of the accident. However, Michael’s treating physician testified that the fractures healed during four months of physical therapy, and he placed no restrictions on Michael or his activities. The physician recommended that Michael use his arm normally, with the understanding it may never be ‘TOO percent strong,” and he suggested Michael refrain from an activity only if it became “very uncomfortable.” Michael made no claim for lost wages or future medical expenses. His medical bills totaled approximately $40,500. ¶ 4 During closing arguments, counsel for the Sotos asked the jury to award Michael $725,000. Defendants suggested an award of $90,000. The jury awarded Michael $700,000. ¶ 5 Defendants filed a “Motion for New Trial, to Alter or Amend the Judgment, and for Remittitur.” After briefing and oral argument, the trial court granted a remittitur, reducing Michael’s award to $250,000 in an unsigned minute entry filed November 19, 2014. The court directed the Sotos to “file a notice as to whether or not they accept the reduced verdict” by November 25, 2014. ¶ 6 On November 24, 2014, the Sotos filed a “Notice of Plaintiffs’ Rejection to Court’s Remittitur.” Based on that submission, the court set a scheduling conference for February, but stated it would vacate the hearing “upon either party’s perfection of an appeal.” The Sotos thereafter filed a “Request for Expedited Order to Perfect Appeal,” stating: It appears that Rule 59(i) was meant to be essentially self-executing and Plaintiffs[’] rejection would trigger the appellate time. (“No further written order shall be required to make an order granting or denying the new trial final.”) However, that appears to presume that this Court had issued a signed “final Order” which was then filed with the Clerk. To Plaintiffs[’] knowledge, this has not yet been done. Thus, in order to comply with the procedural requirements that there be a signed, final Order filed with the Clerk, Plaintiffs have attached a Proposed Order as Exhibit A hereto which mirrors this Court’s minute entry rulings and Plaintiffs would ask that this Court sign such Order expeditiously so that they may pursue their appellate rights. ¶ 7 During a December 16 hearing, the court and counsel discussed the Sotos’ request for a signed order. On December 17, the court filed a signed “Final Order” that stated, in pertinent part: [T]he Court previously granted the Remittitur as to Plaintiff Michael Soto and denied it as to Julie Soto. The Court also offered the Plaintiffs the opportunity to accept the Remittitur, which would have resulted in vacating the new trial order pursuant to Rule 59(i)(l), Ariz. R. Civ. P. Pursuant to Rule 59(m), Ariz. R. Civ. P., the Court specifies with particularity the grounds for granting the motion. The Court finds that the verdict with respect to Michael Soto was excessive and not supported by the evidence. Now that the Plaintiffs have rejected the Remittitur, the Court affirms the Status Conference set for February 27, 2015, in order to proceed with the new trial. The Court, however, will be deprived of further jurisdiction over the matter if either side perfects an appeal. To be clear, the Court intends this order for a new trial to be a final written order resolving all issues raised under Rule 59(i), Ariz. R. Civ. P. The Sotos filed a notice of appeal on January 14, 2015. DISCUSSION I. Appellate Jurisdiction ¶ 8 “The timely filing of a valid notice of appeal is a prerequisite to the exercise of appellate jurisdiction.” Santee v. Mesa Airlines, Inc., 229 Ariz. 88, 89, ¶ 3, 270 P.3d 915 (App.2012). We have an independent duty to examine our jurisdiction, Desert Palm Surgical Group, P.L.C. v. Petta, 236 Ariz. 568, 576, ¶ 15, 343 P.3d 438 (App.2015), and we there fore requested supplemental briefing regarding the timeliness of the Sotos’ appeal. ¶ 9 The general rule is that a party must file a notice of appeal “no later than 30 days after entry of the judgment from which the appeal is taken.” ARCAP 9(a). The trial court here filed a signed judgment on September 12, 2014 based on the jury’s verdict. Defendants filed a timely motion for new trial or remittitur, which tolled the time to appeal. See ARCAP 9(e)(1)(D) (appeal time begins to run from entry of signed order disposing of a time-extending motion). ¶ 10 Rule 59(i)(l) addresses remittiturs and states, in pertinent part: When a motion for new trial is made upon the ground that the damages awarded are either excessive or insufficient, the court may grant the new trial conditionally upon the filing within a fixed period of time of a statement by the party adversely affected by reduction or increase of damages accepting that amount of damages which the coui’t shall designate. If such a statement is filed within the prescribed time, the motion for new trial shall be regarded as denied as of the date of such filing. If no statement is filed, the motion for new trial shall be regarded as granted as of the date of the expiration of the time period within which a statement could have been filed. No further wñtten order shall be required to make an order granting or denying the new trial final. (Emphasis added.) Under the rule, “[n]o further written order” is required to make the conditional grant or denial of a new trial final. The question thus becomes whether the time to appeal began to ran on November 25, 2014—the deadline for the Sotos to accept or reject the remittitur. Under the facts of this case, we hold that it did not. ¶ 11 The trial court issued no signed order regarding the motion for new trial until December 17, 2014. The January 14, 2015 notice of appeal was therefore timely. An order granting or denying a motion for new trial must be signed to be appeal-able. See Tripati v. Forwith, 223 Ariz. 81, 84, ¶¶ 10, 15, 219 P.3d 291 (App.2009). The conditional nature of a Rule 59(i) order does not alter the fact that it operates to either grant or deny a new trial. Because the Sotos filed a notice of appeal within 30 days of the only signed order resolving Defendants’ motion for new trial, their appeal was timely, and we have jurisdiction pursuant to Arizona Revised Statutes section 12-2101(A)(5)(a). II. New Trial Order ¶ 12 The new trial order was based on the trial court’s conclusion that “the verdict with respect to Michael Soto was excessive and not supported by the evidence.” As a threshold matter, we disagree with the Sotos’ contention that Rule 59(m) required the court to make more detailed findings regarding the grounds for the new trial order. “Rule 59(m) does not apply to Rule 59(i) in that Rule 59(i) is express as to the grounds. Rule 59(i) does not require the trial court to specify the particulars in relation to which the verdict was excessive.” Hancock v. Linsenmeyer, 15 Ariz.App. 296, 299, 488 P.2d 501 (1971). ¶ 13 We turn then to the determination that Michael’s award was “excessive and not supported by the evidence.” It has “long been the rule in this jurisdiction that the exercise of the power of remittitur rests in the sound discretion of the court.” Spur Feeding Co. v. Fernandez, 106 Ariz. 143, 149, 472 P.2d 12 (1970). Remittitur is appropriate if the court concludes that a damage award is not supported by substantial evidence and reflects “an exaggerated measurement of damages,” though it is not “shockingly or flagrantly outrageous.” In re Estate of Hanscome, 227 Ariz. 158, 162, ¶¶ 13-14, 254 P.3d 397 (App.2011). After reviewing decades of Arizona jurisprudence involving additurs and remittiturs, our supreme court explained that, like the jury, the trial judge has “the opportunity to observe the witnesses’ demeanor on the stand, and his ruling on additur, remittitur, and new trial, because of an inadequate or excessive verdict, will generally be affirmed, because it will nearly always be more soundly based than ours can be.” Creamer v. Troiano, 108 Ariz. 573, 575, 503 P.2d 794 (1972). Nevertheless, we have cautioned that remittitur should be ordered only “for the most cogent reasons ... such as lack of evidence to support the damages awarded or a clear indication that the jury misapplied the principles governing damages.” Hanscome, 227 Ariz. at 162, ¶ 14, 254 P.3d 397. ¶ 14 The trial judge in this case heard the evidence first-hand and could reasonably conclude that the award to Michael reflected “an exaggerated measurement of damages.” Hanscome, 227 Ariz. at 162, ¶ 13, 254 P.3d 397. Although Michael suffered serious short-term injuries and emotional distress, there was no evidence of permanent medical disability and no claim for future expenses. Defendants proffered information regarding verdicts in eases involving individuals under 50 years of age with similar fractures that supported their contention the damage award was excessive. Cf. Desert Palm Surgical Grp., 236 Ariz. at 583-84, ¶¶ 43-44, 343 P.3d 438 (comparing verdict to comparable civil cases to determine whether it constituted “an excessive award of general damages”). Under these circumstances, a reasonable trial judge could conclude that a new trial was appropriate. CONCLUSION ¶ 15 For the foregoing reasons, we affirm the judgment of the superior court. . The jury awarded Julie $40,000 in damages, but her award is not at issue on appeal. When necessary to distinguish between the Sotos, we refer to them by their first names. . Although the Sotos filed a notice rejecting the remittitur the day before the court-imposed deadline, Rule 59(i) makes the affected party’s filing the triggering event only if it accepts the additur or remittitur—something that did not occur here. . Additionally, the November 24 unsigned ruling granted Defendants’ "Motion for Remittitur” but did not conditionally grant a new trial, as Rule 59(i)(l) contemplates as part of its self-executing function. The December 17 signed order cured that deficiency. .A trial court must order a new trial, not remittitur, if it concludes a verdict is the result of passion or prejudice. See Hanscome, 227 Ariz. at 162, ¶ 13, 254 P.3d 397 (tainted verdict requires a new trial); Hancock, 15 Ariz.App. at 299, 488 P.2d 501 ("[A] Rule 59(i) order, by necessary implication requires that the trial court entertain the opinion that the verdict was not the result of passion or prejudice.”). . Defendants filed a motion to strike portions of the Sotos’ reply brief. We deny that motion.

OPINION GEMMILL, Judge: ¶ 1 Richard Clark (“Father”) appeals the family court’s order modifying child support and awarding attorney fees to Ann Clark (“Mother”). Because only our resolution of the attorney fees issue merits publication, we have addressed Father’s other issues in a separate memorandum decision issued contemporaneously with this opinion. See AR-CAP 28(e); Ariz. R. Sup.Ct. 111(h). For the reasons set forth in the accompanying memorandum decision and in this opinion, we affirm. BACKGROUND ¶ 2 In 2012, Mother filed a petition for dissolution of her marriage to Father. A default decree was entered against Father in December 2012, along with a child support order and parenting plan concerning the couple’s two children. Primary physical custody of the children was awarded to Mother, and Father was ordered to pay $1,013.48 in monthly child support, starting January 1, 2013. ¶ 3 After the divorce, Father relocated to New York to seek employment and found a job in September 2013. In March 2014, Father filed a petition to modify his child support obligation, alleging he was earning $3,464 per month and his relocation and new employment constituted a substantial and continuing change in circumstances. After a hearing, the family court decreased Father’s monthly child support obligation to $619.04, effective September 1, 2014. The family court ordered that Father be allowed to claim one of the children as a dependent on his income taxes two out of every three tax years, conditioned upon payment in full of all current support obligations and arrearage payments. The court also found that Father had failed to make required child support payments and entered judgment for more than $20,000 in arrearages due Mother. Finally, the court awarded Mother her attorney fees and costs, finding that Father had taken unreasonable positions throughout the litigation. ¶ 4 Father timely appeals, and we have jurisdiction under Article 6, Section 9 of the Arizona Constitution and Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(5). ATTORNEY FEES ANALYSIS ¶ 5 In its order modifying child support, the family court granted Mother’s request for attorney fees under A.R.S. § 25-324(A), finding that no meaningful financial disparity existed between the parties and that Father acted unreasonably during the litigation. In Father’s motion for new trial, he argued the fee award to Mother violated A.R.S. § 25-503(E), which provides: Any order for child support may be modified or terminated on a showing of changed circumstance that is substantial and continuing____ The order of modification or termination may include an award of attorney fees and court costs to the prevailing party. (Emphasis added.) ¶ 6 Father contends the family court did not have discretion to award Mother her attorney fees under A.R.S. § 25-503(E) because Father was the prevailing party in the litigation. Father also argues the court erred under A.R.S. § 25-324(A) when it found that he acted unreasonably in the litigation. We review de novo issues of statutory interpretation, City of Phoenix v. Harnish, 214 Ariz. 158, 161, ¶ 6, 150 P.3d 245, 248 (App.2006), and apply an abuse of discretion standard to the family court’s factual analysis underlying an attorney fees award, see Breitbart-Napp v. Napp, 216 Ariz. 74, 83, ¶ 35, 163 P.3d 1024, 1033 (App.2007). ¶ 7 Father contends he was the “prevailing party” in the modification proceedings because the family court substantially reduced his monthly child support obligation. We note, however, that Mother cross-petitioned and received a judgment against Father for child support arrearages. The family court did not make a specific finding of which party prevailed and such a determination is not necessary to resolve the issue here. Even assuming Father was the “prevailing party” on his petition to reduce child support, we nonetheless reject his position that AR.S. § 25-503(E) prevents the family court from awarding fees to the non-prevailing party. ¶ 8 The use of the word “may” in A.R.S. § 25-503(E) provides the family court broad discretion to decide whether to award attorney fees to the prevailing party on a request to modify child support. See Alejandro v. Harrison, 223 Ariz. 21, 24, ¶ 10, 219 P.3d 231, 234 (App.2009) (recognizing that a statute’s use of “may” when describing the court’s authority generally connotes discre tion). And, contrary to Father’s argument, the statute does not prohibit the court from awarding fees to the non-prevailing party if another statute authorizes such an award. ¶ 9 Section 25-503(E) is not the only statute that may authorize an award of attorney fees in proceedings such as these. As explained in the Child Support Guidelines issued by the Arizona Supreme Court, post-decree petitions for modification of child support orders may arise under both Chapter 3 and Chapter 5 of A.R.S. Title 25, governing Marital and Family Relations: Pursuant to Arizona Revised Statutes Sections 25-327 [Chapter 3] and 25-503 [Chapter 5], either parent or the state Title IV-D agency may ask the court to modify a child support order upon a showing of a substantial and continuing change of circumstances. A.R.S. § 25-320 app. § 24(A) (“Guidelines”) (emphasis added). Accordingly, the family court may award fees to either party in such cases not only under Chapter 5, see AR.S. § 25-503(E), but also under Chapter 3, see AR.S. § 25-324(A). Chapter 3 provides for an award of fees as follows: The court from time to time, after considering the financial resources of both parties and the reasonableness of the positions each party has taken throughout the proceedings, may order a party to pay a reasonable amount to the other party for the costs and expenses of maintaining or defending any proceeding under this chapter [3] or chapter 4, article 1 of this title. A.R.S. § 25-324(A) (emphasis added). “We must consider all pertinent statutory provisions in reaching a decision” and “related statutes must be interpreted consistently and harmoniously with one another.” In re Stephanie N., 210 Ariz. 317, 320, ¶ 17, 110 P.3d 1280, 1283 (App.2005); see also State v. Cid, 181 Ariz. 496, 499-500, 892 P.2d 216, 219-20 (App.1995) (statutes in pari materia are read together and harmonized to avoid rendering any word, clause or sentence superfluous or void). ¶ 10 Sections 25-324(A) and 25-503(E), read together, do not conflict, and we need not evaluate whether one supersedes the other. Cf. State v. Jones, 235 Ariz. 501, 503, ¶ 8, 334 P.3d 191, 193 (2014) (explaining that conflicting statutes cannot be harmonized). Understood together, §§ 25-324(A) and 25-503(E) offer the family court distinct—but not mutually exclusive—options for awarding attorney fees to the parties. When both statutes apply, the family court may award attorney fees based on any one or more of the listed statutory factors, including (1) financial disparity between the parties, A.R.S. § 25-324(A); (2) unreasonable conduct or unreasonable positions by a party, id.; or (3) which party prevailed in the litigation, AR.S. § 25-503(E). ¶ 11 Here, the family court concluded that there was no substantial disparity in the parents’ incomes, but made specific findings that Father acted unreasonably during the proceedings by knowingly failing to pay child support as ordered in lieu of filing a petition for modification, and by expecting that Mother would independently support and care for the two children. The court also found that “[a]ll of the litigation” relevant to the petition was “caused by Father either not taking responsibility in the initial default dissolution or not abiding by the order.” ¶ 12 No legal error occurred when the family court awarded attorney fees to Mother under § 25-324(A), even if we assume she was not the prevailing party. And because the evidence presented during the hearing supports the family court’s award of fees to Mother, no abuse of discretion occurred. CONCLUSION ¶ 13 We conclude there is no reversible error in the family court’s order. For these reasons and for those set forth in the accompanying memorandum decision, we affirm. ¶ 14 Both Father and Mother request awards of attorney fees on appeal. Father’s request is based on A.R.S. §§ 25-324 and 25-503(E), and Mother’s request is based on § 25-324. We have considered the relevant criteria under both statutes, and in our discretion we decline to award fees to either party. As the prevailing party on appeal, Mother is entitled to an award of taxable costs contingent upon her compliance with Arizona Rule of Civil Appellate Procedure 21.

OPINION ESPINOSA, Judge: ¶ 1 Gregory Valencia Jr. and Joey Healer seek review of trial court orders denying their respective petitions for post-conviction relief, in which they argued Miller v. Alabama, - U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), constitutes a significant change in the law applicable to their natural-life prison sentences. Because Miller, as clarified by the United States Supreme Court in Montgomery v. Louisiana, — U.S. -, -, 136 S.Ct. 718, 734, 193 L.Ed.2d 599 (2016), “bar[s] life without parole” for all juvenile offenders except those “whose crimes reflect permanent incorrigibility,” we accept review and grant relief. Procedural Background ¶ 2 Valencia and Healer were each convicted of first-degree murder in addition to other offenses and were sentenced to natural life in prison. Both were juveniles at the time of their offenses. Although we vacated one of Valencia’s non-homicide convictions on appeal, we affirmed his remaining convictions and sentences. State v. Valencia, No. 2 CA-CR 96-0652 (memorandum decision filed Apr. 30,1998). We affirmed Healer’s convictions and sentences on appeal. State v. Healer, No. 2 CA-CR 95-0683 (memorandum decision filed Dee. 24, 1996). ¶ 3 In 2013, Valencia filed two notices of post-conviction relief, along with a supplement, raising various claims, including that Miller constituted a significant change in the law pursuant to Rule 32.1(g), Ariz. R.Crim. P. The trial court, treating Valencia’s second notice as a petition for post-conviction relief, summarily denied relief. On review, we granted partial relief, determining Valencia had not been given an adequate opportunity to raise his claim based on Miller because the court had erred in construing his second notice as his petition for post-conviction relief. We thus remanded the case to the trial court for further proceedings related to that claim, but otherwise denied relief. State v. Valencia, No. 2 CA-CR 2013-0450-PR, 2014 WL 1831046 (memorandum decision filed May 6,2014). ¶ 4 Healer also sought post-conviction relief in 2013, seeking to raise a claim pursuant to Miller and requesting that counsel be appointed. The trial court, however, summarily dismissed his notice, concluding Miller did not apply. We granted relief, determining Healer was entitled to counsel and to file a petition for post-conviction relief and remanding the case to the trial court for further proceedings. State v. Healer, No. 2 CA-CR 2013-0372-PR, 2014 WL 310533 (memorandum decision filed Jan. 28, 2014). ¶ 5 Valencia and Healer then filed separate petitions in which they raised the same argument—that Miller constituted a significant change in the law applicable to their respective natural-life sentences. They contended that under Miller, Arizona’s sentencing scheme is unconstitutional because a life sentence was essentially a sentence of life without a meaningful opportunity for release due to the abolition of parole. Each further argued our sentencing scheme is unconstitutional because “it completely fails to take any account of the attendant characteristics of youth.” Last, both argued “the process by which [they] w[ere] sentenced was unconstitutional” because the court “failed to give proper weight to youth and its attendant characteristics.” ¶ 6 The trial court in each proceeding summarily denied relief. The court in Valencia’s proceeding noted that, “at the time of sentencing” the court believed “that it had the discretion to impose natural life or, alternatively, life with the opportunity for parole after 25 years.” It further observed that Valencia had been given individualized sentencing consideration as required by Miller and that, after that consideration, the court found his youth to be a mitigating factor but, in consideration of other factors, had nonetheless determined a natural-life sentence was appropriate. ¶ 7 The trial court in Healer’s proceeding determined that any constitutional infirmity in Arizona’s sentencing scheme had been resolved by recent statutory changes reinstating parole for juvenile offenders given a life sentence with an opportunity for release. The court further determined that, in any event, the sentencing court had found Healer’s age to be a mitigating factor and had imposed a natural-life sentence in compliance with Miller. Healer and Valencia each filed petitions for review, which we consolidated at their request. Discussion ¶ 8 In their petitions for review, Healer and Valencia repeat their argument that Miller is a significant change in the law entitling them to be resentenced. See Ariz. R.Crim. P. 32.1(g). In Miller, the United States Supreme Court determined that a sentencing scheme “that mandates life in prison without possibility of parole for juvenile offenders” violated the Eighth Amendment’s prohibition against cruel and unusual punishment. — U.S. at-, 132 S.Ct. at 2469; see also State v. Vera, 235 Ariz. 571, ¶ 3, 334 P.3d 754, 755-56 (App.2014). The Court further stated that, before a juvenile offender is sentenced to natural life, courts must “take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Miller, — U.S. at-, 132 S.Ct. at 2469. ¶ 9 While Healer’s and Valencia’s petitions were pending, the Supreme Court accepted review of another case involving juveniles sentenced to life imprisonment without the possibility of parole in order to determine whether Miller should be applied retroactively. Montgomery v. Louisiana, — U.S. -, 135 S.Ct. 1546, 191 L.Ed.2d 635 (2015) (granting writ of certiorari); see also Montgomery, — U.S. at-, 136 S.Ct. at 727. We stayed the current proceeding and ordered the parties to provide supplemental briefs when that decision issued. ¶ 10 The Supreme Court decided Montgomery in January 2016. It explained that, in Miller, it had determined a natural-life sentence imposed on a juvenile offender “violates the Eighth Amendment for a child whose crime reflects ‘unfortunate yet transient immaturity.’ ” Montgomery, — U.S. at -, 136 S.Ct. at 734, quoting Miller, — U.S. at-, 132 S.Ct. at 2469. Thus, the Court clarified, the Eighth Amendment requires more than mere consideration of “a child’s age before sentencing him or her to a lifetime in prison,” but instead permits a natural-life sentence only for “the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.” Id. The Court further determined that the rule announced in Miller was a substantive constitutional rule that was retroactively applicable pursuant to Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Montgomery, — U.S. at-, 136 S.Ct. at 735-36. ¶ 11 Valencia and Healer argue on review that, pursuant to Miller, Arizona’s sentencing scheme for juveniles convicted of first-degree murder is unconstitutional because it permits the imposition of a natural-life term without requiring the court to “take any account of the attendant characteristics of youth.” They also assert their respective sentencing courts did not sufficiently consider those characteristics in imposing natural-life sentences. To be entitled to relief pursuant to Rule 32.1(g), Valencia and Healer must show there “has been a significant change in the law that if determined to apply to defendant’s case would probably overturn the defendant’s conviction or sentence.” ¶ 12 As the state concedes, the Supreme Court settled in Montgomery the question whether the rule announced in Miller applies retroactively. Thus, the question before us is whether that rule constitutes a significant change in Arizona law. A significant change in the law is a “transformative event, a ‘clear break from the past.’ ” State v. Werderman, 237 Ariz. 342, ¶ 5, 350 P.3d 846, 847 (App.2015), quoting State v. Shrum, 220 Ariz. 115, ¶ 15, 203 P.3d 1175, 1178 (2009). “Such change occurs, for example, ‘when an appellate court overrules previously binding case law or when there has been a ‘statutory or constitutional amendment representing a definite break from prior law.’ ” Id., quoting Shrum, 220 Ariz. 115, ¶¶ 16-17, 203 P.3d at 1178-79. ¶ 13 At the time of Valencia’s and Healer’s offenses, Arizona’s sentencing scheme required the court to consider their age in determining which sentence to impose. See former A.R.S. § 13-703(0(5); 1988 Ariz. Sess. Laws, ch. 155, § 1; see also A.R.S. § 13-702(E)(1); 1984 Ariz. Sess. Laws, ch. 43, § 1. And courts have long understood that the sentencing considerations for juveniles are markedly different from those for adults, noting in particular a sentencing court should consider a juvenile defendant’s age as well as his or her “level of maturity, judgment and involvement in the crime.” State v. Greenway, 170 Ariz. 155, 170, 823 P.2d 22, 37 (1991); see also Thompson v. Oklahoma, 487 U.S. 815, 823-24, 833-34, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988). ¶ 14 But the mere requirement that a sentencing court consider a juvenile defendant’s youth before imposing a natural-life sentence does not comply with the Supreme Court’s recent directive forbidding a natural-life sentence “for all but the rarest of juvenile offenders.” Montgomery, — U.S. at -, 136 S.Ct. at 734. Instead, as the Court explained, the sentencing court must determine whether the juvenile defendant’s “crimes reflect [] transient immaturity,” or whether the defendant’s crimes instead “reflect permanent incorrigibility.” Id. Only in the latter case may the sentencing court impose a sentence of natural life. See id. ¶ 15 In its supplemental brief following the Court’s decision in Montgomery, the state maintains that Miller is nonetheless inapplicable to Valencia and Healer because their natural-life terms were not mandatory. We agree that the core issue presented in Miller concerned the mandatory imposition of a natural-life sentence. But there is no question that the rule in Miller as broadened in Montgomery renders a natural-life sentence constitutionally impermissible, notwithstanding the sentencing court’s discretion to impose a lesser term, unless the court “take[s] into account ‘how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.’” Montgomery, — U.S. at -, 136 S.Ct. at 733, quoting Miller, — U.S. at-, 132 S.Ct. at 2469. Moreover, after taking these factors into account, the court can impose a natural-life sentence only if it concludes that the juvenile defendant’s crimes reflect permanent incorrigibility. See id. at-, 136 S.Ct. at 734. ¶ 16 The state also contends that, in any event, Valencia’s and Healer’s respective sentencing courts “took [their] ages into account” in imposing that term. As we have explained, however, the Eighth Amendment, as interpreted in Montgomery, requires more than mere consideration of age before imposing a natural-life sentence. See id. at-, 136 S.Ct. at 734-35. The state does not argue that the facts presented at Valencia’s and Healer’s respective sentencing hearings would require, or even support, a finding that their crimes reflect permanent incorrigibility. In any event, in light of the heretofore unknown constitutional standard announced in Montgomery, the parties should be given the opportunity to present evidence relevant to that standard. See, e.g., State v. Steelman, 120 Ariz. 301, 320, 585 P.2d 1213, 1232 (1978) (remanding for redetermination of sentence in light of recent ease law). Conclusion ¶ 17 The Supreme Court’s determination in Montgomery that a natural-life sentence imposed on a juvenile defendant is unconstitutional unless the juvenile’s offenses reflect permanent incorrigibility constitutes a significant change in Arizona law that is retroactively applicable. See Ariz. R.Crim. P. 32.1(g); Montgomery, — U.S. at-, 136 S.Ct. at 735-36. Valencia and Healer are therefore entitled to be resentenced. Accordingly, we accept review and grant relief, and this ease is remanded to the trial court for further proceedings consistent with this decision. . Valencia and Healer additionally maintain that, pursuant to Miller, the mandatory minimum sentence of twenty-five years to life for murder is unconstitutional for juvenile offenders. But the Supreme Court in Miller did not address mandatory minimum sentences for juveniles; its discussion was limited to natural-life sentences. See — U.S. at-, 132 S.Ct. at 2469. Accordingly, we reject this argument. . Justice Scalia, in his dissent, asserts that the majority’s reasoning can be read as a "way of eliminating life without parole for juvenile offenders.” Montgomery, - U.S. at -, 136 S.Ct. at 744 (Scalia, J., dissenting) (joined by Justice Thomas and Justice Alito). Although the majority states "it will be the rare juvenile offender who can receive [a natural-life] sentence,” we do not view that pronouncement an absolute bar against such a sentence. Id, at -, 136 S.Ct. at 734. . We need not address Valencia and Healer's argument that the sentencing scheme in place at the time of their sentences was unconstitutional. And we decline to address pending legislation that may affect the issues presented in this case.

OPINION STARING, Judge: ¶ 1 Mauricio Fernandez Margain appeals the denial of his petition for expedited enforcement of a child custody determination made in Mexico. Margain contends the trial court erred because Mexico has exclusive jurisdiction over the child at issue. We have jurisdiction over this matter pursuant to AR.S. §§ 12-120.21(A)(1) and 25-1064. For the reasons discussed below, we reverse. Factual and Procedural Background ¶ 2 “We view the record in the light most favorable to upholding the trial court’s decision.” Duwyenie v. Moran, 220 Ariz. 501, ¶ 2, 207 P.3d 754, 755 (App.2009). In September 2007, Margain and Elsa Lourdes Ruiz-Bours were married in Hermosillo, Sonora, Mexico. The couple subsequently-moved to Coronado, California, where their only child, Sophia, was born in July 2008. The family continued to live in California until October 2010, when Ruiz-Bours and Sophia traveled to Hermosillo. The parties dispute the purpose of the trip, but, as they stipulated below, Ruiz-Bours and the child were “in Hermosillo ... from October 11, 2010 through at least July 5, 2012.” ¶ 3 In August 2011, Margain filed for dissolution of the marriage in the Second Family Court of Tijuana, Baja California, Mexico, asserting the ground of abandonment. As of that time, Sophia had been living in Mexico for at least six consecutive months. RuizBours was properly served with notice of the dissolution proceeding in October 2011. At the time of service, Ruiz-Bours was aware that the Second Family Court had ordered that she not remove Sophia from Hermosillo without that court’s approval. ¶ 4 Ruiz-Bours challenged the jurisdiction of the Second Family Court, arguing jurisdiction properly lay in Sonora, not in Baja California, as both she and Sophia were living in Hermosillo. The Second Family Court stayed the proceedings and the matter was referred to the State Appellate Court of Baja California to address Ruiz-Bours’s jurisdiction challenge. In May 2012, the State Appellate Court affirmed the Second Family Court’s jurisdiction. ¶ 5 Ruiz-Bours then pursued her jurisdiction challenge in Mexico’s federal court system. She was denied relief by the Second District Court in July 2012, and the Fifteenth Circuit Court in January 2013. The Supreme Court of Mexico denied Ruiz-Bours relief in June 2014, affirming jurisdiction in the Second Family Court. Ruiz-Bours was represented by counsel throughout these proceedings and “had proper notice of the Mexican proceedings and was provided due process throughout.” ¶ 6 In July 2012, in the midst of her appeals, Ruiz-Bours violated the Second Family Court’s order, and absconded with Sophia to Tucson. In September 2014, that court issued its final judgment, in which Margain was awarded “definitive legal custody” of Sophia. In reaching its judgment, the court considered the best interests of the child, specifically stating: [T]he minor is wrongfully held while continuing to be under the care of the mother ... who is neglecting the father-child relationship of her minor daughter with her father, which without any doubt, is causing an imminent harm for the little girl; and in spite of having been warned with fines, aid from law enforcement, search warrant and arrest for up to thirty six hours, ... she insisted on her disobedient behavior of not allowing the safeguarding of the wellbeing of her minor daughter, by obstructing the visitation/interaction between father and daughter, causing harm in her little girl by depriving her of the aforementioned right of enjoying of times in common with her father ... with said harm prevailing for over one year____ ... Therefore, it should be decreed that the definitive legal custody of the aforementioned minor shall be exercised by her father ..., who shall watch over for the health, safety as well as guide and take care of the most elemental needs of his minor daughter such as adequately providing her with care and [advice]. Ruiz-Bours did not file an appeal or any other post-judgment motions to have the judgment set aside. ¶ 7 In October 2014, Margain filed a “Petition for Expedited Enforcement of Child Custody Determination” in Pima County Superior Court seeking the “immediate physical custody of’ Sophia. The trial court ordered Ruiz-Bours to appear with the child. ¶ 8 At a November 2014 hearing, the court found that to date Margain had complied with the requirements of due process. The court also allocated parenting time for Mar-gain. Both Ruiz-Bours and Margain were ordered not to remove the child from Pima County absent a written agreement, or from the state of Arizona absent a written agreement and leave of court. ¶ 9 In December 2014, another hearing was held at which the court made rulings on pending motions and factual findings. By stipulation of the parties, the court found Ruiz-Bours and the child “were in Hermosillo, Sonora, Mexico, from October 11, 2010 through at least July 5, 2012.” The court further found the filing date for the Mexican petition for dissolution of marriage had been August 23, 2011, and the child had been in Mexico “for at least six consecutive months preceding the August 2011 date of [Mar-gain’s] filing for dissolution in Mexico.” The court also noted it would limit the scope of the trial to determining “whether Mexico exercised jurisdiction in substantial conformity with the Uniform Child Custody Jurisdiction and Enforcement Act” (UCCJEA), AR.S. §§ 25-1001 through 25-1067. ¶ 10 A three-day trial occurred in February 2015, during which both parties elicited expert testimony concerning the proper exercise of jurisdiction pursuant to Mexican law. Despite the ruling of the Mexico Supreme Court, Ruiz-Bours contended the Second Family Court did not have jurisdiction to entertain the dissolution proceedings initiated by Margain because the action had not been filed in the state of her domicile. Mar-gain, on the other hand, presented the testimony of his expert witness who agreed that while the general rule in Mexican dissolution actions is that the competent forum is that of the marital or conjugal residence, when the claim is abandonment the competent forum is the domicile of the abandoned spouse. After the presentation of evidence and argument, the court took the matter under advisement. ¶ 11 The trial court denied Margain’s petition on March 2, 2015. In its ruling, the court indicated the Second Family Court’s exercise of jurisdiction was proper under the laws of Mexico, stating: “[I]t is hard to conceive of how the legitimacy of that court’s jurisdiction could have been more unequivocally established, under the laws of Mexico.” The court also recognized “Mexico would have been [the child’s] home state at the time” Margain filed his petition for dissolution. But because under Mexican law “jurisdiction is based on the location of the marital residence or, in cases of abandonment, the residence of the abandoned spouse,” and because “[a]t no time did the Second Family Court consider where Sophia was living,” the court concluded the Second Family Court did not make its custody determination in substantial conformity with the jurisdictional standards of the UCCJEA As part of its ruling, the court ordered that both sides would bear their own costs and attorney fees. ¶ 12 Ruiz-Bours filed a timely motion for new trial on the issue of costs and attorney fees. On the same day, Margain filed his notice of appeal from the court’s March 2 ruling. The trial court then issued a ruling stating it lacked jurisdiction to consider Ruiz-Bours’s motion for new trial because Margain had filed his notice of appeal before the motion was filed. Ruiz-Bours filed a motion for reconsideration of the court’s ruling and Margain filed a response agreeing that filing the notice of appeal did not divest the trial court of jurisdiction to address Ruiz-Bours’s motion for new trial. ¶ 13 The trial court granted Ruiz-Bours’s motion for new trial on the limited issue of costs and attorney fees. In July 2015, we stayed appellate proceedings pending a final judgment on the issue of costs and attorney fees, which the trial court subsequently awarded to Ruiz-Bours in a total amount of $73,462.28. Margain filed an amended notice of appeal to encompass the award. We then vacated the stay and reinstated the appeal. ¶ 14 In August 2015, Ruiz-Bours filed a motion to dismiss Margain’s appeal, asserting he had “kidnapped” Sophia and taken her to Mexico in violation of the trial court’s November 2015 order. We denied the motion and Ruiz-Bours subsequently filed a motion to supplement the record, which we granted. In her supplement, Ruiz-Bours provided a minute entry from the trial court finding Margain had failed to return the child after a scheduled visit and holding him in contempt of court. Analysis Dismissal ¶ 15 We first address whether we should render a decision on Margain’s appeal at all. Ruiz-Bours argues Margain, who was found to be in contempt of court for absconding with Sophia, has forfeited his right to appeal. See Stewart v. Stewart, 91 Ariz. 356, 360, 372 P.2d 697, 700 (1962) (appellate court enjoys discretion to dismiss appeal when appellant has disregarded trial court orders). ¶ 16 In Stewart, the husband repeatedly failed to make court-ordered payments of spousal support and attorney fees and repeatedly failed to appear at hearings. Id. at 357, 372 P.2d at 698. The trial court found him in contempt and issued a warrant for his arrest. Id. After the husband was served with an order to show cause, he again failed to appear. Id. The husband then sought “aid from the appellate branch of the same judicial process he [had] repeatedly scorned at other levels.” Id. at 358, 372 P.2d at 699. While noting the decision whether to dismiss was discretionary and would “depend on the facts of each case,” the Stewart court concluded dismissal was “clearly warranted” by the facts before it. Id. at 360, 372 P.2d at 700. ¶ 17 An appellate court exercises its contempt powers when it dismisses the appeal of a party who is in “flagrant and contumacious disregard” of trial court orders. See id. at 357, 360, 372 P.2d at 698, 700; see also Sheehan v. Flower, 217 Ariz. 39, ¶ 17, 170 P.3d 288, 292 (App.2007) (“[A] court may exercise its inherent contempt power to remedy a violation of a court order.”); 17 Am. Jur. 2d Contempt § 1 (2016) (“One of the most important and essential powers of a court is the authority to protect itself against those who disregard its dignity and authority, and this authority is appropriately administered through the court’s power to punish by contempt.”); Dan. B. Dobbs, Handbook on the Law of Remedies § 2.9, at 100 (1973) (“One kind of [contempt] penalty sometimes levied upon a contumacious party is a denial of his right to litigate.”). An appellate court may punish contempt pursuant to its “inherent powers ... as [is] necessary to the ordinary and efficient exercise of jurisdiction.” State ex rel. Andrews v. Superior Court, 39 Ariz. 242, 247-48, 5 P.2d 192, 194 (1931), overruled on other grounds by Genda v. Superior Court, 103 Ariz. 240, 242, 439 P.2d 811, 813 (1968); see also Stewart, 91 Ariz. at 358, 372 P.2d at 699, quoting Nat’l Union of Marine Cooks & Stewards v. Arnold, 348 U.S. 37, 45, 75 S.Ct. 92, 99 L.Ed. 46 (1954) (“The United States Supreme Court has ruled that dismissal of a contumacious appellant’s appeal ... is a ‘reasonable’ method of ... ‘sustaining the effectiveness of a state’s judicial process____’”). ¶ 18 As noted above, however, whether to impose the sanction of dismissal is discretionary and “depend[s] on the facts of [the] ease.” Stewart, 91 Ariz. at 360, 372 P.2d at 700. In the case of a contumacious party, whether to dismiss is similar in nature to a decision in equity, making it helpful to consider equitable principles. See Grand Int’l Bhd. of Locomotive Eng’rs v. Mills, 43 Ariz. 379, 398, 31 P.2d 971, 978 (1934) (“When a new condition arises and the legal remedies afforded are inadequate, the never-failing capacity of equity to adapt itself to the situation will be found equal to the emergency.”); Dobbs, supra, § 2.1, at 28 (“[A] case is sometimes referred to as equitable in the rather loose sense that it involves questions of discretion, or judgment, or calls for principles of justice and conscience rather than rigid ‘legal’ rules.”). ¶ 19 “It is a cardinal rule of equity that he who comes into a court of equity seeking equitable relief must come with clean hands.” MacRae v. MacRae, 57 Ariz. 157, 161, 112 P.2d 213, 215 (1941). The maxim can be summarized as follows: [Wjhenever a party, who, as actor, seeks to set the judicial machinery in motion and obtain some remedy, has violated conscience, or good faith, or other equitable principle, in his prior conduct, then the doors of the court will be shut against him in limine; the court will refuse to interfere on his behalf, to acknowledge his right, or to award him any remedy. Sines v. Holden, 89 Ariz. 207, 209-10, 360 P.2d 218, 220 (1961), quoting 2 Pomeroy 91, Equity Jurisprudence, § 397 (5th ed.); see also 27A Am. Jur. 2d Equity § 98 (2016) (“The equitable doctrine of clean hands expresses the principle that where a party comes into equity for relief he or she must show that his or her conduct has been fair, equitable, and honest as to the particular controversy at issue.”). ¶ 20 In this case, both Ruiz-Bours and Margain have unclean hands, and have acted outrageously. Margain sought a divorce and custody of Sophia in Mexico, the country in which Ruiz-Bours and Sophia had been located for approximately ten months before Margain initiated the proceedings. He followed the required procedures in that country, was challenged, and won on appeal. Ruiz-Bours, however, in violation of the Second Family Court’s order, absconded with Sophia to Arizona. Thus, while we in no way condone Margain’s recent contempt, absconding with Sophia, we cannot ignore the fact Ruiz-Bours seeks to have Margain’s appeal dismissed as a sanction for the very same misconduct she committed when she brought Sophia to Arizona. This case would not have arisen before us but for RuizBours’s violation of the Second Family Court’s order not to remove Sophia. We will not impose the sanction of dismissal under these circumstances. Enforcement under the UCCJEA ¶ 21 Because this matter “involves a matter of statutory interpretation,” we conduct de novo review. Melgar v. Campo, 215 Ariz. 605, ¶ 6, 161 P.3d 1269, 1270 (App.2007). The “primary goal of statutory interpretation is to find and give effect to legislative intent.” Mathews ex rel. Mathews v. Life Care Ctrs. of America, Inc., 217 Ariz. 606, ¶ 6, 177 P.3d 867, 869 (App.2008). The plain language of a statute is the best indication of that intent. Id. When “a statute’s language is clear and unambiguous, we apply it without resorting to other methods of statutory interpretation.” Hayes v. Cont’l Ins. Co., 178 Ariz. 264, 268, 872 P.2d 668, 672 (1994). Also, in construing a statute, we do so “in a way that promotes consistency, harmony, and function. If possible, each word or phrase must be given meaning so that no part is rendered void, superfluous, contradictory or insignificant.” Welch-Doden v. Roberts, 202 Ariz. 201, ¶ 22, 42 P.3d 1166, 1171 (App.2002) (citations omitted). ¶ 22 The UCCJEA, as enacted in Arizona, contains several provisions relating to the enforcement of child custody determinations. At issue in this matter is how courts are to treat child custody determinations made in foreign countries. ¶ 23 The UCCJEA addresses the effect to be given to child custody determinations made in foreign countries in § 25-1005(B), which provides that “a child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of [the UCCJEA] must be recognized and enforced.” The UCCJEA further provides, “A court ... shall recognize and enforce a child custody determination of a court of another state if the latter court exercised jurisdiction in substantial conformity with this chapter or the determination was made under factual circumstances meeting the jurisdictional standards of [the UCCJEA].” § 25-1053(A). Foreign countries are to be treated as if they are “state[s] of the United States” for resolving questions of jurisdiction. § 25-1005(A). The plain language of these provisions leads us to conclude that jurisdiction to determine custody of Sophia lies exclusively in the courts of Mexico. ¶ 24 The UCCJEA focuses on a “home state” analysis in determining whether Arizona courts have jurisdiction to make an initial child custody determination. See § 25-1031(A). This is because the UCCJEA provides Arizona has jurisdiction to make an initial custody determination only if any of the following apply: 1. This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state. 2. A court of another state does not have jurisdiction under paragraph 1 or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under § 25-1037 or 25-1038 and both of the following are true: (a) The child and the child’s parents, or the child and at least one parent or person acting as a parent, have a significant connection with this state other than mere physical presence. (b) Substantial evidence is available in this state concerning the child’s care, protection, training and personal relationships. 3. All courts having jurisdiction under paragraph 1 or 2 have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under § 25-1037 or 25-1038. 4. A court of any other state would not have jurisdiction under the criteria specified in paragraph 1, 2 or 3. § 25-1031(A). The “home state” under the UCCJEA is “the state in which a child lived with a parent ... for at least six consecutive months immediately before the commencement of a child custody proceeding, including any period during which that person is temporarily absent from that state.” § 25-1002(7)(a). ¶ 25 Here, the trial court analyzed the various subsections of the UCCJEA to mean, “if the child custody determination of the [foreign country] was entered ‘in substantial conformity with the jurisdictional standards’ of the UCCJEA, it is enforceable. If it was not, it is not enforceable.” The court noted “[t]he Second Family Court’s exercise of jurisdiction may have been entirely proper under the laws of Mexico____ That does not mean, however, that it properly exercised jurisdiction under the UCCJEA.” Dispositive to the court was the jurisdictional analysis conducted by the Mexican courts, which based jurisdiction “on the location of the marital residence,” or, when applicable, “the residence of the abandoned spouse,” and did not take the residence of the child into consideration. Thus, because where Sophia “lived was clearly irrelevant to the jurisdictional analysis under Mexican law,” the trial court concluded “the custody determination made by the Second Family Court was [not] made ‘in substantial conformity with the jurisdictional standards’ of the UCCJEA.” ¶ 26 Under the UCCJEA, however, child custody determinations made in foreign countries “must be recognized and enforced” if they were made “under factual circumstances in substantial conformity with the jurisdictional standards” of the UCCJEA. § 25-1005(B) (emphasis added). Notably, an analysis of factual circumstances is also required by § 25-1053(A), which requires enforcement of a child custody determination of a court of another state (foreign countries being treated as states under § 25~1005(A)) “if the latter court exercised jurisdiction in substantial conformity” with the jurisdictional standards of the UCCJEA “or the determination was made under factual circumstances meeting the jurisdictional standards of [the UCCJEA].” § 25-1053(A) (emphasis added). Thus, whether examining a child custody determination made by a court in another state or another country, the plain language of the UCCJEA instructs Arizona courts to examine the factual circumstances under which the non-Arizona court exercised jurisdiction. ¶ 27 The trial court, in contrast, analyzing whether the Second Family Court exercised jurisdiction “in substantial conformity” with the UCCJEA, only considered the legal circumstances under which the court exercised jurisdiction and did not consider the factual circumstances. This had the effect of disregarding § 25-1005(B) and rendering the “factual circumstances” portion of § 25-1053(A) void, superfluous, and insignificant. As noted above, “[i]f possible, each word or phrase [of a statute] must be given meaning so that no part is rendered void, superfluous, contradictory or insignificant.” Welch-Doden, 202 Ariz. 201, ¶22, 42 P.3d at 1171. ¶28 Here, the UCCJEA required determining whether the factual requirements for exercising jurisdiction existed in the case be fore the Second Family Court. In other words, did the facts show Mexico was Sophia’s home state in substantial conformity with the UCCJEA? See Welch-Doden, 202 Ariz. 201, ¶ 30, 42 P.3d at 1173 (“The drafters made it clear that the [UCCJEA] was to give priority to a finding of home state jurisdiction over any other jurisdictional provisions.”); UCCJEA, prefatory note, 9 U.L.A. 651 (“The UCCJEA prioritizes home state jurisdiction____”). Whether the Second Family Court determined its own jurisdiction by employing procedures in substantial conformity with the UCCJEA was not dispositive; what mattered was the home state of the child. ¶ 29 The trial court’s interpretation of the UCCJEA could lead to troubling outcomes. Under the court’s analysis, any country without jurisdictional criteria similar to the UCCJEA potentially would lack jurisdiction to make child custody determinations Arizona courts would enforce. A parent in such a country that disagreed with their court’s ruling on jurisdiction could abscond with their child to Arizona hoping to thwart enforcement. We do not believe the UCCJEA was meant to be such an affront to comity or to increase the likelihood of abductions. Nor does the plain language of the UCCJEA support that analysis. See § 25-1005(B) and (C). When a foreign country makes a child custody determination, and it has jurisdiction by virtue of being the home state of the child (under factual circumstances in substantial conformity with the UCCJEA), that custody determination must be enforced by the courts of this state. ¶ 30 Our holding is further buttressed by comments of the original drafters of the UCCJEA Under UCCJEA § 105 cmt., 9 U.L.A 662, the drafters commented, “Custody determinations of other countries will be enforced if the facts of the case indicate that jurisdiction was in substantial compliance with the requirements of this Act.” Furthermore, the purported purposes of the UCCJEA were to: 1) Avoid jurisdictional competition and conflict with courts of other States in matters of child custody which have in the past resulted in the shifting of children from State to State with harmful effects on their well-being; 2) Promote cooperation with the courts of other States to the end that a custody decree is rendered in that State which can best decide the ease in the interest of the child; 3) Discourage the use of the interstate system for continuing controversies over child custody; 4) Deter abductions of children; 5) Avoid relitigation of custody decisions of other States in this State; 6) Facilitate the enforcement of custody decrees of other States. UCCJEA § 101 cmt., 9 U.L.A 657. Allowing the trial court’s decision to stand would not deter the abduction of children, avoid relitigation of custody decisions, or facilitate the enforcement of custody decrees. If anything, adopting the trial court’s interpretation would likely increase the risk of parents from countries without jurisdictional criteria similar to the UCCJEA choosing to abscond with their children to Arizona in order to relitigate custody. ¶ 31 Both Ruiz-Bours and the trial court sought guidance in Karam v. Karam, 6 So.3d 87 (Fla.Dist.Ct.App.2009). Karam, however, did not concern the enforcement of a child custody determination from another country. Rather, it focused on whether Florida could exercise jurisdiction when “a proceeding concerning the custody of a child ha[d] already commenced in another state having jurisdiction in substantial conformity with” the UCCJEA Id. at 90. ¶ 32 In Karam, a husband and wife each filed a petition for dissolution; the husband in a French court in Guadeloupe and the wife in Florida. Id. at 88. The parties disputed whether the children’s primary residence was in Guadeloupe or Florida, and the French court determined it had jurisdiction “based upon its finding that the ‘usual and permanent centre of [the children’s] interest’ was and had always been in France ... and that the petition was filed in the French court before one was filed by the Wife in the ‘American’ court.” Id. at 89 (alteration in Karam). The Florida court then dismissed the child custody portion of the wife’s petition, and the wife appealed. Id. ¶ 33 The Florida District Court of Appeal quashed the trial court’s dismissal of the wife’s petition based on Fla. Stat. § 61.519, titled “Simultaneous proceedings.” Id. at 90-91. Section 61.519(1) provides: [A] court ... may not exercise its jurisdiction ... if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child had been commenced in a court of another state having jurisdiction substantially in conformity with this part, unless the proceeding has been terminated or is stayed by the court of the other state____ ¶ 34 The Florida District Court of Appeal determined “[t]he French court did not exercise its jurisdiction in substantial conformity with the UCCJEA because the UCCJEA focuses on where the children were living prior to” the commencement of proceedings. Karam, 6 So.3d at 91. The French court, instead, “focused on the location of the children’s ‘usual and permanent centre of interest,’ ” which the Florida trial court “equated ... with the UCCJEA’s ‘home state’ jurisdietional standard.” Id. But because “the children did not reside in Guadeloupe for six continuous months preceding the filing of the [h]usband’s petition ... the French trial court did not exercise its jurisdiction ... in substantial conformity with the UCCJEA” Id. Thus, “the Florida trial court could have, and should have, exercised its jurisdiction over the child custody portion of the [w]ife’s petition.” Id. ¶ 35 The trial court below erroneously relied on Karam, which concerned whether the Florida trial court should have exercised jurisdiction in a proceeding simultaneous to the French proceeding rather than the enforcement of a child custody determination. The crucial factor in Karam was not whether French law was concerned with where the children lived, but that Guadeloupe could not be considered the home state of the children given the facts of the case. Karam, 6 So.3d at 91. The Florida trial court erred in “equating] the French court’s jurisdictional standard of ‘usual and permanent centre of interest’ with the UCCJEA’s ‘home state’ jurisdictional standard,” when “the record [was] clear that the children did not reside in Guadeloupe for six continuous months.” Id. In contrast, the facts on the record before us are consistent with the UCCJEA standard. Sophia lived in Hermosillo for approximately ten months prior to Margain’s initiation of the custody proceedings in Mexico, more than enough time to establish Mexico as Sophia’s home state for purposes of the UCCJEA ¶36 Ruiz-Bours now urges the proper home state in this matter is California, and not Mexico. To the extent the argument might even be relevant, this is not so. Under the California Code, California considers the home state to be “the state in which a child lived with a parent ... for at least six consecutive months immediately before the commencement of a child custody proceeding____ A period of temporary absence of [the parent] is part of the period.” Cal. Fam. Code § 3402(g). From October 2010 to August 2011, Sophia lived in Hermosillo, a period of ten consecutive months. RuizBours argues this ten-month period constitutes a temporary absence because “the stay in Hermosillo ... was intended to be a two or three week visit with family.” The California Code does not define “temporary absence.” See Cal. Fam. Code § 3402. And while California has recognized that a parent’s abduction of a child cannot form the basis for establishing jurisdiction in the abductor’s state of residence, see In re Marriage of Nurie, 176 Cal.App.4th 478, 98 Cal.Rptr.3d 200, 228-30 (2009), there was no abduction when Ruiz-Bours took Sophia to Hermosillo. Nor has she cited any California cases that might lead us to conclude her ten-month absence from California was a temporary absence, especially when she did not leave Mexico until July 2012, only to abscond to Arizona. Indeed, at no point has Ruiz-Bours ever even attempted to invoke the jurisdiction of California except in her answering brief. ¶ 37 Furthermore, according to the applicable section of the California Code, California has home state jurisdiction if it was “the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from [California] but a parent ... continues to live in [California].” Cal. Fam. Code § 3421(a)(1). Neither Mar-gain nor Ruiz-Bours continued to live in California when the proceedings commenced. And because California was not the home state of the child at the commencement of the proceedings, California could not have exercised jurisdiction to make a child custody determination under its statute unless a court having jurisdiction declined to exercise it or no court of any state had home state jurisdiction. See Cal. Fam. Code § 3421(a). Sophia lived in Mexico for at least six consecutive months, giving Mexico home state jurisdiction, and Mexico elected to assert jurisdiction over the matter. Thus, under the California Code, a California court could not have exercised the jui’isdiction Ruiz-Bours now wishes to invoke. ¶ 38 Ruiz-Bours also cites several cases from other states to try and persuade us that her ten-month absence was only “temporary,” but we are unconvinced. Not only was her stay in Hermosillo much longer than those described in the cases she cites, but also she has not lived in California since her departure. See Sarpel v. Eflanli, 65 So.3d 1080, 1081, 1083-84 (Fla.Dist.Ct.App.2011) (affirming a lower court’s treatment of children’s two-month presence in Turkey to be a temporary absence and concluding Florida had jurisdiction because a parent continued to live in Florida at the commencement of proceedings); Ogawa v. Ogawa, 125 Nev. 660, 221 P.3d 699, 704-05 (2009) (Nevada home state where three-month absence intended to be temporary vacation and did not affect six-month residency requirement and parent continued to live in Nevada when action commenced); In re S.M., 938 S.W.2d 910, 918 (Mo.Ct.App.1997) (three months spent in Kansas temporary absence because stay intended to be temporary, children received public assistance from state of Missouri as Missouri residents, and they continued to attend school in Missouri). Given these facts, we conclude the absence was not temporary and that Mexico, not California, had exclusive jurisdiction by virtue of its home state status. Accordingly, we reverse the ruling of the trial court. Attorney Fees ¶ 39 Section 25-1062 provides “[t]he court shall award the prevailing party ... necessary and reasonable expenses incurred by or on behalf of the party, including costs ... [and] attorney fees ... unless the party from whom fees or expenses are sought establishes that the award is clearly inappropriate.” Who is the prevailing party “is never certain until the appeal process is concluded.” Wenk v. Horizon Moving & Storage Co., 131 Ariz. 131, 133, 639 P.2d 321, 323 (1982). Policies that support awarding attorney fees to prevailing parties at trial must also apply to the party that ultimately prevails on appeal. See id. Therefore, because we reverse the ruling of the trial court, we also reverse the trial court’s award of costs and attorney fees to Ruiz-Bours. ¶ 40 Margain also requests we award him “all costs and attorney’s fees incurred on this appeal” pursuant to A.R.S. § 25-324 and Rules 21(a) and (c), Ariz. R. Civ. App. P. Given Margain’s contemptible failure to obey the trial court’s order that he not remove Sophia, we decline to award him any costs or attorney fees. Disposition ¶ 41 For the foregoing reasons, we reverse the ruling of the trial court and remand for proceedings consistent with this opinion. . On the day before oral argument in this court, Ruiz-Bours filed a motion to supplement the record, attaching “a Mexican amparo order and translation.” She asserts the amparo amounts to a "finding that the trial judge in Tijuana had not complied with proper procedures regarding granting [Margain] custody” and that "the validity and finality of the Mexican custody order is at issue.” We have considered the amparo, and do not find its effect to be as evident as Ruiz-Bours asserts. Moreover, any determination of its impact is best left to the courts of Mexico. . We decline to decide what amount of time a child would have to reside in a foreign country for that country to be the home state of the child in substantial conformity with the UCCJEA. But here, as the parties stipulated and the trial court acknowledged, Sophia had resided in Mexico for a period of time that would make Mexico the home state under the UCCJEA. . "Under the principle of 'comity,' courts of one jurisdiction will give effect to the laws and judicial decisions of another jurisdiction, not as a matter of obligation, but out of deference and mutual respect.” Leon v. Numkena, 142 Ariz. 307, 311, 689 P.2d 566, 570 (App.1984). . With the exception of child custody determinations that "violated fundamental principles of human rights.” § 25-1005(C). . This case does not require us to determine whether it may be resolved solely by applying § 25-1005(B) or whether § 25-1053(A) and § 25-1005(A) must be considered. In light of Sophia’s home state status in Mexico, each analysis leads to the same result. . Arizona has its own “Simultaneous proceedings” section to the UCCJEA located at A.R.S. § 25-1036(A). .In Ruiz-Bours's motion contesting the jurisdiction of the Second Family Court, she stated, "I stand by the jurisdiction of the Courts of the City of Hermosillo, Sonora." And, at oral argument in this court, Ruiz-Bours conceded she has never initiated any child custody proceedings in California. . Margain lived in Tijuana, Baja California, Mexico and his mother at all times held legal title to the home in Coronado, California. . California also treats foreign countries as if they are a state of the United States in applying the UCCJEA. Cal. Fam. Code § 3405(a).

VICE CHIEF JUSTICE PELANDER, opinion of the Court: ¶ 1 Mark Goudeau was convicted of nine counts of first degree murder, among other crimes. This automatic appeal follows the imposition of nine death sentences and other sentences. Ariz. R. Crim. P. 31.2(b). We have jurisdiction under article 6, section 5(3) of the Arizona Constitution and A.R.S. §§ 13-755, - 4031, and -4033(A)(1). I. FACTUAL OVERVIEW AND PROCEDURAL BACKGROUND ¶2 Based on DNA evidence, the police arrested Goudeau in September 2006 for sexual assaults committed in 2005 and 2006. Further investigation led police to suspect Goudeau’s involvement in a series of murders and other crimes against thirty-three different victims in the Phoenix area between August 2005 and June 2006. ¶ 3 The State charged Goudeau with seventy-four felonies, including nine first degree murders for which the State sought the death penalty. The trial court denied Goudeau’s pretrial motion to sever various counts for trial. The court later granted the State’s request to divide the presentation of its guilt-phase evidence into thirteen chronological “chapters” corresponding to the dates of the offenses. ¶4 The primary issue at trial was the identity of the perpetrator. The State presented evidence that DNA from two of the murder victims was found on items seized from Goudeau’s home pursuant to a search warrant; a ring belonging to another murder victim was found hidden in a shoe in Goudeau’s closet; and Goudeau’s DNA was found on one murder victim and several of the sexual assault victims. At trial, seven victims identified Goudeau as their assailant. One testified that he had seen Goudeau pointing a gun downward at a murder victim’s body. An eighth victim identified Goudeau’s voice from a voice lineup. ¶ 5 Based on toolmark analysis of bullets and shell casings, the State’s ballistics expert testified that the same .380 caliber handgun was used for all nine murders and the other charged crimes in which shell casings were found. The gun, however, was never found. ¶ 6 Evidence at trial also revealed that many of the crimes reflected a similar modus operandi, including the perpetrator telling victims that he had just committed a robbery and needed to reunite with his friend; wearing the same disguise; and wiping off evidence from sexual assault victims and areas he had touched before leaving the crime scenes. Additionally, the perpetrator forced all sexual assault victims to walk or drive to a secluded area, gave many of them directions, threatened to shoot them unless they complied with his demands, and told them not to look at him. ¶ 7 After approximately seventy days of trial that spanned seven-and-a-half-months, the jury returned guilty verdicts on sixty-seven counts, including all nine first degree murder charges. For each murder conviction, the jury found in the aggravation phase that Goudeau had been previously convicted of a life imprisonment or death-eligible offense, A.R.S. § 13-751(F)(1), of a serious offense, A.R.S. § 13-751(F)(2), and that he was on release from prison when he committed the murders, A.R.S. § 13-751(F)(7)(a). The jury further found that Goudeau committed eight of the nine murders in an especially cruel manner, A.R.S. § 13-751(F)(6), and committed four of them while committing another murder, A.R.S. § 13-751(F)(8). ¶ 8 During the testimony of his first mitigation witness in the penalty phase, Goudeau waived any further mitigation and presented no further evidence. He did, however, make an allocution statement. The jury returned death verdicts on all nine murder charges. This automatic appeal followed. II. SUMMARY OF THE THIRTEEN CHAPTERS ¶ 9 As noted above, the State divided the presentation of its guilt-phase evidence into thirteen chronological “chapters.” The facts of each chapter are briefly summarized below, with additional facts addressed where relevant to the issues raised on appeal. Chapter 1: August 6, 2005 ¶ 10 In the evening of August 6, 2005, armed with a silver handgun, Goudeau approached Jenny S., Sarah U., and Jesus F., all minors at the time, and told them he had just robbed a bank, needed directions, and was waiting for a “buddy” to give him a ride. At gunpoint, Goudeau ordered them to go to a dark, secluded area behind a church where he sexually assaulted Jenny and Sarah and then wiped them off with a towel before leaving the scene. Chapter 2: September 8, 2005 ¶ 11 On September 8, 2005, Georgia Thompson was found dead with a gunshot wound to her head in her apartment parking lot. A neighbor testified that she heard a woman scream, “leave me alone” followed by a gunshot, and another neighbor testified that he had also heard a woman scream that night. Chapter 3: September 20,2005 ¶ 12 This chapter did not directly involve the charges in this case but addressed other crimes Goudeau committed that were relevant to show his identity as the perpetrator of the crimes here. The State introduced evidence of Goudeau’s previous convictions of kidnapping, sexual assault, sexual abuse, and aggravated assault against sisters Lorena L. and Alejandra L., committed on September 20, 2005. We describe the facts underlying those convictions when addressing Goudeau’s contention that the trial court erred by admitting that other-act evidence, infra ¶¶ 96-102. Chapter 4: September 28,2005 ¶ 13 On September 28, 2005, Melissa C., Iselda H., and Martha H. were working at the take-out window of a restaurant when Goudeau pointed a gun at them and demanded money. The three women fled to an adjoining room while Goudeau reached into the window and grabbed Melissa’s purse. ¶ 14 Moments later, Goudeau approached Margie M. and her twelve-year-old daughter, Bianca M., who were sitting in a ear parked near the take-out window. Goudeau pointed a gun at Margie, got into the passenger seat behind her, ordered her and her daughter not to look at him, and demanded that Margie start driving. During the drive, Goudeau talked frequently, instructing them not to look at him and telling them that his “buddy” had left him behind. At some point during the drive, he demanded $20 from Margie and sexually assaulted Bianca. Eventually, Goudeau directed Margie to pull over behind a store where he ordered her and Bianca to get undressed. He ordered Margie outside the car where he sexually assaulted her. He then told her to drive back to an area near where he had first entered the car, and once there he demanded more money. Margie gave him her coin purse. Before leaving, Goudeau used the victims’ clothing to wipe down areas in the car he had touched. He left Melissa C.’s purse in the car. Chapter 5: November 3,2005 ¶ 15 On November 3, 2005, Goudeau entered a store where Teresa G. worked as a clerk, pointed a silver handgun at her head, and demanded money. Goudeau left the store after Teresa gave him money from the cash register. ¶ 16 Shortly thereafter, Goudeau approached Any P. in a parking lot across from the store where Teresa G. worked, pointed a silver handgun at her, and demanded that she give him a ride. Goudeau sat in the front passenger seat and ordered Any to drive up and down various streets. During the drive, Goudeau told her that he had just robbed a store and that his “buddy” had left him. He then ordered her to pull over in a quiet neighborhood where he demanded that she undress, and then he sexually assaulted her. Afterward, Goudeau ordered Any to spit on her hand and rub it on the areas of her body that he had touched. Goudeau then told her to drive back to an area near the store where he had first encountered her; he took her pui’se and cash before leaving. Chapter 6: November 7, 2005 ¶ 17 On November 7, 2005, Alfredo L. was standing in his restaurant with two employees, Marisol L. and Iris H., when Goudeau entered, brandished a silver handgun, and demanded money. Marisol and Iris fled to the back of the restaurant while Alfredo gave Goudeau money from the cash register. Goudeau then demanded and took a wallet from Mauricio O., a customer standing by the cash register. After Goudeau left, Alfredo went outside and saw Goudeau enter an adjacent restaurant. ¶ 18 At the second restaurant, Goudeau pointed a silver gun at Maria L. and Jesus L., who were working the cash register, and demanded money. Jesus complied. After leaving the second restaurant, Goudeau approached Cheryl M., her mother, and her two young children, who were just getting out of a nearby cai\ Goudeau pointed his handgun at Cheryl and her mother and attempted to grab the mother’s purse. After Cheryl told him they did not have any money, Goudeau fired a round in the air and ran off without the purse. As he did so, Mauricio O. and Pedro M., customers from the first restaurant, chased Goudeau but stopped when he shot at them. Chapter 7: December 12, 2005 ¶ 19 On December 12, 2005, Peter O. was preparing to leave work when he heard “a couple of bangs” coming from an alley behind his building. When he stepped into the alley, he saw Goudeau holding a silver gun pointed at a body on the ground. Goudeau then pointed the gun at Peter, who heard a click. Peter rushed back into the building and locked the door. The body was later identified as that of Tina Washington, who had been fatally shot in the head. Jewelry that Washington had been wearing earlier was absent from the scene. Chapter 8: February 20,2006 ¶ 20 On February 20, 2006, Romelia Vargas and Mirna Roman were found dead, side-by-side on the floor of Vargas’s food truck, each with a gunshot wound to the head. Police did not find Vargas’s purse or driver’s license at the scene. Chapter 9: March 14, 2006 ¶ 21 On March 14, 2006, Chao Chou and Liliana Sanchez left work together in Chou’s car. Sanchez’s body was later found in the front passenger seat, partially unclothed, with a fatal gunshot wound to her head. Chou’s body was found in an alley a few blocks away, also with a gunshot wound to his head. Ballistics evidence indicated that both victims had been shot inside the ear, with the shooter seated in the rear passenger seat. Chou’s car keys were missing and neither victim had any cash in their wallets. Chapter 10: March 29, 2006 ¶ 22 On March 29, 2006, a business owner arriving at work noticed a parallel track of drag marks and several blood spots running from a parking lot at the front of his shop to storage sheds in the back. Police took samples of the blood but did not locate a body. Five days later, overwhelmed by a stench emanating from the storage shed area, the business owner moved some debris and uncovered what appeared to be human body parts. Police moved additional debris and discovered Kristin Gibbons’s mostly nude and severely decomposed body with a gunshot wound to her head. She had bruising and scratches to her arms and legs, and her purse and cellphone were missing. Chapter 11: April 10,2006 ¶23 On April 10, 2006, Sophia Nunez’s eight-year-old son came home from school and found his mother lying submerged in a bathtub, which was overflowing with water and her blood. Nunez had been shot in the face at close range while in the bathtub. Her shirt had been pulled up and her bra was undone. Chapter 12: May 1, 2006 ¶24 On May 1, 2006, Goudeau pressed a silver handgun against Adrienne M.’s head as she sat in her car and ordered her to open the front passenger door. After entering the car, Goudeau said he had just robbed a store and needed to meet his friend, and repeatedly told Adrienne where to drive and not to look at him. Goudeau eventually ordered her to pull over in a secluded neighborhood and get undressed. Goudeau then ordered her to perform oral sex on him. When she refused, he raised his gun to her head and threatened to shoot her. She replied, “Go ahead.” Adrienne heard the gun click, grabbed her car keys, and fled from the car. Chapter 13: June 29, 2006 ¶ 25 On June 29, 2006, Carmen Miranda was at a carwash speaking with her boyfriend on her cellphone when he overheard a male’s voice demand that Miranda give him something. Surveillance video from the car-wash showed her vacuuming her ear seats when Goudeau approached, pushed her into the rear seat, and then drove away in her car. Miranda’s ear was found in a secluded parking lot two hours later. Miranda was lying dead in the back seat with a gunshot wound to her face. Her pants had been unzipped and pulled down. III. ISSUES RAISED ON APPEAL A. Denial of Motion to Suppress Evidence ¶ 26 Goudeau contends that the trial court erroneously denied his motion to suppress evidence seized during a search of his home, arguing that no probable cause supported the search warrant. We review a trial court’s ruling on a motion to suppress for abuse of discretion, State v. Butler, 232 Ariz. 84, 87 ¶ 8, 302 P.3d 609, 612 (2013), but review de novo its determination as to the existence of probable cause, State v. Buccini, 167 Ariz. 550, 556, 810 P.2d 178, 184 (1991). We consider only the evidence presented at the suppression hearing and view the facts in the light most favorable to sustaining the court's ruling. State v. Manuel, 229 Ariz. 1, 4 ¶ 11, 270 P.3d 828, 831 (2011) (citation omitted). ¶27 Following Goudeau’s arrest on September 6, 2006, police sought and obtained three separate search warrants for his home. The first was issued on the day of Goudeau’s arrest and authorized police to seize, among other items, “any and all shoes to include but not limited to black shoes, white tennis shoes.” The supporting affidavit recounted facts related to the sexual assaults described in Chapters 1, 3-5, and 12, including victims’ descriptions of the perpetrator’s shoes, and explained that, based on DNA evidence, police suspected Goudeau of committing all those offenses. ¶ 28 The second search warrant was issued on September 15, 2006, and pertained only to computers and related electronic equipment in Goudeau’s home not covered by the first warrant. The second warrant was based on Goudeau’s suspected involvement in sexual assaults. ¶ 29 A few weeks later, police completed forensic analysis of blood discovered on a pair of tennis shoes and a ski mask seized from Goudeau’s home during the September 6 search. The blood on the tennis shoes matched blood from murder victim Chao Chou (Chapter 9), and the blood on the ski mask matched blood from murder victim Kristin Gibbons (Chapter 10). In addition, ballistics testing revealed that the same gun had been used in the shootings described in Chapters 2, 6-11, and 13, including the murder of Tina Washington. ¶ 30 Police obtained a third search warrant on October 6, 2006. In addition to describing the test results, the supporting affidavit noted that Washington’s ten-carat yellow gold ring with her personal inscription was missing. The third search warrant authorized police to seize from Goudeau’s home “any and all clothing and shoes/footwear belonging to Mark Goudeau” and a “ten carat yellow gold ring” with Washington’s personalized engraving. Police found Washington’s ring in a small bag tucked inside a shoe. ¶ 31 Goudeau moved to suppress the shoe and the ring. In denying that motion, the trial court reasoned that the affidavit supporting the third warrant neither focused on sexual assaults nor merely repeated the first affidavit, but rather included information that led police to suspect Goudeau had committed several murders. ¶32 The Fourth Amendment to the United States Constitution guarantees the right of all persons to be free from unreasonable searches and seizures and requires all warrants to be based on probable cause. “An officer has probable cause to conduct a search if a reasonably prudent person, based upon the facts known by the officer, would be justified in concluding that the items sought are connected with criminal activity and that they would be found at the place to be searched.” State v. Carter, 145 Ariz. 101, 110, 700 P.2d 488, 497 (1985). ¶ 33 Goudeau contends that police lacked probable cause to search his home a third time because the affidavit supporting the October 6 search warrant “failed to add anything specific regarding the Washington murder, her jewelry[,] or anything else that was not in the first two search warrant affidavits,” and contained “no facts linking [Washington’s murder] to [Goudeau] or contraband to his home.” But contrary to Goudeau’s contentions, the third affidavit supported a reasonable inference that Washington’s ring would be found in Goudeau’s home. The affidavit included new information that Chou’s and Gibbons’s blood was discovered on items seized during the first search; that the same .380 caliber handgun had been used to kill Washington, Chou, and Gibbons; and that Washington’s ring was missing. Even if ballistics evidence linking the separate murders was available before the first search, the evidence linking some of the murders to Goudeau—namely, the blood on the shoes and ski mask—was not available until after the first search. Goudeau’s assertion that no gun was ever linked to him is incorrect; the blood found on the shoes and ski mask matched two murder victims who were killed by the same gun as seven other victims, including Washington. ¶ 34 The new information presented in the third affidavit gave rise to a fair probability that Washington’s ring would be found in Goudeau’s home along with shoes related to her murder and other murders described in the affidavit. See Buccini, 167 Ariz. at 556, 810 P.2d at 184 (“[P]robable cause exists if ‘given all the circumstances set forth in the affidavit ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ ”) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). That police had previously searched Goudeau’s home for shoes related to his suspected commission of sexual assaults did not diminish probable cause to subsequently search his home for Washington’s jewelry or other evidence relating to her murder. Cf. State v. Prasertphong, 206 Ariz. 70, 80 ¶ 29, 75 P.3d 675, 685 (2003) (holding probable cause supported second search of same vehicle when new information revealed specific location of weapon not found during first search), rev’d on other grounds, 541 U.S. 1039, 124 S.Ct. 2165, 158 L.Ed.2d 727 (2004). The trial court did not abuse its discretion by denying Goudeau’s motion to suppress. B. Consumptive DNA Testing ¶ 35 Goudeau argues that the trial court unconstitutionally denied him the opportunity to observe or participate in the State’s DNA testing procedures that consumed certain DNA samples. We review constitutional issues de novo, State v. Nordstrom (Nordstrom III), 230 Ariz. 110, 117 ¶ 27, 280 P.3d 1244, 1251 (2012), including evidentiary rulings that implicate the Confrontation Clause, State v. Ellison, 213 Ariz. 116, 129 ¶ 42, 140 P.3d 899, 912 (2006). But because Goudeau did not challenge the pre-indictment consumption on constitutional grounds, we review those claims for fundamental error. See State v. Rutledge, 205 Ariz. 7, 12-13 ¶¶ 28-30, 66 P.3d 50, 55-56 (2003); see also State v. Henderson, 210 Ariz. 561, 567 ¶ 19, 115 P.3d 601, 607 (2005). ¶ 36 A fundamental error goes to the foundation of the case and takes from the defendant a right essential to his defense, such that the defendant could not possibly have received a fair tidal. Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d at 607. The defendant bears the burden of persuasion in fundamental error review. Id. “To prevail under this standard of review, a defendant must establish both that fundamental error exists and that the error ... caused him prejudice.” Id. at ¶ 20. ¶ 37 Between September 2005 and September 2006, the Phoenix Police Department (“PPD”) Crime Lab performed Short Tandem Repeat (“STR”) DNA testing on biological samples obtained from some victims as well as items the perpetrator was believed to have touched. Goudeau’s DNA was not found. ¶38 In August 2006, PPD detectives requested the Department of Public Safety (“DPS”) Crime Lab to perform Y-STR testing on remaining possible DNA samples and permitted DPS analysts to consume the samples as needed. DPS analysts consumed the swabs and discovered Goudeau’s full Y-STR profile on swabs taken from Alejandra L. (Chapter 3), and a mixture containing his STR profile on swabs also taken from her. ¶ 39 Based on these results, police arrested Goudeau on September 6, 2006, and, as noted above, executed a search warrant on his house. Further testing by DPS revealed Goudeau’s Y-STR profile on swabs taken from Sarah U., Jenny S., Any P., and Sophia Nunez, as well as Goudeau’s partial STR profile on swabs taken from Nunez. Most of those swabs were consumed in the testing process. ¶ 40 As noted above, PPD Crime Lab analysts also tested items seized from Goudeau’s home during the September 6 search and discovered Chao Chou’s STR profile on a pair of tennis shoes and Kristin Gibbons’s STR profile on a ski mask. The cuttings and swabs from the ski mask and shoes were not consumed. ¶ 41 After Goudeau was indicted, the State filed a motion seeking court approval to consume additional items of evidence consisting of bodily fluids collected from items of clothing connected to Goudeau or a victim. Goudeau objected on due process grounds and alternatively requested to observe or participate in the testing. The trial court granted the State’s motion, overruled Goudeau’s objection, and denied his request. The State later moved twice more to consume other items, and the court granted both motions over Goudeau’s objections. ¶ 42 In total, the State requested consumptive DNA testing for twenty-nine items after Goudeau was indicted. The State tested additional portions of the shoes and ski mask seized from Goudeau’s home and found Chou’s and Gibbons’s DNA on four items. On samples obtained from the victims, Goudeau’s DNA was found on one swab from Sarah U. and one swab from Jenny S. All the tested items were consumed, but the State retained the DNA extracts for future testing. 1. Due Process ¶ 43 “The Due Process Clause of the Fourteenth Amendment requires that ‘criminal defendants be afforded a meaningful opportunity to present a complete defense.’ ” State v. Lehr (Lehr III), 227 Ariz. 140, 150 ¶ 39, 254 P.3d 379, 389 (2011) (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984)). To safeguard this right, the Supreme Court “has developed what might loosely be called the area of constitutionally guaranteed access to evidence.” Trombetta, 467 U.S. at 485, 104 S.Ct. 2528 (internal quotation marks and citation omitted). ¶ 44 A defendant is denied due process when the state “destroys evidence that ‘both possessed] an exculpatory value that was apparent before the evidence was destroyed, and [was] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.’ ” Lehr III, 227 Ariz. at 150 ¶ 40, 254 P.3d at 389 (quoting Trombetta, 467 U.S. at 488-89, 104 S.Ct. 2528). “When evidence is merely potentially exculpatory, however, the ‘failure to preserve potentially useful evidence does not constitute a denial of due process of law1 unless the defendant ‘can show bad faith on the part of the police.’ ” Id. at 150 ¶ 41, 254 P.3d at 389 (quoting Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988)). ¶ 45 Because no evidence showed that the consumed items were potentially exculpatory, the question is whether the State acted in bad faith. See id. at 150 ¶ 42, 254 P.3d at 389. With respect to the pre-indictment consumption, Goudeau argues that because the State knew he was in jail charged with the offenses against Lorena L. and Alejandra L. and was represented by appointed counsel, due process required the State to notify him of the pending consumption. We rejected a similar argument in Lehr III, in which the defendant argued that the State acted in bad faith by authorizing consumptive testing without first contacting the defendant or his counsel. Id. ¶ 46 Here, as in Lehr III, the State retained the DNA extract for independent testing. The State’s analysts also documented their procedures, and this documentation was available to the defense. Goudeau has not established fundamental error with respect to the pre-indictment consumption. ¶ 47 Regarding the post-indictment consumptive testing, Goudeau timely objected to the State’s procedures and suggested various alternatives, including observing or videotaping the extraction process. Although Lehr III did not consider this precise issue (the defendant there did not object before testing and did not suggest alternatives), absent bad faith, consumptive testing does not violate due process principles. See id. Here, there is no evidence of bad faith as the State sought and obtained prior court approval for all post-indictment consumption. ¶ 48 Goudeau nevertheless argues that the trial court abused its discretion and violated his due process rights by admitting into evidence the results of the State’s consumptive testing. In support, Goudeau cites the American Bar Association (“ABA”) Standards for Criminal Justice, DNA Evidence § 16-3.4(e) (3d ed. 2007), which provides as follows: If a motion objecting to consumptive testing is filed, the court should consider ordering procedures that would permit an independent evaluation of the analysis, including but not limited to the presence of an expert representing the moving party during evidence preparation and testing, and videotaping or photographing the preparation and testing. The trial court complied with § 16-3.4(e) when it considered and ultimately denied Goudeau’s suggested procedures, finding them unnecessary and unfeasible. Section 16-3.4(e), even were we to adopt and apply it in Arizona, requires nothing more. ¶ 49 Moreover, Goudeau has not identified any information he could not have obtained by reviewing the forensic analysts’ notes. We agree with other courts’ views that, absent bad faith, due process does not mandate observation of DNA testing or independent testing. See Kansas v. Nguyen, 251 Kan. 69, 833 P.2d 937, 946-47 (1992) (“In the absence of fraud or bad faith on the part of the State and its investigative agents, due process does not require the State to invite the accused to participate in or to supervise testing procedures performed in the investigation of a crime, even where the amount of evidence to be tested is so small sufficient material will not remain to allow the defendant to conduct an independent analysis of the evidence.”) (internal quotation marks and citation omitted); California v. Griffin, 46 Cal.3d 1011, 251 Cal.Rptr. 643, 761 P.2d 103, 107 (1988) (“When a piece of evidence in the possession of the prosecution is destroyed because the prosecution finds it necessary to consume the evidence in order to test it, there is no due process violation. The prosecution must be allowed to investigate and prosecute crime, and due process does not require that it forego investigation in order to avoid destroying potentially exculpatory evidence.”). ¶ 50 Generally, a defendant’s due process rights are sufficiently protected by the opportunity to cross-examine the state’s expert regarding the validity of the testing procedures. See Nguyen, 833 P.2d at 947. This is especially so when, as here, the defendant fails to show that the opportunity to observe the extraction process would have revealed or produced exculpatory evidence. Cf. Massachusetts v. Williams, 455 Mass. 706, 919 N.E.2d 685, 695-96 (2010) (holding that defendant was not entitled to suppression of results of DNA testing because defendant failed to make threshold showing that the inability to observe the DNA testing deprived him of exculpatory evidence). ¶ 51 In any event, the post-indictment testing did not identify Goudeau’s DNA on any additional items recovered from his home or on the victims. Rather, the testing only confirmed what the pre-indictment testing showed: Goudeau’s DNA was on Sarah U. and Jenny S., and Chou’s and Gibbons’s DNA were found on items seized from Goudeau’s home. Accordingly, because the jurors would have still received essentially the same DNA evidence even if the trial court had precluded the results of the post-indictment testing, any error was harmless beyond a reasonable doubt. 2. Sixth Amendment ¶ 52 The Sixth Amendment guarantees criminal defendants the right to confront and cross-examine adverse witnesses. See State v. Riggs, 189 Ariz. 327, 331, 942 P.2d 1159, 1163 (1997). In this context, the test to determine whether a Sixth Amendment violation has occurred is whether the defendant has been prevented from presenting “information [that] bears either on the issues in the case or on the credibility of the witness.” Id. at 331, 942 P.2d at 1163 (internal quotation marks and citation omitted). ¶ 53 Goudeau argues for the first time that the trial court’s “rigid ruling prohibiting any observation of the state’s extraction process ... precluded [him] from conducting a meaningful cross examination and presenting a complete defense” in violation of the Sixth Amendment. But Goudeau’s counsel cross-examined the State’s forensic experts at length on their consumption processes and the details of their analysis, and he had access to all their case files. Goudeau also hired DNA experts whom he could have called as witnesses during trial. In sum, Goudeau was not prevented from cross-examining witnesses or presenting a complete defense. The trial court did not commit fundamental error. C. Denial of Motion to Sever ¶ 54 Goudeau contends that the trial court erred by denying his motion to sever and by permitting joinder of all the counts in the indictment. Because Goudeau failed to renew the motion at or before the close of evidence, we review the severance issue for fundamental error only. See State v. Laird, 186 Ariz. 203, 206, 920 P.2d 769, 772 (1996); Ariz. R. Crim. P. 13.4(c). ¶ 55 Before trial, Goudeau moved to sever the seventy-four offenses charged in the indictment, seeking separate trials for either the thirteen different incidents or, alternatively, for the capital and noncapital charges. The trial court denied the motion, finding that “the evidence proffered for ‘other acts’ is for the purpose of proving identity, plan, preparation, and opportunity to commit each of the charged offenses,” and that “the similarities and overlapping connections that the State has proffered ... make it more likely than not that defendant committed the charged offenses.” The court further found that the other-act evidence “ha[s] a probative value that is not substantially outweighed by danger of unfair prejudice and not cumulative.” ¶ 56 The trial court also found that “[t]he commission of sexual assaults including oral and vaginal sex against strangers provides a reasonable basis to infer that defendant has a character trait giving rise to an aberrant sexual propensity to commit the crimes charged,” and that “the evidentiary value of proof of the ‘other acts’ is not substantially outweighed by dangers of Rule 403.” ¶ 57 Two or more offenses may be joined in an indictment if they “[a]re of the same or similar character,” “[a]re based on the same conduct or are otherwise connected together in their commission,” or “[a]re alleged to have been a part of a common scheme or plan.” Ariz. R. Crim. P. 13.3(a)(1)—(3). On a party’s motion, the court must sever joined offenses if “necessary to promote a fair determination of the guilt or innocence of any defendant of any offense.” Ariz. R. Crim. P. 13.4(a). A defendant is also entitled to severance if, as here, the offenses are joined only because they are of the same or similar character, “unless evidence of the other offense[s] ... would be admissible under applicable rules of evidence if the offenses were tried separately.” Ariz. R. Crim. P. 13.4(b); see also State v. Aguilar, 209 Ariz. 40, 51 ¶ 38, 97 P.3d 865, 876 (2004) (“A denial of a motion to sever under Rule 13.4(b) is reversible error only if the evidence of other crimes would not have been admitted at trial for an evidentiary purpose anyway.” (internal quotation marks and citation omitted)). ¶ 58 Arizona Rule of Evidence 404(b) generally precludes the admission of “evidence of other crimes, wrongs, or acts ... to prove the character of a person in order to show action in conformity therewith.” But other-act evidence may be admitted for other purposes, such as proving the identity of the perpetrator of the charged offense, Arizona Rule of Evidence 404(b), provided that “the evidence is relevant and the potential for prejudice does not substantially outweigh its probative value,” State v. (Pete J.) VanWinkle, 230 Ariz. 387, 393 ¶ 21, 285 P.3d 308, 314 (2012) (citing Ariz. R. Evid. 403). “The identity exception to [Rule] 404(b) applies if identity is in issue, and if the behavior of the accused both on the occasion charged and on some other occasion is sufficiently distinctive, then proof that the accused was involved on the other occasion tends to prove his involvement in the crime charged.” State v. Stuard, 176 Ariz. 589, 597, 863 P.2d 881, 889 (1993) (internal quotation marks and citations omitted). “[T]he pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.” Id. (internal quotation marks and citation omitted); see also State v. Roscoe (Roscoe II), 184 Ariz. 484, 491 n. 2, 910 P.2d 635, 642 n. 2 (1996) (“Identity and modus operandi are obviously closely related, if not identical, since an unrelated act with a significantly similar modus operandi may identify the defendant as the person who committed the crime charged.”). “While identity in every particular is not required, there must be similarities between the offenses in those important aspects when normally there could be expected to be found differences.” State v. Roscoe (Roscoe I), 145 Ariz. 212, 216, 700 P.2d 1312, 1317 (1984) (internal quotation marks and citation omitted). ¶ 59 In addition to Rule 404(b), in criminal trials for sexual offenses, Rule 404(e) allows the admission of other-act evidence “if relevant to show that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the offense charged.” Ariz. R. Evid. 404(c). Before admitting evidence under Rule 404(c), the trial court must make specific findings with respect to three aspects of the proffered evidence. Aguilar, 209 Ariz. at 49 ¶ 30, 97 P.3d at 874. First, the court must find by clear and convincing evidence that the defendant committed the other act. Id. Second, it “must find that the commission of the other act provides a reasonable basis to infer that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the charged sexual offense.” Id. Third, it “must find that the evidentiary value of proof of the other act is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or other factors mentioned in Rule 403.” Id. In making the final determination, the court must consider the factors listed in Rule 404(c)(l)(C)(i)-(viii). Id. ¶ 60 Here, in reviewing the trial court’s finding that the other-act evidence would have been cross-admissible under Rules 404(b) or (e) in a trial on any chapter had they been severed, we consider only the evi dence before the court when it ruled on the motion to sever. See State v. (Melinda) Van Winkle, 186 Ariz. 336, 339, 922 P.2d 301, 304 (1996) (“In considering whether the trial court erred in denying a motion to sever, we are mindful that the trial court exercises considerable discretion in determining whether, in light of the evidence then before the court, the defendant has made the requisite showing of prejudice.” (emphasis added)). Goudeau overlooks this important limitation, instead citing only evidence admitted after the court had denied his motion. Indeed, the parties agreed that the trial court would rule on Goudeau’s pretrial motion to sever based on the pleadings, and the court’s ruling repeatedly notes, “[f]or purposes of this motion only, defendant has not objected to the State’s proffer.” Based on the State’s proffer (the only evidence available at the time of the court’s ruling), we find no fundamental error in the court’s denial of the motion to sever. ¶ 61 Identity was the only disputed issue in this ease, and the State could properly introduce other-act evidence to prove that Goudeau committed the crimes. The similarity of attributes and actions of the perpetrator in the different chapters tended to show that the offenses were also of the same or similar character for purposes of joinder under Rule 13.3(a)(1); and the State proffered many similarities among the chapters supporting the trial court’s finding that Goudeau was more likely than not the perpetrator. ¶ 62 First, the State proffered evidence that the same gun was involved in Chapters 2, 6, 7, 8, 9, 10, 11, and 13, although the gun itself was never found. Cf. New Jersey v. Sterling, 215 N.J. 65, 71 A.3d 786, 802 (2013) (permitting other-crimes evidence “on the issue of identity when a particular weapon ... used in one crime connects a defendant to another offense”). The State further proffered that several victims described that gun as silver- or chrome-colored. ¶ 63 Second, DNA evidence linking Goudeau to murder victims Chao Chou (Chapter 9) and Kristin Gibbons (Chapter 10) was discovered in Goudeau’s home, Goudeau’s DNA was found on murder victim Sophia Nunez’s body (Chapter 11), and DNA evidence implicating Goudeau was found on sexual assault victims Jenny S. (Chapter 1), Sarah U. (Chapter 1), and Any P. (Chapter 5). Cf. United States v. Wright, 215 F.3d 1020, 1028 (9th Cir. 2000) (“DNA evidence alone overwhelmingly establishes that [the defendant] was one of the individuals [who committed the crime].”). Police also found murder victim Tina Washington’s missing jewelry in Goudeau’s home (Chapter 7). ¶ 64 Third, Goudeau’s modus operandi was similar in several ways across the various crimes, including telling victims that he had just committed a robbery and needed to reunite with his “buddy”; wearing the same disguise for the crimes described in Chapters 4, 5, and 6; and wiping off victims and areas he had touched before leaving the crime scene. Additionally, Goudeau made all the surviving sexual assault victims walk or drive to a secluded area, gave many of them directions, threatened to shoot them unless they complied with his demands, and told them not to look at him. Cf. Missouri v. McKinney, 314 S.W.3d 339, 341 (Mo. 2010) (discussing that offenses might be connected for joinder purposes by similarities in the manner in which they were committed). ¶ 65 The State’s proffered other-act evidence from the individual chapters supported the trial court’s finding that such evidence would have been cross-admissible under Rule 404(b) on the issue of identity in the other chapters had they been severed for trial. See State v. Fierro, 107 Ariz. 479, 482-83, 489 P.2d 713, 716-17 (1971) (holding other-act evidence of wearing similar disguise and using similar modus operandi admissible and sufficient to prove identity). All chapters bore a sufficient evidentiary connection to one another to implicate Goudeau as the perpetrator, whether through use of the same gun, DNA evidence, or similar modus operandi, even though in some chapters the ultimate crimes were different. See Stuard, 176 Ariz. at 597-99, 863 P.2d at 889-91. Viewed together, the other-act evidence from each chapter was admissible to prove identity for all offenses. ¶ 66 Contrary to Goudeau’s argument, the trial court considered the factual differences among the crimes, including that the victims’ descriptions of the perpetrator varied and that his modus operandi was not identical. But in light of the significant similarities proffered by the State, the court did not err in implicitly finding that the charged crimes were of the “same or similar character” and thus properly joined. Ariz. R. Crim. P. 13.3(a)(1). And because identity was the only disputed issue at tidal, the court did not err by finding the other-act evidence relevant. Nor has Goudeau established that the trial court abused its discretion in finding the probative value of that evidence is not substantially outweighed by the potential for unfair prejudice. In sum, based on the evidence before the trial court when it denied Goudeau’s pretrial motion to sever, the court did not fundamentally err. ¶ 67 Finally, Goudeau’s argument also fails because he cannot establish prejudice. “When a defendant challenges a denial of severance on appeal, he ‘must demonstrate compelling prejudice against which the trial court was unable to protect.’ ” State v. Murray, 184 Ariz. 9, 25, 906 P.2d 542, 558 (1995) (quoting State v. (Robert C.) Cruz, 137 Ariz. 541, 544, 672 P.2d 470, 473 (1983)); see also Henderson, 210 Ariz. at 567 ¶¶ 19-20, 115 P.3d at 607 (defendant must establish prejudice to prevail on fundamental error review). Goudeau “cannot show such prejudice because the trial court instructed the jurors to consider each charged offense separately and advised them that the State had to prove each beyond a reasonable doubt.” State v. Hausner, 230 Ariz. 60, 75 ¶ 48, 280 P.3d 604, 619 (2012). We presume jurors follow the court’s instructions. State v. (Gilbert) Martinez, 230 Ariz. 208, 216 ¶ 40, 282 P.3d 409, 417 (2012). The record in this case bears out that presumption as the jury acquitted Goudeau of four of the charges and hung on the charge of sexual assault committed against murder victim Sophia Nunez (Chapter 11). On this record, we reject Goudeau’s contentions that joining the offenses for trial constituted fundamental error or otherwise violated his rights under the Eighth or Fourteenth Amendments. D. Right to Counsel ¶ 68 Goudeau contends that he was constructively denied his right to counsel because the trial court failed to sufficiently address an irreconcilable conflict and the lack of communication between him and his attorneys. We review a trial court’s denial of a request for new counsel for abuse of discretion. State v. Hernandez, 232 Ariz. 313, 318 ¶ 11, 305 P.3d 378, 383 (2013). A trial court abuses its discretion by summarily denying a motion for change of counsel without inquiring into the “specific factual allegations that raised a colorable claim that [the defendant] had an irreconcilable conflict with his appointed counsel.” State v. Torres, 208 Ariz. 340, 343 ¶ 9, 93 P.3d 1056, 1059 (2004). ¶ 69 Four times during the trial court proceedings, Goudeau requested an ex parte hearing to discuss the alleged lack of communication with counsel and their allegedly inadequate investigation. The first hearing, held on July 21, 2009, was attended by Goudeau and his two attorneys, Randall Craig and Rodrick Carter. During the hearing, Goudeau complained that his counsel failed to obtain cellphone tower records, allowed the State to consume DNA swabs, and had given him only half of the police reports. Goudeau indicated that he liked both attorneys, but he worried they were ignoring his investigation requests and would not be ready for trial. ¶ 70 In response, the trial court explained that the cellphone company had destroyed the records and that defense counsel had objected to DNA consumption. The court further explained that defense attorneys frequently withhold their clients’ files because of concerns that other inmates might obtain them and become state witnesses. The court also addressed the communication issue. ¶ 71 Despite his complaints, Goudeau stated that he thought he and counsel could “work it out,” and only requested that the court “ask them to step it up a little bit.” Based on Goudeau’s presentation, the court concluded that he could “continue to communicate” with counsel and ordered counsel to take note of Goudeau’s concerns. ¶ 72 On April 6, 2010, Goudeau, his attorneys, and his investigator, Art Hanratty, attended a second ex parte hearing. Goudeau again voiced frustration at his attorneys’ purported lack of communication and investigation. When directly asked if he wanted the court to do anything, however, Goudeau responded by stating: “I want to keep my counsel, but I want them to fight.” After hearing Goudeau’s concerns, the trial court concluded that Goudeau wanted to continue with current counsel. ¶ 73 Six months later, on October 14, 2010, a third ex parte hearing was held after Goudeau filed a motion to determine counsel. This time, Goudeau was more adamant that there were “serious issues” between him and his attorneys. He complained that there was still no communication, no disclosure, and no investigation of his alibi witnesses and defenses. He stated that he had “absolutely no faith” in his attorneys, the animosity and tension between them made it “impossible to communicate,” he did not believe reconciliation was possible, and he was “actually asking for new counsel.” Goudeau then discussed a number of items he wanted defense counsel to complete. ¶ 74 The trial court questioned the defense team members about their ability to effectively represent Goudeau and, “recognizing the very specific concerns Mr. Goudeau has expressed,” whether they could continue to communicate with him. Both defense attorneys, as well as the mitigation specialist, Steve Johnson (also a lawyer), assured the court that they could and would effectively represent Goudeau but expressed concerns about being ready for the January 2011 scheduled trial. Craig, Johnson, and Hanratty also stated that they could continue to communicate with Goudeau. Ultimately, Goudeau relented, telling the court he did not want to start over, and he was willing to work with counsel if they agreed to provide him with everything he requested. ¶ 75 Following Goudeau’s response, the trial court denied the motion to determine counsel, finding that Goudeau’s complaints did not give rise to a Sixth Amendment violation. The trial date, however, was continued for several months, allowing more time for the defense to prepare and work with Goudeau. ¶ 76 The trial began on April 19, 2011. On May 18, toward the end of jury selection, the court held its final ex parte hearing on counsel-related issues. Again, Goudeau raised concerns about his attorneys, mainly focusing on a purported lack of preparation. Goudeau nonetheless stated that he believed that his attorneys were “good trial attorneys,” and that he was not asking the court to displace them. Addressing Goudeau’s concerns, the trial court explained the role of counsel in criminal proceedings, discussed various motions and trial procedures, and noted that Goudeau and counsel seemed to be communicating well throughout the jury selection process. Goudeau again affirmed that he would continue to work with his attorneys and did not expressly complain further about his counsel during the trial’s long guilt phase. ¶ 77 The federal and Arizona Constitutions guarantee criminal defendants the right to representation by counsel. U.S. Const, amend. VI; Ariz. Const, art. 2, § 24; see A.R.S. § 13-114(2). Although this right includes the right to competent counsel, State v. LaGrand, 152 Ariz. 483, 486, 733 P.2d 1066, 1069 (1987), a defendant is not entitled to “counsel of choice, or to a meaningful relationship with his or her attorney,” Torres, 208 Ariz. at 342 ¶ 6, 93 P.3d at 1058 (internal quotation marks and citation omitted). ¶ 78 Nonetheless, “when there is a complete breakdown in communication or an irreconcilable conflict between a defendant and his appointed counsel, that defendant’s Sixth Amendment right to counsel has been violated.” Id. An erroneous denial of a request to change counsel deprives a defendant of his Sixth Amendment right to counsel and requires automatic reversal. State v. Moody (Moody I), 192 Ariz. 505, 509 ¶ 23, 968 P.2d 578, 582 (1998). ¶ 79 To preserve a defendant’s right to counsel, trial courts are required to inquire on the record about the basis of a defendant’s request for new counsel “[w]hen a defendant raises a seemingly substantial complaint about counsel.” Torres, 208 Ariz. at 343 ¶ 7, 93 P.3d at 1059 (alteration in original) (quoting Smith v. Lockhart, 923 F.2d 1314, 1320 (8th Cir. 1991)). The nature and scope of the inquiry required depends on the nature of the defendant’s request. Id. at ¶ 8. Although “generalized complaints about differences in strategy may not require a formal hearing or an evidentiary proceeding,” id. if a defendant sets forth “sufficiently specific, factually based allegations in support of his request for new counsel,” the court “must conduct a hearing into his complaint,” id. (quoting United States v. Lott, 310 F.3d 1231, 1249 (10th Cir. 2002)). “Likewise, if the defendant makes specific allegations when requesting new counsel, the trial court should elicit specific on-the-record responses to the allegations from defense counsel.” Hernandez, 232 Ariz. at 320 ¶ 31, 305 P.3d at 385. ¶ 80 If the trial court probes a defendant’s request for substitute counsel, the defendant bears the burden of demonstrating either a “total breakdown in communication” or an “irreconcilable conflict with his attorney.” Torres, 208 Ariz. at 343 ¶ 8, 93 P.3d at 1059. “To satisfy this burden, the defendant must present evidence of a ‘severe and pervasive conflict with his attorney or evidence that he had such minimal contact with the attorney that meaningful communication was not possible.’ ” Hernandez, 232 Ariz. at 318 ¶ 15, 305 P.3d at 383 (quoting Lott, 310 F.3d at 1249). ¶ 81 Goudeau contends that the trial court’s inquiry into his request for new counsel (a request made at only the October 2010 hearing) was “constitutionally insufficient” in light of the record in this ease. He argues that this Court should reverse, or alternatively, remand the case for a more extensive evidentiary hearing on his claims. ¶ 82 We addressed a similar argument in Hernandez, 232 Ariz. at 318 ¶ 16, 305 P.3d at 383. There, the defendant alleged that his counsel had visited him in jail only four times in over two years and had never spoken with him about his case. Id. Although we found that the defendant “raised sufficiently specific factual allegations to warrant an inquiry,” we concluded that the trial court’s inquiry was sufficient. Id. at 320 ¶ 29, 305 P.3d at 385. ¶ 83 The trial court’s inquiry in this case was likewise sufficient. As discussed above, supra ¶¶69-76, the court adequately addressed Goudeau’s complaints in each of the three pre-trial ex parte hearings. Goudeau asked for new counsel only at the third hearing in October 2010, but after further discussion with the court and his defense team, he essentially withdrew his request and agreed to continue working with his counsel. ¶ 84 Finally, because Goudeau’s complaints during the May 18, 2011 hearing were, at bottom, related to counsel’s strategic decisions, the trial court was not required to elicit on-the-record responses from defense counsel. See Torres, 208 Ariz. at 343 ¶ 8, 93 P.3d at 1059 (“[Generalized complaints about differences in strategy may not require a formal hearing or an evidentiary proceeding.”); see also State v. Cromwell, 211 Ariz. 181, 187 ¶ 30, 119 P.3d 448, 454 (2005) (“To constitute a colorable claim, a defendant’s allegations must go beyond personality conflicts or disagreements with counsel over trial strategy.”). ¶ 85 The trial court regularly observed the interaction between Goudeau and his attorneys during the nearly four years of pretrial proceedings, including hearings and multiple conferences devoted to examination of Goudeau’s relationship with his lawyers. Additionally, Goudeau and his counsel met privately several times to discuss his case. In sum, Goudeau has not established a complete breakdown in communication or irreconcilable conflict with his counsel. Contrary to Goudeau’s assertions, neither “the scope of the hearings” nor the nature or extent of the trial court’s “inquiry” were “constitutionally insufficient,” and the court did not effectively deprive Goudeau of his constitutional right to counsel. E. Multiple Opening Statements ¶ 86 Goudeau asserts that he was deprived of a fundamentally fair trial when the trial court permitted the State to make a separate opening statement for each of the thirteen chapters. We review a trial court’s decision on the mode and order of trial for abuse of discretion, see Gamboa v. Metzler, 223 Ariz. 399, 402 ¶ 13, 224 P.3d 215, 218 (App. 2010), but review de novo the interpretation of court rules, State v. Fitzgerald, 232 Ariz. 208, 210 ¶ 10, 303 P.3d 519, 521 (2013). ¶ 87 During a pretrial ease management conference, the State noted its intent to present evidence of the charged crimes in chronological order and suggested the possibility of “mini opening statements” before each segment, “as opposed to one three-hour long statement.” Goudeau objected, but the trial court observed that mini-opening statements could make the trial less complicated and the evidence more understandable for the jurors. After Goudeau objected again and the parties briefed the issue, the court granted the State’s request. ¶ 88 Before any evidence was presented, the trial court instructed the jury that statements and arguments of counsel are not evidence. The State made thirteen opening statements corresponding with the chapters. Goudeau made opening statements on some chapters, but reserved opening statements on others. Before the State’s second opening statement, the court reiterated that “each [opening] will be separate and there would be no use of one opening to use as a close for another.” At the close of evidence, the court again instructed the jury that what counsel said during opening statements and closing arguments was not evidence. 1189 Goudeau asserts that Arizona Rule of Evidence 611(a) does not authorize the trial court to allow multiple opening statements and that doing so violates due process and Arizona Rule of Criminal Procedure 19.1(a). We conclude that although Evidence Rule 611(a) does not address the issue, Criminal Procedure Rule 19.1(a) and the court’s inherent authority authorized the court to permit the procedure, which comported with due process principles. ¶ 90 Rule 611(a) provides: The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment. Ariz. R. Evid. 611(a). That rule applies to the presentation of witnesses and evidence and does not plainly authorize a court to permit sequential “mini” opening statements, as occurred here. But Rule 611(a) does not preclude this procedure. ¶ 91 Arizona Rule of Criminal Procedure 19.1(a) prescribes the order of trial proceedings “unless otherwise directed by the court,” thereby authorizing the court to vary the order. Cf. State v. Guerrero, 159 Ariz. 568, 571, 769 P.2d 1014, 1017 (1989) (observing that Rule 19.1(a) “contemplates the possibility of a different order of proceedings”). Thus, contrary to Goudeau’s argument, Rule 19.1(a) implicitly authorized the trial court to “otherwise direct” the order of proceedings by allowing sequential, mini-opening statements. ¶ 92 Additionally, “[t]rial judges have inherent power and discretion to adopt special, individualized procedures designed to promote the ends of justice in each case that comes before them.” Hedlund v. Sheldon, 173 Ariz. 143, 146, 840 P.2d 1008, 1011 (1992) (quoting State v. Lambright, 138 Ariz. 63, 78, 673 P.2d 1, 16 (1983) (Feldman, J., specially concurring)); accord Pool v. Superior Court, 139 Ariz. 98, 103-04, 677 P.2d 261, 266-67 (1984) (“The trial judge is armed with both discretionary power and rules which he may use to control proceedings.”); Fed. R. Evid. 611 advisory committee’s note to 1972 amend. (“The ultimate responsibility for the effective working of the adversary system rests with the judge.”). Given the length and complexity of this trial—which involved seventy-four sevinvolving thirty-two victims and lasted seven-and-a-half-months—the trial court did triabuse its discretion in per mitting brief opening statements before each chapter. ¶ 93 Goudeau’s due process argument is also unavailing. “A trial judge must control the courtroom to help ensure a fair trial” and “must refrain from taking any action calculated to influence the jury or likely to prejudice the defendant,” but “[wjithin reason, a judge does not display bias or cause prejudice when acting sua sponte to control the courtroom and the trial.” State v. Bible, 175 Ariz. 549, 595, 858 P.2d 1152, 1198 (1993). ¶ 94 Here, the trial court reasonably permitted the parties to make brief opening statements before each chapter to orient jurors to the pertinent facts that would be presented and to assist in their understanding of the evidence. See State v. King, 180 Ariz. 268, 278, 883 P.2d 1024, 1034 (1994) (“Opening statements are intended to inform the jury of what the party expects to prove and prepare the jury for the evidence that is to be presented.”). Goudeau had that opportunity and exercised it several times. ¶ 95 Moreover, there is no indication that the court’s ruling was either designed or likely to cause prejudice. On the contrary, the court emphasized in its ruling that it “would not allow either party to try to remind the jurors of what they think they should have heard last week. It would always be an opening statement of anticipated evidence for the next chapter.” Toward the end of the trial, the court admonished the State to “stay with one chapter at a time” in its opening statements. Finally, the court twice instructed the jury that counsels’ opening statements and arguments were not evidence, and we presume that the jurors followed those instructions. State v. Newell, 212 Ariz. 389, 403 ¶ 68, 132 P.3d 833, 847 (2006). The trial court’s order did not violate due process. F. Admission of Other-Act Evidence ¶ 96 Goudeau argues that the trial court erred in admitting other-act evidence that he kidnapped and assaulted sisters Lorena L. and Aejandra L. (Chapter 3). We review a trial court’s admission of other-act evidence for abuse of discretion. Hausner, 230 A-iz. at 78 ¶ 68, 280 P.3d at 622. “When the State seeks to admit evidence of other acts of the defendant, it must prove by clear and convincing evidence that the defendant committed the other acts; they must be offered for a proper purpose; they must be relevant; and, consistent with Rule 403, their probative value must not be substantially outweighed by the danger of unfair prejudice.” Id. at 78 ¶ 69, 280 P.3d at 622. ¶ 97 In another case, a jury found Goudeau guilty of the September 2005 kidnapping, sexual assault, sexual abuse, and aggravated assault of the two sisters. The evidence at that trial showed that Goudeau, wearing a baseball hat pulled low, tan pants, boots, and a long sleeved orange shirt, had approached the sisters on the street while armed with a silver handgun. He told the sisters he had just robbed a store, instructed them not to look at his face, and ordered them to walk behind a bush, where he sexually assaulted both. Goudeau tried to destroy trace biological evidence, but he left DNA evidence on Aejandra’s breast. The State relied on the sisters’ in-court identifications as well as DNA evidence to convict Goudeau. ¶ 98 Before trial in the instant ease, the State filed a notice of intent to introduce evidence of Goudeau’s crimes against the sisters, pursuant to Evidence Rules 404(b) and (c), to show identity and modus operandi, as well as sexual propensity to commit the chai-ged offenses. Goudeau conceded that his convictions established the prior acts and that the proffered evidence was relevant, but argued that the acts were not sufficiently similar to the crimes charged in this ease. He noted the discrepancy in victims’ descriptions of the suspect and the varying disguises worn in committing the offenses. In a detailed minute entry, the trial court granted the State’s request under both Rules 404(b) and (e), finding substantial similarities between the crimes and that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. ¶ 99 The trial court did not abuse its discretion in admitting evidence of the prior crimes against the sisters under Rule 404(b) to prove identity of the perpetrator, based on the similarities described in the court’s minute entry: the perpetrator (1) told the victims he had just committed a robbery and was waiting for a friend; (2) was armed with a silver handgun; (3) moved the victims from one point to another secluded area, where he had them disrobe; (4) wore something to make identifying him difficult; (5) told the victims not to look at his face; (6) committed a sexual act; and (7) attempted to destroy physical evidence. At trial, the State introduced much of the same evidence that was presented in the prior trial, including both sisters’ in-eourt identifications of Goudeau as their assailant, as well as the DNA evidence. ¶ 100 Focusing on certain dissimilarities among the offenses and variations in victims’ descriptions of the assailant, Goudeau asserts that many of the “similarities” identified by the trial court occur in most kidnappings and sexual assaults, and that the similarities did not exist in every charged sexual assault where the victims survived. But sufficient similarities existed to warrant admission of the evidence under Rule 404(b). Cf. State v. Valles, 162 Ariz. 1, 5, 780 P.2d 1049, 1053 (1989) (finding evidence of prior robbery admissible under Rule 404(b) when both robberies occurred around the same time and bore sufficient similarities in the way the defendant distorted his appearance, carried a gun, and demanded money from a back room safe); Fierro, 107 Ariz. at 482-83, 489 P.2d at 716-17 (evidence of subsequent rape admissible because two crimes bore sufficient similarities in the way the defendant wore a mask and gloves, carried a gun, and tied both victims up and raped them). As we stated in Bible-. Absolute identity in every detail cannot be expected. Where an overwhelming number of significant similarities exist[s], the evidence of the prior act may be admitted. The term “overwhelming” does not require a mechanical count of the similarities but, rather, a qualitative evaluation. Are the two crimes so similar, unusual, and distinctive that the trial judge could reasonably find that they bear the same signature? If so, the evidence may be admissible and any dissimilarities go to its weight. 175 Ariz. at 576, 858 P.2d at 1179 (internal quotation marks and citation omitted). ¶ 101 For the purpose of proving identity, the trial court noted several meaningful similarities between Goudeau’s crimes against the sisters and the charged incidents in this case involving a surviving victim. The court did not abuse its discretion in finding that the probative value of evidence of those prior crimes and of the DNA match was not substantially outweighed by a danger of unfair prejudice, the evidence was not cumulative, and any prejudicial effect could be ameliorated with appropriate jury instructions. Finally, the court instructed the jury on how to evaluate the other-act evidence before it was presented and again before closing arguments. ¶ 102 The trial court did not abuse its discretion in admitting the other-act evidence under Rule 404(b). In light of our conclusion, we need not address whether the other-act evidence was also admissible under Rule 404(c). G. Admission of Pretrial and In-Court Identifications ¶ 103 Goudeau argues that the trial court deprived him of due process and abused its discretion in permitting in-court identifications of him by seven victims and one in-court voice identification by another victim. We review the reliability and fairness of a challenged identification for abuse of discretion. State v. Lehr (Lehr I), 201 Ariz. 509, 520 ¶ 46, 38 P.3d 1172, 1183 (2002). We consider only the evidence presented at the suppression hearing and defer to the trial court's factual findings unless clearly erroneous, but we review de novo the “ultimate question” of the constitutionality of a pretrial identification. See State v. Garcia, 224 Ariz. 1, 7-8 ¶ 6, 226 P.3d 370, 376-77 (2010). 1. Identification Testimony at Trial a. Jenny S. (Chapter 1) ¶ 104 On August 6, 2005, the day she was assaulted, Jenny S. described her assailant as a “black male, 5'7", heavyset,” wearing a baseball hat, t-shirt, and jeans. She reported that “it was dark,” and “she never looked at his face.” In the days that followed, she twice told police that she could not identify her assailant, and in October 2005, she failed to identify anyone from a photo array that did not contain Goudeau’s photo. ¶ 105 When police arrested Goudeau on September 6, 2006, his photograph was given “wide release” by the media. Jenny admitted to seeing his photo and a composite sketch on television multiple times. On July 26, 2008, police again interviewed Jenny, who reiterated that she did not see her assailant’s full face during the assault because he was wearing a hat. Jenny stated that she recognized Goudeau from television “a little bit,” but thought she came to recognize him as her assailant when she saw him sitting in court at a preliminary hearing. She reported that Goudeau was wearing a white long sleeve button-up shirt and tie at that hearing. At one point during the interview, Detective Femenia asked Jenny what she thought when she saw Goudeau’s photo on television. Jenny replied that she was “happy [bejcause they got him,” and Detective Femenia said “Good.” ¶ 106 Before trial, Goudeau moved to preclude Jenny’s in-court identification and asked the court to make its determination “based on the pleadings and attachments only.” He conceded that the State was not responsible for the media presentation of his photo but argued that Detective Femenia bolstered Jenny’s identification at the July 26 interview. ¶ 107 The trial court denied Goudeau’s motion, agreeing with the State that no state action affected Jenny S.’s pretrial identification that would require precluding her identification testimony at trial. The court reasoned that Detective Femenia’s response was in “support of the victim’s relief rather than any affirmation of her identification,” and that the State was not responsible for the media exposure or Jenny’s attendance at the preliminary hearing. The court ruled that Goudeau could attempt to impeach her with prior statements and present the circumstances of the media exposure at trial and would be entitled to an identification jury instruction. ¶ 108 Jenny identified Goudeau as her assailant at trial. She was subsequently cross-examined on her identification, including that she could not recall the details of her description immediately after the offense, was told by her mother that the police had caught a suspect, and had seen Goudeau on television. b. The Sisters, Lorena L. and Alejandra L. (Chapter 3) ¶ 109 Before the prior trial in the sisters’ case, Goudeau moved to prohibit the State from asking either of them to identify Goudeau in court. Thereafter, a Dessureault hearing was held to determine the admissibility of their in-court identifications in that case. See State v. Dessureault, 104 Ariz. 380, 453 P.2d 951 (1969). Here, the trial court resolved the same issue based on its review of the transcripts from the prior hearing. ¶ 110 At the prior hearing, Lorena L. identified Goudeau as her assailant, noting that she recognized his complexion and “[t]he eyes.” She testified that she saw her assailant’s face a few times during the assault and described him a few days later as a muscular black male with a thin mustache, approximately six feet tall, and around thirty years old. ¶ 111 Lorena acknowledged her inability to identify anyone in three photographic lineups, one of which contained Goudeau’s photo. She further stated that she did not identify Goudeau until she saw his arrest on television and recognized his expressions and the way he walked. She testified that seeing him on television made it “easier for [her] to see him today.” She also said that Detective Vasquez told her before the hearing that police arrested Goudeau because he was linked to her case. ¶ 112 Based on her testimony, the trial court in the prior case noted three possible scenarios. Lorena identified Goudeau (1) based strictly on her memory of the assault; (2) based on her memory of the assault, but also influenced by what she saw on television; or (3) based solely on what she saw on TV. When asked which of the three scenarios most closely matched her belief, Lorena responded “[t]he first.” ¶ 113 Alejandra L. also identified Goudeau during the earlier Dessureault hearing. She testified that she was very close to her assailant for about an hour and got a good look because of the lighting. Alejandra described him as a light-skinned African-American with a medium build, approximately six feet tall, and twenty-five to thirty years old. On March 27, 2006, she selected a different individual from a photo array that included Goudeau, rating her confidence level as a seven out of ten. Although she admitted to seeing Goudeau’s composite sketch and photo on television and recognizing his face, she maintained that she identified Goudeau “[bjecause of what happened to me.” ¶ 114 By admitting the sisters’ other-act testimony over Goudeau’s objection, swpra ¶98, the trial court implicitly allowed the sisters to identify him at trial in this case, and both of them did so. They were cross-examined on details of their identifications, including their prior statements. c. Margie M. (Chapter 4) ¶ 115 On September 28, 2005, Margie M. told police that her assailant was in her car “for well over a half an hour,” and “talked continually.” Because she did not see his face, she requested a voice lineup. ¶ 116 On July 17, 2008, Margie heard a voice lineup consisting of the separately recorded voices of five male police officers and Goudeau. Each exemplar was recorded on a separate CD and consisted of the same few sentences looped. Detective Femenia testified at trial that all the voices, including Goudeau’s, were recorded in the same room with the same equipment. The entire voice lineup was audio and video recorded. ¶ 117 Margie answered “No” when asked before the lineup whether she had heard Goudeau speak in court or on television. Detective Femenia told her that “the suspect’s voice may or may not be in this group of recordings.” After listening to each recording once, Margie replayed exemplars 2, 3, and 4 again before identifying exemplar 4, which was Goudeau, as the voice of her assailant. Detective Femenia asked whether she identified the voice based on her recall from the day of the incident, and she responded “Yes.” Throughout the playing of the tapes, Detective Femenia did not comment or display any reaction. ¶ 118 Before trial, Goudeau moved to preclude evidence of Margie’s voice identification. The trial court denied the motion. Although the court noted that Goudeau’s exemplar “sounds like it was done in a cave” and is “perceptively distinct from the other exemplars,” it concluded that the procedure was not unduly suggestive and that Margie’s identification was the product of her recall of the incident and not the differences in the recording. ¶ 119 The video of the voice identification was played at trial. Margie also testified that Goudeau’s voice was “my nightmare for years” and that, although she could not remember what number she had originally selected in the voice lineup three years earlier, she “knew that was his voice” when she heard it played again at trial. Margie was subsequently cross-examined on details of her identification. d. Any P. (Chapter 5) ¶ 120 Any P. testified at trial that she spent approximately thirty to forty-five minutes with her assailant, whom she described as 5’ 5” tall, 170-180 pounds, and wearing a khaki fisherman hat with a long-haired wig and glasses without any lenses. She recalled having helped develop a composite sketch, which she rated as a nine out of ten in terms of accuracy of depiction, and acknowledged having previously identified a different individual from a photo array that did not include Goudeau. The parties stipulated that on September 7, 2006, Any failed to identify anyone in a photo array that included Goudeau and told police that she did not remember her assailant’s appearance. ¶ 121 Any acknowledged having seen Goudeau’s arrest on television and thinking “[t]hat was him,” but at trial she was uncertain whether seeing Goudeau on television would affect her ability to identify him in court that day. Outside the jury’s presence, the court held a Dessureault hearing during which Any maintained that her identification was based on her memory of the assault. After considering the reliability factors set forth in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the trial court concluded that Any’s identification was sufficiently reliable and denied Goudeau’s motion to preclude. Any was extensively cross-examined on the details of her identification. e.Jesus L. ¶ 122 Before Jesus L.’s testimony, the State requested and the court granted a brief Dessureault hearing to determine the admissibility of identification testimony by him. At the hearing, Jesus identified Goudeau as the man who robbed him on November 7, 2005. Jesus acknowledged that before coming into court he was unsure whether he could identify the robber because he had not seen him since that date. But he testified that he identified Goudeau in court based on his memory of the robbery. He further testified that the restaurant where he worked was well lit and that he observed Goudeau from a foot away for a “[mjaximum of two minutes.” ¶ 123 Considering Jesus’s testimony in light of the Biggers factors, the trial court admitted his identification testimony. Jesus subsequently identified Goudeau at trial and was cross-examined on his identification. f.Cheryl M. (Chapter 6) ¶ 124 The trial court also conducted a Dessureault hearing during trial before Cheryl M.’s testimony. Cheryl identified Goudeau at the hearing as the man who attempted to rob her and her mother at gunpoint outside the restaurant where Jesus L. worked. She testified that the location of the encounter was “well lit,” and that he was three feet away from her at one point, allowing her to clearly see his face. She described him as an African-American male, with a light goatee and dark eyes, wearing blue jeans and a fishing cap with a wig, and carrying a “metallic or gray colored” handgun. ¶ 125 Cheryl acknowledged having seen Goudeau’s arrest and composite sketch on television, but maintained that she identified him based on her memory of the incident alone, rating her confidence level as a nine out of ten, although she had earlier failed to identify anyone in a photo array that included Goudeau’s photo. ¶ 126 The trial court allowed Cheryl’s ineourt identification. The court reasoned that any weakness in the identification “goes to weight and not admissibility.” She identified Goudeau at trial and was subsequently cross-examined on her identification. g.Peter O. (Chapter 7) ¶ 127 On August 10, 2011, a Dessureault hearing was held during trial to determine the admissibility of identification testimony by Peter O. At the hearing, he testified that on the evening of December 12, 2005, he was getting ready to leave work when he heard noises coming from the alley behind his office building. When he went outside and looked, he saw Goudeau about ten feet away holding a chrome handgun pointed at a body on the ground. When Goudeau noticed Peter, he aimed his gun at him. ¶ 128 Peter reported looking at Goudeau for five to ten seconds before he turned and went back into his building. He described Goudeau as having “[a] very cold stare,” noticeable eyebrows, a “protruding]” forehead, and wearing a hooded sweatshirt and white sneakers. He testified that he saw Goudeau’s composite sketch in the news and “immediately said that looks like him.” He also admitted to having seen Goudeau’s photograph on the internet. He was never shown a photographic lineup. ¶ 129 Peter testified that he identified Goudeau based on his memory of the night in question, stating that he could “never forget those eyes.” The trial court concluded that “there was no police action vis-a-vis identification” and that, considering the Biggers factors, Peter’s identification was sufficiently reliable and admissible. He identified Goudeau at trial and was subsequently cross-examined on his identification. 2. Discussion ¶ 130 The Fourteenth Amendment’s Due Process Clause requires that pretrial identification procedures be conducted in a fundamentally fair manner to ensure the suspect’s right to a fair trial. Lehr I, 201 Ariz. at 520 ¶ 46, 38 P.3d at 1183. But “the due process clause does not preclude every identification that is arguably unreliable; it precludes identification testimony procured by the state through unduly suggestive pretrial procedures.” State v. Williams, 166 Ariz. 132, 137, 800 P.2d 1240, 1245 (1987); accord Perry v. New Hampshire, — U.S. -, 132 S.Ct. 716, 726, 181 L.Ed.2d 694 (2012) (“The due process check for reliability ... comes into play only after the defendant establishes improper police conduct.”). ¶ 131 To establish that admission of identification testimony violated due process, a defendant must first show that the state was responsible for the suggestive pretrial identification. See Garcia, 224 Ariz. at 8 ¶ 9, 226 P.3d at 377. Absent state action, the trial court need not analyze the reliability of an identification. See id. at ¶ 12; State v. Prion, 203 Ariz. 157, 160 ¶ 15, 52 P.3d 189, 192 (2002) (“There is no need to perform a Biggers analysis when the identification is not the result of state action.”). In such circumstances, reliability is sufficiently tested “through the rights and opportunities generally designed for that purpose, notably, the presence of counsel at post indictment lineups, vigorous cross-examination, protective rules of evidence, and jury instructions on both the fallibility of eyewitness identification and the requirement that guilt be proved beyond a reasonable doubt.” Perry, 132 S.Ct. at 721. 11132 When sufficient state action is established, a two-part test is used for determining the admissibility of identification testimony: “(1) whether the method or procedure used was unduly suggestive, and (2) even if unduly suggestive, whether it led to a substantial likelihood of misidentifieation, i.e., whether it was reliable.” Lehr I, 201 Ariz. at 520 ¶ 46, 38 P.3d at 1183. We consider the totality of the circumstances in determining whether an identification is reliable, including (1) the witness’s opportunity to view or hear the perpetrator at the time of the offense; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior description; (4) the level of certainty; and (5) the length of time between the crime and the confrontation. See Biggers, 409 U.S. at 199-200, 93 S.Ct. 375; Lehr I, 201 Ariz. at 521 ¶ 48, 38 P.3d at 1184; see also State v. Rojo-Valenzuela, 237 Ariz. 448, 449 ¶ 1, 451 ¶ 10, 352 P.3d 917, 918, 920 (2015). ¶ 133 “[A]n in-court identification resulting from inherently suggestive initial identification is admissible unless the procedure created a ‘very substantial likelihood of ... misidentifieation.’ ” Rojo-Valenzuela, 237 Ariz. at 450 ¶ 7, 352 P.3d at 919 (quoting Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977)). “Short of that point, such [identification] evidence is for the jury to weigh____Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.” Brathwaite, 432 U.S. at 116, 97 S.Ct. 2243. ¶ 134 Here, the State was not responsible for the pretrial identifications by Jenny S., Lorena L., Alejandra L., Any P., Cheryl M., Peter O., or Jesus L. Although each acknowledged having previously seen Goudeau’s photograph, arrest video, and/or composite sketch in the media, Goudeau does not claim that the media acted as an agent of the state. Cf. Garcia, 224 Ariz. at 8 ¶ 11, 226 P.3d at 377 (finding no state action where an unidentified third party used police-released photos to create and distribute a flier); Prion, 203 Ariz. at 160 ¶ 15, 52 P.3d at 192 (same, where article that accompanied defendant’s photograph was written by a freelance writer who “had some contact with,” but was not employed by, the police). ¶ 135 To be sure, Phoenix police released some information about the suspect to the media. But after Goudeau’s arrest, the defense team also released information to the media. Moreover, the State took measures to limit media influence by contacting the victims to show them a photo array before Goudeau’s arrest and asking the media to delay broadcasting news of the arrest until the police had an opportunity to do so. In sum, although police disseminated Goudeau’s composite sketch and photo to the media, there is no evidence that police attempted to influence any of these witnesses’ pretrial identifications, for example, by arranging for or encouraging victims to view the media coverage. Cf. State v. Nordstrom (Nordstrom I), 200 Ariz. 229, 241 ¶ 24, 25 P.3d 717, 729 (2001) (finding no state action where a witness observed the defendant in a newscast of his arraignment); O’Connell v. Indiana, 742 N.E.2d 943, 948 (Ind. 2001) (“A witness’ viewing of a suspect’s photograph through the media does not ordinarily constitute an impermissibly suggestive identification procedure because it is not engineered by prosecution or law enforcement agencies.”). Consequently, even if the media coverage played a role in the victims’ identifications of Goudeau—an issue disputed by the State and the victims—the State was not sufficiently responsible for the coverage to require a reliability determination. ¶ 136 Goudeau argues that the in-court identifications by Jenny S., Jesus L., Cheryl M., and Peter O. were in essence one-person showups because these victims had not previously identified Goudeau in a photo array or otherwise. With respect to Jenny S., who identified Goudeau as her assailant after seeing him at a preliminary hearing, our decision in State v. Forde, 233 Ariz. 543, 315 P.3d 1200 (2014), is controlling. There, we held that the trial court was not required to conduct a Dessureautt hearing because “[n]othing suggests that the State asked [the victim] to attend the [pretrial] hearing to see [the defendant].” Forde, 233 Ariz. at 556-57 ¶ 30-31, 315 P.3d at 1213-14 (citing Perry, 132 S.Ct. at 730, and Williams, 166 Ariz. at 137, 800 P.2d at 1245, for the proposition that “only state action requires a Dessureaulttype hearing”). Although Goudeau correctly points out that the witness in Forde regularly attended hearings on her own before identifying the defendant, id. at 556 ¶ 31, 315 P.3d at 1213, his contentions that Jenny S. attended the hearings “at the request of victim witness advocates,” and that Goudeau “was the only non-lawyer African American male in jail garb and shackles ... [who] she was shown that day,” are without support in the record. Jenny S. reported that Goudeau was wearing a long sleeve button-up shirt and tie when she identified him at the hearing. Moreover, the trial court found that Jenny’s presence in court “was as a result of [her] Arizona Constitutional right to be present and not the voluntary initiation of the State,” and the record supports that finding. Accordingly, under Forde, the trial court did not err in admitting Jenny S.’s in-court identification. ¶ 137 Nor did the court err in allowing Jesus L., Cheryl M., and Peter O. to identify Goudeau in court. Each identified Goudeau for the first time during regular court proceedings in which they were called as witnesses. Goudeau argues that these identifications were conducted under unduly suggestive circumstances because he was the only African-American male in the courtroom and was seated beside his two defense lawyers. ¶ 138 The court of appeals has upheld the admission of eyewitness identification testimony under similar circumstances in State v. Nottingham, 231 Ariz. 21, 289 P.3d 949 (App. 2012). Before the second trial in that case (the first trial having ended in a mistrial), the defendant unsuccessfully moved to suppress any in-court identifications by the witnesses who had identified him for the first time in the previous trial. Id. at 23 ¶¶ 2-3, 289 P.3d at 951. The defendant argued on appeal that “there is no meaningful analytical distinction between suggestive procedures conducted by police officers in advance of court proceedings and those conducted by prosecutors during court proceedings in advance of trial.” Id. at 24 ¶ 7, 289 P.3d at 952. ¶ 139 Relying on Perry, the court of appeals disagreed. See id. at 25 Hit 9-10, 289 P.3d at 953. Perry held that “the Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement.” 132 S.Ct. at 730. The Supreme Court observed that “[a] primary aim of excluding evidence obtained under unnecessarily suggestive circumstances ... is to deter law enforcement use of improper lineups, showups, and photo arrays in the first place,” and that this “deterrence rationale” does not apply when “the police [have] engaged in no improper conduct.” Id. at 726. The Court reasoned, “[w]hen no improper law enforcement activity is involved ... it suffices to test reliability through the rights and opportunities generally designed for that purpose,” such as “vigorous cross-examination” at trial. Id. at 721. ¶ 140 In Nottingham, the court of appeals acknowledged this Court’s holding in State v. Strickland, 113 Ariz. 445, 447, 556 P.2d 320, 322 (1976), “that suggestive identification procedures occurring as part of formal court proceedings, like those arranged by police, may trigger the procedural protections set forth in Dessureault.” Nottingham, 231 Ariz. at 25 ¶ 8, 289 P.3d at 953. But the court concluded, and we agree, that “Strickland has been overtaken by Perry to the extent [Strickland] found that subsequent in-court identifications could be precluded based on suggestive in-court identification procedures that did not involve improper state conduct.” Id. at 25 ¶ 10, 289 P.3d at 953 (internal quotation marks and citation omitted). ¶ 141 Perry controls here. Because the identifications by Jesus L., Cheryl M., and Peter O. occurred as part of formal court proceedings and were not influenced by improper law enforcement activity, the trial court did not abuse its discretion in allowing their in-court identifications. ¶ 142 Regarding Margie M.’s voice identification, Goudeau asserts that the trial court abused its discretion by not finding the voice exemplars unduly suggestive. Having reviewed the recordings, we disagree. Although Goudeau’s exemplar had an echo and the others did not, the differences in sound quality between the exemplars was not so great as to render the procedure impermissibly suggestive. Detective Femenia advised Margie before playing the tapes that the recordings might vary in volume, sound quality, and noise, and in fact the audio quality did vary among all exemplars. Margie listened attentively to the exemplars several times before making an identification, and Detective Femenia projected no cue or clues throughout the playing of the tapes. ¶ 143 Margie had ample opportunity to hear her assailant’s voice throughout the encounter, which lasted a half hour and during which time he spoke continuously directly behind her ear. Moreover, she testified that her assailant’s voice was “all I kept hearing,” and “my nightmare for years.” The trial court did not abuse its discretion in admitting evidence of Margie’s voice identification. H. Admission of Firearms Expert Testimony ¶ 144 Goudeau contends that the trial court erred by admitting the expert testimony of Daniel Hamilton, a firearms examiner with the PPD crime laboratory. At trial, Hamilton opined that every bullet and casing retrieved in this case was fired from the same firearm. We review the trial court’s admission of expert testimony for abuse of discretion, State v. Snelling, 225 Ariz. 182, 187 ¶ 18, 236 P.3d 409, 414 (2010), but review for fundamental error any arguments raised for the first time on appeal. ¶ 145 Before trial, Goudeau moved to preclude Hamilton from testifying on the ground that his opinions did not satisfy the standard set in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The trial court denied the motion, ruling that the testimony was admissible under the standard established in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The court did not err because Frye rather than Daubert applied in Goudeau’s 2011 trial. See State v. Miller, 234 Ariz. 31, 41 ¶ 29, 316 P.3d 1219, 1229 (2013) (holding that the Frye, not Daubert, standard applied to defendant’s trial, which ended before Arizona’s amended Evidence Rule 702 took effect in January 2012); Brown v. Watters, 599 F.3d 602, 616 (7th Cir. 2010) (noting the absence of “authority in which the Daubert standard has been imposed on states as a requirement of due process in any context, including criminal trials”). ¶ 146 Nor did the trial court err by declining to hold a Frye hearing before ruling on the admissibility of Hamilton’s testimony. See State ex rel. Romley v. Fields, 201 Ariz. 321, 325 ¶ 11, 35 P.3d 82, 86 (App. 2001) (noting that a Frye hearing is only required before admitting expert testimony that relies on new scientific tests or techniques). Because this testimony was not a “new” form of expert testimony and Atizona courts had previously upheld its admissibility, a Frye hearing was not required. See Miller, 234 Ariz. at 41 ¶ 31, 316 P.3d at 1229 (holding that firearm expert testimony was admissible under Frye). ¶ 147 Goudeau next argues that the trial court violated his due process rights by admitting Hamilton’s testimony without limitation. But because Goudeau did not request any limiting instruction or object to the lack of one, his argument fails. See State v. Taylor, 127 Ariz. 527, 530-31, 622 P.2d 474, 477-78 (1980) (stating that to preserve a claim of error in not limiting certain evidence, party must request appropriate instructions); see also Ariz. R. Crim. P. 21.2 (requiring parties to request jury instructions). Goudeau cites a few federal district court cases in which ballistics experts, using toolmark evidence, were not allowed to express their opinions identifying firearms with absolute scientific certainty. Other courts, however, have required no such limitation, and Goudeau cites no case in which an appellate court found fundamental error in a trial court’s failing to sua sponte limit such testimony. In addition, Hamilton acknowledged on cross-examination that his firearms-identification opinion in this case was “subjective” and based on his training and experience, not a “statistical formula.” ¶ 148 Goudeau also argues that the trial court fundamentally erred by admitting Hamilton’s testimony that, as part of a “second ehair[] process,” another unidentified PPD firearms examiner “agree[ed] with [Hamilton’s] identification” after comparing the bullets Hamilton inspected. That testimony, Goudeau contends, was hearsay and violated the Confrontation Clause. Goudeau did not argue this in the trial court so we review only for fundamental error. Even if we assume, without deciding, that Hamilton’s brief testimony about a second-chair process constituted testimonial hearsay, its admission did not rise to the level of fundamental error. ¶ 149 Further, Hamilton did not act as a mere “conduit” for the second chair’s opinion. See Snelling, 225 Ariz. at 187 ¶ 19, 236 P.3d at 414 (“The expert ... cannot ‘act as a conduit for another non-testifying expert’s opinion.’ ” (quoting State v. Smith, 215 Ariz. 221, 228 ¶ 23, 159 P.3d 531, 538 (2007))). Rather, Hamilton presented his expert opinions based on his own work and analysis of the available ballistics evidence. Moreover, the State’s line of questioning was not directed at eliciting whether the second chair agreed with Hamilton’s opinion in this case, but rather what type of verification processes the PPD crime laboratory generally followed in cases “such as” this. Goudeau has not established that the unopposed admission of this portion of Hamilton’s testimony constituted fundamental error. I. Admission of Autopsy Photograph (Chapter 7) ¶ 150 Goudeau contends that the trial court violated his right to due process by admitting a particular autopsy photograph into evidence in Chapter 7. We review a trial court’s admission of photographs for abuse of discretion. Cota, 229 Ariz. at 147 ¶ 45, 272 P.3d at 1038. ¶ 151 After Peter O. concluded his testimony that he saw Goudeau standing over a body (later identified as Tina Washington) with a gun pointed at her head, Goudeau objected to the State’s proffer of a photograph intended for use in the medical examiner’s ensuing testimony. The color photograph at issue depicted the front of Washington’s body lying on an autopsy table, with a metal trajectory rod, depicting a bullet’s path of travel, inserted through her left hand, through her neck, and finally into the top part of her right shoulder. A second gunshot wound is visible on her left cheek. All wounds have been cleaned off, though some blood is still visible on her face and shoulder. Goudeau objected to introduction of the photograph on grounds that its graphic nature was prejudicial, that the State could explain the gunshot trajectory without it, and that the manner and cause of Washington’s death were undisputed. ¶ 152 The trial court overruled Goudeau’s objection and allowed the State to admit the photograph during the medical examiner’s testimony “for purposes of showing the direction of the shot” and “the possible position of [the] shooter.” Reasoning that the photograph was relevant to the extent it corroborated Peter’s testimony about seeing Goudeau standing over Washington’s body, the trial court found that the risk of unfair prejudice did not substantially outweigh the photograph’s probative value. ¶ 153 “Whether the trial court abused its discretion in admitting a photograph turns on (1) the photograph’s relevance, (2) its tendency to inflame the jury, and (3) its probative value compared to its potential to cause unfair prejudice.” Cota, 229 Ariz. at 147 ¶ 46, 272 P.3d at 1038. When a relevant photograph is inflammatory, however, the court should not admit it without first determining whether the danger of unfair prejudice substantially outweighs the photograph’s probative value. State v. Bocharski, 200 Ariz. 50, 56 ¶ 21, 22 P.3d 43, 49 (2001). ¶ 154 The autopsy photograph in question was relevant because “the fact and cause of death are always relevant in a murder prosecution.” State v. Chapple, 135 Ariz. 281, 288, 660 P.2d 1208, 1215 (1983), superseded on other grounds by A.R.S. § 13-756. This is so even when those facts are not contested because “the prosecution’s burden to prove every element of the crime is not relieved by a defendant’s tactical decision not to contest an essential element of the offense.” Estelle v. McGuire, 502 U.S. 62, 69, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); cf. State v. Rienhardt, 190 Ariz. 579, 584, 951 P.2d 454, 459 (1997) (“Notwithstanding an offer to stipulate to the cause of death, photographs of a murder victim are relevant if they help to illustrate what occurred.”). ¶ 155 Moreover, the photograph assisted and corroborated the medical examiner’s explanation of Washington’s injuries. Though the medical examiner’s explanations were not disputed, the photograph in conjunction with his testimony corroborated Peter’s account of the events and helped establish an approximate distance between him and the shooter. Because Peter’s identification of Goudeau was contested, the photograph was probative on the key issue of the perpetrator’s identity. ¶ 156 Though the color photograph was graphic, it did not rise to the level of gruesomeness we have found “unduly disturbing” in past cases. Cf. State v. Spreitz, 190 Ariz. 129, 142, 945 P.2d 1260, 1273 (1997) (finding abuse of discretion in admission of autopsy photographs showing decomposition and insect activity on the body). This case is distinguishable from Bocharski, where we found that the trial court erred by admitting two photographs depicting “views of the victim’s skull, the top and its contents having been removed, with a metal rod going through an opening to the inside.” 200 Ariz. at 55 ¶ 20, 56 ¶¶ 26-27, 22 P.3d at 48-49. There, the trial court admitted the photographs to show the angles of the wounds, yet “the prosecutor did not elicit testimony concerning these angles or their significance,” and “there was no testimony at trial rendering [the photographs] particularly meaningful.” Id. at 56 ¶ 26, 22 P.3d at 49. In this case, however, the State elicited significant testimony relating to the purposes for which the trial court admitted the photographs, namely the direction of the shot and the possible position of the shooter. ¶ 157 Goudeau contends that the State could have used other evidence to explain what the photograph depicted and that this photo was cumulative because the State also introduced several other photographs. But whether “the subject-matter of a photograph can be described with words” “is not the test of admissibility.” State v. Castaneda, 150 Ariz. 382, 391, 724 P.2d 1, 10 (1986). Rather, the test is whether the probative value of a relevant, yet gruesome photograph is substantially outweighed by its danger to cause unfair prejudice. Bocharski, 200 Ariz. at 55 ¶ 21, 22 P.3d at 48. Because the perpetrator’s identity was the key issue at trial, the trial court did not abuse its discretion in finding that the photograph’s probative value was not substantially outweighed by its potential to inflame the jury. ¶ 158 Finally, the photograph was not needlessly cumulative because it was the only one that illustrated the position of the shooter, which in turn corroborated Peter’s identification of Goudeau. Therefore, the trial court acted within its discretion by admitting the photograph. J. Preclusion of Third-Party Culpability Defense (Chapter 10) ¶ 159 Goudeau argues that the trial court violated his right to present a complete defense by precluding reliable third-party culpability evidence in Chapter 10. We review the court’s ruling for abuse of discretion. Prion, 203 Ariz. at 161 ¶21, 52 P.3d at 193. ¶ 160 During testimony from Jeremy Robinson, victim Kristin Gibbons’s boyfriend, defense counsel inquired about Gibbons’s injuries before her murder. (Gibbons reportedly told her mother that “she was mugged,” but she had no bruises or injuries.) The State objected that such evidence was not timely disclosed, was speculative, and was hearsay to the extent it relied on what Gibbons had told her mother. ¶ 161 Outside the jury’s presence, Robinson testified that he did not recall Gibbons telling him or anyone else that she had been mugged just before the murder, nor did he recall her having any bruising on the night of the murder. Because Robinson lacked firsthand knowledge of any prior assault, the court precluded any evidence from him on the issue. ¶ 162 The next day, the State moved to preclude defense counsel from cross-examining Detective Rosenthal about conversations Gibbons allegedly had with her mother and a friend a few days before her disappearance, indicating that she had been mugged and beaten up by two Hispanic males and suffered injuries to her face and tooth. The trial court excluded the evidence “on hearsay, late disclosure, [Rule] 402 and 403” grounds. ¶ 163 Rules 401 through 403 of the Arizona Rules of Evidence govern the admission of third-party culpability evidence. State v. Machado, 226 Ariz. 281, 284 ¶ 16, 246 P.3d 632, 635 (2011). Under those rules, the proffered evidence must first be relevant; that is, it must “tend to create a reasonable doubt as to the defendant’s guilt,” State v. Gibson, 202 Ariz. 321, 324 ¶ 16, 44 P.3d 1001, 1004 (2002). If the evidence is relevant, it is admissible unless it is otherwise precluded by the federal or state constitution, or by applicable statutes or rules. Ariz. R. Evid. 402. As with any relevant evidence, the trial court has discretion to exclude third-party culpability evidence if its probative value is substantially outweighed by the danger of “unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Ariz. R. Evid. 403. ¶ 164 Here, the trial court could reasonably have found that the proffered third-party culpability evidence did not create a reasonable doubt as to Goudeau’s guilt and was inadmissible on several grounds. There were no suspects and no suggestion that the alleged assault had any connection to Gibbons’s murder. ¶ 165 Goudeau suggests that the proffered evidence established that two other men had motive and opportunity to kill Gibbons. We disagree. “[A] defendant may not, in the guise of a third-party culpability defense, simply throw strands of speculation on the wall and see if any of them will stick.” Machado, 226 Ariz. at 284 ¶ 16 n.2, 246 P.3d at 635 n.2 (internal quotation marks and citation omitted); accord Prion, 203 Ariz. at 161 ¶ 21, 52 P.3d at 193 (noting the trial court’s discretion to exclude such evidence if it offers “only a possible ground of suspicion against another”). ¶ 166 Unlike Machado and Prion, where considerable evidence suggested that a third party committed the crimes for which the defendant was charged, there is simply no evidence connecting the two Hispanic males involved in the alleged assault to Gibbons’s murder. Cf. Machado, 226 Ariz. at 285 ¶ 24, 246 P.3d at 636 (holding that the trial court improperly excluded evidence of anonymous phone call in which the caller admitted committing the crime and there were “powerful indications” that the third party, not the defendant, was the caller); Prion, 203 Ariz. at 161-62 ¶ 25, 52 P.3d at 193-94 (finding evidence relevant that showed that the third party had the opportunity and motive to commit the crime and may have been in contact with the victim). Any suggestion that an unidentified Hispanic male murdered Gibbons is pure speculation. ¶ 167 In addition, as the trial court determined, Goudeau’s third-party culpability claim rested on inadmissible hearsay, Arizona Rules of Evidence 801(e) and 802, was untimely disclosed for the first time forty-four days into trial (after Gibbons’s mother and the medical examiner had already testified), Arizona Rule of Criminal Procedure 15.1(b)-(e), and “failed the [Evidence] Rule 403 balancing test.” State v. Dann, 205 Ariz. 557, 569 ¶ 35, 74 P.3d 231, 243 (2003). The court did not abuse its discretion in precluding the evidence on each of those grounds. K. Substantial Evidence of Guilt ¶ 168 At the close of the State’s case-in-ehief, Goudeau moved for judgment of acquittal under Arizona Rule of Criminal Procedure 20 on all seventy-four counts on which he was indicted. The trial court issued detailed findings denying the motion as to all but two of the counts. Goudeau contends that the trial court abused its discretion by denying his Rule 20 motion on seventeen of the remaining counts, arguing that the State failed to present sufficient evidence to support a finding of guilt. We review de novo the denial of a Rule 20 motion. State v. West, 226 Ariz. 559, 562 ¶ 15, 250 P.3d 1188, 1191 (2011). ¶ 169 Acquittal is required “if there is no substantial evidence to warrant a conviction.” Ariz. R. Crim. P. 20(a). Substantial evidence “is such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant’s guilt beyond a reasonable doubt.” West, 226 Ariz. at 562 ¶ 16, 250 P.3d at 1191 (internal quotation marks and citations omitted). “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (internal quotation marks and citations omitted). In determining whether substantial evidence supports a conviction, we consider both direct and circumstantial evidence, id. and resolve all inferences against the defendant, State v. Davolt, 207 Ariz. 191, 212 ¶ 87, 84 P.3d 456, 477 (2004). 1. Counts 19-27 (Chapter 4) ¶ 170 Counts 19-27 charged Goudeau with kidnapping, armed robbery, sexual assault, sexual abuse, and child molestation against Margie M. and her daughter, Bianca. See supra ¶¶13-14. Although Bianca identified a different individual from a photo array that did not include Goudeau, Margie later identified Goudeau’s voice from a series of voice exemplars based on her recollection of the incident. In addition, the modus operandi of the perpetrator of counts 19-27 closely matched Goudeau’s in other chapters, including threatening Margie and Bianca with a gun while ordering Margie to drive up and down particular streets, making statements regarding a recent robbery and being separated from a friend, wearing a fisherman’s hat and long-haired wig disguise, and wiping off the victims where he had touched them. ¶ 171 Further, the offenses against Margie and Bianca took place only moments after Goudeau, wearing the same disguise, robbed the restaurant at which Iselda H. worked, and she positively identified Goudeau during a photo lineup conducted in September 2006. This evidence was sufficient to allow the jury to determine that Goudeau was the perpetrator in counts 19-27. See Stuard, 176 Ariz. at 597, 863 P.2d at 899 (evidence of other acts is admissible under Rule 404(b) to prove the identity of the perpetrator of the instant crimes, provided that identity is at issue and the “pattern and characteristics of the crimes [are] so unusual and distinctive as to be like a signature”). 2. Count 28 (Chapter 5) ¶ 172 Count 28 charged Goudeau with armed robbery of Teresa G. See supra ¶¶15—16. About a month after the robbery, Teresa selected another individual from a photo array that did not include Goudeau’s photo, but before then she helped create a sketch of the robber. That sketch was very similar to the one Any P. (Chapter 5) helped create. Additionally, moments after the robbery, robapproached Any in the parking parkacross from the store where Teresa worked, wearing the same fisherman’s hat and long-haired wig as the perpetrator of the robbery involving Teresa as well as the crimes against Margie M. and Bianca M. Goudeau’s Y-STR DNA profile was found on Any and the modus operandi of the perpetrator perpethe crimes against her closely matched Goudeau’s in other chapters. This evidence was sufficient to permit a rational trier of fact to find Goudeau guilty on count 28. 3. Count 40 (Chapter 6) ¶ 173 Count 40 charged Goudeau with aggravated assault against Mauricio 0. See supra ¶¶17-18. “A person commits aggravated assault if the person commits assault as prescribed by § 13-1203 ... [and] uses a deadly weapon or dangerous instrument.” AR.S. § 13-1204(A)(2). “A person commits assault by ... [intentionally placing another person in reasonable apprehension of imminent physical injury.” A.R.S. § 13-1203(A)(2). 13-174 Although Mauricio did not testify, the State presented sufficient circumstantial evidence that, by robbing him at gunpoint inside a restaurant, Goudeau placed him in apprehension of imminent physical injury. After Goudeau left the restaurant, Mauricio and Pedro M. chased him. Pedro testified that they heard a gunshot and “got scared” so they stopped chasing Goudeau. A jury could reasonably find that Maurieio’s reaction was based on his apprehension of imminent physical harm. Cf. State v. Wood, 180 Ariz. 53, 66, 881 P.2d 1158, 1171 (1994) (concluding the jury could have found that police officers, who did not testify, acted with apprehension or fear when they reacted to defendant’s brandishing of a revolver by firing at him). 4.Count 46 (Chapter 6) ¶ 175 Count 46 charged Goudeau with attempted armed robbery against Cheryl M. See supra ¶¶17-18. A person is guilty of armed robbery if, while taking another’s property from her person or immediate presence against her will, the person threatens or uses a deadly weapon “against any person with intent either to coerce surrender of property or to prevent resistance to such person taking or retaining property.” A.R.S. §§ 13-1902(A), -1904(A)(2). A person is guilty of attempted armed robbery if he does “anything which ... is any step on a course of conduct planned to culminate in commission of’ armed robbery. AR.S. § 13-1001(A)(2). 13-176 Cheryl testified that Goudeau pulled out a gun and demanded that her mother turn over her purse to him. Her mother froze and Goudeau repeatedly said, “ ‘give me your ... purse ... or I am going to shoot you.’ ” She also testified that “[h]e held out a gun and said, give me your money,” followed twice by stating, “give me your ... money.” At trial, Cheryl identified Goudeau as the perpetrator. This evidence was sufficient to allow the jury to decide that Goudeau committed attempted armed robbery against Cheryl and her mother. ¶ 177 Goudeau argues, “[s]inee there was no testimony that a gun was pointed at [Cheryl] or any demand or conduct towards her that sought to coerce surrender of her property this conviction must be vacated.” We disagree. See State v. McGuire, 131 Ariz. 93, 96, 638 P.2d 1339, 1342 (1981) (“A.R.S. § 13-1902 requires only that force be used ‘against any person,’ not necessarily only against the person dispossessed of the property.”). 5.Counts 67-71 (Chapter 12) ¶ 178 Counts 67-71 charged Goudeau with kidnapping, attempted sexual as sault, and attempted first-degree murder against Adrienne M. See supra ¶24. Adrienne testified that a man approached her as she got in her ear, pointed a silver handgun at her temple, and demanded that she let him in. The man told her that his friend had robbed a grocery store with him and that he needed to get away to go get the money, that [she] was going to be the person who was going to drive him to get the money ... to get to ... [his] boy who has [his] money. He ordered Adrienne to drive on particular streets and eventually to pull over in a secluded residential neighborhood where he threatened her life unless she complied with his demands to perform certain sexual acts. ¶ 179 Adrienne’s description of her perpetrator’s modus operandi closely matches that of Goudeau’s other victims and was sufficient to allow the jury to determine that Goudeau committed the offenses charged in counts 67-71. Although Adrienne never identified Goudeau and no physical evidence tied him to the offenses, her testimony and reasonable inferences from it provided sufficient evidence that Goudeau committed the charged crimes. L. Evidence of Especially Cruel Murders ¶ 180 Goudeau contends that the State did not present sufficient evidence to support the jury’s findings that he committed eight of the nine murders in an especially cruel manner. ¶ 181 Pursuant to AR.S. § 13-756(A), we review the jury’s finding that a murder was especially cruel for abuse of discretion, State v. Morris, 215 Ariz. 324, 340 ¶ 72, 160 P.3d 203, 219 (2007), viewing the facts in the light most favorable to sustaining the verdict, State v. Naranjo, 234 Ariz. 233, 249 ¶ 81, 321 P.3d 398, 414 (2014), and resolving all inferences against the defendant, Davolt, 207 Ariz. at 212 ¶ 87, 84 P.3d at 477. “A finding of aggravating circumstances is not an abuse of discretion if there is any reasonable evidence in the record to sustain it.” Naranjo, 234 Ariz. at 249 ¶ 81, 321 P.3d at 414 (internal quotation marks and citation omitted). Conversely, a jury abuses its discretion if it finds an aggravating circumstance when the record reflects insufficient evidence to support that finding beyond a reasonable doubt. See State v. Gunches, 225 Ariz. 22, 25 ¶ 14, 26 ¶¶ 18-23, 234 P.3d 590, 593, 594 (2010). ¶ 182 Goudeau argues that we must review de novo whether the State has proved an aggravating circumstance. We previously rejected this argument in State v. (Cody J.) Martinez, 218 Ariz. 421, 434 ¶¶ 61-62, 189 P.3d 348, 361 (2008), and declined to reconsider that decision in Cota, 229 Ariz. at 153 ¶ 92, 272 P.3d at 1044 (citing (Cody J.) Martinez in observing “we have already determined that abuse of discretion review is constitutional”), and Hausner, 230 Ariz. at 80 ¶¶ 83-84, 280 P.3d at 624 (“We decline to reconsider [(Cody /.)] Martinez.”). We likewise decline to reconsider the standard of review issue here. ¶ 183 To clarify, this Court does not assess de novo whether the aggravating circumstances existed, as we previously did under independent review. See Martinez, 218 Ariz. at 434 ¶ 60, 189 P.3d at 361 (“In 2002, the legislature ended our independent review of death penalty verdicts for murders committed after August 1, 2002.”). But we do assess de novo whether there was sufficient evidence from which any reasonable juror could find the aggravator. Absent such evidence, a jury would “abuse its discretion” by finding the aggravator. ¶ 184 “[A] murder is especially cruel only if the State proves beyond a reasonable doubt that ‘the victim consciously experienced physical or mental pain prior to death, and the defendant knew or should have known that suffering would occur.’” Snelling, 225 Ariz. at 188 ¶25, 236 P.3d at 415 (quoting State v. Trostle, 191 Ariz. 4, 18, 951 P.2d 869, 883 (1997)). The victim need not have been conscious for every wound inflicted, State v. Sansing, 206 Ariz. 232, 235 ¶ 7, 77 P.3d 30, 33 (2003), nor must the victim’s suffering have lasted for any specific length of time, State v. Cropper, 223 Ariz. 522, 526 ¶ 13, 225 P.3d 579, 583 (2010). “Mental anguish includes the victim’s uncertainty as to her ultimate fate,” State v. Lavers, 168 Ariz. 376, 392, 814 P.2d 333, 349 (1991), and evidence of a victim’s pleas or defensive inju ries may be sufficient to show that she suffered mental pain, Snelling, 225 Ariz. at 188 ¶ 27, 236 P.3d at 415. We consider the entire murder transaction, not merely the fatal act, in evaluating whether a murder was committed in an especially cruel manner. State v. McCray, 218 Ariz. 252, 259 ¶31, 183 P.3d 503, 510 (2008). ¶ 185 The jury found that Goudeau murdered each of the following victims in an especially cruel manner: Georgia Thompson, Tina Washington, Romelia Vargas, Mirna Roman, Chao Chou, Liliana Sanchez, Sophia Nunez, and Carmen Miranda. We conclude that the jury did not abuse its discretion inasmuch as the record sufficiently supports its findings. 1. Georgia Thompson (Chapter 2) ¶ 186 Testimony established that more than fifteen seconds before Goudeau shot Thompson in the head, she begged to be let go and screamed. Thompson was found with her pants unzipped and unbuttoned, though her belt was still buckled. This evidence was sufficient to support a finding that Thompson experienced mental anguish before her death and that Goudeau knew or should have known that suffering would occur. Cf. State v. Gomez (Gomez II), 231 Ariz. 219, 226 ¶ 36, 293 P.3d 495, 502 (2012) (concluding that victim’s screams, in addition to defensive wounds, supported a finding that murder was especially cruel). 2. Tina Washington (Chapter 7) ¶ 187 Washington was found dead in an isolated alley that was not on the route to her regular bus stop. The evidence showed that she had been shot twice; the first shot was not fatal and Washington raised her hand in front of her face as if to shield against a second shot. The second and fatal shot was fired from close range. Like Thompson, Washington screamed before she died. This evidence was sufficient to support a finding that Washington experienced both physical and mental pain before her death and that Goudeau knew or should have known that suffering would occur. Cf. Gomez II, 231 Ariz. at 226 ¶ 36, 293 P.3d at 502; Newell, 212 Ariz. at 406 ¶ 85, 132 P.3d at 850 (non-fatal injuries occurring as part of murder transaction supported finding of serious physical anguish); Sansing, 206 Ariz. at 236 ¶ 10, 77 P.3d at 34 (defensive wounds support finding of mental anguish). 3.Romelia Vargas and Mirna Roman (Chapter 8) ¶ 188 Vargas and Roman were discovered dead in the back of their food truck with a gunshot wound to each of their heads. Their pants were unbuttoned and partially pulled down. It appeared that Roman had been shot before Vargas because a shell casing was found under Vargas’s body and Vargas’s leg was resting on top of Roman’s leg. The jury could reasonably infer that they disrobed under threat of being shot, rather than being shot by surprise while disrobing, and that Vargas then witnessed Goudeau shoot Roman before he pointed the gun at her. This evidence was sufficient to support a finding that both Roman and Vargas experienced severe mental anguish before their death and that Goudeau knew or should have known that suffering would occur. 4.Chao Chou and Liliana Sanchez (Chapter 9) ¶ 189 The evidence showed that Chou and Sanchez left the restaurant where they worked in Chou’s car. Their eoworker always saw Chou turn his ear and drive past the restaurant as he was leaving, but on the evening in question the coworker did not see Chou’s car make that turn. Chou was later found dead in an alley with a gunshot wound to his head. Sanchez was found dead in the front passenger seat of Chou’s car, about one mile from the alley, with a gunshot wound to her head and her pants unbuttoned and partially unzipped. The evidence further showed that both Chou and Sanchez were shot by someone seated in the back seat. Prom this evidence, the jury could have reasonably inferred that Goudeau, positioned in the back seat, held the victims at gunpoint while he forced Chou to drive, and that both victims suffered severe mental anguish during the car ride. Further, the jury could find that Sanchez suffered significant uncertainty as to her ultimate fate after Goudeau shot Chou and continued the ride for another mile before also shooting her. 5. Sophia Nunez (Chapter 11) ¶ 190 Nunez was found dead in her bathtub with a gunshot wound to her head. She had a few braises, her bra was undone and shirt pulled up exposing her breasts, and she was still wearing pants. Her eyes were open when she was shot from the front at close range. The jury could have reasonably inferred that she was conscious while Goudeau threatened her at gunpoint and that she suffered significant mental anguish before he took her life. The evidence was sufficient to support a finding that Goudeau murdered her in an especially cruel manner. 6. Carmen Miranda (Chapter 13) ¶ 191 The evidence showed that Miranda screamed and struggled as Goudeau ambushed her at a carwash and forced her into the backseat of her car. She was later found dead in a nearby parking lot with a gunshot wound to her head. Her eyes were open when Goudeau shot her; her pants were pulled down; she had recent abrasions on her right shoulder, left upper arm, and inside lower lip; and she had small bruises on her wrists and numerous bruises on her legs consistent with a struggle to keep her pants on. This evidence was sufficient to support a finding that Miranda was murdered in an especially cruel manner. Cf. Gomez II, 231 Ariz. at 226 ¶ 36, 293 P.3d at 502; Newell, 212 Ariz. at 406 ¶ 85,132 P.3d at 850; Sansing, 206 Ariz. at 236 ¶ 10, 77 P.3d at 34. M. Prosecutorial Misconduct Claims ¶ 192 Goudeau asserts that the State repeatedly made inaccurate statements of law and improper arguments throughout the guilt and sentencing proceedings, amounting to fundamental error in violation of the Fourteenth Amendment. We evaluate each instance of alleged prosecutorial misconduct to determine if error occurred and, if so, its effect. State v. Roque, 213 Ariz. 193, 228 ¶ 154, 141 P.3d 368, 403 (2006). We also address the cumulative effect of any misconduct. Morris, 215 Ariz. at 335 ¶ 47, 160 P.3d at 214. Because Goudeau did not object to any of the incidents at trial, we review for fundamental error. Roque, 213 Ariz. at 228 ¶ 154, 141 P.3d at 403. ¶ 193 “To prevail on a claim of prosecutorial misconduct, a defendant must demonstrate that the prosecutor’s misconduct so infected the trial with unfairness as to make the resulting conviction a denial of due process.” State v. (Alex V.) Hughes, 193 Ariz. 72, 79 ¶ 26, 969 P.2d 1184, 1191 (1998) (internal quotation marks and citation omitted). A conviction will be reversed for prosecutorial misconduct only if “(1) the prosecutor committed misconduct and (2) a reasonable likelihood exists that the prosecutor’s misconduct could have affected the verdict.” State v. Benson, 232 Ariz. 452, 463 ¶ 40, 307 P.3d 19, 30 (2013). The defendant’s burden is to prove the misconduct was “so pronounced and persistent that it permeate[d] the entire atmosphere of the trial.” Morris, 215 Ariz. at 335 ¶ 46, 160 P.3d at 214. 1. Statements likening Goudeau to a “wolf’ and his disguises as “sheep’s clothing” ¶ 194 Throughout eleven of the State’s thirteen opening statements and in closing argument, the prosecutor referred, without objection, to Goudeau as a “predator” or “wolf,” and his various disguises as “sheep’s clothing.” Additionally, during opening statements for Chapters 1, 3, 7, 8, and 10, the prosecutor stated that Goudeau had been “hunting” or “on the prowl.” Goudeau did not object to these comments at trial but argues on appeal that they “are clearly improper as they are designed to dehumanize the defendant and appeal to the passions and prejudices of the jury.” ¶ 195 The prosecutor’s comments during opening statement likening Goudeau to a “wolf’ and a “wolf in sheep’s clothing” were improper. “Opening statement is counsel’s opportunity to tell the jury what evidence they intend to introduce____[It] is not a time to argue the inferences and conclusions that may be drawn from evidence not yet admitted.” Bible, 175 Ariz. at 602, 858 P.2d at 1205. There was no direct evidence that Goudeau hunted his victims, and the record does not indicate that any such evidence was anticipated when opening statements were made. ¶ 196 The references during closing argument, on the other hand, were not clearly improper. Prosecutors are given “wide latitude” in presenting closing argument to the jury. State v. Comer, 165 Ariz. 413, 426, 799 P.2d 333, 346 (1990). “Unlike opening statements, during closing arguments counsel may summarize the evidence, make submittals to the jury, urge the jury to draw reasonable inferences from the evidence, and suggest ultimate conclusions.” Bible, 175 Ariz. at 602, 858 P.2d at 1205. In determining whether an argument is misconduct, “we ‘consider two factors: (1) whether the prosecutor’s statements called to the jury’s attention matters it should not have considered in reaching its decision and (2) the probability that the jurors were in fact influenced by the remarks.’ ” State v. Nelson, 229 Ariz. 180, 189 ¶ 39, 273 P.3d 632, 641 (2012) (quoting Newell, 212 Ariz. at 402 ¶ 60, 132 P.3d at 846). We “look[ ] at the context in which the statements were made as well as ‘the entire record and to the totality of the circumstances.’ ” Id. (quoting Rutledge, 205 Ariz. at 13 ¶ 33, 66 P.3d at 56). ¶ 197 Given the evidence presented at trial, we find no impropriety in the prosecutor referring to Goudeau—during dosing argument—as a “wolf’ and “a wolf in sheep’s clothing.” There was substantial evidence that Goudeau attempted to conceal his identity by wearing disguises and circumstantial evidence that Goudeau stalked some of his victims. Comparing Goudeau to a “wolf’ and describing his various disguises as “sheep’s clothing,” therefore, was consistent with the evidence and fell within the wide latitude permitted prosecutors in arguing to the jury. See Nelson, 229 Ariz. at 190 ¶ 41, 273 P.3d at 642 (finding no prosecutorial misconduct where State’s closing argument accurately described the facts of the case); cf. California v. McDermott, 28 Cal.4th 946, 123 Cal.Rptr.2d 654, 51 P.3d 874, 911 (2002) (referring to defendant as a “wolf in sheep’s clothing,” and a person who “stalked people like animals” in closing argument, when considered in the context of the planning and execution of the murder, did not exceed the permissible bounds of argument); Browning v. State, 134 P.3d 816, 839 (Okla. Crim. App. 2006) (referring to defendant as a “wolf in sheep’s clothing” during guilt phase closing argument was a reasonable inference from the evidence); Ponce v. State, 89 S.W.3d 110, 121 (Tex. Ct. App. 2002) (likening defendant to a wolf during closing argument was based on defendant’s conduct and thus permissible). ¶ 198 Although the prosecutor’s comments during opening statements were improper, Goudeau has not shown that they caused prejudice sufficient to constitute fundamental error. See Benson, 232 Ariz. at 463 ¶ 40, 307 P.3d at 30; see also Darden v. Wainwright, 477 U.S. 168, 180-81, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (noting that it “is not enough that the prosecutors’ remarks were undesirable or even universally condemned”; to prevail on a prosecutorial misconduct claim, it must be shown that the prosecutors’ comments “so infected the trial with unfairness as to make the resulting conviction a denial of due process”) (internal quotation marks and citation omitted). Goudeau had an opportunity to respond to the prosecutor’s comments and in fact did so in his opening statements and closing arguments as well as in his allocution. ¶ 199 Moreover, any prejudice was ameliorated by the trial court’s limiting instructions and the overwhelming proof of guilt. The trial court instructed the jury not to be influenced by sympathy or prejudice and further charged that counsel’s opening statements and arguments were not evidence. See Manuel, 229 Ariz. at 6 ¶ 24, 270 P.3d at 833 (“[C]autionary instructions by the court generally cure any possible prejudice from argumentative comments during opening statements” because we presume that jurors follow the court’s instructions). ¶ 200 In addition, the substantial evidence of guilt, including the DNA evidence, a murder victim’s jewelry found in Goudeau’s home, and multiple identifications of him as the perpetrator of numerous crimes, reduced the likelihood that the jury’s decision was influenced by the prosecutor’s statements. Cf. Comer, 165 Ariz. at 426-27, 799 P.2d at 346-47 (concluding that prosecutor’s eharacteriza tion of defendant as a “monster” and “filth” during closing argument, though improper, was harmless in light of the overwhelming-evidence of guilt). Goudeau has not shown fundamental error. 2. Misstatements of the Law ¶ 201 Goudeau next argues that “the [S]tate repeatedly misstated the law (without objection) in its closing arguments[,] misleading the jury in turn as to what it could consider in rendering its verdicts.” During closing argument in the guilt phase, the prosecutor told the jury that it could consider the “patterns,” and any “evidence that inextricably ties [the defendant] to one of his victims” in determining “his guilt in other crimes, establishing not only his intent, his motive, his MO, but also his identification.” Regarding the crimes against sisters Lorena L. and Alejandra L. (Chapter 3), the prosecutor stated: You cannot simply say that because the defendant raped the [sisters], he must have done all of the other crimes. That’s not fair, that’s not the way our law works. The way our law works is in the instructions that Judge Granville just read to you. They tell you precisely how you are to use and not use this type of evidence____ In other words, when you determine it is highly probable that the defendant committed the sexual assaults, for instance, of the [sisters], the law allows ... that you may consider that evidence in determining his intent, motive, identity, MO, of all the other crimes with which he is charged. For it is his pattern, his deeds, that reveal him for what he is and what he has done, and the law allows you to look at the totality of the evidence in identifying this about this man. ¶ 202 Rule 404(b) expressly allows other-act evidence to prove “identity or absence of mistake or accident.” Ariz. R. Evid. 404(b). The prosecutor’s statements were consistent with this rule and did not mislead the jury. Additionally, any error did not result in an unfair trial because the jury was properly instructed. See Newell, 212 Ariz. at 403 ¶¶ 67-68, 132 P.3d at 847 (holding that jury instructions stating that closing arguments are not evidence negated improper comments of prosecutor); see also State v. Patterson, 230 Ariz. 270, 276 ¶ 25, 283 P.3d 1, 7 (2012) (finding prosecutor’s initial misstatement of the law cured by jury instructions that properly stated the law). ¶203 Goudeau also contends that the prosecutor incorrectly defined the standard for mental anguish during closing arguments in the aggravation phase and encouraged the jury to speculate. During closing argument in that phase, the prosecutor stated: The focus is on the victim’s physical pain and mental anguish or suffering that he forced them to endure. Not just at the moment he pulled the trigger, but from the moment he crossed their path, took possession and control, dominion over their body and their life. Everything that he forced them to endure in the minutes prior to the way he ended their life. All of that applies to this factor. All of this applies, and you know from what you heard in this trial and from your verdicts, what he forced them to endure. You know it not only from their bodies, and what each of the nine tell you, but also from the living victims. ¶ 204 “The entire murder transaction, not just the final act, may be considered” in determining the (F)(6) factor. McCray, 218 Ariz. at 259 ¶ 31, 183 P.3d at 510. The prosecutor did not misstate the law regarding the mental anguish component of especial cruelty, nor did she ask the jury to speculate. Cf. Cota, 229 Ariz. at 151 ¶ 80, 272 P.3d at 1042 (“The prosecutor may argue the facts and reasonable inferences from the evidence at the penalty phase.”). The prosecutor misspoke, however, by implying that the jury could consider what other victims experienced or suffered in determining whether Goudeau’s murder of a different victim was especially cruel. That misstatement, however, did not result in fundamental error because it was not so prejudicial as to deprive Goudeau of a fair trial. 3. Other Arguments ¶ 205 Goudeau also challenges certain comments made during closing argu ment in the penalty phase. First, he asserts that the prosecutor “improperly asked the jurors to consider the fact that he maintained his innocence,” in violation of the Fifth Amendment; article 2, section 10 of the Arizona Constitution; and A.R.S. § 13-117(B). ¶ 206 After halting his mitigation evidence during the penalty phase, Goudeau chose to allocute. He repeatedly told the jurors that he was “no wolf in sheep clothing” and “no monster.” He blamed his counsel for not presenting a defense for him, expressed hope that the jurors would someday “learn the truth about this case, or the case that [he was] accused of,” and said he was there only because of his past, of which he was not proud. Goudeau remarked that he totally changed his life for the better after serving time in prison, and that he “knew both of those people, both of the victims.” Finally, he told the jury that he voluntarily chose to “cancel mitigation.” ¶ 207 In closing argument, the prosecutor stated: Not once did this defendant stand before you and comment about the horror he has inflicted. Not once did he talk about what each of these 9 victims endured at his hands. Rather, he stood before you and denied responsibility. Guilt is no longer the issue. ¶ 208 “A prosecutor may not make any comments calculated to point out a defendant’s invocation of his Fifth Amendment right.” State v. Burns, 237 Ariz. 1, 32 ¶ 150, 344 P.3d 303, 334 (2015). We examine a comment on a defendant’s silence “in the context of the proceedings as a whole” to determine whether the jury would perceive them as a comment on a defendant’s failure to testify. Id. ¶ 209 Viewed in context, the prosecutor’s statements reflect an effort to rebut Goudeau’s allocution, not a comment on the exercise of his Fifth Amendment right. The prosecutor noted that Goudeau denied responsibility for the crimes even though guilt was no longer at issue, and that the only question was whether Goudeau was “deserving of any leniency at all.” This was permissible argument in rebuttal to Goudeau’s allocution. ¶ 210 Goudeau further contends that the prosecutor improperly argued in closing that “[w]e are seeking a just punishment for what this defendant has done ... to this community, what he [has] done to 9 lives.” Prosecutors are given “wide latitude” in closing arguments. State v. Herrera, 174 Ariz. 387, 396, 850 P.2d 100, 109 (1993). But “[a] prosecutor exceeds this authority when he uses his remarks to inflame the minds of jurors with passion or prejudice or influence the verdict in any degree.” Id. (internal quotation marks and citation omitted). ¶ 211 The prosecutor’s statement did not amount to misconduct. The prosecutor noted that Goudeau presented evidence that he would not be dangerous in prison. The prosecutor then argued, “[w]e are not asking you to impose a death sentence for what this defendant may or may not do in prison.” Rather, the prosecutor said, the State was seeking the death penalty for what the defendant did to the community and his victims. ¶ 212 A prosecutor may properly urge the jury to give more weight to a defendant’s crimes than to the mitigation evidence. Cf. id. at 396-97, 850 P.2d at 109-10 (finding prosecutor’s statements in closing of the guilt phase about justice and protecting society proper; statements did not improperly urge jurors to convict defendant for reasons irrelevant to his guilt or innocence); see also State v. Leteve, 237 Ariz. 516, 528-29 ¶47, 354 P.3d 393, 405-06 (2015) (“[T]he state may ‘rebut’ mitigation—that is, a conclusion that the defendant should be shown leniency—by introducing evidence of the ‘specific harm caused by the defendant.’” (quoting Forde, 233 Ariz. at 572 ¶ 126, 315 P.3d at 1229)). Although the prosecutor’s reference to the “community” at large was arguably improper, id. at 529 ¶ 51, 354 P.3d at 406, that single comment was neither inflammatory nor unduly prejudicial, and Goudeau has not established fundamental error. 4. Cumulative Effect of the Conduct ¶ 213 Even when an instance of prosecutorial misconduct does not warrant reversal, “an incident may nonetheless contribute to a finding of persistent and pervasive misconduct if the cumulative effect of the incidents shows that the prosecutor intentionally engaged in improper conduct and did so with indifference, if not a specific intent, to prejudice the defendant.” Roque, 213 Ariz. at 228 ¶ 155, 141 P.3d at 403 (internal quotation marks and citations omitted). ¶ 214 Although the prosecutor made some improper remarks during eleven of the State’s thirteen opening arguments, they did not amount to persistent and pervasive misconduct that deprived Goudeau of a fair trial. The court twice instructed the jury that attorneys’ remarks during opening and closing were not evidence, and we presume that jurors follow instructions. Manuel, 229 Ariz. at 6 ¶ 25, 270 P.3d at 833. Any cumulative prejudice resulting from the prosecutor’s remarks is insufficient to overcome this presumption. See State v. Gallardo, 225 Ariz. 560, 569 ¶ 40, 242 P.3d 159, 168 (2010) (reasoning that similar instructions cured any prejudice). N. Finding Multiple Aggravating Factors ¶ 215 Goudeau asserts that he was subjected to impermissible double counting of aggravating circumstances, violating his constitutional rights against double jeopardy and cruel and unusual punishment. He further asserts that AR.S. § 13-751(F)(2)’s contemporaneous prior conviction provision is unconstitutional and that the aggravation instructions were improper. We review de novo whether Goudeau’s convictions violate the Double Jeopardy Clause. State v. McGill, 213 Ariz. 147, 153 ¶21, 140 P.3d 930, 936 (2006). Because a double jeopardy violation would constitute fundamental error, we consider the issue even though Goudeau raised it for the first time on appeal. See id. ¶ 216 We also review de novo the constitutionality of statutory aggravating circumstances. Forde, 233 Ariz. at 569 ¶ 105, 315 P.3d at 1226. Although we ordinarily review de novo whether the trial court correctly instructed the jury on the law, Burns, 237 Ariz. at 22 ¶ 83, 344 P.3d at 324, because Goudeau did not object to the aggravation phase jury instructions, we review for fundamental error, see State v. Gomez (Gomez I), 211 Ariz. 494, 499 ¶ 20, 123 P.3d 1131, 1136 (2005). ¶ 217 Each of Goudeau’s nine murder convictions was for felony murder, variously predicated on kidnapping, sexual assault, burglary, or armed robbery. Goudeau was convicted of each charged predicate felony for all but two of the murder convictions (Chapter 8—the Roman and Vargas murders, in which the jury acquitted Goudeau of the predicate felony charges of attempted armed robbery). At the close of the aggravation phase, the trial court instructed the jury that in considering the (F)(2) aggravator, it had to find that the “[defendant has been convicted of a ‘serious offense’, either in this trial or at another court proceeding.” See AR.S. § 13-751(F)(2). The jury found the (F)(2) aggravator satisfied for each murder conviction. 1. Using the same facts as felony-murder predicates, (F)(2) aggravators, and separately punished crimes is constitutional. a. Double Jeopardy ¶ 218 Goudeau asserts that using the same felonies three times in the sentencing calculus violates the Double Jeopardy Clause of the Fifth Amendment. This argument fails, however, because the predicate felonies to the felony-murder convictions were not the only prior convictions supporting the (F)(2) aggravator in this case. The State presented evidence of five serious offense convictions from 1989 and 1990, as well as Goudeau’s prior convictions for the crimes against sisters Lorena L. and Alejandra L. ¶ 219 Goudeau’s claim also fails on the merits. We have rejected the argument that double jeopardy prohibits a court from sentencing a defendant to prison for the same felonies used as felony murder predicates and capital sentencing aggravators. See Burns, 237 Ariz. at 22 ¶ 86, 23 ¶ 88, 344 P.3d at 324, 325. b. Eighth Amendment ¶ 220 Goudeau next contends that the (F)(2) aggravator violates the Eighth Amendment by failing to genuinely narrow the class of death-eligible defendants if the contemporaneously committed predicate crime supporting a felony-murder conviction may also be used as a prior serious felony conviction. See U.S. Const. amend. VIII. Goudeau acknowledges that we rejected a similar challenge to the (F)(2) aggravator in Forde, 233 Ariz. at 569 ¶¶ 105-07, 315 P.3d at 1226; see also State v. Carlson, 237 Ariz. 381, 395 ¶¶ 45, 47-48, 351 P.3d 1079, 1093 (2015). The (F)(2) aggravator is constitutional. 2. The trial court did not commit fundamental error by failing to instruct the jury that it could not consider the same fact to prove multiple aggravating factors. ¶ 221 The State properly presented evidence that Goudeau had been convicted of multiple serious offenses to prove the (F)(2) aggravator. See Morris, 215 Ariz. at 341 ¶ 78, 160 P.3d at 220. Goudeau nonetheless contends that the absence of any jury instruction that jurors could only consider the multiple serious offenses once in the sentencing decision was structural error. He relies on State v. Lynch (Lynch I), 225 Ariz. 27, 234 P.3d 595 (2010), in which we held that the trial court’s erroneous instruction that the (F)(6) aggravator was three separate aggravating factors and the prosecutor’s highlighting of that instruction during arguments constituted reversible error. Id. at 42-43 ¶¶ 84-88, 234 P.3d at 610-11. ¶ 222 Goudeau’s reliance on Lynch I is misplaced. Unlike the jury in Lynch I, the jury here was not instructed that it could find multiple aggravating factors for each serious offense, and the State did not argue that it could. On the contrary, the State correctly argued that the seventy-five prior serious offenses are “not [seventy-five] separate aggravating factors,” but rather constitute “one aggravating factor.” Goudeau has not established fundamental error. O. Rebuttal Evidence to Mitigation ¶ 223 Goudeau called one witness during the penalty phase, mitigation expert Dr. Mark Cunningham. Dr. Cunningham opined that Goudeau would have a positive adjustment to prison if sentenced to a life term and would pose a low likelihood of violence. Dr. Cunningham further opined that Goudeau deserved leniency because several adverse developmental factors shaped Goudeau’s decision-making ability and value system. ¶ 224 In rebuttal to Dr. Cunningham’s mitigation testimony, the State sought to introduce into evidence transcripts from interviews it conducted with two of Goudeau’s sisters, Wilma Jean Belt and Sharon Goudeau, whom Dr. Cunningham had also interviewed in forming his opinion. Goudeau objected, but he acknowledged that the sisters’ interviews related to his family background and that defense counsel attended those interviews. The trial court overruled the objection and thereafter admitted the sisters’ interview transcripts without further objection. ¶ 225 After Dr. Cunningham’s testimony concluded, Goudeau chose to allocute. In his allocution, Goudeau expressed remorse for the crimes he committed in 1989 and indicated that he changed after being in prison. In rebuttal to Goudeau’s allocution, the State sought to introduce into evidence a transcript from a 2004 parole board hearing during which Goudeau was granted parole. Over Goudeau’s general objection, the court admitted the transcript. ¶ 226 “Admissibility of the rebuttal evidence turned on whether it was relevant to the existence of mitigation sufficiently substantial to call for leniency, A.R.S. § 13-752(G), and, if so, whether the evidence was unfairly prejudicial.” Forde, 233 Ariz. at 571 ¶ 118, 315 P.3d at 1228; see also Leteve, 237 Ariz. at 528-29 ¶47, 354 P.3d at 405-06 (noting that under A.R.S. §§ 13-751(G) and 13-752(G), the state may introduce relevant evidence whether or not the defendant presents evidence during the penalty phase and thus “may ‘rebut’ mitigation—that is, a conclusion that the defendant should be shown leniency”) (internal quotation marks and citation omitted). Although “[t]he Rules of Evidence do not apply to the admission of evidence during the penalty phase of a capital trial,” Burns, 237 Ariz. at 28 ¶ 130, 344 P.3d at 330, the trial court’s analysis in determining relevance under § 13-751(C) “involves fundamentally the same considerations as does a relevancy determination under Arizona Rule of Evidence 401 or 403,” McGill, 213 Ariz. at 157 ¶ 40, 140 P.3d at 940. ¶ 227 Goudeau argues that the transcripts of his sisters’ interviews, though “marginally relevant,” “also included highly inflammatory matters including what Goudeau purportedly told his sister[s] about his involvement in his prior criminal offenses and lack of acceptance of responsibility for [those offenses, which] ... are irrelevant considerations and rebutted nothing in this case.” ¶ 228 Because Goudeau did not object to the admission of the sisters’ interview transcripts on the ground that they contained inflammatory content, we review for fundamental error only. See State v. Neal, 143 Ariz. 93, 100, 692 P.2d 272, 279 (1984). We find no error in the trial court’s admission of the transcripts, much less fundamental error. The court relied on defense counsel’s characterization of the scope of the transcripts as pertaining to Goudeau’s family background. So characterized, they were relevant to rebut Dr. Cunningham’s mitigation testimony on that topic. ¶ 229 Moreover, because Dr. Cunningham based his opinion in part on his own interviews with Goudeau’s sisters, the transcripts from the State’s interviews with them were relevant inasmuch as they provided further context for Dr. Cunningham’s conclusions. Any prejudicial impact of the brief references in the transcripts to Goudeau’s time in prison and what he had told his sisters about his prior crimes did not outweigh the transcripts’ probative value. In addition, the State did not mention in closing argument that portion of the sisters’ interviews to which Goudeau now objects. ¶ 230 Regarding the 2004 parole board transcript, Goudeau argues that the court erred by admitting it because the transcript “failed to rebut the ‘thrust’ of [his] mitigation” and was unfairly prejudicial. We review the admission of evidence in the penalty phase for abuse of discretion. Nordstrom, III, 230 Ariz. at 114 ¶ 8, 280 P.3d at 1248. ¶ 231 “Defendants may not ‘shift a mitigating circumstance ... [into] allocution and thereby insulate that mitigating circumstance from rebuttal evidence.’” State v. Chappell, 225 Ariz. 229, 238 ¶ 32, 236 P.3d 1176, 1178 (2010) (quoting State v. Armstrong, 218 Ariz. 451, 463 ¶ 59, 189 P.3d 378, 390 (2008)). The thrust of Goudeau’s allocution was that he had learned from his time in prison for prior crimes, that the only reason he was on trial in this ease was because of that criminal history, and that he deserved leniency because the State had misrepresented his character. Similarly, the thrust of Goudeau’s statements to the parole board was that his time in prison had changed him for the better and that he would work conscientiously so as not to return to prison. For example, Goudeau told the parole board: [C]om[ing] to prison like I told you it was one of the lowest part of my life.... [B]ut is also was my highest because then I began to realize ... how—how many people I did hurt.... I mean no one should have to go through that and I’m aware of that.... I have no excuse for it because it was my choice using drugs. But I can assure you that I would never use drugs or alcohol again. I would never harm anyone____ I can assure you this is a place that will never see me again. Um, I know what I have to do to stay out of here or ... I would never ever hurt my family or myself. I would never hurt anybody again in my life. ¶ 232 The parole board transcript was relevant to rebut Goudeau’s allocution that he had in fact learned from his time in prison. The State presented evidence that he later committed and was convicted of the crimes against the sisters, Alejandra L. and Lorena L. The transcript was also relevant to show that Goudeau asked for and received leniency in the past, and having been granted parole, he violated the parole board’s trust by assaulting the sisters and committing the crimes of which he was found guilty in this case. See A.R.S. § 13-752(G) (“[Regardless of whether the defendant presents evidence of mitigation, the state may present any evidence that demonstrates that the defendant should not be shown leniency including any evidence regarding the defendant’s character, propensities, criminal record or other acts.”); Leteve, 237 Ariz. at 528-29 ¶ 47, 354 P.3d at 405-06 (“During the penalty phase, the state may offer evidence that is relevant to determining if the mitigation is sufficiently substantial to warrant leniency.”). Any prejudicial impact of the parole hearing transcript’s details of his prior crimes did not outweigh the transcript’s probative value, and the trial court did not abuse its discretion by admitting it. P. Waiver of Mitigation ¶ 233 Goudeau makes three claims related to his waiver of mitigation: that his waiver was not knowing, voluntary, and informed; that he could not override his attorneys’ decision to present mitigation; and that the Sixth and Eighth Amendments preclude waiver. We review a trial court’s determination that a defendant has knowingly, intelligently, and voluntarily waived mitigation for abuse of discretion. Cf. Gunches, 225 Ariz. at 24 ¶ 8, 234 P.3d at 592 (reviewing waiver of counsel). Because Goudeau did not raise his constitutional challenges to waiver below, we review for fundamental error. See Carlson, 237 Ariz. at 393 ¶ 38, 351 P.3d at 1091; Henderson, 210 Ariz. at 567 ¶ 19, 115 P.3d at 607. ¶ 234 After his convictions in the guilt phase, Goudeau told the trial court that he wanted to waive his appearance from further proceedings. The court engaged Goudeau in a colloquy, describing the aggravation and penalty phases of trial and explaining that he could change his mind at any time. The court determined that Goudeau knowingly, intelligently, and voluntarily waived his appearance in the aggravation and penalty phases. Because Goudeau also indicated his desire to waive mitigation, the court ordered him to undergo a Rule 11 competency evaluation. When Goudeau refused the evaluation, the court concluded based on “hundreds of hours” of observations and reports from a previous Rule 11 evaluation that Goudeau was competent to waive mitigation. ¶ 235 The court then discussed at length with Goudeau the role of mitigation and his right to present such evidence. Goudeau responded that he still did not “really” understand the substance of his mitigation, at which point the court recessed so that Goudeau could review the mitigation with his counsel and make an “educated decision.” The court told Goudeau: “We will take whatever time that you need and, counsel, I rely on you to tell me when you are ready.” ¶236 When they returned within fifteen minutes, the court asked Goudeau whether he had enough time to think and talk about what he wanted to do with counsel. Goudeau replied: I haven’t really had enough time to think about it, but I have decided I am not going to go through with it. I mean, it is just thrown together documentations that I still disagree with, so—but I—he gave me a run through of what, you know, the steps is but I don’t wish to go any farther. Goudeau confirmed that he understood his right to present mitigation and that his attorneys were prepared to present mitigation on his behalf. The court recessed again so that Goudeau could discuss whether to waive mitigation with Phil Tower, his civil attorney. Goudeau then informed the court that he would proceed with mitigation “this week.” ¶ 237 WTen presentation of mitigation evidence began a week later, defense counsel first called Dr. Cunningham, and Goudeau decided to attend the proceedings. Shortly into Dr. Cunningham’s second day of testimony, however, Goudeau told the court that he wanted to stop mitigation. Goudeau confirmed that he had not had any drugs, alcohol, or medicine in the last twenty-four hours, nor had he been prescribed any medications that he had refused to take. The court explained that Dr. Cunningham had not finished his direct testimony and would still be subject to the State’s cross-examination. The court then took a recess so that Goudeau could confer with his lawyers and decide what to do. ¶ 238 After the short meeting, defense counsel informed the court that Goudeau still wished to waive mitigation and further requested that Dr. Cunningham’s testimony be stricken. The court denied the motion to strike. The court then went through a brief colloquy with Goudeau in which he confirmed that he wanted to entirely stop the mitigation case. Defense counsel made a renewed motion for a Rule 11 evaluation, which the court denied, finding “no basis” for it because Goudeau “has been, again, completely focused on time and space and responsive to all of my questions today.” Later that day, Goudeau told the court that he did not wish to testify, but did want to exercise his right to allocution. ¶ 239 Following the State’s cross-examination of Dr. Cunningham, Goudeau also waived any rebuttal testimony and instead provided the jury with stipulated facts about his prior convictions. Defense counsel again moved for a Rule 11 evaluation, which the court denied. Before closing arguments, the trial court instructed the jury that it was not limited to considering mitigating circumstances offered by the defendant; it must consider any relevant mitigating evidence presented during any phase of the trial, and each juror must individually determine whether the mitigation was sufficiently substantial to call for leniency. 1. Goudeau knowingly, voluntarily, and intelligently waived mitigation. ¶ 240 “A defendant may waive mitigation if he is competent and makes the decision knowingly, intelligently, and voluntarily.” Hausner, 230 Ariz. at 84 ¶ 116, 280 P.3d at 628. In Hausner, we set forth the procedures for trial courts to “prospectively appl[y] when a capital defendant elects to waive the presentation of all mitigation,” to ensure that waivers are made on an informed and voluntary basis. Id. at 86 ¶ 122, 280 P.3d at 630. ¶ 241 Although the proceedings here occurred before Hausner was decided, the trial court took many of the steps recommended in Hausner. The court engaged Goudeau in a colloquy to ensure that he understood the role of mitigation and the consequences of waiver; held recesses to allow Goudeau to speak with counsel and review the mitigation evidence; and confirmed on the record that Goudeau was competent to waive and knowingly, voluntarily, and intelligently did so. Although some of the discussion occurred eight days before Goudeau ultimately waived mitigation, Goudeau knew about the witnesses and potential testimony that he was forgoing and told the court that he had had enough time to consider his decision. ¶242 Contrary to Goudeau’s contentions on appeal, there is no indication that his decision to waive mitigation resulted from a complete breakdown in communication with counsel. Although he voiced frustrations with his counsel, he reviewed the mitigation evidence and discussed waiver with counsel before making his decision. Asked by the trial court to explain his decision to waive, Goudeau responded: “Judge, I am 100 percent innocent and I cannot sit here and listen to this any more, you know. I wish my defense team would have gave me the same type of defense during the guilt[ ] phase, we wouldn’t even be at this point, you know.” ¶ 243 Goudeau’s waiver of his right to present mitigation was voluntary, knowing, and informed. See State v. Joseph, 230 Ariz. 296, 300-01 ¶¶ 22-24, 283 P.3d 27, 31-32 (2012) (concluding that trial court’s explanation of mitigation and penalty phase, coupled with defendant’s statements, demonstrated that he voluntarily, knowingly, and intelligently waived mitigation). 2. Defense counsel is not required to present mitigation over the defendant’s objection. ¶ 244 Goudeau asserts that “[a] represented defendant has no right to veto his lawyers’ strategic decision to present mitigation evidence and permitting so violates the Sixth and Fourteenth Amendments.” In a related argument, Goudeau contends that the Sixth and Eighth Amendments prohibit capital defendants from waiving mitigation. We reject these arguments. ¶ 245 In Blystone v. Pennsylvania, the capital defendant waived his right to present mitigation evidence despite the trial court’s “repeated warnings” and “contrary advice from his counsel.”494 U.S. 299, 306 n.4, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990). Without questioning that waiver or its validity, the United States Supreme Court held that Pennsylvania’s statutory sentencing procedures did not violate the Eighth Amendment because, as here, the jury was specifically instructed to consider any mitigation evidence presented at trial in deciding on the penalty. Id. at 305-08, 110 S.Ct. 1078; see State v. Murdaugh, 209 Ariz. 19, 33 ¶ 70, 97 P.3d 844, 858 (2004) (citing Blystone to support the conclusion that “[a] defendant may waive the presentation of mitigation if he is legally competent to do so”); see also Hausner, 230 Ariz. at 85 ¶ 118, 280 P.3d at 629 (same, rejecting argument that “Murdaugh misinterpreted in Blystone”). ¶ 246 Nor does the Sixth Amendment require the defense to present mitigation despite the defendant’s waiver. As we explained in Hausner, “requiring the defense to present mitigating evidence over the defendant’s opposition arguably would conflict with the defendant’s Sixth Amendment right to self-representation.” 230 Ariz. at 85 ¶ 119, 280 P.3d at 629. Although a minority of courts have held that mitigation must be presented even over the defendant’s objection, we have found “more persuasive the majority of courts that ... have held that a capital defendant may waive the presentation of mitigation.” Id. at ¶ 120. IV. ABUSE OF DISCRETION REVIEW ¶ 247 Because Goudeau committed the murders after August 1, 2002, we review the jury’s findings of aggravating circumstances and the imposition of death sentences for abuse of discretion, A.R.S. § 13-756(A), viewing the facts in the light most favorable to sustaining the verdicts, Naranjo, 234 Ariz. at 249 ¶81, 321 P.3d at 414. “A finding of aggravating circumstances or the imposition of a death sentence is not an abuse of discretion if ‘there is any reasonable evidence in the record to sustain it.’ ” State v. Delahanty, 226 Ariz. 502, 508 ¶ 36, 250 P.3d 1131, 1137 (quoting Morris, 215 Ariz. at 341 ¶ 77, 160 P.3d at 220). A. Aggravating Circumstances ¶ 248 Goudeau argues that the State presented insufficient evidence of the (F)(6) aggravator in eight of the nine murders and that the (F)(2) aggravator is unconstitutional. For the reasons discussed above, we reject those arguments. See supra ¶¶182-91, 216-22. Goudeau also argues that the State presented insufficient evidence of the (F)(8) aggravator with respect to Chao Chou and Liliana Sanchez. Goudeau does not challenge the jury’s findings on the other aggravating circumstances, A.R.S. §§ 13-751(F)(1) and - 751(F)(7). 1. Sufficiency of Evidence for (F)(8) Finding ¶ 249 The (F)(8) aggravator exists if “[t]he defendant has been convicted of one or more other homicides ... that were committed during the commission of the offense.” A.R.S. § 13-751 (F)(8). To satisfy this factor, “the homicides must be temporally, spatially, and motivationally related, taking place during ‘one continuous course of criminal conduct.’” State v. Prasertphong (Prasertphong II), 206 Ariz. 167, 170 ¶ 15, 76 P.3d 438, 441 (2003) (quoting State v. Rogovich, 188 Ariz. 38, 45, 932 P.2d 794, 801 (1997)). It is not enough that the jury convicted the defendant of multiple homicides occurring around the same time. Id. ¶ 250 The evidence at trial showed that on March 14, 2006, Chou offered to give Sanchez a ride home after work and the two left together in Chou’s car. Chou was later found dead in an alley with a gunshot wound to his head. Sanchez was found dead in the front passenger seat of Chou’s car, about one mile from the alley, with a gunshot wound to her head. Her shirt was pulled up and her pants unbuckled and partially unzipped. The evidence further showed that both victims were shot by someone seated in the back seat. There was also some evidence that the victims had been robbed. ¶ 251 The jury could reasonably infer that Goudeau, while seated in the back seat, kidnapped and robbed Chou and Sanchez at gunpoint, and killed them to facilitate his plan to rob them, sexually assault Sanchez, or eliminate witnesses. The evidence was sufficient to support a finding that the murders were motivationally related and took place in a continuous course of criminal conduct. B. Death Sentences ¶ 252 We will overturn a jury’s imposition of a death sentence only if “no reasonable jury could have concluded that the mitigation established by the defendant was not sufficiently substantial to call for leniency.” Cota, 229 Ariz. at 153 ¶ 95, 272 P.3d at 1044 (internal quotation marks and citation omitted). ¶ 253 During trial, Goudeau presented limited mitigation evidence through Dr. Cunningham that he suffered from adverse developmental factors that affected his culpability, including “probable fetal alcohol exposure,” learning disorders, genetic predisposition to substance abuse and psychological disorders, neglect, inadequate supervision, and exposure to community violence and drug abuse. Dr. Cunningham further opined that Goudeau would not pose a danger in prison. ¶ 254 The State cross-examined Dr. Cunningham and presented evidence to rebut the alleged mitigating factors. The jury did not find the proffered mitigation sufficiently substantial to call for leniency. See AR.S. §§ 13-751(0, (E); -752(G). ¶ 255 The jury could have properly found Goudeau’s mitigation evidence and any other evidence presented at trial insufficient to warrant leniency. The jury did not abuse its discretion in finding death sentences appropriate for each of the nine murders. Because we find no error, we need not address Goudeau’s remaining argument that it is unconstitutional to review death penalty sentences for harmless error. V. CONCLUSION ¶256 Based on the foregoing, we affirm Goudeau’s convictions and sentences. . We view the facts in the light most favorable to sustaining the jury's verdicts, State v. Cota, 229 Ariz. 136, 141 n. 2, 272 P.3d 1027, 1032 n. 2 (2012). . STR DNA analysis looks at both the X and Y chromosomes for total human DNA. Y-STR DNA analysis looks only at the locations on the Y chromosome, making it a better test for samples that include a limited amount of male DNA when, as here, most of the sample contains female DNA. . DNA extract is the purified DNA that is removed from the sample without the other parts of the cell. Any remaining DNA extract is testable. . In a post-trial motion for a new trial, Goudeau again objected to joinder of the counts, but at that point the argument was untimely and the trial court did not err by denying it. See Ariz. R. Crim. P. 13.4(c) (defendant must renew denied motion to sever "at or before the close of the evidence,” because otherwise "[sjeverance is waived”). . Rule 611(a) was amended after Goudeau's trial. See Ariz. R. Evid. 611 cmt. to 2012 amend. We cite the current version because the changes did not materially alter the rule. See id. (noting the changes "are intended to be stylistic only”). . The court of appeals affirmed Goudeau’s convictions and related sentences. State v. Goudeau, 1 CA-CR 07-1069, 2009 WL 4877478, at *1 ¶ 1 (App. Dec. 17, 2009) (mem. decision). . The trial court ultimately gave not only a standard jury instruction regarding testimony of witnesses generally, but also a separate instruction specifically on eyewitness identifications. See State v. Nottingham, 231 Ariz. 21, 27 ¶ 16, 289 P.3d 949, 955 (App. 2012) (noting that when requested a trial court must separately and specifically instruct the jury on eyewitness identification when it is at issue in the case). . The State argues that Goudeau is collaterally estopped from challenging the sisters’ identifications because the issue was previously litigated and decided in the prior trial and then affirmed on appeal. See Goudeau, 1 CA-CR 07-1069, at *4-5 ¶¶ 22-31. But ”[c]ollateral estoppel in criminal cases is not favored and is applied sparingly." State v. Rodriguez, 198 Ariz. 139, 141 ¶ 6, 7 P.3d 148, 150 (App. 2000). Accordingly, we address the merits of Goudeau’s challenge regarding the sisters’ identifications. . Goudeau later clarified that the two victims he was referring to in his allocution were from the 1989 crimes, for which he was convicted and served time in prison. . Despite this, sufficient evidence supported an implicit finding that Goudeau committed burglary and kidnapping against victims Roman and Vargas, thus authorizing the felony-murder convictions as to them, a point Goudeau does not contest. See State v. Lacy, 187 Ariz. 340, 345, 349, 929 P.2d 1288, 1293, 1297 (1996) (finding sufficient evidence of predicate crime of burglary to support felony-murder convictions, although burglary charge previously was dismissed). . Stating that he wishes to preserve certain issues for federal review, Goudeau lists nineteen constitutional claims and previous decisions rejecting them. We decline to revisit those claims.

OPINION JOHNSEN, Judge: ¶ 1 We hold in this ease that a statutory requirement under which a parent generally must wait a year to ask to change legal decision-making or parenting time applies to a request to relocate that implicates decision-making or parenting time. We also hold that Arizona Rule of Evidence 408 does not preclude evidence of negotiations offered to prove a settlement. FACTS AND PROCEDURAL BACKGROUND ¶ 2 The dissolution decree of Kamen Rae Murray (“Mother”) and Sean Noel Patrick Murray (“Father”), entered in 2009, awarded them joint custody of their children. In January 2014, the court issued an order modifying parenting time. Pursuant to that order, Mother and Father continued to share joint legal decision-making and Father’s parenting time was increased to six days every two weeks. The following month, after learning Mother intended to remarry and move -with the children to Nebraska, Father filed a motion titled “Motion for Declaratory Relief; Alternatively, Motion to Prevent Relocation; Request for Attorney’s Fees and Costs.” In August 2014, after briefing and oral argument, the superior court granted Father’s motion, ruling Mother could not take the children to Nebraska. ¶ 3 Mother then filed a series of motions, including a “Motion for Clarification and/or Motion to Amend Under Advisement Ruling,” an “Expedited Motion to Allow Petitioner’s Witnesses to Appear Telephonically for the October 28 & 29, 2014 Trial,” and a “Motion to Enforce Parties’ Agreement.” The superior court denied Mother’s motions and awarded Father a portion of his attorney’s fees and costs. ¶ 4 Mother timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (“AR.S.”) section 12-2101(A)(1) (2016). DISCUSSION A. Section 25-411 and Relocation. ¶ 5 Mother argues the superior court erred when it ruled she could not relocate the children to Nebraska. In its order, the court agreed with Father that A.R.S. § 25-411(A) (2016) barred Mother from seeking to relocate within a year of the January 2014 parenting-time modification. The court further found that, even if the one-year restriction did not apply, Mother had failed to prove relocation would serve the best interests of the children, pursuant to AR.S. § 25-408(G), (I) (2016). We review the superior court’s orders concerning custody and relocation for an abuse of discretion. See Owen v. Blackhawk, 206 Ariz. 418, 420, ¶ 7, 79 P.3d 667 (App.2003). We construe statutes de novo. Thompson v. Thompson, 217 Ariz. 524, 526, ¶ 7, 176 P.3d 722 (App.2008) ¶ 6 Arizona statutes pertaining to legal decision-making and parenting time intersect with those pertaining to relocation. Section 25-408 sets out the process by which the court may allow a parent who shares parenting time or legal decision-making to relocate the child. See generally Vincent v. Nelson, 238 Ariz. 150, 357 P.3d 834 (App.2015). Pursuant to § 25-408(A), a parent who wants to move the child out of state or more than 100 miles within the state must give the other parent 45 days’ written notice. Under sub-part (C) of the statute, the parent wishing to move may petition the court “to determine the appropriateness of a relocation that may adversely affect the other parent’s legal decision-making or parenting time rights,” or the other parent may file a petition to prevent relocation. Upon filing of a petition by either parent, The court shall determine whether to allow the parent to relocate the child in accordance with the child’s best interests. The burden of proving what is in the child’s best interests is on the parent who is seeking to relocate the child. AR.S. § 25-408(G). Subpart (I) of § 25-408 further requires the court considering a relocation petition to take into account “all relevant factors” relating to the child’s best interests, including “[t]he factors prescribed under § 25^403.” The referenced provision, § 25-403, sets out the factors by which a court must determine legal decision-making and parenting time. A.R.S. § 25-403 (2016). ¶ 7 In turn, A.R.S. § 25-411 generally governs the process for modifying legal decision-making or parenting time. It provides that in the ordinary case, a parent “shall not make a motion to modify a legal decision-making or parenting time decree earlier than one year after” a prior order setting legal decision-making or parenting time. A.R.S. § 25-411(A). ¶ 8 The superior court correctly concluded that Mother’s proposed relocation of the children was subject to § 25-411(A)’s one-year waiting period after a modification of parenting time or legal decision-making before a parent may seek another change. As a practical matter, Mother’s intended move to Nebraska with the children necessarily would have required a change in the parenting-time arrangements established in January 2014. The move also may have required a change in the legal decision-making arrangements established in the January 2014 order. A parent ordinarily may not ask to change parenting time or legal decision-making within a year after a modification order; the same constraint applies when a parent seeks a relocation that necessarily will involve a change in parenting time or legal decision-making. ¶ 9 In Owen, we addressed a similar question regarding whether a court considering a relocation request under § 25-408 must make the detailed findings that § 25-403 requires in “contested custody” determinations. 206 Ariz. at 421, ¶ 9, 79 P.3d 667. We held that although § 25-408 makes no reference to findings of fact, such findings were required because the proposed relocation involved a “substantial change in physical custody.” Owen, 206 Ariz. at 421, ¶ 11, 79 P.3d 667. Although our statutes now refer to legal decision-making and parenting time, the same principles apply when a proposed relocation would affect those rights. See id.; In re Marriage of Diezsi, 201 Ariz. 524, 525-26, ¶ 4, 38 P.3d 1189 (App.2002). Under Owen, when the superior court holds a hearing on a request for relocation that necessarily implicates a change in parenting time or legal decision-making, the court must make the specific findings of fact required in cases of parenting time and legal decision-making under § 25-403. By the same token, pursuant to § 25-411(A) and subject to stated exceptions not relevant here, a parent must wait a year after a modification of parenting time or legal decision-making to seek an order approving a contested relocation that would implicate a further change in decision-making or parenting time. ¶ 10 Mother’s plan to relocate involved moving the children from Arizona, where Father lives, to Nebraska, which necessarily would interfere with Father’s parenting time and may have implicated legal decision-making. Because less than a year had passed since the January 2014 order modifying parenting time and none of the exceptions in AR.S. § 25-411(A) applied, the superior court correctly granted Father’s motion to prevent the relocation. B. Alleged Settlement Agreement. ¶ 11 Mother also argues the superior court erred in denying her motion to enforce an agreement to allow her to move the children to Nebraska that she contends she and Father reached while Father’s motion to prevent relocation was under consideration. With her motion, Mother presented numerous emails and text messages she argued evidenced the agreement. In response, Father did not dispute that he had agreed to allow Mother to move the children to Nebraska, but argued he had not signed any such agreement and that, in any event, the court should disregard the purported agreement as contrary to the children’s best interests. The superior court ruled that under Arizona Rule of Evidence 408, it was “not inclined to consider” the out-of-court statements Mother offered to prove the agreement. In any event, the court found, “The written agreement pertains to parenting time, legal decision-making, and child support and the Court in exercising its independent discretion pursuant to AR.S. § 25-317, rejects the agreement.” ¶ 12 Arizona Rule of Family Law Procedure 69 provides that an agreement between the parties “shall be valid and binding” if it is “in writing” or made on the record. Among the materials Mother submitted was an email from Father to his lawyer attaching a three-page single-spaced writing setting out terms by which “Mother will be allowed to relocate with the minor children to Nebraska after the end of the 2014-2015 school year.” The writing specified parenting time, telephone access, child support, medical expenses, the costs of the children’s extra-curricular school activities, tax exemptions and attorney fees. In his email forwarding the writing to his lawyer, Father wrote, “This is the reconciliation we hammered out____ If you would prep, this into a submittable format and send me and her atty. a copy so we can all thumbs-up before it is submitted.” After Father’s lawyer failed to respond to the email, Father emailed Mother the following: “He hasnt got back to me, but I made it very clear to go right ahead.” In yet another later email to his lawyer complaining about the lawyer’s delay, Father wrote, “I have twice indicated in phone messages over the last few weeks that my ex wife and myself are in agreement and have come to a mutually acceptable arrangement.... I am in agreement with its contents which I have read and understand.” ¶ 13 As an initial matter, Father contends Rule 69 prevents enforcement of the agreement Mother alleges. We interpret Rule 69 consistent with Arizona Rule of Civil Procedure 80(d), which provides, “No agreement or consent between parties or attorneys in any matter is binding if disputed, unless it is in writing, or made orally in open court, and entered in the minutes.” See Ariz. R. Fam. Law P. 1 emt. (“Wherever the language in these rules is substantially the same as the language in other statewide rules, the case law interpreting that language will apply to these rules.”). As applied here, and contrary to Father’s contention, Rule 69 would not bar the court from finding that Father’s writings constitute a written agreement enforceable under Rule 69. ¶ 14 The superior court erred by concluding the writings Mother offered could not be considered under Arizona Rule of Evidence 408. To the extent that Rule 408 applies to these proceedings, see Arizona Rule of Family Law Procedure 2(B), it does not prevent consideration of Mother’s evidence to prove the parties reached an enforceable agreement. ¶ 15 Rule 408 provides as follows: (a) Prohibited Uses. Evidence of the following is not admissible—on behalf of any party—either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction: (1) furnishing, promising or offering—or accepting, promising to accept, or offering to accept—a valuable consideration in compromising or attempting to compromise the claim____ (b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. Rule 408 prohibits the use of evidence of a compromise offered “to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement[.]” It does not, however, prohibit evidence of a compi’omise offered for another reason. Burris v. City of Phoenix, 179 Ariz. 35, 42, 875 P.2d 1340 (App.1993); DeForest v. DeForest, 143 Ariz. 627, 633, 694 P.2d 1241 (App.1985); Campbell v. Mahany, 127 Ariz. 332, 334, 620 P.2d 711 (App.1980). ¶ 16 Mother did not offer Father’s out-of-court statements in support of her contentions that the court should deny Father’s motion to prevent relocation, or, more generally, that the factors in § 25-403 supported relocation. Instead, she offered Father’s writings to prove the parties reached an agreement allowing her to take the children to Nebraska. Although Rule 408 disallows evidence of settlement negotiations offered to prove a claim, nothing in the rule bars such evidence offered to prove a settlement resolving a claim. See Cyberco Holdings, Inc. v. Con-Way Transp. Servs., Inc., 212 Or.App. 576, 159 P.3d 359, 367 (2007) (rule does not bar “evidence that, subsequent to the events giving rise to the claims at issue, the parties entered into an agreement that limited the scope of the claims or extinguished certain damages”); 23 Charles Alan Wright, Arthur R. Miller & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5314 (1st ed.1980) (on claim for breach of a settlement, Rule 408 “does not prevent the plaintiff from proving the agreement”). ¶ 17 In denying Mother’s motion to enforce the alleged settlement, the superior court also found the purported agreement would not be in the children’s best interests. See A.R.S. § 25-317(B) (excepting agreements concerning custody or parenting time from general rule that agreements between parties to dissolution are binding unless unfair); Ariz. R. Fam. Law P. 69(B) (court may exercise “its independent discretion pursuant to A.R.S. § 25-317” in considering otherwise valid and binding agreement); Anderson v. Anderson, 14 Ariz.App. 195, 198, 481 P.2d 881 (1971) (“The court, independent of any stipulation or agreement of the parties, must be convinced that the best interests and welfare of the minor children will be advanced by the award.”). ¶ 18 The court made its best-interests finding, however, without taking any evidence. When the question of a child’s best interests presents a disputed issue of fact, the court must allow the parties to present evidence before it makes its finding. See Volk v. Brame, 235 Ariz. 462, 466, ¶ 14, 333 P.3d 789 (App.2014) (due process requires court to hear testimony when making a finding that hinges on credibility). In urging the superior court not to enforce the agreement, Father argued the court already had found that relocation would not be in the children’s best interests. That finding of fact—the court's alternative basis for granting Father’s Fato prevent relocation—was based solely on the parties’ motion papers and argument of counsel; the court canceled an evidentiary hearing on the matter and ultimately ruled without taking evidence. See supra ¶ 5. But argument is not evidence, and when contested, a best-interests finding must be based on evidence, not argument. ¶ 19 For these reasons, we vacate the superior court’s order denying Mother’s motion to enforce an alleged agreement allowing her to move the children to Nebraska. On remand, the court may consider whether Father agreed in writing to the relocation and, if it finds such an agreement and after hearing such evidence as it deems appropriate, the court may determine whether relocation would be in the children’s best interests. C. Attorney’s Fees and Costs. ¶ 20 Mother finally argues the superior court erred in awarding Father his attorney’s fees without considering the parties’ respective financial resources. We review an award of attorney’s fees for an abuse of discretion. Magee v. Magee, 206 Ariz. 589, 590, ¶ 6, 81 P.3d 1048 (App.2004). Section 25-324 allows the court to award reasonable fees “after considering the financial resources of both parties and the reasonableness of the positions each party has taken throughout the proceedings^]” A.R.S. § 25-324(A) (2016). ¶ 21 In making its fees award, the superior court made no finding as to the reasonableness of the parties’ respective positions and, as Mother points out, it had no evidence of their respective financial resources. Accordingly, we vacate the award of attorney’s fees. ¶22 Both Mother and Father request attorney’s fees incurred on appeal. In light of the absence of information regarding the parties’ respective financial status, we decline to award either party fees on appeal. On remand, the superior court may determine whether to award either party attorney’s fees incurred during this appeal. CONCLUSION ¶ 23 For the foregoing reasons, we affirm the superior court’s order granting Father’s motion to prevent relocation but vacate and remand its ruling denying Mother’s motion to enforce the purported settlement agreement. We also vacate and remand the superior court’s order awarding Father’s attorney’s fees under A.R.S. § 25-324. . Absent material revision after the relevant date, we cite a statute’s current version. . The exceptions include when there is evidence of domestic violence or other risk to the child’s "physical, mental, moral or emotional health.” A.R.S. § 25-411(A), (B), (D). Domestic violence was not at issue in this case, and Mother did not argue that relocation was necessary to prevent risk to the children’s "physical, mental, moral or emotional health.” . Owen concerned § 25-403(J), which at the time stated, "In a contested custody case, the court shall make specific findings on the record about all relevant factors and the reasons for which the decision is in the best interests of the child.” A.R.S. § 25-403(J) (2001). The requirement for “specific findings” now is found in subpart (B). See A.R.S. § 25-403(B) (2016). . This result is consistent with Arizona Rule of Family Law Procedure 91, which generally governs post-decree proceedings. Subpart E of Rule 91 is titled "Petition to Relocate or Prevent Relocation." Subpart D is titled "Petition to Modify Child Custody.” Subpart E(2) states that when there is a request to relocate that will change "legal custody,” the parties must comply with subpart D, which in turn specifies that no petition to modify custody will be heard “unless there is compliance with A.R.S. § 25-411." . Mother argues that even though it rejected the settlement agreement, the superior court should have granted her relief under principles of promissory estoppel. She offers no support, however, for the proposition that promissory estoppel might render enforceable a parenting-time agreement that the court has declined to approve for failure to comply with Rule 69. . Mother argues the superior court was required to make specific findings as to the parties' respective financial resources before awarding fees. As A.R.S. § 25-324(A) (2016) makes clear, however, findings are not required in the absence of a request. See Myrick v. Maloney, 235 Ariz. 491, 495, ¶ 10, 333 P.3d 818 (App.2014). Because Mother did not ask for specific findings pursuant to § 25-324(A), the court was not required to make them.

OPINION BROWN, Chief Judge. ¶ 1 This opinion addresses whether the trial court erred in dismissing a petition for enforcement of spousal maintenance based on Arizona Revised Statutes (“A.R.S.”) section 25-553, which provides that a party may not seek a judgment on spousal maintenance arrearages more than “three years after the spousal maintenance order terminates.” Because the court properly concluded that the petition was not timely filed, we affirm. BACKGROUND ¶ 2 The marriage of Julie L. Ames (“Wife”) and Gene R. Ames (“Husband”) terminated in June 2003 upon the entry of a consent judgment and decree of dissolution. The decree stated that Husband would pay Wife spousal maintenance of $1,000 per month for four years. ¶ 3 In May 2014, Wife filed a petition to enforce the spousal maintenance order, alleging Husband owed her more than $46,000 for missed payments plus interest from July 2003 through April 2014. In support of her petition, Wife filed an unsigned pleading titled “Affidavit of Direct Payments,” together with email correspondence, alleging that Husband made only eighteen of the forty-eight monthly payments and, even then, paid less than the designated amount when he made sixteen out of those eighteen payments. Wife alleged further that she had repeatedly contacted Husband regarding his failure to make the court-ordered payments, which often resulted in Husband making renewed efforts to meet his obligation. ¶ 4 Husband and Wife represented themselves at a subsequent hearing on the petition. In response to questioning from the trial court, they agreed that the “total of [the] past due obligation” was $29,673.26. At that point, however, Husband orally moved to dismiss the petition, contending the action was barred by a three-year statute of limitations (AR.S. § 25-553) governing enforcement of spousal maintenance orders. Wife responded that she had “addressed” that issue in her petition, and the trial court took the matter under advisement. ¶ 5 Several days later, the trial court entered a signed order dismissing the petition to enforce spousal maintenance. The court explained that the spousal maintenance obligation began in July 2003, terminated in July 2007, and that Wife waited more than three years after the order terminated to seek enforcement, in contravention of AR.S. § 25-553(A). ¶ 6 Through counsel, Wife filed a motion to amend the order or, alternatively, for a new trial. With greater specificity, Wife argued that she and Husband had “kept in contact over the years regarding the payment of the spousal maintenance award,” Husband “made repeated promises to make additional payments in the future,” and he had made continuous monthly payments of differing amounts from January 2007 to February 2011. Wife also argued the court violated her right to procedural due process by ruling on the oral motion to dismiss without providing her an opportunity to file a written response. Finally, Wife argued that because the decree did not expressly identify a specific date on which the spousal maintenance order would end, it did not terminate until the obligation was paid in full, and therefore AR.S. § 25-553 did not bar her claim. The trial court denied Wife’s motion to amend/motion for new trial and this timely appeal followed. DISCUSSION A. Due Process ¶ 7 Wife contends the trial court violated her right to due process by dismissing her petition without affording her an opportunity to respond, in writing, to Husband’s oral motion to dismiss. The parties dispute whether the court should have treated Husband’s motion as one for summary judgment. See Ariz. R. Fam. L.P. (“Rule”) 32(B) (explaining that, in the event matters outside the pleadings are presented to and not excluded by the court, a motion to dismiss shall be treated as a motion for summary judgment). Regardless of the label, it makes no difference here because (1) in either ease our review is de novo; (2) the only evidence in the record was submitted by Wife; (3) for purposes of assessing Husband’s motion, such evidence is undisputed; and (4) Wife has not identified any other evidence she would have presented to the trial court in support of her petition. ¶ 8 Given the unique procedural posture of Husband’s motion, the trial court properly could have waited for the applicable response time to run before issuing its ruling on the motion. But we do not agree with Wife’s assertion on appeal that she was denied due process. ¶ 9 Responding to Husband’s motion at the hearing, Wife informed the court she had anticipated and already “addressed” Husband’s claim that her petition was barred by statute as untimely. Wife identified the relevant section of her affidavit and informed the court she had consulted with an attorney on that issue and had cited a superior court ruling that purportedly held “there’s no[] statute of limitations on spousal maintenance enforcement.” Given Wife’s representations to the court that she had consulted counsel, conducted legal research, and addressed Husband’s argument in writing, we cannot say the court abused its discretion by ruling on the motion without waiting for a written response. B. Application of A.R.S. § 25-553(A) ¶ 10 Wife contends the statutory deadline for enforcing a spousal maintenance order established by A.R.S. § 25-553(A) has no application in this case. Specifically, Wife argues the decree did not expressly identify dates of commencement and termination, and the spousal maintenance order therefore remains in effect until Husband pays $48,000 (and accruing interest) in full. ¶ 11 “The interpretation of a statute is a question of law that we review de novo.” Bonito Partners, L.L.C. v. City of Flagstaff, 229 Ariz. 75, 83, ¶ 30, 270 P.3d 902, 910 (App.2012). In interpreting a statute, we “look[ ] first to the statutory language itself.” Baker v. Univ. Physicians Healthcare, 231 Ariz. 379, 383, ¶ 8, 296 P.3d 42, 46 (2013). As set forth in A.R.S. § 25-553(A): The person to whom the spousal maintenance obligation is owed may file a request for judgment for spousal maintenance arrearages not later than three years after the date the spousal maintenance order terminates. In that proceeding there is no bar to establishing a money judgment for all of the unpaid spousal maintenance arrearages. In this case, the decree ordered Husband to pay Wife spousal maintenance “in the amount of One Thousand Dollars ($1,000.00) per month for a period of four (4) years.” Contrary to Wife’s argument, absent express language delaying the commencement of a spousal maintenance order, the obligation to pay begins when the decree is entered. Thus, when the trial court issued the decree in June 2003, the first monthly spousal maintenance payment was due the following month. This interpretation is consistent with Wife’s claim for monetary relief, as she is seeking interest on missed payments as of July 2003. ¶ 12 Under the statute, a party owed spousal maintenance “may file a request for judgment for spousal maintenance arrearages not later than three years after the date the spousal maintenance order terminates.” A.R.S. § 25-553(A). In this ease, the spousal maintenance order terminated, by operation of law, when the four-year period specified in the decree ended. Thus, applying the plain language of A.R.S. § 25-553(A), Wife was authorized to seek a judgment until July 2010, and after that, was procedurally barred from pursuing such a remedy. C. Extension by Agreement ¶ 13 Wife alternatively argues the parties entered an agreement enforceable under Rule 69 that “extended] the termination of the spousal maintenance payments.” As evidence of this agreement, Wife cites email exchanges in which she claims that “Husband [made] an unambiguous agreement to make additional spousal maintenance payments.” Wife asserts she “demonstrated her acceptance of the agreement by not filing an enforcement action (prior to May 23, 2014).” ¶ 14 As provided by Rule 69(A)(1), an “agreement between the parties shall be valid and binding if the agreement is in writing[.]” We interpret procedural rules de novo. Aksamit v. Krahn, 224 Ariz. 68, 70, ¶ 8, 227 P.3d 475, 477 (App.2010). ¶ 15 Even assuming that the parties’ exchange of email satisfies the “writing” requirement of Rule 69(A)(1), the record does not reflect the parties reached any agreement extending the operative period of the spousal maintenance order. An agreement is formed only when a manifestation of mutual assent occurs “based on objective evidence, not the hidden intent of the parties.” Hill-Shafer P’ship v. Chilson Family Trust, 165 Ariz. 469, 474, 799 P.2d 810, 815 (1990). In 2011, Husband sent Wife an email apologizing for not making payments, explaining he had been out of work, and stating “[a]s soon as I’m able, I will start paying again.” In 2012, Husband sent Wife an email stating he would pay her $1,000 and explaining he obtained new employment and expected to make payments “routinely” going forward. In 2013, Husband sent Wife an email informing her he had sent her $500. Later in 2013, Wife informed Husband she would consider the matter “paid in full” if Husband paid her $20,000, but Husband responded that he had “no assets.” Neither Husband nor Wife mentioned extending the operative period of the spousal maintenance order or the time in which Wife could pursue an enforcement action in any email communication. In February 2014, Wife emailed Husband that she would “file with the courts now” to obtain the unpaid spousal maintenance payments. In July 2014, after Wife filed the petition to enforce spousal maintenance, Husband emailed Wife a “proposed” settlement offer of $7,200 to be paid over twelve months at $600 per month, but Wife never responded. ¶ 16 Based on this record, Husband did not agree to waive AR.S. § 25-553(A) or otherwise extend the operation of the spousal maintenance order. Instead, the email exchanges demonstrate that Husband acknowledged he failed to pay Wife as required and hoped he would be able to do so in the future. Although settlement offers were made, they were rejected expressly (in 2013) or impliedly (in 2014, when Wife continued to pursue an enforcement order for an award far greater than Husband’s $7,200 offer). Moreover, Wife does not argue, and the record does not reflect, that Husband entered a contract with her to pay her any amount that might be enforceable outside of the spousal maintenance statutes. Thus, nothing in the record supports Wife’s claim that the parties reached a Rule 69 agreement halting application of the three-year limitations period prescribed by AR.S. § 25-553(A). D. Application of A.R.S. § 25-553(0 ¶ 17 Wife contends that because she disputes termination of the spousal maintenance order, a summary judgment ruling based on the application of AR.S. § 25-553(A) was barred by § 25-553(C). When construing a statute, “we examine its individual provisions in the context of the entire statute to achieve a consistent interpretation” and strive to give effect to each word or phrase of the statute. State v. Gaynor-Fonte, 211 Ariz. 516, 518, ¶ 13, 123 P.3d 1153, 1155 (App.2005) (citations omitted); Dowling v. Stapley, 218 Ariz. 80, 84, ¶ 8, 179 P.3d 960, 964 (App.2008). In addition, we interpret statutes to give them a fair and sensible meaning and to avoid absurd results. Ariz. Dep’t of Revenue v. Raby, 204 Ariz. 509, 511, ¶ 15, 65 P.3d 458, 460 (App.2003). ¶ 18 Pursuant to A.R.S. § 25-553(C), when “termination of the spousal maintenance order is disputed, this section shall be liberally construed to effect its intention of diminishing the limitation on the collection of spousal maintenance arrearages.” (Emphasis added.) According to Wife, a claim that a spousal maintenance order never terminated is sufficient to survive a request for dismissal predicated on application of § 25-553(A)’s time bar. Although the term “disputed” is neither defined nor qualified, § 25-553 as a whole would be rendered absurd if an unsubstantiated claim that a spousal maintenance order is still due and owing could thwart application of § 25-553(A)’s procedural bar. Instead, construing subsection (C) in a reasonable manner and consistent with subsection (A), the “dispute” must be supported by competent evidence showing that the support obligation did not terminate. ¶ 19 In this case, the language of the spousal maintenance order is unambiguous. Husband’s obligation commenced at the time the consent decree was entered and terminated, by operation of law, four years later. Wife submitted her evidence of a Rule 69 agreement, and has not claimed, either in the trial court or on appeal, that any additional evidence of an agreement could be procured through discovery. Thus, the trial court had all the relevant evidence before it and properly concluded that the parties did not reach a Rule 69 agreement that would support Wife’s claim that the spousal maintenance order never terminated. On this record, Wife has not shown that § 25-553(C) prevented the trial court from dismissing Wife’s petition based on § 25-553(A). E. Policy Considerations ¶ 20 Wife argues “there is no reason to distinguish the collection of spousal maintenance from child support, as long as the result can be reconciled within the statutory framework.” Citing A.R.S. § 25-503(J), which governs the collection of child support arrearages following the termination of a child support order and places a burden on an obligor to demonstrate that the obligee “unreasonably delay[ed] in attempting to collect” arrearages before a statute of limitations will be imposed, Wife asserts that a similar burden should be placed on the obligor of a spousal maintenance order, through application of A.R.S. § 25-553(C). ¶ 21 In 2005, A.R.S. § 25-503(1) (later re-designated A.R.S. § 25—503(J)) provided as follows: The department or its agent or a party entitled to receive support may file a request for judgment for support arrearages not later than three years after the emancipation of all of the children who were the subject of the court order. In such a proceeding there is no bar to establishing a money judgment for all of the unpaid child support arrearages for all of the children who were the subject of the court order. Notwithstanding any other law, formal written judgments for support and for associated costs and attorney fees are exempt from renewal and are enforceable until paid in full. If emancipation is disputed, this subsection shall be liberally construed to effect its intention of diminishing the limitation on the collection of child support arrearages. Construing this statute, our supreme court concluded that the legislature had made the “policy determination” that child support obligations “upon which no request has been made for a written judgment within three years of emancipation ... should expire.” Ariz. Dep’t of Econ. Sec. v. Hayden, 210 Ariz. 522, 526, ¶ 17, 115 P.3d 116, 120 (2005). In reaching this conclusion, the court explained that the “policy encourages a reasonably prompt accounting of the support arrearage before relevant evidence becomes hard to obtain or unavailable. It also serves as notice to the obligor and creditors of the obligor of the amount of the outstanding debt.” Id. at 526-27, ¶ 17, 115 P.3d at 120-21. ¶ 22 Soon after Hayden, the legislature substantively modified AR.S. § 25-503, removing the three-year limitation and placing a burden on the obligor to prove unreasonable delay if the obligee seeks child support arrearages more than ten years after emancipation of the youngest child. 2006 Ariz. Sess. Laws, eh. 209, § 1. Notwithstanding the extensive similarity in language between the statutes governing spousal maintenance arrearages and child support arrearages at that time, the legislature elected not to similarly modify A.R.S. § 25-553. ¶ 23 The continuing three-year limitation on the collection of spousal maintenance arrearages is consistent with the accounting and notice factors recognized in Hayden, 210 Ariz. at 526-27, ¶ 17, 115 P.3d at 120-21. Additionally, allowing a protracted period for recovery of arrearages is contrary to the policy underpinning spousal maintenance, namely, to encourage and assist a spouse’s independence within a limited timeframe. See Schroeder v. Schroeder, 161 Ariz. 316, 321, 778 P.2d 1212, 1217 (1989) (explaining the purpose of spousal maintenance “is to achieve independence for both parties and to require an effort toward independence by the party requesting maintenance”); Rainwater v. Rainwater, 177 Ariz. 500, 503-04, 869 P.2d 176, 179-80 (App.1993) (recognizing that public policy favors limiting the duration of spousal maintenance to encourage a “transition toward independence”). Moreover, nothing in A.R.S. § 25-553(C) suggests an evidentiary burden on the obligor should be read into the statute. See Collins v. Stockwell, 137 Ariz. 416, 420, 671 P.2d 394, 398 (1983) (“Courts will not read into a statute something that is not within the manifest intent of the Legislature as gathered from the statute itself.”). CONCLUSION ¶ 24 Because Wife’s petition for enforcement of spousal maintenance was filed after the three-year statute of limitation governing such actions had expired, we affirm the trial court’s dismissal of her petition. In the exercise of our discretion, we deny both parties’ requests for attorneys’ fees under A.R.S. § 25-324. . Husband argues Wife waived any Rule 69 argument by failing to raise it in the trial court. Although Wife failed to specifically reference Rule 69, she did advance the substance of the claim that the parties, through their email exchanges, had agreed to extend the operative period of the spousal maintenance order. We therefore address her appellate argument alleging a valid Rule 69 agreement. . Wife also asserts the trial court erred by denying her motion for new trial; however, because the issues she raised mirror those we have addressed above, the court did not err in denying Wife’s motion. See Pullen v. Pullen, 223 Ariz. 293, 296, ¶ 10, 222 P.3d 909, 912 (App.2009) (noting that a court errs if, in reaching its decision, it applies an erroneous rule of law).

OPINION MILLER, Judge: ¶ 1 We address whether A.R.S. § 12-341.01 requires an award of attorney fees to the prevailing party if the contract that authorizes such fees mandates an award to the other party but is silent as to the prevailing party. As a matter of statutory interpretation, we conclude that § 12-341.01(A) permits a fees award in this situation but does not mandate it. ¶ 2 Holly McGovern and Donald Sines (collectively, “Appellants”) appeal the trial court's denial of their request for attorney fees and costs against Tucson Estates Property Owners Association (TEPOA) after its request for an injunction and breach of contract claims were decided in favor of Appellants. Appellants argue they should have been awarded fees pursuant to A.R.S. § 12-341.01 and costs pursuant to A.R.S. § 12-341 because they were the prevailing parties below; further, they should have been awarded fees pursuant to A.R.S. § 12-349 as a sanction. For the following reasons, we affirm the court’s ruling on attorney fees but reverse its denial of costs. Factual and Procedural Background ¶ 3 We view the facts in the light most favorable to upholding the trial court’s ruling. McMurray v. Dream Catcher USA, Inc., 220 Ariz. 71, ¶ 6, 202 P.3d 536, 539 (App.2009). In 2012, Appellants purchased property in Tucson Estates, which included a shed that had been built more than thirty-five years earlier. They were informed in writing that if they moved or replaced the shed, any new structure would have to comply with the current covenants, conditions, and restrictions (CC & Rs). ¶ 4 Sines soon submitted a change request to replace the shed in a new location. The request form included this admonition: “The Association has thirty (30) days to respond to this request. Do not start your project until you have received approval.” There were multiple handwritten notes on the form, including “Appears shed will fit,” and a check mark in a box indicating the plan was denied. Contrary to the suggestion in the document that his plan was rejected, Sines testified that the person who inspected the property for TEPOA gave verbal approval to replace the shed. He also testified he never received a copy of his request with the “Plan Denial” box checked. The trial court accepted Sines’s testimony, finding that TEPOA did not send the rejection form to Appellants. ¶ 5 More than a year after Sines submitted the request, and after he had completed the shed, TEPOA sent Sines a letter stating he had violated the CC & Rs. Sines continued to correspond with TEPOA and eventually moved the shed to the cement pad where the previous shed had stood. ¶ 6 TEPOA sought injunctive relief to require appellants to remove the shed, as well as liquidated damages and attorney fees based on breach of contract. The matter was tried to the court in a one-day hearing. The court found the homeowners relied on either actual or implicit approval in building their shed. Additionally, it denied injunctive relief based, in part, on TEPOA’s year-long delay in giving notice to Appellants of the alleged violations of the CC & Rs and its failure to approve the relocation of the shed. The court also vacated the fines imposed by TEPOA against the homeowners, effectively denying the breach of contract claims. The court concluded, “In light of the tenor of this case, each party is to bear their own fees and costs.” The court denied Appellants’ motion for reconsideration “[i]n light of the procedural history, the evidence presented, and the tenor of the case.” Appellants’ motion for a new trial on the attorney fees issue was denied without further comment. This timely appeal followed. Attorney Fees Mandatory Attorney Fees Pursuant To § 12-341.01 ¶ 7 Appellants contend the trial court was required to award attorney fees under § 12-341.01(A). We generally review the denial of attorney fees for an abuse of discretion, but whether § 12-341.01(A) requires an award of fees is a question of law we review de novo. See Bennett Blum, M.D., Inc. v. Cowan, 235 Ariz. 204, ¶ 5, 330 P.3d 961, 962-63 (App.2014). ¶ 8 Section 12-341.01(A) provides that in an action arising out of contract, the trial court “may award the successful party reasonable attorney fees.” (Emphasis added.) This section, however, cannot “be construed as altering, prohibiting or restricting” the contract terms. Id. ¶ 9 We first determine whether there was a contract between the parties and, if so, examine the particular fees provision. See Barmat v. John & Jane Doe Partners A-D, 155 Ariz. 519, 521, 747 P.2d 1218, 1220 (1987) (analyzing first whether express or implied contract existed before determining whether § 12-341.01 applied). Here, the relevant fees clause is contained in the CC & Rs, which constitute a contract between TE-POA’s property owners as a whole and individual lot owners. Ahwatukee Custom Estates Mgmt. Ass’n, Inc. v. Turner, 196 Ariz. 631, ¶ 5, 2 P.3d 1276, 1279 (App.2000). The agreement included this attorney fees provision: “In the event [TEPOA] receives judgment against any person for a violation or threatened violation of any of the CC & R’s herein, [TEPOA] shall ... be entitled to recover from such person reasonable legal fees and costs.” The CC & Rs contained no provisions regarding attorney fees in the event judgment was rendered for the lot owner and against TEPOA. ¶ 10 Appellants argue they were entitled to mandatory attorney fees under § 12-341.01(A) as a matter of “equity [and] basic fairness” because TEPOA would have received mandatory fees under the unilateral contract provision if it had prevailed. They rely on Pioneer Roofing Co. v. Mardian Construction Co., 152 Ariz. 455, 733 P.2d 652 (App.1986), to support this argument. In that case, the trial court ordered Mardian to pay the attorney fees of two other parties. Id. at 470, 733 P.2d at 667. The contract contained a specific provision that allowed Mardian to recover attorney fees in disputes, but was silent as to the other parties. Id. Mardian argued on appeal that the contract provision preempted the applicability of § 12-341.01, and because it was silent as to the other parties, it was error to award them fees. 152 Ariz. at 470, 733 P.2d at 667. In upholding the award of fees, we concluded that there was no “prohibition against the recovery of attorneys’ fees to one party under § 12-341.01 simply because a contract contains a unilateral attorneys’ fees provision favorable to another party.” Id. at 471, 733 P.2d at 668; see also Geller v. Lesk, 230 Ariz. 624, ¶ 9, 285 P.3d 972, 975 (App.2012) (citing Pioneer Roofing for principle that court will apply contract to determine fee award for named party, but “may award fees for other party under A.R.S. § 12-341.01(A)”). ¶ 11 Appellants seek to expand Pioneer Roofing to mandate an award of fees when a unilateral fees provision requires an award of fees to the other party had it prevailed. Although arguably reasonable as a matter of equity, the plain language of § 12-341.01(A) states only that a court may award fees in an action arising out of contract, and that it will not alter applicable contracts. The purpose of the statute is to “mitigate the burden of the expense of litigation to establish a just claim or a just defense.” § 12—341.01(B); Chaurasia v. Gen. Motors Corp., 212 Ariz. 18, ¶ 43, 126 P.3d 165, 176 (App.2006). It offers the possibility of mitigating the expense of bringing a valid claim, but does not, by its language and stated purpose, require equity. Further, Pioneer Roofing does not support such an expansion; the court held only that the trial court has the discretion to award attorney fees under § 12-341.01 despite the existence of a unilateral fee provision. 152 Ariz. at 471, 733 P.2d at 668. To the extent this mandatory-discretionary differentiation results in an asymmetrical treatment of parties to a contract, the authority to revise § 12-341.01 is vested solely in the legislature. See In re Pinal Cty. Mental Health No. MH-201000029, 225 Ariz. 500, ¶ 20, 240 P.3d 1262, 1268 (App.2010) (“[T]his court is not free to amend the unambiguous language of our statutes to conform to our own notions of public policy.”). The trial court was not required to award attorney fees pursuant to § 12-341.01 and Pioneer Roofing. Whether Discretionary Attorney Fees Should Have Been Awarded ¶ 12 Appellants argue in the alternative that the trial court abused its discretion because the factors to be considered in awarding fees pursuant to § 12-341.01(A) weighed in their favor. We may uphold a decision on attorney fees under § 12-341.01 if it has any reasonable basis, even if the trial court gave no reasons for denying the request for fees. Uyleman v. D.S. Rentco, 194 Ariz. 300, ¶ 27, 981 P.2d 1081, 1086 (App.1999). The question on appeal “ ‘is not whether the judges of this court would have made an original like ruling, but whether a judicial mind, in view of the law and circumstances, could have made the ruling without exceeding the bounds of reason. We cannot substitute our discretion for that of the trial judge.’ ” Associated Indem. Corp. v. Warner, 143 Ariz. 567, 571, 694 P.2d 1181, 1185 (1985), quoting Davis v. Davis, 78 Ariz. 174, 179, 277 P.2d 261, 265 (1954) (Windes, J., specially concurring). ¶ 13 Our supreme court outlined the factors that may be considered to determine the amount of a fee award under § 12-341.01. Id. at 570, 694 P.2d at 1184. Those potentially applicable here include the merits of the claim presented by TEPOA, whether the litigation could have been avoided or settled, whether fees would cause extreme hardship to the unsuccessful party, whether the successful party prevailed with respect to all relief sought, novelty of the legal questions, and whether awarding fees would discourage parties from prosecuting legitimate contract claims. Id. ¶ 14 Appellants contend all factors weighed in their favor, particularly because the trial court concluded the late issuance of the denial letter “encroache[d] on misconduct,” and because the homeowners repeatedly communicated with TEPOA to resolve the issue, ultimately moving the shed. Although the trial court did make note of TEPOA’s failures, it generally found that the merits of the case were “equally balanced,” and that the delay in issuing the denial later essentially tipped the scale against TEPOA. The other factors may weigh in favor of Appellants, but because a reasonable basis supports the ruling, we do not substitute our discretion for that of the trial court. Orfaly v. Tucson Symphony Soc’y, 209 Ariz. 260, ¶ 21, 99 P.3d 1030, 1036 (App.2004). The court did not abuse its discretion by denying Appellants’ request for attorney fees. Whether Attorney Fees Should Have Been Awarded As a Sanction ¶ 15 Appellants contend attorney fees were mandatory under A.R.S. § 12-349(A)(1) for bringing a claim without substantial justification. We could consider TEPOA’s failure to respond to this argument to be a confession of error, see In re 1996 Nissan Sentra, 201 Ariz. 114, ¶ 7, 32 P.3d 39, 42 (App.2001), but in our discretion we do not do so, see Savord v. Morton, 235 Ariz. 256, ¶ 9, 330 P.3d 1013 (App.2014). To mandate attorney fees, TEPOA’s claim must have been groundless and not made in good faith. See § 12-349(F). As the trial court found, there was conflicting evidence regarding Appellants’ assertion they had no notice of the plan denial. This conflict in the testimony and the absence of evidence showing the claim lacked good faith demonstrates that the trial court did not err in its decision not to award § 12-349 attorney fees. Costs ¶ 16 Appellants argue the trial court erred by denying their request for costs. We review the court’s decision for an abuse of discretion. Democratic Party of Pima Cty. v. Ford, 228 Ariz. 545, ¶ 15, 269 P.3d 721, 725 (App.2012). ¶ 17 AR.S. § 12-341 states, “The successful party to a civil action shall recover from his adversary all costs expended or incurred therein unless otherwise provided by law.” Although the award of costs is mandatory, the trial court has discretion to determine which party was successful. Ford, 228 Ariz. 545, ¶ 15, 269 P.3d at 725. Arizona courts apply the same principles to determine the successful party in both the attorney fees and costs contexts. See Henry v. Cook, 189 Ariz. 42, 44, 938 P.2d 91, 93 (App.1996). ¶ 18 TEPOA does not directly respond to the § 12-341 argument, but generally contends that Appellants were not successful parties below. It reasons that because injunctive relief is an equitable remedy and denial of such does not require finding a prevailing party, the trial court could have correctly determined that neither party prevailed. TEPOA relies on Turner, 196 Ariz. 631, ¶4, 2 P.3d at 1278, in which a special master denied retroactive injunctive relief to the plaintiffs for previous violations of the CC & Rs, but enjoined the homeowners from making future alterations without board approval. The court upheld the finding that there was no prevailing party. Id. ¶22. Turner is inapposite. TEPOA prevailed on none of the claims against Appellants, while each party in Turner prevailed in part. Id. ¶ 4. Moreover, Appellants prevailed against the breach of contract claims for monetary damages. In view of its ruling on the merits that denied all of TEPOA’s requested relief and the mandatory requirement of AR.S. § 12-341, the court erred in failing to award Appellants their costs. See Michaelson v. Garr, 234 Ariz. 542, ¶ 5, 323 P.3d 1193, 1195 (App.2014) (court abuses discretion when record devoid of competent evidence supporting decision). Request for Judicial Notice of Subsequent Case ¶ 19 Appellants requested that this court take judicial notice of a second lawsuit filed against them by TEPOA after they filed their notice of appeal. They argue the second lawsuit is relevant because it illustrates that an attorney fee award is necessary to discourage “another meritless lawsuit.” TE-POA objects to the request and seeks attorney fees as a sanction for a frivolous motion. See Ariz. R. Civ. App. P. 25. ¶ 20 We decline the request to take judicial notice because the case file was not forwarded along with the request. Ariz. Dep’t of Revenue v. Questar S. Trails Pipeline Co., 215 Ariz. 577, n. 7, 161 P.3d 620, 625 n. 7 (App.2007). Further, the ease was not available to the trial court at the time it ruled and its relevance is minimal, at least while it is pending in the superior court. Although we decline to take judicial notice of the subsequent case, in our discretion we deny TE-POA’s request for fees. Disposition ¶ 21 For the foregoing reasons, we affirm the trial court’s ruling as to attorney fees, but reverse as to costs. Appellants also request an award of attorney fees on appeal. In our discretion, we deny the request. . Although both McGovern and Sines are owners of the lot, most of the communications with TEPOA involved only Sines. . Appellants also rely on two unpublished cases dated before January 1, 2015, presumably because they wish to assist the court in deciding whether to issue a published opinion. See Ariz. R. Sup. Ct. 111 (c) (allowing citation to memorandum decisions to establish claim preclusion, assist court in deciding whether to publish, or—if issued on or after January 1. 2015—for persuasive value). The two unpublished cases, however, do not illustrate any lack of guidance in published case law or expand the holding of Pioneer Roofing, 152 Ariz. at 471-72, 733 P.2d at 668-69. Thus, we rely solely on the published cases. . A party may avoid asymmetrical treatment under the terms of a contract by negotiation or simply refusing to enter such a contract. We recognize that some contracts may be contracts of adhesion for which there is no practical ability to alter the terms of an unfavorable contract. See generally Broemmer v. Abortion Servs. of Phx., Ltd., 173 Ariz. 148, 150-51, 840 P.2d 1013, 1015-16 (1992). Because this issue was not raised below, we express no opinion as to whether the CC & Rs constitute such a contract and, even if so construed, whether an adhesion contract would affect the statutory analysis. . Appellants argue in their reply that reciprocal attorney fees were required under the familiar maxim “ ‘[o]ne who seeks equity must do equity.’ ” See, e.g., Turner, 196 Ariz. 631, ¶ 20, 2 P.3d at 1282, quoting Ariz. Coffee Shops, Inc. v. Phx. Downtown Parking Ass’n, 95 Ariz. 98, 100, 387 P.2d 801, 802 (1963) (alteration in Turner). Typically we do not consider arguments raised for the first time in a reply brief. Fisher v. Edgerton, 236 Ariz. 71, n. 2, 336 P.3d 167, 171 n. 2 (App.2014). Even were we to consider the issue here, it is doubtful a general common-law canon supplants the plain language of § 12-341.01. Cf. Flood Control Dist. of Maricopa Cty. v. Gaines, 202 Ariz. 248, ¶ 9, 43 P.3d 196, 200 (App.2002) (within constitutional limits, legislature may alter common law “when its intent to do so is ‘clearly and plainly manifestfed]’ ”), quoting Wyatt v. Wehmueller, 167 Ariz. 281, 284, 806 P.2d 870, 873 (1991) (alteration in Gaines). . Appellants also argue the trial court erred by failing to make findings of fact as required by A.R.S. § 12-350, but this was never raised below, and is therefore waived. See Trantor v. Fredrikson, 179 Ariz. 299, 300-01, 878 P.2d 657, 658-59 (1994).

Vice Chief Justice PELANDER, opinion of the Court. ¶ 1 Under the learned intermediary doctrine (“LID”), a manufacturer satisfies its duty to warn end users by giving appropriate warnings to the specialized class of persons who may prescribe or administer the product. We hold today that the LID generally applies to a prescription drug manufacturer. We further conclude that the LID is not displaced by the Uniform Contribution Among Tortfeasors Act (“UCATA”), A.R.S. §§ 12-2501 through -2509. Finally, we hold that prescription drugs are “merchandise” for purposes of the Consumer Fraud Act (“CFA”), A.R.S. §§ 44-1521 through -1534, and the CFA does not require a direct merchant-consumer transaction to support a patient’s statutory claim against a drug manufacturer. I. ¶ 2 Because the superior court dismissed the plaintiffs complaint under Arizona Rule of Civil Procedure 12(b)(6), we “look only to the pleading itself’ and consider its well-pleaded factual allegations, reasonable inferences from the alleged facts, and the complaint’s exhibits. Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419 ¶ 7, 189 P.3d 344, 346 (2008); see Coleman v. City of Mesa, 230 Ariz. 352, 356 ¶ 9, 284 P.3d 863, 867 (2012). ¶ 3 Medicis Pharmaceutical Corporation manufactures and distributes Solodyn, which contains minocycline. In its full prescribing informational materials for Solodyn, Medicis warns: “The long-term use of minocycline in the treatment of acne has been associated with drug-induced lupus-like syndrome, autoimmune hepatitis and vasculitis.” Those materials also state: “Autoimmune syndromes, including drug-induced lupus-like syndrome, autoimmune hepatitis, vasculitis and serum sickness have been observed with tetracyeline-elass drugs, including minocycline. Symptoms may be manifested by arthralgia, fever, rash and malaise. Patients who experience such symptoms should be cautioned to stop the drug immediately and seek medical help.” ¶ 4 In April 2008, Amanda Watts, then a minor, sought medical treatment for acne and received a prescription for Solodyn from her medical provider. Watts apparently did not receive the full prescribing information noted above, but did receive two other publications about the drug. The first was a “MediSAVE” card, which her medical provider gave to her, that outlined a discount-purchasing program for Solodyn. The MediSAVE card and its accompanying information stated that “[tjhe safety of using [Solodyn] longer than 12 weeks has not been studied and is not known.” Second, Watts received an informational insert about Solodyn from her pharmacist. The insert warned that patients should consult a doctor if symptoms did not improve within twelve weeks. Watts used Solodyn as prescribed for twenty weeks. ¶ 5 About two years later, Watts received another prescription for Solodyn and took it as directed for another twenty weeks. In October 2010, Watts was hospitalized and diagnosed with drug-induced lupus and hepa titis, both allegedly side effects from using Solodyn. Although she has recovered from the hepatitis, doctors expect her to have lupus for the rest of her life. ¶ 6 Watts sued Medieis alleging consumer fraud and product liability, seeking both compensatory and punitive damages. In her statutory CFA claim, Watts alleged that in connection with the sale or advertisement of Solodyn, Medieis knowingly misrepresented and omitted material facts on the MediSAVE eai’d she received and on which she relied. She also alleged that the drug was defective and unreasonably dangerous because Medieis failed to adequately warn her of the eon sequences of its long-term use. The superior court granted Medieis’s motion to dismiss. ¶ 7 The court of appeals vacated the judgment of dismissal and remanded the case for further proceedings. Watts v. Medicis Pharm. Corp., 236 Ariz. 511, 513 ¶ 1, 342 P.3d 847, 849 (App.2015). The court concluded that the LID “is inconsistent with UCA-TA” and “cannot coexist with” that Act. Id. at 518 ¶ 35, 519 ¶ 38, 342 P.3d at 854, 855. Noting “the realities of modern-day pharmaceutical marketing,” the court of appeals also found the policy rationale for the LID is “not persuasive now.” Id. at 519 ¶ 37, 520 ¶ 41, 342 P.3d at 855, 856. ¶ 8 We granted review because the legal issues are of statewide importance and likely to recur. We have jurisdiction under article 6, section 5(3) of the Arizona Constitution and AR.S. § 12-120.24. II. ¶ 9 We review dismissal of claims under Rule 12(b)(6) de novo. Coleman, 230 Ariz. at 355-56 ¶¶ 7-8, 284 P.3d at 866-67. We also review the interpretation of a statute de novo. See Zamora v. Reinstein, 185 Ariz. 272, 275, 915 P.2d 1227, 1230 (1996). A. ¶ 10 Generally, a claim of strict products liability may be based on “informational defects encompassing instructions and warnings” that render a product defective and unreasonably dangerous. Gosewisch v. Am. Honda Motor Co., 153 Ariz. 400, 403, 737 P.2d 376, 379 (1987). To establish such a claim, the plaintiff must prove, among other things, that the manufacturer had a duty to warn of the product’s dangerous propensities and that the lack of an adequate warning made the product defective and unreasonably dangerous. Id. “In certain contexts, however, the manufacturer’s or supplier’s duty to warn end users of the dangerous propensities of its product is limited to providing an adequate warning to an intermediary, who then assumes the duty to pass the necessary warnings on to the end users.” Centocor, Inc. v. Hamilton, 372 S.W.3d 140, 154 (Tex.2012). This legal doctrine is known as the LID. ¶ 11 In 1978, our court of appeals adopted the LID in a product liability case against pharmaceutical companies that manufactured a drug that allegedly was unsafe due to informational defects. Dyer v. Best Pharmacal, 118 Ariz. 465, 577 P.2d 1084 (App.1978). In affirming summary judgment in favor of the drug companies, the court applied the LID, finding that the doctrine was supported by principles of both duty and causation. Id. at 467-69, 577 P.2d at 1086-88. Regarding duty, “[a] drug manufacturer has dischai’ged his duty to the public if he has properly warned the administering physician of the contraindications and possible side effects of the drug.” Id. at 468, 577 P.2d at 1087. Regarding causation, a learned intermediary (the prescribing physician) who received an adequate warning regarding a drug’s side effects or proper use but unforeseeably disregarded the warning constituted an intervening, superseding event that broke the chain of causation between the manufacturer and the patient. Id. at 467-69, 577 P.2d at 1086-88. ¶ 12 As subsequent Arizona cases have recognized, the LID is based on principles of duty, not causation. See, e.g., Dole Food Co. v. N.C. Foam Indus., Inc., 188 Ariz. 298, 302-03, 935 P.2d 876, 880-81 (App.1996) (assessing factors to determine when, under the LID, the “manufacturer’s duty to warn is ordinarily satisfied”); Davis v. Cessna Aircraft Corp., 182 Ariz. 26, 38, 893 P.2d 26, 38 (App.1994) (applying the LID “to determine whether [a manufacturer] satisfied its duty to warn”); see also Restatement (Third) of Torts: Prod. Liab. § 6 cmt. b (Am. Law Inst. 1998) (“Third Restatement”) (“The rationale supporting this ‘learned intermediary1 rule is that only health-care professionals are in a position to understand the significance of the risks involved and to assess the relative advantages and disadvantages of a given form of prescription-based therapy. The duty then devolves on the health-care provider to supply to the patient such information as is deemed appropriate under the circumstances so that the patient can make an informed choice as to therapy.”). Thus, the court of appeals here correctly remarked that, “[i]n its application, the [LID] appears to be less a rule of causation and more a standard for determining when a drug manufacturer has satisfied its duty to warn.” Watts, 236 Ariz. at 517 ¶ 31, 342 P.3d at 853. ¶ 13 Manufacturers generally have a duty to warn consumers of foreseeable risks of harm from using their products. See Third Restatement at § 2. But under the LID, if the manufacturer provides complete, accurate, and appropriate warnings about the product to the learned intermediary, it fulfills its duty to warn the consumer. See id. at § 6; Centocor, 372 S.W.3d at 142. The premise for the LID is that certain types of goods (such as prescription drugs) are complex and vary in effect, depending on the end user’s unique circumstances, and therefore can be obtained only through a qualified intermediary like a prescribing physician, who can evaluate the patient’s condition and weigh the risks and benefits. See Reyes v. Wyeth Labs., 498 F.2d 1264, 1276 (5th Cir. 1974). As applied to prescription drug manufacturers, the Third Restatement states the doctrine as follows: A prescription drug or medical device is not reasonably safe due to inadequate instructions or warnings if reasonable instructions or warnings regarding foreseeable risks of harm are not provided to: (1) prescribing and other health-care providers who are in a position to reduce the risks of harm in accordance with the instructions or warnings; or (2) the patient when the manufacturer knows or has reason to know that healthcare providers will not be in a position to reduce the risks of harm in accordance with the instructions or warnings. Third Restatement § 6(d). ¶ 14 Although the court of appeals has embraced the LID, this Court has not yet addressed the doctrine. In our view, the Third Restatement properly states the LID, and therefore we adopt § 6(d) as our expression of it. Cf. Ft. Lowell-NSS Ltd. P’ship v. Kelly, 166 Ariz. 96, 102, 800 P.2d 962, 968 (1990) (“Absent Arizona law to the contrary, this court will usually apply the law of the Restatement.”); Larkin v. Pfizer, Inc., 153 S.W.3d 758, 770 (Ky.2004) (adopting the Restatement Third’s expression of the LID); Freeman v. Hoffman-La Roche, Inc., 260 Neb. 552, 618 N.W.2d 827, 842 (2000) (adopting the Third Restatement § 6(d)). Adopting the doctrine places us with the majority of jurisdictions that have considered the matter. See generally Centocor, 372 S.W.3d at 158 n. 17 (noting that “the highest courts of at least thirty-five states have adopted some form of the [LID] within the prescription drug products-liability context or cited favorably to its application within this context”). ¶ 15 Contrary to Watts’s assertion, the LID does not create a blanket immunity for pharmaceutical manufacturers. The doctrine does not apply, for instance, if the manufacturer fails to provide adequate warnings to the learned intermediary. See McEwen v. Ortho Pharm. Corp., 270 Or. 375, 528 P.2d 522, 529 (1974) (if it fails to properly warn the prescribing physician, “the manufacturer is directly liable to the patient for a breach of such duty.”); Pittman v. Upjohn Co., 890 S.W.2d 425, 429 (Tenn.1994) (“[T]he learned intermediary doctrine does not shield a drug manufacturer from liability for inadequate warnings to the physician.”). In that event, as Medicis acknowledged at oral argument in this Court, a patient could sue and directly recover from a drug manufacturer based on its failure to properly warn the prescribing physician. ¶ 16 Watts also asserts, and the court of appeals agreed, that the underlying rationale for the LID is no longer viable. But we find persuasive the reasoning of the Texas Supreme Court in rejecting this argument. Prescription drags are likely to be complex medicines, esoteric in formula and varied in effect. As a medical expert, the prescribing physician can take into account the propensities of the drag, as well as the susceptibilities of his patient. His is the task of weighing the benefits of any medication against its potential dangers. The choice he makes is an informed one, an individualized medical judgment bottomed on a knowledge of both patient and palliative. Pharmaceutical companies then, who must warn ultimate purchasers of dangers inherent in patent drags sold over the counter, in selling prescription drugs are required to warn only the prescribing physician, who acts as a “learned intermediary” between manufacturer and consumer----Because patients can obtain prescription drugs only through their prescribing physician or another authorized intermediary and because the “learned intermediary” is best suited to weigh the patient’s individual needs in conjunction with the risks and benefits of the prescription drag, we are in agreement with the overwhelming majority of other courts that have considered the learned intermediary doctrine and hold that, within the physician-patient relationship, the learned intermediary doctrine applies and generally limits the drug manufacturer’s duty to warn to the prescribing physician. Centocor, 372 S.W.3d at 159 (citations omitted); see also Larkin, 153 S.W.3d at 763-64 (stating that policy reasons support the LID because (1) the “prescribing physician is in a superior position to impart the warning and can provide an independent medical decision as to whether use of the drug is appropriate for treatment of a particular patient,” (2) the “manufacturers lack effective means to communicate directly with each patient,” and (3) any duty to directly warn the end user would unduly interfere with the physician-patient relationship). ¶ 17 In finding the policy rationale for the LID unpersuasive, the court of appeals relied on State ex rel. Johnson & Johnson Corp. v. Karl, 220 W.Va. 463, 647 S.E.2d 899 (2007). In Karl, the West Virginia Supreme Court found the LID outdated and that “existing law of comparative contribution among joint tortfeasors is adequate to address issues of liability among physicians and drug companies____” Id. at 913. No other court has followed Karl, and several courts have criticized it. See Centocor, 372 S.W.3d at 158 (noting that no other court has followed Karl); see also Tyree v. Boston Sci. Corp., 56 F.Supp.3d 826, 828 n. 2 (S.D.W.Va.2014) (discussing Karl and surveying jurisdictions that have rejected its reasoning). Even the West Virginia Supreme Court itself later relegated Karl to a “but see” citation, observing that “the high degree of federal regulation of prescriptive drag products attenuates the effect product marketing has on a consumer’s prescriptive drag purchasing decision.” White v. Wyeth, 227 W.Va. 131, 705 S.E.2d 828, 838 (2010). Like these other courts, we do not find Karl persuasive. ¶ 18 Watts alternatively urges this Court to adopt a direct-to-consumer (“DTC”) advertising exception to the LID. See Perez v. Wyeth Labs. Inc., 161 N.J. 1, 734 A.2d 1245, 1247, 1256 (1999) (concluding that “when mass marketing of prescription drugs seeks to influence a patient’s choice of a drug, a pharmaceutical manufacturer that makes direct claims to consumers for the efficacy of its product should not be unqualifiedly relieved of a duty to provide proper warnings of the dangers or side effects of the product,” and “[ejonsumer-direet advertising of pharmaceuticals thus belies each of the premises on which the [LID] rests”). The Third Restatement, however, provides a different exception to the LID that sufficiently protects consumers. See Third Restatement § 6(d)(2) (“A prescription drag or medical device is not reasonably safe due to inadequate instructions or warnings if reasonable instructions or warnings regarding foreseeable risks of harm are not provided to: ... the patient when the manufacturer knows or has reason to know that health-care providers will not be in a position to reduce the risks of harm in accordance with the instructions or warnings.”). ¶ 19 In light of this broad exception, we decline to recognize a DTC advertising ex- eeption, which has been adopted only in New Jersey. See Centocor, 372 S.W.3d at 161 (noting that “[i]n the more than twelve years since Perez, many courts have declined to follow [New Jersey’s] sweeping departure from the [LID]”); Larkin, 153 S.W.3d at 766 (surveying exceptions to the LID and noting that only New Jersey has adopted the DTC advertising exception); see also Beale v. Biomet, Inc., 492 F.Supp.2d 1360, 1376 (S.D.Fla.2007) (stating that “[s]ince Perez was decided, no court ... has recognized the DTC exception to the learned intermediary doctrine, and several courts have expressly rejected the DTC exception”). B. ¶ 20 In 1984, the Arizona Legislature enacted UCATA, which allows a tortfeasor who paid more than its share of damages attributed to it by the factfinder to seek contribution from other eo-tortfeasors. A.R.S. § 12-2505. Three years later, the legislature amended the Act by eliminating plaintiffs’ ability to recover jointly from any or all liable defendants. A.R.S. § 12-2506(A). This Court has noted that Arizona’s pure comparative fault scheme protects defendants from bearing more than their fair share of liability for a plaintiffs injuries under the harsh common-law rule of joint and several liability. State Farm Ins. Co. v. Premier Manufactured Sys., Inc., 217 Ariz. 222, 224-25 ¶¶ 8-12, 172 P.3d 410, 412-13 (2007). ¶ 21 The court of appeals erred by concluding that the LID is incompatible with UCATA As the court correctly observed, “UCATA’s ultimate effect was to prevent a partially responsible defendant from being held liable for the damages caused by his co-defendant.” Watts, 236 Ariz. at 518 ¶ 36, 342 P.3d at 854. The LID, the court reasoned, “precludes a complete assessment of comparative fault among tortfeasors because it preemptively limits the scope of a manufacturer’s duty.” Id. The court of appeals thus concluded that “applying the [LID] in the context of prescription pharmaceuticals conflicts with both UCATA and the holding of Premier Manufactured Systems that each defendant in a tort case is liable for his or her own respective share of fault, no more and no less.” Id. ¶ 22 We find that reasoning flawed. Neither UCATA nor our case law undermines the LID. UCATA requires apportionment of damages based on degrees of fault. See A.R.S. §§ 12-2506(A) (“Each defendant is liable only for the amount of damages allocated to that defendant in direct proportion to that defendant’s percentage of fault....”); -2506(B) (“In assessing percentages of fault the trier of fact shall consider the fault of all persons who contributed to the alleged injury____”). “Fault” is defined as “an actionable breach of legal duty, act or omission____” A.R.S. § 12-2506(F)(2). Thus, UCATA’s scheme is premised on notions of fault, which necessarily presuppose a breach of duty. Under the LID, however, a manufacturer satisfies its duty to warn the end user by adequately warning the learned intermediary, which duty, if satisfied, means that no actionable breach of a legal duty to the end user occurs. See Dole Food, 188 Ariz. at 302-03, 935 P.2d at 880-81; Davis, 182 Ariz. at 38, 893 P.2d at 38. ¶ 23 Because the LID and UCATA address two distinct subjects, they are not mutually exclusive. The LID identifies circumstances when a manufacturer has met its duty to warn and thus is not at fault. UCA-TA does not identify the scope of duties or when parties are at fault; instead, given a determination that multiple parties are at fault, it specifies how liability is apportioned among them. ¶ 24 In sum, the LID neither insulates a manufacturer from liability in proportion to its share of fault nor shifts a disproportionate share of liability to someone else. Rather, the doctrine provides a means by which a manufacturer may satisfy its duty to warn the end user. A manufacturer that properly warns the learned intermediary fulfills its duty, a result that comports with UCATA because the drug manufacturer in that circumstance has not breached its duty and therefore is not at fault. See Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 853 (10th Cir.2003) (noting that “Wyoming’s [pure] comparative fault statute has no effect on the application of the [LID]” because the doctrine “addresses a drug manufacturer’s duty to provide a warning to consumers,” whereas the statutory scheme does not “define[ ] or affeet[ ] the scope of the defendant’s initial duty”) (citations omitted). But if the manufacturer fails to properly warn the learned intermediary, it may be found to have breached its duty and its liability can be determined based on comparative fault under UCATA. C. ¶ 25 Watts and an amicus curiae also argue that the LID violates the anti-abrogation clause in article 18, § 6 of the Arizona Constitution. This clause provides that “[t]he right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation____” Ariz. Const. art. 18, § 6. ¶ 26 The LID is a common-law doctrine, not a statutory limitation. See Third Restatement § 6 cmt. a; Cronin v. Sheldon, 195 Ariz. 531, 540-41 ¶¶ 44-46, 991 P.2d 231, 240-41 (1999) (discussing that the anti-abrogation clause limits the legislature’s ability to abrogate a common-law claim but allows the legislature to regulate common-law claims). “Our anti-abrogation jurisprudence normally asks whether a statute unconstitutionally deprives a litigant of access to the courts.” Nunez v. Prof'l Transit Mgmt. of Tucson, Inc., 229 Ariz. 117, 123 ¶ 26, 271 P.3d 1104, 1110 (2012). Article 18, § 6 does not preclude this Court from declaring, clarifying, or modifying the common law, id., and therefore the LID does not offend that clause. ¶ 27 Moreover, the LID does not abrogate a right to recover damages, but instead provides a means for a manufacturer to fulfill its duty to warn the end user by properly warning the learned intermediary. See Third Restatement § 6 cmt. b; see also Larkin, 153 S.W.3d at 765. It does not prevent a plaintiff from asserting an action against the manufacturer in appropriate circumstances, such as when the full medical information and warnings are not given to the medical provider. See Premier Manufactured Sys., Inc., 217 Ariz. at 228 ¶¶ 27-30, 172 P.3d at 416; see also Baker v. Univ. Physicians Healthcare, 231 Ariz. 379, 388 ¶¶ 34-35, 296 P.3d 42, 51 (2013) (discussing that the plaintiff still had a reasonable possibility of obtaining legal redress under the applicable statute); Nunez, 229 Ariz. at 122-23 ¶¶ 24-26, 271 P.3d at 1109-10 (discussing that the application of a different duty of care did not violate the anti-abrogation clause because the defendant still had reasonable possibility of obtaining legal redress). The LID also does not prevent the plaintiff from suing the prescribing medical provider. D. ¶ 28 Watts did not allege in her complaint that she received the full prescribing informational materials, see supra ¶ 3, but she did allege that “Medieis provided” those warnings, without specifying to whom, and attached them as an exhibit to her complaint. Watts also did not specifically allege that Medieis breached its duty by giving inadequate or otherwise defective warnings to her prescribing physician and other health-care providers who were in a position to reduce the risks of harm. She did allege more generally, however, that “Medieis failed to provide an adequate warning of the danger” of using Solodyn for more than twelve weeks. ¶ 29 Viewed in a light most favorable to Watts, Cullen, 218 Ariz. at 419 ¶ 7, 189 P.3d at 346, her complaint implies that Medieis failed to give appropriate warnings to her or the pertinent health-care provider. Accordingly, we vacate the superior court’s dismissal of Watts’s product liability claim and remand the case for further proceedings. If Medieis establishes that there is no genuine factual dispute that it provided complete, adequate warnings for Solodyn to Watts’s prescribing physician and other health-care providers who were in a position to reduce the risks of harm, the LID applies and, as a matter of law, Medieis satisfied its duty to warn and would be entitled to summary judgment on the product liability claim. E. ¶ 30 Medieis additionally asserts that the court of appeals erred by finding the CFA applicable to this case because prescription pharmaceuticals are not merchandise and there is no direct merchant-consumer transaction between drug manufacturers and patients. We disagree. ¶ 31 The CFA provides: The act, use or employment by any person of any deception, deceptive or unfair act or practice, fraud, false pretense, false promise, misrepresentation, or concealment, suppression or omission of any material fact with intent that others rely on such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise whether or not any person has in fact been misled, deceived or damaged thereby, is declared to be an unlawful practice. AR.S. § 44-1522(A) (emphasis added). Thus, the statute does not expressly require a direct merchant-consumer transaction. Rather, to succeed on a claim of consumer fraud, a plaintiff must show (1) a false promise or misrepresentation made in connection with the sale or advertisement of “merchandise,” and (2) consequent and proximate injury resulting from the misrepresentation. See Kuehn v. Stanley, 208 Ariz. 124, 129 ¶ 16, 91 P.3d 346, 351 (App.2004). ¶ 32 The CFA defines “merchandise” as “any objects, wares, goods, commodities, intangibles____” A.R.S. § 44-1521(5). The statute does not define “objects” or “goods.” Absent statutory definitions, courts generally apply common meanings, State v. Cox, 217 Ariz. 353, 356 ¶ 20, 174 P.3d 265, 268 (2007), and may resort to dictionary definitions, State ex rel. Montgomery v. Harris (Shilgevorkyan), 234 Ariz. 343, 344 ¶ 9, 322 P.3d 160, 161 (2014). ¶33 As relevant to this case, the noun “object” is defined as “something that is put or may be regarded as put in the way of some of the senses: a discrete visible or tangible thing.” Webster’s Third New International Dictionary 1555 (2002). Likewise, a definition of “good” is “tangible movable personal property having intrinsic value but [usually] excluding money and other choses in action____” Id. at 978. Under those definitions, pharmaceutical drugs are objects and goods and thus constitute “merchandise” under the CFA The court of appeals did not err in concluding that the CFA applies to prescription pharmaceuticals. ¶ 34 Here, Watts alleged an actionable claim under the CFA She alleged that Mediéis affirmatively misrepresented Solodyn by stating that “[t]he safety of using [Solodyn] longer than 12 weeks has not been studied and is not known,” even though it knew (as Medicis’s full prescribing informational material states) that taking the drug for longer than twelve weeks can cause drag-induced lupus. The superior court thus erred in dismissing Watts’s CFA claim. ¶ 35 We express no opinion on two points that were not argued in either the trial court or court of appeals and are beyond the issues framed in Medicis’s petition for review in this Court, without prejudice to the parties further litigating them on remand: (1) whether the MediSAVE card that Watts received is an “advertisement” under the CFA, §§ 44-1521(1), -1522(A), and (2) whether federal law preempts Watts’s CFA claim. See generally Third Restatement § 6 cmt. b. (discussing that federal law may displace certain state tort claims). III. ¶ 36 For the foregoing reasons, we vacate ¶¶ 28-41 of the court of appeals’ opinion and affirm the portion relating to Watts’s CFA claim, Watts, 236 Ariz. at 516-17 ¶¶ 23-27, 342 P.3d at 852-53. We reverse the superior court’s order dismissing Watts’s complaint, and we remand the ease to that court for further proceedings consistent with this opinion.

VICE CHIEF JUSTICE PELANDER, opinion of the Court: ¶ 1 Under Arizona law, a court may award reasonable attorney fees to the successful party in a contested contract action. A.R.S. § 12-341.01(A). If a party makes a written settlement offer that is rejected and the final judgment is more favorable to the offering party, that party “is deemed to be the successful party from the date of the offer.’’ Id. ¶ 2 In this case, we address the interplay between this statutory provision and a contractual fee award provision when one party rejected the other’s written settlement offer and later obtained what appears to be a less favorable judgment. Because the contract does not itself define “prevailing party,” but does incorporate Arizona law to determine the parties’ rights and remedies, we hold that the statute applies for the purpose of determining the successful party. That is, if the final judgment is more favorable to the party that made the rejected offer, that party is the successful party from the date of the offer. I. ¶3 In 2003, American Power Products (“American”) and CSK Auto (“CSK”) entered into a Master Vendor Agreement (“MVA”) under which American agreed to sell electric scooters and other items to CSK on an open account. The MVA provided that in the event of any action arising out of the agreement, “the prevailing party shall be entitled to recover ... reasonable attorneys’ fees.” The agreement did not define “prevailing party.” But the MVA included a broad choice-of-law provision that Arizona law would govern the parties’ “rights and remedies” under the agreement. ¶ 4 In 2005, American sued CSK for breach of contract and negligent misrepresentation, seeking more than $5 million in damages. CSK asserted various affirmative defenses and counterclaims and sought damages of approximately $950,000. In 2011, several months before trial, CSK served American with an offer of judgment under Rule 68, Ariz. R. Civ. P., in the amount of $1,000,001, “inclusive of all damages, taxable court costs, interest and attorneys’ fees.” American did not accept the offer and, after trial, obtained a jury verdict in the amount of $10,733. The trial court later dismissed CSK’s counterclaims with prejudice. ¶ 5 On the parties’ post-trial claims for attorney fees, the trial court ruled that American was the “prevailing party” at trial despite American having asked the jury to award it over $10.8 million. Applying a totality-of-the-litigation test, the court reasoned that American “must be the prevailing party” because “after litigating all of the claims” and counterclaims, American “obtained relief in the form of monetary damages; [CSK] was awarded nothing.” The trial court then awarded American $775,000 in attorney fees (American had requested almost $2 million), plus costs and interest on the verdict, for a total judgment of approximately $861,000. The court denied CSK’s request for sanctions under Rule 68(g), Ariz. R. Civ. P., finding such sanctions inapplicable. ¶ 6 The court of appeals affirmed the fee award in favor of American. Am. Power Products, Inc. v. CSK Auto, Inc., 1 CA-CV 12-0855, at *8 ¶ 14, 2016 WL 2930686 (Ariz. App. May 19, 2016) (mem. decision). The court reasoned that the trial court did not abuse its substantial discretion in identifying the “prevailing party” and “had a reasonable basis for finding that American was the prevailing party under the totality of the litigation test.” Id. at *4 ¶ 6, *6 ¶ 9. Contending that American obtained a judgment less favorable than CSK’s pretrial settlement offer, CSK argued that A.R.S. § 12-341.01(A) and Rule 68 precluded any award of fees American incurred after the date of the offer. In rejecting that argument, the court of appeals stated that “[w]hen attorneys’ fees are based on a contract—as here—the contract controls to the exclusion of A.R.S. § 12-341.01(A),” Id. at *6 ¶ 11. The court, however, “reverse[d] the superior court’s denial of CSK’s Rule 68 sanction request and remand[ed] to the superior court for it to make the comparison required by Rule 68.” Id. at *13 ¶ 30. ¶ 7 We granted review on the attorney fee question because the interplay between § 12-341.01 and contractual fee provisions presents legal issues of statewide importance that are likely to recur. We have jurisdiction under article 6, section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24. II. ¶ 8 The parties’ MVA contained two provisions that are pertinent here: (d) Applicable Law. The MVA is made with reference to and under the laws of the State of Arizona which shall be deemed to govern the validity and interpretation of the MVA and the rights and remedies of the parties hereunder. Any legal action instituted by the parties arising out of this MVA shall be within, and the parties hereto stipulate to the jurisdiction of, the Courts of Maricopa County, Arizona. (f) Attorneys’ Fees. In the event either party shall commence or be required to defend any action or proceeding against the other party arising out of this MVA, the prevailing party shall be entitled to recover from the other party its reasonable attorneys’ fees and costs through all levels of proceedings as determined by the court. As noted above, the MVA did not define “prevailing party.” ¶ 9 In pertinent part, A.R.S. § 12-341.01 provides: A. In any contested action arising out of a contract, express or implied, the court may award the successful party reasonable attorney fees. If a written settlement offer is rejected and the judgment finally obtained is equal to or more favorable to the offeror than an offer made in writing to settle any contested action arising out of a contract, the offeror is deemed to be the successful party from the date of the offer and the court may award the successful party reasonable attorney fees. This section shall not be construed as altering, prohibiting or restricting present or future contracts or statutes that may provide for attorney fees. As originally enacted in 1976, § 12-341.01 contained provisions now mirrored in the first and third sentences of subsection (A). The second sentence of that subsection was added in 1999. ¶ 10 CSK acknowledges that the trial court and court of appeals correctly “equated ‘prevailing party in the MVA with ‘successful party” in § 12-341.01(A).” Am. Power Products, Inc., 1 CA-CV 12-0855, at *3 ¶¶ 5-6; see Murphy Farrell Dev., LLLP v. Sourant, 229 Ariz. 124, 132 ¶ 30 & n.8, 134 ¶ 36, 272 P.3d 355, 364 & n.8, 365 (App. 2012) (relying on cases decided under § 12-341.01 in determining which party was “the ‘prevailing party under the terms of the [parties’] Agreements” when those contracts mandated an award of fees to the “prevailing party” but did not define that term). Noting that “the parties expressly incorporated Arizona law into their contract” and “clearly intended to apply Arizona law to the entire [MVA],” however, CSK argues that both courts below erred in failing to apply “the definition in the second sentence of § 12-341.01(A).” Under that provision, CSK asserts, it is “the successful party after the date of its rejected settlement offer.” ¶ 11 American counters, as the court of appeals determined, that the trial court had a reasonable basis for deeming American the prevailing party under the MVA and did not abuse its discretion in awarding fees to American, particularly considering that CSK received nothing on its counterclaim for almost $1 million. Relying on the third sentence of § 12-341.01(A) and Arizona case law, American argues that the statute does not apply when, as here, a contract mandates an award of fees to the prevailing party. American further asserts that CSK’s argument, by seeking a sanction not recognized by Rule 68, effectively would amend the rule so as to conflict with § 12-341.01. ¶ 12 We review de novo issues of statutory application and contract interpretation. See Bell v. Indus. Comm’n, 236 Ariz. 478, 480 ¶ 6, 341 P.3d 1149, 1151 (2015) (statutes); Andrews v. Blake, 205 Ariz. 236, 240 ¶ 12, 69 P.3d 7, 11 (2003) (contracts). A trial court’s determination of which party is successful and thus entitled to a fee award generally will be upheld absent an abuse of discretion. Murphy Farrell Dev., 229 Ariz. at 133 ¶ 31, 272 P.3d at 364; Sanborn v. Brooker & Wake Prop. Mgmt., Inc., 178 Ariz. 425, 430, 874 P.2d 982, 987 (App. 1994). An error of law in reaching a discretionary ruling constitutes an abuse of discretion. Twin City Fire Ins. Co. v. Burke, 204 Ariz. 251, 254, 63 P.3d 282, 285 (2003). III. ¶ 13 As noted above, § 12-341.01 does not “alter[], prohibit ] or restrict[]” contracts that “provide for attorney fees,” nor may the statute “be construed” to do so. § 12-341.01(A). Based on that statutory language, our court of appeals has repeatedly stated that “the statute is inapplicable ... [when] the parties have provided in their contract the conditions under which attorney’s fees may be recovered,” Sweis v. Chatwin, 120 Ariz. 249, 252, 585 P.2d 269, 272 (App. 1978); see also Geller v. Lesk, 230 Ariz, 624, 627 ¶ 9, 285 P.3d 972, 975 (App. 2012) (stating that parties’ contractual attorney fee provision, “not the statute,” governs an award of fees); Lisa v. Strom, 183 Ariz. 415, 418 n.2, 904 P.2d 1239, 1242 n.2 (App. 1995) (stating that “when a contract has an attorney’s fee provision it controls to the exclusion of the statute”); Connor v. Cal-Az Properties, Inc., 137 Ariz. 53, 55, 668 P.2d 896, 898 (App. 1983) (stating that “§ 12-341.01 is not to be considered” when parties’ contract provides conditions under which attorney fees may be recovered). In Sweis, the parties’ contract entitled the successful or prevailing party to a non-discretionary attorney fee award for enforcing the contract. 120 Ariz. at 251 n.2, 685 P.2d at 271 n.2, To apply § 12-341.01 in those circumstances, the court reasoned, would alter the agreement by “in effect can-celling] the unqualified contractual right to recover attorney’s fees given to the successful party by their agreement, and substitute in its place the purely discretionary or permissive light given by the statute.” Id. at 252, 585 P.2d at 272. ¶ 14 Relying on its prior case law and the third sentence of § 12-341.01(A), the court of appeals here rejected CSK’s argument that, based on that subsection’s second sentence, CSK was the prevailing party from the date of its offer, holding instead that “the contract controls to the exclusion of A.R.S. § 12-341.01(A).” Am. Power Products, Inc., 1 CA-CV 12-0855, at *6 ¶ 11. To the extent prior case law broadly precludes application of § 12-841.01 whenever the parties’ contract contains an attorney fee provision, regardless of its content, scope, and other provisions in the contract, we disagree. Rather, § 12-341.01 “is inapplicable by its terms if it effectively conflicts with an express contractual provision governing recovery of attorney’s fees.” Jordan v. Burgbacher, 180 Ariz. 221, 229, 883 P.2d 458, 466 (App. 1994) (disagreeing with Connor’s broad statement and observing that Sweis “did not hold that any express contractual provision for attorney’s fees, however worded, ‘preempts’ A.R.S. section 12-341.01”); cf. Tucson Estates Prop. Owners Ass’n, Inc. v. McGovern, 239 Ariz. 52, 54-56 ¶¶ 7-14, 366 P.3d 111, 113-16 (App. 2016); (stating that when parties’ contract has a unilateral provision mandating attorney fee recovery for only one party, § 12-341.01 applies to the other, successful party’s claim for attorney fees and affords trial court discretion to award or deny fees under the statute); Pioneer Roofing Co. v. Mardian Constr. Co., 152 Ariz. 455, 470-72, 733 P.2d 652, 667-69 (App. 1986) (same). Thus, rather than being completely supplanted by any attorney fee provision in the parties’ contract, the statute—consistent with its plain language—applies to “any contested action arising out of contract” to the extent it does not conflict with the contract. § 12-341.01(A). ¶ 15 Our conclusion comports with the general rule in Atizona that contracts are read to incorporate, applicable statutes. See Banner Health v. Med. Sav. Ins. Co., 216 Ariz. 146, 150 ¶ 15, 163 P.3d 1096, 1100 (App. 2007) (“It has long been the rule in Arizona that a valid statute is automatically part of any contract affected by it, even if the statute is not specifically mentioned in the contract.”) (internal citations and quotation marks omitted); see also Yeazell v. Copins, 98 Ariz. 109, 113-14, 402 P.2d 541, 544 (1965). Because the MVA here did not define “prevailing party” and expressly provided that Arizona law shall apply and govern “the rights and remedies of the parties,” and because the second sentence of § 12-341.01 (A) does not directly conflict with the MVA’s attorney fee provision, that statutory provision is “incorporated by operation of law” into the MVA for the limited purpose of defining “successful party” under the circumstances presented here. Banner Health, 216 Ariz. at 150 ¶ 15, 163 P.3d at 1100. ¶ 16 Contrary to the dissent, infra ¶ 29, our opinion does not “alter the meaning of ‘the prevailing party’ in the MVA,” inasmuch as the MVA does not define that phrase or provide any other interpretative guidance. The dissent also downplays the MVA’s broad, unqualified choice-of-law provision, under which the parties agreed that Arizona law would govern their rights and remedies un der the MVA. As for there being two prevailing parties—American before CSK’s offer, and CSK after its offer—that paradigm is implicitly contemplated and permitted by § 12-341.01(A)’s second sentence, which supplements, but does not alter, the MVA. Cf. Hall v. Read Dev., Inc., 229 Ariz. 277, 283 ¶ 19, 274 P.3d 1211, 1217 (App. 2012) (recognizing that statute’s second sentence could “potentially shift the ‘successful party1 designation for at least part of the litigation”). And such a result is permissible even though § 12-341.01(A), like the MVA, limits attorney fee awards to “the” successful party, ¶ 17 American unpersuasively argues that the MVA’s choice-of-law provision does not apply to the attorney fee provision because they are separate and the former is “general and all-embracing, and not specific to the fees provision,” The choice-of-law provision is not limited, and the attorney fee provision does not exclude the former from applying to it. See Bradley v. Bradley, 164 P.3d 637, 642 (Wyo. 2007) (holding that broad, general language of choice-of-law provision in parties’ agreement applied to other provisions when the agreement contained no specific provision indicating a different intent and “[o]ther provisions of the agreement [did] not specifically speak to choice of applicable law”), ¶ 18 The courts below thus erred in failing to apply the definition of “successful party” under § 12-341.01(A)’s second sentence, which by its terms will apply here if the final judgment American obtains is less favorable to American than CSK’s pretrial settlement offer under Rule 68. As the court of appeals has observed, that statutory provision, “added in 1999, seemingly narrows the trial court’s discretion in handling fee determination issues in contract cases, obligating the court to compare a written settlement offer against the ‘judgment finally obtained.’ ” Hall, 229 Ariz. at 279 ¶ 9, 274 P.3d at 1213. That comparison, in turn, “potentially alter[s] the successful party designation from the date of the offer.” Id. at 280 ¶ 10, 274 P.3d at 1214. ¶ 19 “[A]n offeror is the successful party, even if an offeree obtains a favorable judgment, if the offeror previously made a written offer for an amount equal to or greater than the final judgment,” Id. at 279 ¶ 9, 274 P.3d at 1213. That is seemingly the situation here. CSK asserts that its pretrial offer under Rule 68 in the amount of $1,000,001, “inclusive of all damages, taxable court costs, interest and attorneys’ fees,” was greater than the total judgment of approximately $861,000 (which included fees, taxable costs, and interest on the $10,733 verdict) that American obtained. If so, CSK “is deemed to be the successful party from the date of the offer.” § 12-341.01(A). And from that point forward CSK would be “entitled to recover from [American] its reasonable attorneys’ fees” because the MVA expressly so provides, That is, the statute’s discretionary feature, providing that “the court may award the successful party reasonable attorney fees,” id., is inapplicable here because, if applied, it would directly conflict with the MVA’s mandatory fee provision and thereby impermissibly “alter[]” or “restriet[]” the parties’ agreement. Id.; see Murphy Farrell Dev., 229 Ariz. at 133 ¶ 32, 272 P.3d at 364 (“Unlike discretionary fee awards made pursuant to A.R.S. § 12-341.01(A), the trial court lacks discretion to deny a fee award required by the terms of the parties’ contract.”); McDowell Mountain Ranch Gmty. Ass’n v. Simons, 216 Ariz. 266, 269 ¶ 14, 166 P.3d 667, 670 (App. 2007) (same, citing cases). ¶ 20 Applying the second sentence of § 12-341.01(A) also furthers the policy of the statute and Rule 68. As the court in Hall pointed out, “[t]he purposes of § 12-341.01(A) include: (1) mitigating ‘the burden of the expense of litigation to establish a just claim or a just defense’; (2) encouraging ‘more careful analysis prior to filing suit’ by imposing the risk of paying the opposing party’s attorneys’ fees where legitimate settlement offers are rejected; and (3) promoting settlement and thus reducing caseloads involving contractual matters.” Hall, 229 Ariz. at 282 ¶ 18, 274 P.3d at 1216. By rejecting CSK’s settlement offer and choosing to instead pursue costly, protracted litigation, American cannot avoid the potential legal consequences, including attorney fee exposure as determined by the parties’ agreement and compatible Arizona law that is specifically made applicable under the agreement’s choice-of-law provision. ¶ 21 American unpersuasively asserts that imposing attorney fees against it by “incorpo-ratfing] only part of’ § 12-341.01(A) fails to give “the type of fair warning the law should provide.” On the contrary, the parties had adequate notice of their potential liability for attorney fees, given the MVA’s broad incorporation of Arizona law, the clear definition of “successful party” in § 12-341.01(A)’s second sentence, and the lack of any inconsistency between that provision and the MVA’s attorney fee provision. ¶22 Nor is American correct in arguing that CSK’s position will “alter every contract mandating an award of attorneys’ fees by forcing upon parties to contracts the standard established in the second sentence of A.R.S. § 12-341.01.A” Rather, we agree with American’s assertion that parties should “have freedom to contract whether they want that standard to apply or not.” As long as a contract is legal and enforceable, parties of course may fashion all aspects of an attorney fee provision, including a definition of “prevailing party” different from the statute, in whatever way they see fit. (Unlike the MVA, for example, a contract could not only specifically define “prevailing party” but also either include or exclude certain aspects of Arizona law from applying.) ¶23 Finally, we reject American’s argument that the result here “conflicts with and supersedes Rule 68.” As American conceded at oral argument in this Court, the sanctions prescribed in Rule 68(g) are separate and distinct from attorney fees. Cf. Ariz. R. Civ. P. 68, State Bar Committee Note (1992 Amendments) (“The term ‘costs’ in Rule 68 does not include attorneys’ fees, even if they are recoverable in the action.”) (citing Boltz & Odegaard v. Hohn, 148 Ariz. 361, 714 P.2d 854 (App. 1985)). Contrary to American’s contention, if the final judgment is more favorable to CSK than its Rule 68 offer, an award of fees to CSK under the MVA, based on the statutory definition of “successful party” in § 12-341.01(A)’s second sentence, would not result in “de facto amendment of the rule ... by imposing an additional sanction” not authorized by the rule. Nor would such an award run afoul of Rule 68(d)’s provision that “[evidence of an unaccepted offer is not admissible except in a proceeding to determine sanctions under this rule.” Harmonizing the rule with the statute, we conclude that any such evidence is inadmissible at trial or other merits-related proceedings, but is not barred for purposes of identifying the “successful party” under § 12-341.01(A) in separate post-trial proceedings regarding attorney fees. See Hall, 229 Ariz. at 283 ¶¶ 19-20, 274 P.3d at 1217 (harmonizing § 12-341.01(A) with Rule 68 to “conclude that comparing the ‘judgment finally obtained’ under § 12-341.01(A) to a settlement offer should involve only those reasonable fees and costs incurred as of the date the offer was made”); see also State v. Hansen, 215 Ariz. 287, 289 ¶ 7, 160 P.3d 166, 168 (2007) (stating that, whenever possible, we harmonize rules and statutes and read them in conjunction with each other). IV. ¶ 24 For the reasons stated above, we reverse the trial court’s award of attorney fees to American and its ruling that American was the prevailing party in the proceedings below even after CSK’s settlement offer under Rule 68. This opinion does not alter the trial court’s determination that American was the prevailing party up to that point. But if the judgment finally obtained is more favorable to CSK than its pretrial offer, American is not entitled to recover any fees incurred after the offer. (CSK conceded at oral argument that American is entitled to recover its reasonable attorney fees incurred before the offer.) ¶ 25 We vacate paragraphs 6-14 of the court of appeals’ decision and remand the case to the trial court for further proceedings to apportion fees and costs between CSK and American, consistent with this opinion and the remaining portions of the court of appeals’ decision. On remand, the trial court must first calculate the amount of the final judgment to determine if it is less favorable to American than CSK’s pretrial offer that American rejected. For purposes of that comparison under § 12-341.01(A), American must establish, and the trial court should determine, what amount or percentage of the court’s $775,000 fee award to American was attributable to fees incurred after the June 27, 2011 offer, and the court should reduce American’s fee award by that amount. See Hall, 229 Ariz. at 283 ¶ 20, 274 P.3d at 1217. To that balance the court should add the verdict amount of $10,733; American’s taxable costs under A.R.S. § 12-341 (totaling $46,625.94) and reasonable non-taxable costs (recoverable under the MVA, as both parties concede and the court of appeals ruled) incurred up to the date of CSK’s offer, see id.', plus applicable prejudgment interest. If the new sum is less than CSK’s offer of $1,000,001, the trial court must deem CSK the prevailing party from the date of its offer forward, entitling it to an award of reasonable attorney fees for that time frame as well as applicable sanctions under Rule 68(g). ¶ 26 Finally, if CSK is determined to be the prevailing party from the date of its rejected offer, CSK must establish, and the trial court should determine, what amount or percentage of CSK’s fees (incurred after its settlement offer) was clearly attributable to defending against American’s claims as opposed to the unsuccessful prosecution of CSK’s counterclaim, on which CSK was not the prevailing party. Based on that determination, the trial court may then decide if, or by how much, CSK’s fee award should be reduced. In the end, as CSK acknowledged at oral argument, the tidal court in its discretion may consider all pertinent factors in determining the amount of reasonable fees CSK should be awarded. Cf. Associated Indent. Corp. v. Warner, 143 Ariz. 567, 570-71, 694 P.2d 1181, 1184-85 (1985) (listing nonexclusive factors bearing on attorney fee awards under § 12-341.01); A.R.S. § 12-341.01(B) (providing that an award of reasonable fees under the statute “should be made to mitigate the burden of the expense of litigation to establish a just claim or a just defense”). American’s request for attorney fees incurred in this Court is denied as it is not the prevailing party in the proceeding before us. . The court of appeals’ decision was rendered after we remanded the case to that court "for consideration of ... the parties’ claims for attorneys’ fees, court costs, and other expenses,” American Power Products, Inc. v. CSK Auto, Inc., 239 Ariz. 151, 157 ¶ 21, 367 P.3d 55, 61 (2016).

OPINION NORRIS, Judge: ¶ 1 In 2010, Arizona voters, exercising their power to enact legislation by initiative, adopted the Arizona Medical Marijuana Act (“the Act”). Section 3 of the Act, codified at Arizona Revised Statutes (“AR.S.”) section 36-2813(C) (2014), states that a registered qualifying patient’s use of medical marijuana “must be considered the equivalent of the use of any other” physician directed medication and will not “otherwise disqualify” that patient from medical care. The dispositive issue in this appeal is whether a registered qualifying patient may assert a private cause of action against his treating physician for an alleged violation of this provision. We hold that that no such cause of action exists and therefore affirm the superior court’s dismissal of Plaintiff/Appellant Adam Gersten’s complaint for damages and equitable relief against Defendants/Appellees, Sun Pain Management, P.L.L.C. and Ronald S. Burns, M.D. FACTS AND PROCEDURAL BACKGROUND ¶ 2 In May 2010, Gersten became a patient of Dr. Burns. Gersten suffers from chronic pain related to Crohn’s disease, a “debilitating medical condition” under the Act. A.R.S. § 36-2801(3)(a) (2014). After being treated by Dr. Bums with prescription medicines, including Demerol (“the prescription medicines”), with mixed results, Gersten informed Dr. Burns and his colleagues at Sun Pain that he intended to obtain a certification for medical marijuana. Subsequently, in early October 2014, after he received his “registry identification card” and became a “registered qualifying patient” under the Act, Gersten began using medical marijuana. See A.R.S. § 36-2801(14). Dr. Burns then discharged Gersten as his patient. ¶ 3 Gersten sued Dr. Burns and Sun Pain (collectively, “Dr. Burns”) and alleged Dr. Burns had discharged him as a patient solely because he was using medical marijuana in violation of A.R.S. § 36-2813(C). That statute reads as follows: For the purposes of medical care, including organ transplants, a registered qualifying patient’s authorized use of marijuana must be considered the equivalent of the use of any other medication under the direction of a physician and does not constitute the use of an illicit substance or otherwise disqualify a registered qualifying patient from medical care. For the alleged violation of A.R.S. § 36-2813(C), Gersten sought damages and equitable relief, including an order requiring Dr. Burns to continue treating him in “the same manner, at the same rate, and at the same standard of care” as before his discharge. ¶ 4 Dr. Bums moved to dismiss Gersten’s complaint under Arizona Rule of Civil Procedure 12(b)(6) for failure to state a claim, arguing, as relevant here, that A.R.S. § 36-2813(C) did not create a private cause of action for its alleged violation. Without any evidentiary support, see infra ¶ 6, Dr. Bums also argued he had discharged Gersten because Gersten’s use of medical marijuana was against his medical advice and contracted plan of care. ¶ 5 The superior court granted Dr. Burns’ motion. Despite a lack of supporting evidence, the court found Gersten had acted against Dr. Bums’ medical advice and plan of care in using medical marijuana with the prescription medicines. DISCUSSION I. The Procedural Posture of this Case ¶6 In dismissing Gersten’s complaint for failure to state a claim, the superior court made, over Gersten’s objection, multiple factual findings based on proposed findings of fact submitted by Dr. Bums. While the court could have treated Dr. Bums’ motion as “presenting matters outside of the pleadings,” and thus, as a motion for summary judgment, see Ariz. R. Civ. P. 12(d), Dr. Bums presented no evidence by way of affidavit, declaration, deposition or otherwise substantiating any of the “facts” listed in the proposed findings of fact he submitted. ¶7 Under these circumstances, the superior court should not have made these findings of fact. The only facts properly before it to consider were the well-pleaded factual allegations in Gersten’s complaint. Coleman v. City of Mesa, 230 Ariz. 352, 356, ¶ 9, 284 P.3d 863, 867 (2012). Thus, on review, we have disregarded the superior court’s findings of fact, and treat this appeal as one from a dismissal under Rule 12(b)(6). See Hills v. Salt River Project Ass’n, 144 Ariz. 421, 424-25, 698 P.2d 216, 219-20 (App. 1985) (because defendants presented no evidence supporting their summary judgment motions, there was nothing for the plaintiff to controvert and motions were, thus, functionally the same as motions to dismiss for failure to state a claim and, therefore, plaintiff was entitled to rest on well-pleaded allegations of her complaint). II. Section 36-2813(0) Does Not Provide a Private Cause of Action for its Alleged Violation ¶ 8 The Act does not expressly provide a private cause of action to enforce A.R.S. § 36-2813(0). Nevertheless, as he did in the superior court, Gersten argues A.R.S. § 36-2813(0) should be construed as providing an implied private cause of action. Ger-sten’s argument raises an issue of law which we review de novo. State v. Gear, 239 Ariz. 343, 345, ¶ 11, 372 P.3d 287, 289 (2016) (appellate court reviews questions of statutory interpretation de novo) (citation omitted); Coleman, 230 Ariz. at 366, ¶¶ 7-8, 284 P.3d at 867 (appellate court reviews dismissal for failure to state a claim de novo). ¶ 9 When, as here, a statute does not expressly create a cause of action to enforce its terms, that statutory “silence” is not dispositive. Napier v. Bertram, 191 Ariz. 238, 240, ¶ 9, 954 P.2d 1389, 1391 (1998) (legislative silence regarding whether statute creates a private cause of action begins, rather than ends, the inquiry). In interpreting a voter-approved initiative, Arizona courts apply the same interpretive standards that are applicable to statutes passed by the Legislature. Sedona Grand, LLC v. City of Sedona, 229 Ariz. 37, 40, ¶ 11, 270 P.3d 864, 867 (App. 2012). Arizona courts have implied a private cause of action under various statutory schemes, recognizing that “[i]n interpreting statutes, a court will look to the intent of the Legislature” and “consider the context of the statute, the language used, the subject matter, the effects and consequences, and the spirit and purpose of the law.” Sellinger v. Freeway Mobile Home Sales, Inc., 110 Ariz. 573, 575, 521 P.2d 1119, 1121 (1974) (citation omitted), quoted in Napier, 191 Ariz. at 240-41, ¶ 9, 954 P.2d at 1391-92. And, in considering “the spirit and purpose of the law,” Arizona courts have examined whether the plaintiff is a member of “ ‘the class for whose especial benefit’ the statutes were adopted.” Chavez v. Brewer, 222 Ariz. 309, 318, ¶ 28, 214 P.3d 397, 406 (App. 2009) (quoting Lancaster v. Ariz. Bd. of Regents, 143 Ariz. 451, 457, 694 P.2d 281, 287 (App. 1984)). Applying these principles here, we hold A.R.S. § 36-2813(G) does not create a private cause of action for its alleged violation. ¶ 10 The Act is a “comprehensive legal framework for medical marijuana” which, in addition to establishing a regulatory structure for the management of medical marijuana licensing and production, provides broad legal protection for patients, physicians, and all who facilitate the use of medical marijuana. Daniel G. Orenstein, Voter Madness? Voter Intent and the Arizona Medical Marijmna Act, 47 Ariz. St. L.J. 391, 396 (2015). The Act allows registered qualifying patients (“qualifying patients”) to claim immunity from state prosecution for using medical marijuana consistent with the Act. Dobson v. McClennen, 238 Ariz. 389, 390, ¶ 1, 361 P.3d 374, 375 (2015); Reed-Kaliher v. Hoggatt, 237 Ariz. 119, 122, ¶ 8, 347 P.3d 136, 139 (2015); State v. Fields ex rel. Cty. of Pima, 232 Ariz. 265, 269, ¶¶ 14-15, 304 P.3d 1088, 1092 (App. 2013) (“In claiming protection under this statutory immunity, it is a [qualifying patient’s] burden to ‘plead and prove,’ by a preponderance of the evidence, that his or her actions fall within the range of immune action.”) (citation omitted). Thus, as a qualifying patient, Gersten is entitled to the protections afforded by the Act. ¶ 11 Section 36-2813(C) is part of the protections extended to qualifying patients. For purposes of medical care, this provision requires qualifying patients to be treated in the same fashion as other, nonqualifying patients. In other words, A.R.S. § 36-2813(C) requires similar treatment between these two groups of patients by ensuring that qualifying patients will not “otherwise” be disqualified from medical care solely because of their authorized use of medical marijuana. ¶ 12 That A.R.S. § 36-2813(0) ensures equal treatment does not, however, obligate a physician to extend or continue medical care to a qualifying patient. The wording of A.R.S. § 36-2813(0) does not re- quire a physician to treat a qualifying patient, nor does the wording attempt to regulate the relationship between a physician and patient. This distinction becomes clear when examining A.R.S. § 36-2813(0) in context and comparing it to other provisions of the Act that attempt to regulate the conduct of schools, landlords, and employers. ¶ 13 For example, A.R.S. § 36-2813(A) provides that “[n]o school or landlord may refuse to enroll or lease to and may not otherwise penalize a person solely for his status as a cardholder, unless failing to do so would cause the school or landlord to lose a monetary or licensing related benefit under federal law or regulations.” In a similar vein, A.R.S. § 36-2813(B) provides that, with certain exceptions, an employer may not discriminate against a person in hiring, terminating, or imposing any term or condition of employment. Unlike these provisions, A.R.S. § 36-2813(0) imposes no affirmative obligation on a physician to treat or continue treating a qualifying patient. Given this, there is no basis for implying a private cause of action against a physician to enforce an affirmative obligation to treat or continue treating a qualifying patient that does not exist under A.R.S. § 36-2813(0). ¶ 14 Further, a private cause of action against physicians is not needed to implement A.R.S. § 86-2813(C)’s directive. For example, the Arizona Medical Board may investigate and discipline a physieian licensed by the Board for “unprofessional conduct.” See A.R.S. § 32-1403(A)(2) (Supp. 2016) and A.R.S. § 32-1451(A) (2016). And, any person may submit a complaint to the Board alleging that a physician committed unprofessional conduct. See A.R.S. § 32-1451(A). “Unprofessional conduct” is defined as including the violation of any state law applicable to the practice of medicine, A.R.S. § 32-1401(27)(a) (Supp. 2016), and the Board is authorized to impose a variety of sanctions for such conduct. Thus, a mechanism exists to enforce A.R.S. § 36-2813(0) against physicians, such as Dr. Bums. ¶ 16 Applying the relevant factors to determine whether an implied private cause of action exists under the Act, we hold a qualifying patient may not assert a private cause of action for an alleged violation of this provision against his treating physician. Therefore, although we have disregarded the factual findings made by the superior court, we nevertheless agree with the superior court that Gersten failed to state a claim upon which relief can be granted. CONCLUSION ¶ 16 For the foregoing reasons, we affirm the superior court’s judgment in favor of Dr. Burns. As the successful party on appeal, we award Dr. Bums his costs on appeal, see A.R.S. § 12-341 (2016), contingent upon his compliance with Arizona Rule of Civil Appellate Procedure 21. . Dr. Burns is Sun Pain's manager. . The superior court’s decision can arguably be read as broadly ruling that no private cause of action may be maintained under the Act for a violation of any of its provisions. The only issue properly presented to the superior court and to this court, however, is whether a registered qualifying medical marijuana patient may assert a private cause of action against his treating physician for allegedly violating A.R.S. § 36-2813(C). . At oral argument in this court, Dr. Burns’ counsel acknowledged the superior court should not have adopted the proposed factual findings as they were without evidentiary support. . The Arizona Legislative Council analysis of tho Act contained in the publicity pamphlet for the 2010 general election distributed by the Arizona Secretary of State's Office stated the Act "would prohibit certain discriminatory practices,” Prop. 203, Analysis by Legislative Council, Ariz, Sec’y of State 2010 Publicity Pamphlet at 83.

OPINION ESPINOSA, Judge: ¶ 1 After a jury trial, Francisco Urrea was convicted of transportation of a narcotic drug for sale and sentenced to a presumptive five-year prison term. On appeal, he renews arguments rejected by the trial court that the drugs found in his vehicle should have been suppressed and that the court imposed an inadequate sanction after finding a Batson violation. He also alleges, for the first time, that the court erroneously admitted improper “profile testimony” at trial. Finding no error, we affirm. Factual and Procedural Background ¶ 2 We view the evidence in the light most favorable to upholding Urrea’s conviction. State v. Welch, 236 Ariz. 308, ¶ 2, 340 P.3d 387, 389 (App. 2014), In June 2014, a sheriffs deputy stopped Urrea’s vehicle for a traffic violation. After Urrea consented to a search, the deputy found a package containing over sixty grams of cocaine hidden in the rear cargo area of Urrea’s vehicle. ¶3 Urrea was indicted on one count of possession of a narcotic drug for sale and one count of transportation of a narcotic drug for sale. He sought suppression of the drugs before trial, arguing the “stop, seizure, search, [and] arrest” had been illegal and sought to preclude a police detective from testifying as an expert for the state. The trial court denied the suppression motion after an evidentiary hearing and heard arguments regarding the state’s expert immediately before Urrea’s trial began. The court ultimately allowed the expert to testify but precluded him from explaining the significance of a baseball cap in Urrea’s car and a tattoo on Urrea’s am allegedly depicting a “Narco Saint.” ¶ 4 During jury selection, Urrea raised a Batson challenge, arguing the state had improperly struck from the venire jurors with “Hispanic ethnic background[s].” After directing the prosecutor to identify the reasons for its strikes, the trial court denied three strikes for which it found the state had failed to provide adequate race-neutral reasons and reinstated the prospective jurors. Two of the reinstated jurors sat on the jury, which convicted Urrea of both charges after a two-day trial. The state subsequently dismissed the possession count, and the court sentenced Urrea as described above. We have jurisdiction over this appeal pursuant to A.R.S. §§ 12—120.21(A)(1), 13-4031, and 13-4033(A)(1). Motion to Suppress ¶ 5 Urrea first contends the trial court erred in denying his motion to suppress evidence obtained from the warrantless search of his vehicle. We review the court’s rulings on a suppression motion for an abuse of discretion, deferring to factual findings but reviewing de novo constitutional and purely legal issues. State v. Snyder, 240 Ariz. 551, ¶ 8, 382 P.3d 109, 112 (App. 2016). We consider only evidence presented at the suppression hearing and view that evidence in the light most favorable to upholding the court’s ruling. State v. Caraveo, 222 Ariz. 228, n.1, 213 P.3d 377, 378 n.1 (App. 2009). ¶ 6 At a hearing in July 2015, Deputy Nikola Zovko testified he had stopped Ur-rea’s vehicle after he observed it “merge[] over into the right-hand lane without its ton signal, causing another vehicle to abruptly slam on its brakes.” After obtaining Urrea’s license, registration, and insurance documents, the deputy asked Urrea to step out and wait at his patrol car while he conducted a records check, “[p]rimarily [as] a safety issue.” Urrea complied and throughout the stop was cooperative and friendly. ¶ 7 Before completing the traffic stop, the deputy approached Urrea’s vehicle a second time to check the Vehicle Identification Number (VIN) against the registration documents and a report he had received “from dispatch.” While doing so, he observed items in the car that suggested to him Urrea might be transporting drugs, including multiple air-fresheners and symbols on a baseball cap and tattooed on Urrea’s am associated with drug trafficking, and he asked Urrea if there were any drugs in the car. Urrea said there were not and told the deputy he “c[ould] check.” Urrea then signed a “consent to search” fom and was placed in the back of the deputy’s vehicle while the deputy and another officer searched Urrea’s car. The package of cocaine was found concealed behind the spare tire. ¶ 8 Urrea argued to the trial court that the initial stop was invalid, that Deputy Zovko illegally had “extended the detention to cheek federal [VIN] stickers,” and that the search of his vehicle had exceeded the scope of his consent. Ruling from the bench, the court concluded the traffic stop was valid, the subsequent “inspection of a VIN number [wa]s within the nomal discretion of an officer in a routine traffic stop,” and Urrea had consented to a search which “encompasse[d] all voids within the vehicle.” Although the court found “no unreasonable detention,” it noted it was “admitting the evidence as a consent search and not on any other basis.” On appeal, Urrea renews his arguments that the deputy impemissibly “ ‘detour[ed]’ from the mission of the underlying traffic stop” and the subsequent search of his vehicle was not based on “valid consent.” He does not challenge the validity of the traffic stop, ¶ 9 Regarding the duration of the stop, Urrea contends it was illegally prolonged not when the deputy returned to Urrea’s vehicle to check the VIN numbers, as he argued at the suppression hearing, but when he asked Urrea to “step out of the car and walk back to [the deputy’s] vehicle.” Because Urrea did not make this argument to the trial court, we review only for fundamental error. State v. Brown, 233 Ariz. 153, ¶ 12, 310 P.3d 29, 34 (App. 2013); see also State v. Lopez, 217 Ariz. 433, ¶ 4, 175 P.3d 682, 683 (App. 2008) (objection on one ground does not preserve issue on another ground). But Urrea has not argued fundamental error, and although we will not ignore such error if we see it, see State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App. 2007), Urrea has failed to show error of any kind occurred here. See also State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008) (fundamental error waived if not argued). ¶ 10 First, Urrea has not explained how his being directed to exit his vehicle while the deputy conducted a records check illegally prolonged the stop. As we have consistently held, “[l]aw enforcement officers are permitted to remove occupants from a vehicle as a safety precaution.” State v. Kjolsrud, 239 Ariz. 319, ¶ 13, 371 P.3d 647, 651 (App. 2016), citing Pennsylvania v. Mimms, 434 U.S. 106, 117 n.6, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977); Newell v. Town of Oro Valley, 163 Ariz, 527, 529, 789 P.2d 394, 396 (App. 1990). And, as noted in Arizona v. Johnson, 555 U.S. 323, 333, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009), “[a]n officer’s inquiries into matters unrelated to the justification for the traffic stop ... do not convert the encounter into something other than a lawful seizure, so long as the inquiries do not measurably extend the duration of the stop.” Although the “[a]uthority for the seizure ... ends when tasks tied to the traffic stop infraction are— or reasonably should have been—completed,” Rodriguez v. United States, — U.S. -, -, 135 S.Ct. 1609, 1614, 191 L.Ed.2d 492 (2015), Urrea has provided nothing to support that either the records check or check of the VIN number illegally prolonged his detention. In fact, Rodriguez specifically permits “ordinary inquiries incident to” traffic stops, which include “cheeking the driver’s license” and “inspecting the automobile’s registration and proof of insurance.” Id. at -, 135 S.Ct. at 1615, quoting Illinois v. Caballes, 543 U.S. 405, 408, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). A check of a VIN number is a permissible inquiry sufficiently related to a traffic stop. See New York v. Class, 475 U.S. 106, 118-19, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986) (upholding VIN number cheeks in both windshield and doorjamb); United States v. Ramos, 194 F.Supp.3d 1134, 1167 (D.N.M. 2016) (concluding VIN inspection is lawful part of traffic stop). ¶ 11 Moreover, even had Deputy Zovko illegally prolonged the traffic stop when he asked Urrea to “step back to his patrol vehicle in order to discuss the reason for the stop,” the ensuing conversation appears to have been entirely consensual. Kjolsrud, 239 Ariz. 319, ¶ 10, 371 P.3d at 650 (“Once the time needed to complete this mission has passed, an officer ‘must allow a driver to continue on his way unless ... the encounter between the driver and the officer becomes consensual.’ ”), quoting State v. Sweeney, 224 Ariz. 107, ¶ 17, 227 P.3d 868, 873 (App. 2010). Not only did the sheriffs deputy describe Urrea as “overly friendly” during the encounter and “extremely eager to answer the questions,” but he testified Urrea had answered questions even before they could be asked. ¶ 12 Urrea nevertheless argues his consent was not voluntary because he had not been read his rights pursuant to Miranda, he had been told other law enforcement officers were on their way, and there was a lack of any sort of intervening circumstance to break the causal connection between the illegal detention and his consent. In support, Urrea reviews considerable search and seizure law and cites factors the Supreme Court has identified as relevant in determining whether the taint of illegal conduct is sufficiently attenuated from evidence subsequently obtained by voluntary means. See Brown v. Illinois, 422 U.S. 590, 602-04, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); see also State v. Guillen, 223 Ariz. 314, ¶ 14, 223 P.3d 658, 661 (2010). But Urrea has not demonstrated an illegal or custodial detention here, and he has failed to explain how any of the factors he cites apply to his case. Accordingly, Urrea has not shown the trial court committed any error, much less fundamental error, in denying his motion to suppress. Batson Remedies ¶ 13 Urrea next contends the trial court should have granted his request for a mistrial after it found the state had struck three Hispanic jurors without a sufficiently race-neutral justification for doing so. He does not, however, explain how the trial court erred in forfeiting the state’s strikes rather than employing the drastic remedy of a mistrial. ¶ 14 In Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Court held that the use of peremptory strikes to exclude potential jurors on the basis of race violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. When a constitutional violation is alleged, Batson and its progeny require a three-step inquiry by the trial court: first, the party challenging the strike must make a prima facie showing of discrimination; second, the striking party must provide a race-neutral reason for the strike; and third, if a race-neutral explanation is provided, the trial court must determine whether the challenger has carried its burden of proving purposeful racial discrimination. State v. Garcia, 224 Ariz. 1, ¶ 21, 226 P.3d 370, 379 (2010). ¶ 15 Here, the trial court determined Ur-rea had made a prima facie case of discrimination when the state used five of its six strikes on potential jurors with “Hispanic ethnic background[s].” The state offered race-neutral reasons for the strikes, but failed to convince the court that three of the five challenged strikes were constitutionally valid. Over Urrea’s objection, the court denied the state’s strikes it found invalid, reinstated the struck jurors to the venire, and empaneled a jury that included two of the improperly excluded jurors. Urrea asserts, as he did below, that the only acceptable remedy to the Batson violation was to strike the entire jury panel and “start[ ] anew ... with a new jury pool.” As there is no published case law addressing this issue in Arizona, we review Batson and its progeny among other jurisdictions in some detail. ¶ 16 Although discriminatory uses of peremptory challenges were deemed unconstitutional over three decades ago, courts have taken varied approaches to remedy Batson violations. See generally Jason Mazzone, Bat-son Remedies, 97 Iowa L. Rev. 1613 (2012) (setting out cases adopting different responses to Batson incursions). The Batson court itself addressed remedies for the constitutional violation only briefly, stating in a footnote: In light of the variety of jury selection practices followed in our state and federal trial courts, we make no attempt to instruct these courts how best to implement our holding today. For the same reason, we express no view on whether it is more appropriate in a particular case, upon a finding of discrimination against [improperly struck] jurors, for the trial court to discharge the venire and select a new jury from a panel not previously associated with the ease, or to disallow the discriminatory challenges and resume selection with the improperly challenged jurors reinstated on the venire. Batson, 476 U.S. at 99 n.24, 106 S.Ct. 1712 (citations omitted). ¶ 17 The appropriateness of specific remedies has not been expanded upon in subsequent Supreme Court cases, although the federal appellate courts have generally interpreted Batson as “accord[ing] significant latitude” in the trial court’s ability to fashion an appropriate remedy. Koo v. McBride, 124 F.3d 869, 873 (7th Cir. 1997); see also McCrory v. Henderson, 82 F.3d 1243, 1247 (2d Cir. 1996) (concluding Batson error “remediable in any one of a number of ways”). In United States v. Walker, for example, the Eleventh Circuit noted that courts are encouraged to “take into account the practicalities of the situation” and stated it would not reverse the trial court’s remedy of a Batson violation absent an abuse of discretion. 490 F.3d 1282, 1294 (11th Cir. 2007). Generally, the federal appellate courts have upheld either of the two remedies identified in the Supreme Court’s Batson decision. Id. at 1294-95. ¶ 18 State courts, however, have approached remedies to Batson violations in various ways. Trial courts in South Carolina, for example, are required to select a new jury de novo when Batson violations are found. See State v. Jones, 293 S.C. 54, 368 S.E.2d 701, 704 (1987), abrogated on other grounds by State v. Chapman, 317 S.C. 302,-454 S.E.2d 317, 319 (1995). North Carolina has followed suit, with its supreme court stating that recommencing the jury selection process with a new panel of prospective jurors is the better cure. See State v. McCollum, 334 N.C. 208, 433 S.E.2d 144, 159 (1993) (noting primary goal of achieving fair trial, and difficulty, under its procedural practices, of asking improperly excluded juror “to remain unaffected by that recent discrimination, and to render an impartial verdict without prejudice toward either the State or the defendant”). In New Jersey, the single, bright-line remedy of dismissing the already selected jurors, quashing the venire, and starting jury selection anew remained the only approach for nearly thirty years until a “broader set of remedies” was adopted in 2013. See State v. Andrews, 216 N.J. 271, 78 A.3d 971, 984 (2013). The California Supreme Court similarly modified its longstanding precedent in 2002, to the extent the singular remedy of a mistrial was ostensibly required. See People v. Willis, 27 Cal.4th 811, 118 Cal.Rptr.2d 301, 43 P.3d 130, 137-39 (2002). ¶ 19 In contrast, Missouri’s courts have for many years preferred reseating improperly struck jurors. There, Batson challenges are required to be made before the venire’s dismissal “while there remains time to correct the error by disallowing the offending strike” thereby maximizing “[¿judicial time and resources ... because there is no need to quash the jury and call a new venire.” State v. Parker, 836 S.W.2d 930, 936 (Mo. 1992). In requiring reseating, the Missouri Supreme Court has specifically noted its concern for protecting, to the greatest extent possible, the equal protection rights of the excluded venirepersons. Id at 935; State v. Hampton, 163 S.W.3d 903, 905 (Mo. 2005) (reseating “vindicates the equal protection rights both of the accused and the stricken venireper-son”). Other courts that favor reseating have observed that commencing jury selection anew effectively rewards the offending party by ensuring the improperly struck juror does not participate in that trial. See, e.g., Willis, 118 Cal.Rptr.2d 301, 43 P.3d at 137 (observing “situations can arise in which the remedy of mistrial and dismissal of the venire accomplish nothing more than to reward improper voir dire challenges”). ¶ 20 The majority of states, however, have allowed the trial court discretion to apply either of the remedies contemplated by the Batson court, See Coleman v. Hogan, 254 Va. 64, 486 S.E.2d 548, 549 (1997) (agreeing with “majority of states that the choice of [Batson violation] remedy should be within the discretion of the trial court”); Jones v. State, 343 Md. 584, 683 A.2d 520, 525-26 (1996) (same). A few jurisdictions have fashioned additional remedies. For example, extra peremptory challenges to the party offended by unconstitutional challenges have been upheld in New York and Pennsylvania, People v. Chin, 3 A.D.3d 574, 771 N.Y.S.2d 158, 159 (2004); Commonwealth v. Hill, 727 A.2d 578, ¶ 15 (Pa. Super. Ct. 1999), and further penalties for repeated violations are available in California, Willis, 118 Cal.Rptr.2d 301, 43 P.3d at 137. ¶ 21 As a matter of first impression in Arizona, we note that each of the two main approaches addresses important constitutional concerns. Reseating unconstitutionally challenged jurors emphasizes the equal protection interests of the individual jurors. That approach, however, may not be available in all circumstances. If struck jurors are no longer available to serve, a mistrial may be the only practical remedy. And although striking an entire venire may ensure an improperly excluded juror will not harbor animus toward the striking party, that solution does not promote judicial economy when alternative remedies are available. Such concerns may be obviated by requiring peremptory challenges to be exercised outside the presence of the jury, but there is currently no such requirement in our procedural rules. See Ariz. R. Civ. P. 47(e); Ariz. R. Crim. P. 18.4, 18.5(h) (“persons remaining in the jury box” after peremptory challenges are made). And, as noted above, commencing the jury selection process anew rewards the striking party for improper actions to the extent it ensures the excluded juror or jurors do not sit on that jury. See Willis, 118 Cal.Rptr.2d 301, 43 P.3d at 137. ¶ 22 In view of these issues and concerns, we conclude it is unnecessary to impose a single, bright-line remedy for Batson violations. The better approach, we think, is to leave it to our trial judges’ discretion to tailor an appropriate remedy to the particulars of the constitutional violation. We therefore hold that when a Batson objection has been sustained, the trial court may impose either of the remedies identified in that seminal case. That is, it is within the court’s discretion to either reseat an improperly challenged venireperson, or to grant a mistrial, depending on the particular circumstances. See Batson, 476 U.S. at 99 n.24, 106 S.Ct. 1712. ¶ 23 In so holding, we do not foreclose the possibility of other remedies. Although the Batson court identified only two solutions, it did not suggest they were exhaustive. Id. As stated in Danforth v. Minnesota, 552 U.S. 264, 306, 128 S.Ct. 1029, 169 L.Ed.2d 869 (2008), state courts are entitled to give broad effect to rules of constitutional procedure. If alternative remedies are to be employed, however, we are mindful of the Court’s observation that any remedy for a constitutional violation ought to take as its touchstone that the nature of the remedy must be determined by the character and scope of the violation. Milliken v. Bradley, 433 U.S. 267, 280, 97 S.Ct. 2749, 63 L.Ed.2d 745 (1977). Courts should also consider the practicalities of the situation such as the particulars of the case, the egregiousness of the violation, and any other factor they may find appropriate. See Koo, 124 F.3d at 873; see also People v. Luciano, 10 N.Y.3d 499, 860 N.Y.S.2d 452, 890 N.E.2d 214, 219 (2008) (identifying as relevant factors “whether the challenged juror is available to be reseated, whether the litigant appears to be engaging in a pattern of discrimination, and the number of peremptory challenges that remain to be exercised”). On review, we will defer to any factual finding unless clearly erroneous, see State v. Gay, 214 Ariz. 214, ¶ 16, 150 P.3d 787, 793 (App. 2007), and will uphold any remedy imposed absent a clear abuse of the trial court’s discretion, cf. Walker, 490 F.3d at 1294; State v. Newell, 212 Ariz. 389, ¶ 61, 132 P.3d 833, 846 (2006) (denial of mistrial for prosecutorial misconduct not disturbed absent clear abuse of discretion). ¶ 24 In this case, the trial court did not abuse its discretion in reinstating the improperly struck jurors and forfeiting the state’s invalid challenges. The record indicates that all strikes, justifications for the strikes, and arguments regarding the appropriateness of the remedy were made outside the presence of the jury; thus there was no risk a rejected juror could be offended or harbor animus against the state or justice system. And, although only two of the three reinstated venirepersons were impaneled on Urrea’s jury, the court specifically noted it had not found “any kind of personal misconduct” attributable to the prosecutors. ¶25 Urrea, however, suggested he was concerned with the trial court’s decision regarding the reinstated jurors and the final composition of the jury. The court, following standard procedure, empaneled the first nine jurors who had not been struck, including two of the three that had been reinstated, and in response to Urrea’s complaint, noted the “predictable” “consequences” of a successful Batson challenge. Urrea did not indicate or suggest he would have preferred that any of the improperly struck jurors nevertheless be kept off the jury, nor did he offer any justification for excluding additional jurors. But even if he had, as our supreme court has observed, while a defendant in a criminal case is entitled to a fair and impartial jury, he is not entitled to any particular juror. See State v. Morris, 215 Ariz. 324, ¶ 40, 160 P.3d 203, 213 (2007). The nature of the remedy here was in accord with the seriousness of the situation, particularly in light of the trial court’s unchallenged finding of a lack of any misconduct by the state, and we conclude the court appropriately remedied the Batson violation. The Dissent ¶ 26 In his dissent, our colleague proposes grounds for reversal that appear to have little support, particularly in Arizona. At the outset, the dissent quotes the reinstatement remedy from Batson, “disallowing] the discriminatory challenges and resuming] selection with the improperly challenged jurors reinstated on the venire,” 476 U.S. at 99 n.24, 106 S.Ct. 1712, and then concludes the trial court here “imposed only an incomplete version of the latter remedy” because one of the reinstated jurors did not end up on the jury. But Batson did not say improperly struck jurors must be placed on the jury. Rather, they are to be reinstated on the “venire,” which is the panel “from among whom the jurors are to be chosen.” Black’s Law Dictionary (10th ed. 2014). ¶27 In support of its assertion that the trial court was “obligated” to seat all improperly struck jurors on the petit jury, the dissent cites a Mississippi case involving the improper denial of a defendant’s Batson challenge. But that decision did not address the scope of an appropriate Batson remedy, focusing only on the trial court’s failure to grant any remedy at all. See Conerly v. State, 544 So.2d 1370, 1372-73 (Miss. 1989) (remanding for new trial when trial court determined state’s explanation for striking juror was invalid but nevertheless allowed state’s peremptory challenge). Here, the trial court did not fail to act on the violation; it reinstated the excluded jurors on the venire, and then “resume[d] selection” as directed by Batson. 476 U.S. at 99 n.24, 106 S.Ct. 1712. The dissent’s assertion that “resuming] selection” under Batson “required [the court] to redo the Rule 18.5(g) procedure” entails a strained definition of the word “resume,” which is in common understanding quite distinct from the word “redo.” ¶ 28 Moreover, the dissent’s contention that reinstating the improperly struck jurors to the venire was inadequate to ensure their own rights appears to contradict another Supreme Court case. Although the Equal Protection Clause proscribes discriminatory peremptory strikes that would violate the rights of otherwise qualified and unbiased citizens to sit on juries, it does not require that they ultimately be seated. Powers v. Ohio, 499 U.S. 400, 409, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) (individual juror does not have right to sit on petit jury, only right “not to be excluded from one on account of race”). Here, juror C.C. ultimately did not sit on Urrea’s jury because of his position near the bottom of the clerk’s randomly generated list of potential jurors, not because he was discriminated against. ¶ 29 The dissent’s speculation that the trial court “impaired Urrea’s right to peremptory challenges under Rule 18.6(g)” because Ur-rea may have struck different jurors knowing that the state could not strike the three reinstated jurors is likewise unwarranted. First, we disagree that the trial court was “required to vacate” Urrea’s fourth, fifth, and sixth peremptory challenges so that he could have another opportunity to re-exercise those strikes. The dissent cites no authority for that proposition, nor is there any evidence to support the presumption that Urrea would have used any of those strikes differently. ¶ 30 Second, that the jury might have been different had the trial court ruled differently did not violate Urrea’s constitutional rights. As the Supreme Court has noted, “peremptory challenges ... are a means to achieve the end of an impartial jury.” Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988). In Boss, the Court unequivocally stated that peremptory strikes are “not of constitutional dimension.” Id.; see also Poland v. Stewart, 169 F.3d 673, 683 (9th Cir. 1999). The Court found no constitutional violation in Boss when the trial court erroneously failed to strike a juror for cause and the defendant used one of his peremptory strikes to remove the juror from the venire. Id. at 83, 108 S.Ct. 2273. The Court noted there, as the dissent does here, the trial court’s action “may have resulted in a jury panel different from that which would otherwise have decided the case.” Id. at 87, 108 S.Ct. 2273. But if there is no error when a defendant must use a peremptory strike to cure what would otherwise be a violation of a constitutional right, there can be no error when a defendant exercised all of his peremptory strikes but perhaps would have exercised them differently in other circumstances. As our own supreme court has said, “there is no principled basis for interpreting a court rule governing peremptory challenges more broadly than a federal constitutional right.” State v. Hickman, 206 Ariz. 192, ¶ 40, 68 P.3d 418, 427 (2003). Here, the trial court remedied the Batson violations in one of the ways approved of in Batson itself, and there has been no suggestion that the jury impaneled was anything less than impartial. ¶ 31 Nor did the trial court’s remedy violate Urrea’s statutory right to peremptory strikes. The Supreme Court held in United States v. Martinez-Salazar, 528 U.S. 304, 317, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000), that “a defendant’s exercise of peremptory strikes pursuant to [the federal rule granting peremptory strikes] is not denied or impaired when the defendant chooses to use a peremptory challenge to remove a juror who should have been excused for cause.” As noted above, removing jurors for cause is necessary to make the impaneled jury impartial, whereas peremptory strikes are merely a means towards that end. ¶32 Lastly, the dissent’s suggestion that “failing to remedy a Batson violation constitutes structural error” appears to be based on a misapplication of case law and the conflation of a non-remedied “Batson violation” with a theoretical failure to strictly comply with the procedural outlines of Rule 18.5(g). The cases applying structural error review to issues of jury selection do so either because a juror was wrongly placed on the jury, see, e.g., United States v. McFerron, 163 F.3d 952, 954-56 (6th Cir. 1998), or because a trial court allowed improper strikes of jurors in violation of Batson, see, e.g., Tankleff v. Senkowski, 135 F.3d 235, 247-48 (2d Cir. 1998). The situation presented here is much different, and the cases cited by the dissent do not compel the outcome suggested therein, particularly in view of Martinez-Salazar. See Hickman, 205 Ariz. 192, ¶¶ 13-14, 68 P.3d at 421 (noting that, after Martinez-Salazar, a number of courts adopted harmless error review for cases in which a defendant used a peremptory strike to remove a juror that should have been removed for cause). ¶ 33 Our supreme court held in Hickman that impairment of a defendant’s statutory right to peremptory strikes only requires reversal upon a showing of prejudice. 205 Ariz. 192, ¶ 32, 68 P.3d at 425-26. Applying that standard here, and even accepting ar-guendo the trial court failed to comply with Rule 18.5(g), Urrea cannot show prejudice. The dissent’s conclusion that Urrea was prejudiced because one “improperly struck juror ... did not serve on the jury” is undercut by Ross, Martinez-Salazar, Hickman, and the well-established principle that a defendant is not entitled to any particular juror, but only a fair trial. Morris, 215 Ariz. 324, ¶ 40, 160 P.3d at 213. Our dissenting colleague generally acknowledges the broad discretion accorded trial courts in fashioning a Batson remedy and identifies a number of potential variants, save the reasonable and appropriate remedy adopted by the trial court here. That remedy was in accord with Batson and its progeny, and well within the court’s discretion. Profile Testimony ¶ 34 Urrea lastly claims the trial court erroneously admitted improper expert testimony at trial. He alleges that, over his objection, the state’s expert “testified to what was essentially ‘profile’ evidence concerning the manner in which drug[ ] transactions occur and the role of individuals in these transactions, including drug couriers.” The state counters that the challenged testimony was not profile evidence, and even if it were, any error was harmless. We review the trial court’s ruling on the admissibility of expert testimony for an abuse of discretion. State v. Salazar-Mercado, 234 Ariz. 590, ¶ 13, 326 P.3d 996,1000 (2014). ¶35 Drug courier profile evidence has been described as “an ‘informal compilation of characteristics’ ... typically displayed by persons trafficking in illegal drugs.” State v. Lee, 191 Ariz. 542, ¶ 10, 959 P.2d 799, 801 (1998), quoting Reid v. Georgia, 448 U.S. 438, 440, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980). Our supreme court has condemned the presentation of such evidence as substantive proof of guilt at trial. See id. ¶ 12. In contrast, generalized expert testimony about the way drug traffickers typically operate has been upheld. See State v. Gonzalez, 229 Ariz. 550, ¶ 13, 278 P.3d 328, 332 (App. 2012). An expert oversteps the permissible bounds when the testimony relates not just to generalized patterns of a criminal organization, but compares the modus operandi of a specific organization to the conduct of a defendant in a particular case. See State v. Garcia-Quintana, 234 Ariz. 267, ¶¶ 14-15, 321 P.3d 432, 436 (App. 2014). ¶ 36 Urrea broadly asserts the trial court erred in allowing the state’s expert to testify “concerning the manner in which drug[] transactions occur and the role of individuals in these transactions.” But, as noted above, such generalized testimony has been found to be admissible modus operandi evidence, rather than inadmissible profile evidence. See Gonzalez, 229 Ariz. 550, ¶ 13, 278 P.3d at 332. And because Urrea has made only a vague claim, without specifying any particular statement he takes exception to, we are unable to meaningfully address the issue further. See Ariz. R. Grim. P. 31.13(c)(l)(vi) (requiring citations to portions of the record l-elied on); State v. Moody, 208 Ariz. 424, n.9, 94 P.3d 1119, 1147 n.9 (2004) (undeveloped arguments waived). ¶37 Arguments made for the first time on appeal are reviewed for fundamental error. State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005). Here, Urrea has not argued the error was fundamental, nor have we found error which could be so characterized. See State v. Torres, 233 Ariz. 479, ¶ 9, 314 P.3d 825, 827 (App. 2013); see also Moreno-Medrano, 218 Ariz. 849, ¶ 17, 185 P.3d at 140 (fundamental error waived if not argued). And to the extent Urrea suggests the officer’s testimony was impermissible opinion regarding whether the drugs were for sale or for personal use, we again reject such an argument. See, e.g., State v. Fornof 218 Ariz. 74, ¶¶ 20-21, 179 P.3d 954, 959-60 (App. 2008). Urrea testified at trial that he was on his way from Tucson to Phoenix with the cocaine “to party” with his cousin. The only issue for the jury was whether the 61.8 grams of cocaine in Urrea’s possession was for personal use or for sale. As this court has repeatedly held, so long as proper foundation is laid, a qualified law enforcement officer may opine on whether a particular defendant possessed drugs for sale or for personal use. See State v. Carreon, 151 Ariz. 615, 616-17, 729 P.2d 969, 970-71 (App. 1986). There was no error in the trial court’s admission of the expert testimony in this case. Disposition ¶ 38 For all the foregoing reasons, Urrea’s conviction and sentence are affirmed. . Batson v. Kentucky, 476 U.S. 79, 84, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (Equal Protection Clause forbids rejecting potential jurors because of race). . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . The state has not challenged the court’s Batson rulings on appeal, contending only that the remedy imposed was adequate. . Reseating improperly struck jurors was subsequently upheld as a permissible remedy where a party continues to improperly exercise peremptory challenges on subsequent venires. See State v. Franklin, 318 S.C. 47, 456 S.E.2d 357, 360 (1995). . See also State v. Morales, 71 Conn.App. 790, 804 A.2d 902, 920 n.27 (2002) (concluding state law does not require jury selection start anew after Batson challenge sustained); Jefferson v. State, 595 So.2d 38, 41 (Fla. 1992) (proceeding with improperly struck juror may be appropriate remedy in absence of prejudice); Holmes v. State, 273 Ga. 644, 543 S.E.2d 688, 691 (2001) (reseating improperly struck juror did not run afoul of constitutional mandate); Haschke v. Uniflow Mfg. Co., 268 Ill.App.3d 1045, 206 Ill.Dec. 387, 645 N.E.2d 392, 396 (1994) (vesting trial court with discretion to fashion remedy for Bat-son violation); Koo v. State, 640 N.E.2d 95, 100 (Ind. Ct. App. 1994) (remedy for Batson violation left to trial court’s discretion); Commonwealth v. Fruchtman, 418 Mass. 8, 633 N.E.2d 369, 373 (1994) (choice of remedy for Batson violation "the prerogative of the judge”); Ezell v. State, 909 P.2d 68, 72 (Okla. Crim. App. 1995) (concluding either remedy announced in Batson appropriate "depending on the particular circumstances at trial”); Woodson v. Porter Brown Limestone Co., Inc., 916 S.W.2d 896, 906-07 (Tenn. 1996) (signaling that reseating juror or striking entire venire alternate appropriate remedies); Peetz v. State, 180 S.W.3d 755, 759-61 (Tex. Ct. App. 2005) (trial court may fashion remedy for Batson violation according to its discretion); State v. Valdez, 140 P.3d 1219, 1233 (Utah 2006) (requiring Batson challenge to be raised in such a manner that trial court "is able to fashion a remedy”). . The appropriateness of a Batson remedy has been addressed in only a handful of Arizona cases. In unpublished decisions, this court has upheld the reinstatement of improperly struck jurors to their original positions, State v. Martinez, No, 1 CA-CR 06-0936, ¶¶ 9-10, 2008 WL 2447441 (Ariz. App. June 12, 2008) (mem. decision); State v. Garcia, No. 1 CA-CR 10-0033, ¶¶ 7- 10, 2011 WL 283325 (Ariz. App. Jan. 27, 2011) (mem. decision), and remanded for a new trial when the trial court committed clear error in denying a defendant's Batson challenge, State v. Brown, No. 1 CA-CR 13-0608, ¶¶ 19-20, 2014 WL 2565551 (Ariz. App, June 5, 2014) (mem. decision); cf. Ariz. R. Sup. Ct. 111(c)(1)(B) (memorandum decisions may be cited to assist appellate court in deciding whether to issue a published opinion). . Ariz. R. Crim. P. 18.5(g) directs the courtroom cleric to "strike the jurors on the bottom of the list until only the number to serve, plus alternates, remain" if parties fail to exercise the full number of peremptory challenges. A similar process has been approved in the civil context. See Ariz. R. Civ. P. 47 cmt. to 1995 amend, (describing purpose of amendments to allow for the "struck” juror selection method, in which for-cause challenges are made after the jury panel has been examined, peremptory strikes are then made and legal issues therefrom resolved, and "the clerk calls the first eight names remaining on the list"). . The dissent cites three Arizona cases to suggest reversal is required in this case. However, State ex rel. Romley, 181 Ariz. 271, 274, 889 P.2d 629, 632 (App. 1995), discussed the importance of peremptory strikes in saying that a party generally need not explain its "arbitrary and capricious” reasons for striking a juror. State v. Boston, 170 Ariz. 315, 316-17, 823 P.2d 1323, 1324-25 (App. 1991), is also distinguishable as the trial court there erroneously allowed a juror to be struck in violation of Batson. Finally, the "absolute" right to peremptory strikes attributed to State v. Thompson, 68 Ariz. 386, 390, 206 P.2d 1037, 1039 (1949), is quoted from the 1936 edition of American Jurisprudence. The more recent second edition notably excised this language. See 47 Am. Jur. Jwy § 206. .As for the dissent's suggestion the trial court "truncat[ed] the proceeding with an inadequate remedy” because of concerns about time, the Supreme Court has recognized that judges' decisions in jury selection "are fast paced, made on the spot and under pressure” and even a wrong decision does not always require reversal. United States v. Martinez-Salazar, 528 U.S. 304, 316, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000). . Urrea additionally renews his claim that Detective Felix was untimely disclosed and should have been precluded from testifying. His failure to develop or support this argument, however, waives the issue and we do not address it further. See State v. Moody, 208 Ariz. 424, n.9, 94 P.3d 1119, 1147 n.9 (2004) (merely mentioning argument insufficient).

OPINION SWANN, Judge: ¶ 1 In Arizona State University v. Arizona State Retirement System, 237 Ariz. 246, 349 P.3d 220 (App. 2015) (hereinafter “ASU v. ASRS”), we held that the Arizona State Retirement System (“ASRS”) wrongly collected $1,149,103 from Arizona State University (the “University”). This appeal concerns the rate of prejudgment interest that applies to ASRS’s liability for the refund. The superior court held that the refund was in the nature of a “judgment,” and not a “debt”—a distinction that determines the applicable interest rate under AR.S. § 44-1201. We disagree, and hold that ASRS’s over-collection of money created a debt that was not dependent on the existence of a judgment. We therefore reverse and remand for entry of judgment with prejudgment interest computed at 10%. FACTS AND PROCEDURAL HISTORY ¶ 2 The underlying litigation arose from an invoice ASRS sent to the University for a purported actuarial unfunded liability resulting from 17 employees’ participation in the University’s termination incentive program. See generally A.R.S. § 38-749; ASU v. ASRS, 237 Ariz. 246, 349 P.3d 220. ASRS determined the unfunded liability to be $1,149,103 and demanded payment within 90 days. ASU v. ASRS, 237 Ariz. at 249, ¶ 9, 349 P.3d 220. It also asserted under § 38-749 that ASU would owe ASRS 8% interest on any “balance” until the $1,149,103 was paid in full. The University paid the invoice and then pursued an administrative appeal. Id. at 223, ¶ 9. ¶ 3 In ASU v. ASRS, we concluded that ASRS was required to follow the Administrative Procedure Act’s rulemaking procedures before enforcing the policy under which it charged the University. 237 Ariz. at 253-54, ¶ 32, 349 P.3d 220, We remanded the ease to the superior court with instructions “to enter an order directing ASRS to refund $1,149,103 to the University, with interest thereon if and as authorized by law—an issue the superior court should address on remand.” Id. at 254, ¶ 33, 349 P.3d 220. ¶ 4 The superior court entered judgment for the original invoice—$1,149,103—together with prejudgment interest at the rate of 4.26%, The only issue before us in this appeal is whether the court chose the correct interest rate. DISCUSSION ¶ 5 The parties agree that the interest rate is determined by A.R.S. § 44-1201. That statute provides in pertinent part: A. Interest on any loan, indebtedness or other obligation shall be at the rate of ten per cent per annum, unless a different rate is contracted for in writing, in which event any rate of interest may be agreed to. Interest on any judgment that is based on a written agreement evidencing a loan, indebtedness or obligation that bears a rate of interest not in excess of the maximum permitted by law shall be at the rate of interest provided in the agreement and shall be specified in the judgment. B. Unless specifically provided for in statute or a different rate is contracted for in writing, interest on any judgment shall be at the lesser of ten per cent per annum or at a rate per annum that is equal to one per cent plus the prime rate as published by the board of governors of the federal reserve system in statistical release H.15 or any publication that may supersede it on the date that the judgment is entered. The judgment shall state the applicable interest rate and it shall not change after it is entered. F. If awarded, prejudgment interest shall be at the rate described in subsection A or B of this section. (Emphases added.) ¶ 6 The University argues that once it paid the improperly issued invoice, ASRS became “indebted” to it in the amount of $1,149,103, entitling it to 10% interest under subsection (A). ASRS contends that the superior court correctly decided that the University was entitled only to the prime rate plus 1% (ie., 4.25%)—the rate applicable to a “judgment” under subsection (B). ¶ 7 We review this issue de novo. Hall v. Elected, Officials’ Ret. Plan, 241 Ariz. 33, 46, ¶ 38, 383 P.3d 1107 (2016); Metzler v. BCI Coca-Cola Bottling Co. of Los Angeles, 235 Ariz. 141, 144, ¶ 13, 329 P.3d 1043 (2014). “If the plain language of a statute is clear and unambiguous when considered in context, we do not resort to other methods of statutory construction,” Newman v. Select Specialty Hosp. Ariz., Inc., 239 Ariz. 558, 566, ¶ 35, 374 P.3d 433 (App. 2016). We interpret statutes to avoid rendering “any of its language mere ‘surplusage,’ [and instead] give meaning to ‘each word, phrase, clause, and sentence ... so that no part of the statute will be void, inert, redundant, or trivial.’ ” In re Estate of Zaritsky, 198 Ariz. 599, 603, ¶ 11, 12 P.3d 1203 (App. 2000) (citation omitted). ¶ 8 Untfl 2011, AR.S. § 44-1201 did not differentiate between “judgments” and “loans, indebtedness, or other obligations.” See Metzler, 235 Ariz. at 145, ¶ 14, 329 P.3d 1043, The Legislature then amended § 44-1201, “uncoupling ‘judgments’ from ‘loans, indebtedness, or other obligations’ so as to ‘limit’ the interest applicable to judgments.” Id. at ¶ 15 (citing Arizona Senate Fact Sheet, S.B. 1212, 50th Leg., 1st Reg. Sess. (Apr. 13, 2011)). In Metzler, the supreme court held under subsection (A) that prejudgment interest is awarded at 10% on any loan (“money lent at interest”), indebtedness (“something (as an amount of money) that is owed”), or other obligation (“things of the same nature or class as ‘loan’ and ‘indebtedness’”). 235 Ariz. at 145-46, ¶¶ 18-19, 329 P.3d 1043 (citations omitted). And under subsection (B), prejudgment interest is currently awarded at 4.25% on “any judgment,” which our supreme court concluded means an amount that “depends on a judgment for its existence.” See id. at 146, ¶ 19, 329 P.3d 1043. ¶ 9 Taken alone, subsection (A) might be read as a contractual gap-filler for debt obligations that are paid without resort to litigation, and subsection (B) could be read to define the interest rate for liabilities that are reduced to judgments. But read as a whole, § 44-1201 makes clear that subsection (B) is not triggered every time a judgment is entered. Subsection (F) states that “prejudgment interest shall be at the rate described in subsection A or B,” (Emphasis added.) Were we to hold that subsection (B) applies to all liabilities reduced to judgments, subsection (F) would have no meaning. Therefore, a person who successfully obtains a judgment to collect an “indebtedness” is entitled to the 10% interest rate even though litigation and a judgment was necessary to collect the debt. ¶ 10 The University argues that “indebtedness” under subsection (A) includes all liquidated claims once they are reduced to judgments. See Viad Corp. v. MoneyGram Int'l Inc., 1 CA-CV 15-0053, 2016 WL 6436827, at *8, ¶¶ 42-45 (Ariz. App. Nov. 1, 2016). Though liquidated claims will very often qualify for prejudgment interest under subsection (A), we decline to rewrite the statute to substitute the three terms the Legislature wrote—“loan,” “indebtedness,” and “other obligation”—with the single term “liquidated sum.” Had the Legislature intended subsection (A) to apply to all “liquidated” claims, it would have said so. See, e.g., A.R.S. §§ 44-1201(D)(1) (“A court shall not award ... [plrejudgment interest for any unliquidated, future, punitive or exemplary damages that are found by the trier of fact." (emphasis added)), 47-2718(A) (“Damages for breach by either party may be liquidated in the agreement. ...” (emphasis added)). ¶ 11 “Liquidated” damages can exist even when there is not an “indebtedness.” See, e.g., Precision Heavy Haul, Inc. v. Trail King Indus., Inc., 224 Ariz. 159, 161-62, ¶¶ 7, 14, 228 P.3d 895 (App. 2010). Therefore, while the majority of eases involving liquidated damages may indeed be cases involving “indebtedness,” we cannot say that the two terms are congruent. ¶ 12 Instead, consistent with Met-zler, we hold that courts must look to the fundamental nature of the underlying obligation to determine which subsection applies. Here, while the litigation and resulting judgment may have been necessary to secure ASRS’s refund of the money that the University paid, the obligation itself does not “depend on the judgment for its existence.” Metzler, 235 Ariz. at 145, ¶ 17, 329 P.3d 1043. ¶ 13 ASRS’s obligation has all indicia of a “debt.” ASRS cast the original demand that created the overpayment, giving rise to the need for refund, as an amount “due” within 90 days. ASRS’s own letter stated: “Payment is due within 90 days of the invoice. If not paid in full within that time, the ASRS will assess interest on the balance at a rate of eight percent (8%) until the amount is paid in full.” (Emphasis in original.) It is difficult to imagine a better fit for the word “indebtedness” than an amount “due” within a time certain that carries a fixed interest rate if any “balance” remains outstanding after the due date. And the wording of ASRS’s letter was not merely a rhetorical characterization of a generic demand—A.R.S. § 38-749(C) established the deadline for payment of actuarial unfunded liabilities, the default interest rate, and the concept of an “amount due.” Therefore, had ASRS’s demand been meritorious, the underlying claim would have been one by ASRS against the University for nonpayment of an indebtedness and ASRS would have received the benefit of the 10% interest rate under A.R.S. § 44-1201(A). ¶ 14 We see no reason to treat a claim for refund of an overpayment differently from the claim that gave rise to the overpayment. Properly applied, A.R.S. § 38-749 creates “indebtedness” owed by employers to ASRS. Claims for refunds of overpayments on such indebtedness are likewise claims for indebtedness governed by A.R.S. § 44-1201(A). CONCLUSION ¶ 15 The University was entitled to 10% prejudgment interest on an “indebtedness” under A.R.S. § 44-1201(A). We therefore reverse the superior court’s order awarding prejudgment interest at 4.25% and remand for modification of the interest calculation. ¶ 16 The University requests an award of costs on appeal under A.R.S. § 12-341. ASRS argues the University was not a “successful party to a civil action” under § 12-341. ASRS did not raise this argument in the first appeal, and it is therefore waived. Carrillo v. State, 169 Ariz. 126, 132, 817 P.2d 493 (App. 1991) (failing to raise an issue in first appeal waives it as to the second appeal). We award the University its costs under § 12-341, upon its compliance with ARCAP 21. , Although ASRS urges "equities” favoring an award of interest at 4.25%, it offers no authority for the proposition that equitable considerations bear on the applicable interest rate. Cf. Employer’s Mut. Cas. Co. v. McKeon, 170 Ariz. 75, 77, 821 P.2d 766 (App. 1991) ("[Plrejudgment interest on a liquidated claim is a matter of right and not a matter of discretion.”).

OPINION VÁSQUEZ, Judge: ¶ 1 After a jury trial, Vernon Peltz was convicted of aggravated assault causing temporary but substantial disfigurement—a lesser-included offense of aggravated assault causing serious physical injury—and assault—a lesser-included offense of aggravated assault with a dangerous instrument. The trial court suspended the imposition of sentence and placed him on concurrent terms of probation, the longer of which is three years. On appeal, Peltz contends the prosecutor committed misconduct by charging him with aggravated assault causing serious physical injury and the court erred by denying his motion for a judgment of acquittal on that charge because there was only evidence of minor injuries. He also argues the court erred by admitting lay witness opinion testimony and by denying his motions to suppress. For the reasons that follow, we affirm. Factual and Procedural Background ¶ 2 We view the facts in the light most favorable to sustaining Peltz’s convictions. See State v. Molina, 211 Ariz. 130, ¶ 2, 118 P.3d 1094, 1096 (App. 2005). In December 2012, Arizona Department of Public Safety Trooper Saleem Abdullah responded to a motor vehicle accident on Oracle Road in Pima County. Abdullah’s investigation revealed that a pickup truck “had left the roadway going northbound, crossed through the center line of the road across opposing traffic,” traveled along the dirt shoulder into and out of a ditch, and ultimately crashed into a sign. He observed blood on the driver’s side of the vehicle, specifically, on the inside and outside of the door, the seat, the floorboard, and the steeling wheel. There was no blood on the passenger’s side. He saw emergency medical technicians treating Peltz and Peltz’s mother, J.K. Peltz had a cut above his left eye that was bleeding, and he had blood on his hands. J.K. did not have any open cuts or blood on her, but she “complained of numerous pains to medical personnel.” ¶ 3 Abdullah also noticed that Peltz had “red, watery eyes, [a] flushed face[,] ... ptosis, which is a drooping of the eyelids,” and “an upper body sway.” When Abdullah asked Peltz what had happened, Peltz stated that “there was a crash and that, honestly, he had a few drinks.” ¶4 Medical technicians transported Peltz and J.K. to nearby hospitals. Abdullah followed Peltz to continue his investigation. Once at the hospital, a nurse informed Ab-dullah that they would be drawing Peltz’s blood for medical purposes, and Abdullah requested a sample. Abdullah waited in a common area by the nurses’ station outside of Peltz’s room. As he did so, Abdullah overheard Peltz talking on his cell phone. Peltz stated he had been leaving a restaurant, where he consumed “a few alcoholic drinks,” and he had been driving. Abdullah also heard Peltz confirm to medical personnel that he had been drinking alcohol. ¶ 6 Subsequent testing of Peltz’s blood sample revealed a .142 alcohol content. Officers discovered that the truck was registered to Peltz and that J.K.’s driver license had been suspended. J,K,’s injuries included a lacerated spleen and fractures to her spine and eye socket. ¶ 6 A grand jury indicted Peltz for aggravated assault causing serious physical injury to J.K. and aggravated assault of J.K. using a deadly weapon or dangerous instrument (the motor vehicle). As noted above, the jury convicted him of lesser-ineluded offenses for each charge: aggravated assault causing temporary but substantial disfigurement and assault. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1). Prosecutorial Misconduct ¶ 7 Peltz first argues “the prosecutor committed misconduct by charging aggravated assault with ‘serious physical injury without any reasonable belief that any injuries were serious.” Although Peltz alleged prose-cutorial misconduct in charging him below, it was for different reasons than he now raises on appeal. Specifically, he argued the prosecutor “fail[ed] to adequately investigate the easy to determine status of [his] driving record” or to present to the grand jury “clearly exculpatory evidence ,.. that showed a witness observed the vehicle leaving [his] house with [J.K.] driving.” See State v. Lopez, 217 Ariz. 433, ¶4, 175 P.3d 682, 683 (App. 2008) (objection on one ground does not preserve issue on another). Accordingly, he has forfeited review for all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005). However, because Peltz has failed to argue the alleged error was fundamental, he has waived review of this issue. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008); see also State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App. 2007) (appellate court will not ignore fundamental error if found). ¶8 Even assuming the argument had not been waived, Peltz cannot establish fundamental error on his claim of prosecuto-rial misconduct. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607. The prosecutor has broad discretion in deciding both whether to charge and which charges to file against a defendant. State v. Hankins, 141 Ariz. 217, 221, 686 P.2d 740, 744 (1984). Courts will not interfere with that discretion unless the prosecutor is acting illegally or in excess of his or her powers. State v. Murphy, 113 Ariz. 416, 418, 555 P.2d 1110, 1112 (1976). Here, Peltz did not argue that the prosecutor failed to make a fair and impartial presentation in the final remand to the grand jury, see id. and the grand jury independently determined that there was probable cause to indict Peltz for aggravated assault involving serious physical injury, see State v. Coconino Cty. Superior Court, 139 Ariz. 422, 424, 678 P.2d 1386, 1388 (1984). The prosecutor did not engage in misconduct by seeking an indictment on that charge. Motion for a Judgment of Acquittal ¶ 9 In a somewhat related argument, Peltz contends the trial court erred by denying his motion for a judgment of acquittal, pursuant to Rule 20, Ariz. R. Crim. P., on the charge of aggravated assault causing serious physical injury because the state presented insufficient evidence that J.K.’s injuries were serious. However, because Peltz was not convicted of this offense, the issue is moot. See Pointe Resorts, Inc. v. Culbertson, 158 Ariz. 137, 140-41, 761 P.2d 1041, 1044-45 (1988) (under mootness doctrine, court should not address issues that no longer exist because of change in factual circumstances). To the extent Peltz believes that, if his Rule 20 motion on the original charge had been granted, the trial court could not have instructed the jury on lesser-included offenses, he is mistaken. See State ex rel. Thomas v. Duncan, 216 Ariz. 260, n.7, 165 P.3d 238, 243 n.7 (App. 2007) (noting that, even if judgment of acquittal granted on charged offense, “lesser included offense would still be applicable”); State v. Miranda, 198 Ariz. 426, ¶ 9, 10 P.3d 1213, 1215 (App. 2000) (instruction on lesser-included offense proper if supported by evidence). ¶ 10 The trial court did not, in any event, err in denying Peltz’s Rule 20 motion because there was substantial evidence that J.K. had suffered a “serious physical injury.” See State v. West, 226 Ariz. 559, ¶¶ 15-16, 250 P.3d 1188, 1191 (2011). “[I]n ruling on a Rule 20 motion, ... a trial court may not re-weigh the facts or disregard inferences that might reasonably be drawn from the evidence.” Id. ¶ 18. “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. ¶ 16, quoting State v. Mathers, 165 Ariz. 64, 66, 796 P.2d 866, 868 (1990). “When reasonable minds may differ on inferences drawn from the facts, the case must be submitted to the jury, and the trial judge has no discretion to enter a judgment of acquittal.” State v. Lee, 189 Ariz. 590, 603, 944 P.2d 1204, 1217 (1997). ¶ 11 The physician who admitted J.K. to the intensive care unit of the hospital testified that, due to the accident, J.K. had suffered a laceration to her spleen, which carried a risk of internal bleeding, a burst fracture of her spine, and an orbital fracture with bruising. He also explained that, because J.K. was eighty-three years old, she was at a greater risk for complications and was less likely to function at the same level of pre-injury independence. Upon her discharge from the hospital several days later, J.K. was placed in a skilled nursing facility. A reasonable jury could have concluded that J.K.’s injuries “create[d] a reasonable risk of death” or “causefd] serious and permanent disfigurement, serious impairment of health or loss or protracted impairment of the function of any bodily organ or limb.” A.R.S. § 13-105(39); see State v. Mwandishi, 229 Ariz. 570, ¶ 8, 278 P.3d 912, 913 (App. 2012). Lay Witness Opinion Testimony ¶ 12 Peltz additionally asserts the trial court erred by admitting lay witness testimony from Abdullah “regarding who was driving based upon the blood spatter.” We review the admission of evidence for an abuse of discretion. State v. Dann, 220 Ariz. 351, ¶ 66, 207 P.3d 604, 618 (2009). ¶ 13 Before trial, Peltz sought to preclude Abdullah from testifying “concerning any opinion that there was blood in the vehicle or that the blood indicates [Peltz] was driving.” He argued that Abdullah could not give such testimony “unless he can prove he is an expert in blood spatter.” At a hearing, Abdul-lah testified that he saw blood on the driver’s side door, seat, and steering wheel but none on the passenger’s side. Abdullah also identified blood on Peltz’s forehead and hands, explaining that “[t]he blood [he] saw on the vehicle ... [was] consistent with someone exiting the vehicle from the driver’s seat.” ¶ 14 Based on that testimony, the state argued that Abdullah would not be testifying as to “blood spatter” but would be explaining his observations of blood, which “he knew ... to be blood based on training[ ] and the fact that he is a human being.” The state further asserted that Abdullah was not giving a scientific opinion but was making a “basic human observation,” which was proper. In response, Peltz conceded that Abdullah could “testify where he saw the blood” but maintained that he could not “give an opinion as to [whether] the blood pattern indicates who was driving the vehicle.” In its under-advisement ruling, the trial court precluded Abdullah during direct examination from stating his opinion that Peltz was driving the vehicle because “it does not fall within expert testimony and it reaches the ultimate issue to be decided by the jury.” However, the court ruled that the testimony could “be elicited on redirect if [Peltz] ‘opens the door.’ ” ¶ 15 At trial during cross-examination, defense counsel confirmed that Abdullah did not “see who was driving ... Peltz’s vehicle,” did not “see how the blood got anywhere on the vehicle,” and was not “a forensic expert in blood spatter.” Defense counsel also asked whether Abdullah knew if “the blood got there from ,.. Peltz either driving the vehicle or taking his mother out of the vehicle," to which Abdullah responded that he “did not see the blood get on the vehicle.” The state then informed the court that it thought defense counsel had “opened the door” and that it intended to ask Abdullah on redirect “about his conclusions with the blood as to who was driving.” Over defense counsel’s objection that it “[c]alls for an expert opinion,” the court permitted the questioning. Abdullah subsequently testified that, based on the location of the blood on the steering wheel and the driver’s side door and given that Peltz was “the only individual” bleeding, “it seems logical .,. that [Peltz] was the individual driving the vehicle.” ¶ 16 On appeal, Peltz maintains he did not open the door and, consequently, the trial court improperly admitted Abdullah’s testimony. He also argues that the testimony could only have been elicited from an expert, which Abdullah was not. Because Abdullah’s testimony was proper lay witness testimony, admissible during direct examination, we find no error. ¶ 17 Rule 701, Ariz. R. Evid., provides: If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. Thus, when a lay witness is “drawing a reasonable inference from [his] firsthand knowledge and perceptions of a situation,” the witness is “competent to voice [his] opinion,” State v. Ayala, 178 Ariz. 385, 388, 873 P.2d 1307, 1310 (App. 1994), even as to the ultimate issue, State v. Doerr, 193 Ariz. 56, ¶ 26, 969 P.2d 1168, 1175 (1998). ¶ 18 Here, Abdullah’s opinion that Peltz had been driving the vehicle was based on his perception and not scientific, technical, or specialized knowledge. Specifically, Abdul-lah’s opinion stemmed from his firsthand observations that Peltz was bleeding and J.K. was neither bleeding nor did she have any blood on her person, and that there was blood on the driver’s side but not on the passenger’s side of the truck. Cf. Inman v. State, 281 P.3d 745, ¶ 20 (Wyo. 2012) (detective’s opinion of where assault occurred based on her perception of blood trail and location of weapon); Gavin v. State, 891 So.2d 907, 969 (Ala. Crim. App. 2003) (investigator’s opinion about blood flow “based on common sense, not on novel scientific blood-spatter analysis”). Although Abdullah stated that his conclusion was in part “[b]ased on his training and experience,” he also stated that his conclusion was based on “logic[].” See United States v. Vega, 813 F.3d 386, 394 (1st Cir. 2016) flay witness may provide opinion “personally acquire[d] through experience, often on the job,” if “the product of reasoning processes familiar to the average person in everyday life”), quoting United States v. Maher, 454 F.3d 13, 24 (1st Cir. 2006) & United States v. Garcia, 413 F.3d 201, 215 (2d Cir. 2005). ¶ 19 In addition, Abdullah’s testimony assisted the jury in determining a fact in issue—who had been driving the vehicle. See A.R.S. §§ 13-1203(A)(1), 13-1204(A)(1), (2). Accordingly, the testimony was admissible under Rule 701, see Doerr, 193 Ariz. 56, ¶ 26, 969 P.2d at 1175, and the trial court did not err in admitting it, see Dann, 220 Ariz. 351, ¶ 66, 207 P.3d at 618. Motions to Suppress ¶20 Peltz also contends the trial court erred by denying his motions to suppress his hospital statements and blood test results. “In reviewing a motion to suppress, we consider only the evidence presented at the suppression hearing and view the facts in the light most favorable to sustaining the trial court’s ruling.” State v. Gonzalez, 235 Ariz. 212, ¶ 2, 330 P.3d 969, 970 (App. 2014). We review the trial court’s ruling for an abuse of discretion, State v. Peterson, 228 Ariz. 405, ¶ 6, 267 P.3d 1197, 1199 (App. 2011), but we review de novo its legal determinations, State v. Zamora, 220 Ariz. 63, ¶ 7, 202 P.3d 528, 532 (App. 2009). Hospital Statements ¶ 21 Before trial, Peltz moved to suppress all of his statements that Abdullah overheard at the hospital in violation of the Fourth Amendment to the United States Constitution and article II, § 8 of the Arizona Constitution. Peltz argued that he was at the hospital “for treatment of his injuries and had an expectation of privacy concerning his communication while inside the room,” including his conversations over his cell phone and with medical personnel, ¶ 22 During the suppression hearing, Ab-dullah testified that he was not “actively trying to listen in to ... Peltz’s room”—he was standing by the nurses’ station in a “public passing area,” while waiting for a blood sample and completing his paperwork. He also explained that the door to Peltz’s room was “[generally” open and that Peltz was speaking “a little louder than normal conversation.” ¶ 23 The trial court denied the motion to suppress, reasoning: With respect to [Peltz’s] statements made to medical personnel and overheard by [Abdullah], these statements are not precludable. The Officer was in a common area he and others had a right to be. The Officer was there for a proper purpose to obtain a blood draw, if medical personnel were going to make a medical blood draw. The door to [Peltz’s] treatment room was not completely closed, which allowed [Peltz’s] statements to be overheard. [Peltz] was talking in a sufficient[ly] loud voice where his statements could be overheard in the common area. Under these circumstances there was no reasonable, objective expectation of privacy. As to [Peltz’s] statement made to someone on the telephone and overheard by [Abdullah], these statements are not pre-cludable. In addition to the analysis for the statements to medical personnel, there is even more reason to fed no subjective expectation of privacy by [Peltz], as well as ... no reasonable objective expectation of privacy. [Peltz] admitted medical personnel would go in and out of the treatment room. As a consequence, while on the telephone any medical person could have entered the room and overheard the telephone conversation. ¶ 24 As he did below, Peltz maintains that he had both a subjective and objective expectation of privacy in his conversations in the hospital room and that Abdullah violated his Fourth Amendment right to privacy. In addition, as to his conversation with medical personnel, Peltz asserts that his expectation of privacy was “even more reasonable” because of the physician-patient privilege under A.R.S. § 13-4062(4). ¶ 25 The Fourth Amendment protects against unreasonable searches and seizures. U.S. Const, amend. IV; State v. Huerta, 223 Ariz. 424, ¶ 5, 224 P.3d 240, 242 (App. 2010). A “search” under the Fourth Amendment occurs when an individual’s reasonable expectation of privacy is infringed. United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984); State v. Welch, 236 Ariz. 308, ¶ 8, 340 P.3d 387, 390 (App. 2014). We have a two-part test for determining whether a reasonable expectation of privacy exists. See Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). First, an individual must “have exhibited an actual (subjective) expectation of privacy,” and, second, the expectation must “be one that society is prepared to recognize as ‘reasonable.’” Id.; accord State v. Adams, 197 Ariz. 569, ¶¶ 17, 20, 5 P.3d 903, 906-07 (App. 2000) (describing first question as subjective and second as objective). Moreover, even if a search is unconstitutional, we will not reverse a conviction if the error in admitting evidence obtained as a result of that search was harmless. See State v. Hickman, 205 Ariz. 192, ¶ 29, 68 P.3d 418, 424 (2003); see also Henderson, 210 Ariz. 561, ¶ 18, 115 P.3d at 607 (“Harmless error review 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.”). ¶ 26 As to Peltz’s cell phone conversation, which included his statement that he had been driving after drinking alcohol, Peltz did not exhibit a subjective expectation of privacy. For this analysis, we must consider Peltz’s conduct. See State v. Steiger, 134 Ariz. 268, 272, 655 P.2d 808, 812 (App. 1982). Ab-dullah testified that the door to Peltz’s room was “[g]enerally” open, as medical personnel were going in and out. And Peltz never asked for the door to be shut while he was on the phone. Abdullah also testified that Peltz was talking “a little louder than normal conversation,” Cf. United States v. Martin, 509 F.2d 1211, 1214 (9th Cir. 1975) (defendants defeated expectation of privacy by exposing their activities to others). ¶ 27 Even if Peltz had a subjective expectation of privacy, the trial court did not err in finding it is not one society would recognize as reasonable. Participants of a conversation that can be readily overheard by someone standing in a public place have a lesser expectation of privacy. See United States v. Scott, 975 F.2d 927, 930 (1st Cir. 1992); United States v. Muckenthaler, 584 F.2d 240, 245 (8th Cir. 1978). This is true even in the context of the physician-patient privilege. Information is privileged when acquired by a physician or surgeon in a consultation with the patient under circumstances in which “it is intended that the communication be private and confidential.” State v. Beaty, 158 Ariz. 232, 239-40, 762 P.2d 519, 526-27 (1988) (“The presence of third parties can eliminate the confidential character of the [communication] and destroy the privilege.”); see also State v. Thomas, 78 Ariz. 52, 63, 275 P.2d 408, 416 (1954), overruled in part on other grounds by State v. Pina, 94 Ariz. 243, 245, 383 P.2d 167, 168 (1963). Peltz’s reliance on Katz is thus misplaced. ¶ 28 In Katz, federal agents had attached an electronic listening and recording device to the outside of a phone booth. 389 U.S. at 348, 88 S.Ct. 507. They then testified at the defendant’s trial as to the defendant’s conversations from that booth, which they overheard because of the electronic device. Id. The Supreme Court concluded that the agents had violated the defendant’s Fourth Amendment right because he “justifiably relied” on his privacy in the booth and the search did not comply with the necessary constitutional “safeguards.” Id. at 353-54, 88 S.Ct. 507. ¶29 Here, unlike the federal agents in Katz, Abdullah used no electronic device and merely overheard Peltz’s conversation while standing in a public area of a hospital, as could anyone else at that location. See id at 361, 88 S.Ct. 507 (Harlan, J., concurring) (“[Cjonversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable.”); United States v. Scott, 731 F.3d 659, 664 (7th Cir. 2013) (“[A]n individual who makes a phone call on a public phone not enclosed in a booth and in a voice audible to a person standing nearby ‘knowingly expose[s] [the conversation] to the public’ and is not entitled to Fourth Amendment protection.”), quoting United States v. McLeod, 493 F.2d 1186, 1188 (7th Cir. 1974) (alterations in Scott). Nor does the fact that Peltz had been using his personal cell phone during the conversation change our analysis—Peltz was still in an open hospital room, and Abdullah was standing in a public area. The trial court therefore did not err by denying Peltz’s motion to suppress with respect to his cell phone conversation. See Zamora, 220 Ariz. 63, ¶ 7, 202 P.3d at 532. ¶ 30 As for Peltz’s conversation with medical personnel, even assuming the trial court erred in denying the motion to suppress, any resulting error was harmless. At issue here is Abdullah’s testimony that he heard Peltz tell the hospital staff that he had been drinking alcohol. However, that evidence was “otherwise established.” State v. Bass, 198 Ariz. 571, ¶ 40, 12 P.3d 796, 806 (2000). Abdullah testified that when he arrived at the scene Peltz had “red, watery eyes, a flushed face,” and an “upper body sway.” Both Abdullah and the criminalist who tested Peltz’s blood sample confirmed that those were signs of alcohol impairment. See State v. Nelson, 146 Ariz. 246, 249, 705 P.2d 486, 489 (App. 1985) (erroneous admission of breathalyzer test results harmless given officers’ observations and defendant’s conduct). Perhaps most notably, Peltz told Abdullah at the accident scene and also testified at trial that he had been drinking before the accident. We are therefore confident beyond a reasonable doubt that any error did not contribute to or affect the verdict. See Henderson, 210 Ariz. 561, ¶ 18, 115 P.3d at 607. Blood Test Results ¶31 Peltz also sought to suppress the blood test results, arguing that Abdullah lacked probable cause or a warrant, in violation of the Fourth Amendment to the United States Constitution and article II, § 8 of the Arizona Constitution. He also argued that, because there were no exigent circumstances and “[t]here was no medical purpose for blood testing,” the medical blood draw excep tion to the warrant requirement under A.R.S, § 28-1388(E) did not apply. ¶ 32 At the suppression hearing, Abdullah testified, “When I got to the hospital, I determined the hospital was going to be drawing blood for medical purposes, and under statute, I requested a sample of that blood.” He said that no one told him “the medical necessity for taking blood,” apparently because it would “violate[ ] some sort of HIPAA rale,” The trial court denied Peltz’s motion to suppress, explaining: This issue is governed by A.R.S. § 28-1388(E). In this case the evidence supports the finding of probable cause by Officer Abdullah at the time he requested a portion of [Peltz’s] blood from medical personnel, who were already going to take a blood draw from [Peltz] for their own use. ¶ 33 As he did below, Peltz maintains Abdul-lah lacked probable cause or a warrant and, therefore, violated his federal and state constitutional rights. Peltz argues that, at the time of the blood draw, Abdullah lacked probable cause because “[t]he information concerning [his] driving was discovered after the draw while [Abdullah] was secretly listening to conversations.” Peltz also asserts, “[T]here were no exigent circumstances,” and “[t]here is no evidence in the record that shows why the blood was being drawn, much less any evidence which established that the blood was drawn for a medical purpose.” We disagree. ¶ 34 Section 28-1388(E) provides: Notwithstanding any other law, if a law enforcement officer has probable cause to believe that a person has violated [A.R.S.] § 28-1381 and a sample of blood, urine or other bodily substance is taken from that person for any reason, a portion of that sample sufficient for analysis shall be provided to a law enforcement officer if requested for law enforcement purposes. Thus, under § 28-1388(E), a warrantless blood draw seizure is permissible “if (1) probable cause existed to believe that the person was driving under the influence, (2) exigent circumstances were present, and (3) the blood was drawn by medical personnel for a medical reason.” State v. Nissley, 241 Ariz. 327, ¶ 10, 387 P.3d 1256, 1259 (2017). We address each of these factors in turn, ¶ 35 The trial court did not err in finding Abdullah had probable cause to believe Peltz had been driving under the influence of an intoxicant. “A police officer has probable cause when reasonably trustworthy information and circumstance would lead a person of reasonable caution to believe that a suspect has committed an offense.” State v. Hoskins, 199 Ariz. 127, ¶ 30, 14 P.3d 997, 1007-08 (2000). In the DUI context, an officer is only required to show the probability that the operator was under the influence, not that he actually was. State v. Moran, 232 Ariz. 528, ¶ 10, 307 P.3d 95, 99 (App. 2013). When Abdullah arrived at the scene of the single car crash, he noticed that Peltz “smelled strongly of an intoxicating beverage,” and he observed that Peltz had “red, watery eyes, a flushed face, ptosis, ... which is droopy eyelids,” and an “upper body sway.” When Abdullah asked Peltz what happened, he acknowledged “there was a crash” but did not say how it occurred. He stated, “Honestly, I’ve had a few drinks, and I don’t think I should talk to you.” Abdullah also testified that he saw blood on the driver’s side door, seat, and steering wheel, as well as Peltz’s forehead and hands, explaining that “[t]he blood [he] saw on the vehicle .., [was] consistent with someone exiting the vehicle from the driver’s seat.” ¶ 36 Turning next to whether exigent circumstances were present, Abdullah testified that Peltz was transported by ambulance to the hospital for treatment, Abdullah agreed, based on his previous experience, that persons can be transported to a hospital for a “wide variety of things,” which include surgery, computerized tomography (CT) scans, x-rays, or treatment that involves isolating the person “for whatever reason.” Abdullah testified that, when he learned the hospital would be drawing Peltz’s blood, he did not know the scope or extent of any further medical treatment. He stated that, based on his training as a “combat life saver in the military,” he was aware of the possibility of the “intravenous application of fluids,” which would “alter an individual’s blood alcohol concentration” and “essentially destroy whatever evidence was available.” Thus, the state met its burden of showing exigent circumstances. See Nissley, 241 Ariz. 327, ¶ 15, 387 P.3d at 1260 (state bears burden of proof for medical blood draw exception). ¶ 37 As to the final factor, we agree with the trial court’s determination that Peltz’s blood had been drawn by medical personnel for a medical purpose. “The State, as the party seeking to admit evidence seized without a warrant, had the burden of establishing the medical blood draw exception’s applicability to these facts.” State v. Spencer, 235 Ariz. 496, ¶ 12, 333 P.3d 823, 826 (App. 2014). It was sufficient for the state to show that Abdullah neither requested the hospital to perform the blood draw nor directed it to do so. In other words, it was only necessary for the state to establish the hospital made an independent medical decision to draw Peltz’s blood. At the suppression hearing, Abdullah testified that, when he arrived at the hospital, he asked whether “the hospital was going to be drawing blood for medical purposes, and under statute, [he] requested a sample of that blood.” Peltz has not cited any authority, and we are aware of none, for the proposition that the state was required to establish the hospital’s medical reason for the blood draw. Peltz also does not argue his medical treatment at the hospital was involuntary. See State v. Estrada, 209 Ariz. 287, ¶ 15, 100 P.3d 452, 456 (App. 2004) (medical blood draw exception does not apply “when a person is receiving medical treatment against his or her will”). The court did not err by denying Peltz’s motion to suppress with respect to his blood test results. See Zamora, 220 Ariz. 63, ¶ 7, 202 P.3d at 532. Disposition ¶ 38 For the reasons stated above, we affirm Peltz’s convictions and sentences. . Peltz contends that "[t]he record on appeal is still incomplete or incorrect" because the original indictment is missing. As the appellant, Peltz bears the responsibility of ensuring that the record is complete. See State v. Mendoza, 181 Ariz. 472, 474, 891 P.2d 939, 941 (App. 1995). In any event, based on our review of the record, it appears that Peltz was charged originally in Cause No. CR20141009 for driving under the influence of intoxicants (DUI), After the case was remanded to the grand jury, he was indicted for aggravated assault causing serious physical injury in Cause No. CR20143713, and CR20141009 was dismissed. Shortly thereafter, the case was again remanded to the grand jury, which also indicted Peltz for aggravated assault causing serious physical injury in CR20143713. There was then a superseding indictment under Cause No. CR20153351, which added the charge of aggravated assault involving a deadly weapon or dangerous instrument. The trial court consolidated CR20143713 with CR20153351, which is the case before us. . Peltz does not contend there was insufficient evidence to support his conviction for aggravated assault causing temporary but substantial disfigurement. Accordingly, we do not address this issue. See State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) ("Failure to argue a claim on appeal constitutes waiver of that claim.”). . Peltz does not re-urge his argument with respect to article II, § 8. We therefore deem any such argument waived. See Bolton, 182 Ariz. at 298, 896 P.2d at 838. In any event, the right of privacy under article II, § 8 has not been expanded beyond that provided by the Fourth Amendment, except in cases involving unlawful, warrantless home entries. State v. Teagle, 217 Ariz. 17, n.3, 170 P.3d 266, 271 n.3 (App. 2007). . Peltz also challenged the constitutionality of A.R.S, §§ 28—1388(E) and 28-1390. However, he does not raise these arguments on appeal. We thus do not consider them further. See Bolton, 182 Ariz. at 298, 896 P.2d at 838. . Abdullah was referring to the Health Insurance Portability and Accountability Act. The act’s privacy rule requires a detailed authorization for uses and disclosures of protected health information. See 45 C.F.R. § 164.508(c). .To prove DUI with an elevated blood alcohol content pursuant to § 28—1381(A)(2), the state must establish "the person has an alcohol concentration of 0.08 or more within two hours of driving or being in actual physical control of the vehicle.” Thus, the timing of a blood draw is an important concern in such cases. In State v, Codo, 147 Ariz. 277, 286, 709 P.2d 1336, 1345 (1985), our supreme court concluded that exigent circumstances existed, for purposes of the medical blood draw exception to the warrant requirement, given that ”[t]he highly evanescent nature of alcohol in the defendant’s blood stream guaranteed that the alcohol would dissipate over a relatively short period of time." However, the court recently ”disavow[ed]" any suggestion in Codo that there was a "per se exigency" based on "the natural dissipation of alcohol in the bloodstream.” Nissley, 241 Ariz. 327, 1111, 387 P,3d at 1259; see also Missouri v, McNeely, 569 U.S. 141, 155-56, 133 S.Ct 1552, 1563, 185 L.Ed.2d 696 (2013) (”[W]hile the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, ... it does not do so categorically.”).

OPINION THOMPSON, Judge: ¶ 1 Erick Antonio Escalante (Escalante) appeals from his convictions for transporting a dangerous drug (methamphetamine) for sale, a class 2 felony (count 1), possession or use of drug paraphernalia (methamphetamine related), a class 6 felony (count 2), tampering with physical evidence for disposing of methamphetamine, a class 6 felony (count 3), misconduct involving weapons during the commission of the felony alleged in count 1, a class 4 felony (count 6), and various misconduct involving weapons charges due to his status as a prohibited possessor, all class 4 felonies (counts 4, 6, 7, and 8). For the reasons that follow, we affirm. FACTUAL AND PROCEDURAL HISTORY ¶ 2 In April 2014, an informant told Detective Sinn that Escalante was one of multiple people suspected of selling drugs in the Verde Valley. In November of that year, Sergeant Braxton-Johnson contacted Detec tive Sinn, reporting he had received calls from concerned citizens suggesting ongoing illegal drug activity at Escalante’s apartment in Cottonwood and that Escalante had installed a camera outside the apartment. Detective Sinn confirmed there was a camera outside Escalante’s apartment. Neither the informants nor any of the concerned citizens testified at trial. ¶ 3 The same month, the detective and the sergeant began conducting surveillance on Escalante’s apartment. Detective Sinn testified that during their surveillance they noticed a high volume of short-duration vehicle and foot traffic going to and from Escalante’s residence. He also reported receiving “several” concerned citizen tips reported to various officers—including Sergeant Braxton, Detective Scott, Officer Scarim and Detective Dominguez—between November 2014 and January 2015, about Escalante and his likely drug activity. Detective Sinn used these tips and the information gleaned from surveilling Escalante’s home to secure a warrant on January 13, 2015, allowing him to place a tracking device on Escalante’s truck. Sinn attached the device the next day and monitored Escalante’s truck for the next seven days. On January 21, officers stopped a vehicle leaving Escalante’s home for speeding. The driver consented to a search of his vehicle; no drugs or indicia of drugs were found, but the driver had $940 in his wallet. ¶ 4 Later that night, the tracking device alerted that Escalante’s truck traveled on Interstate 17 (1-17) to Phoenix, to an address near 35th Avenue and Indian School Road. The vehicle stayed for about 15 to 20 minutes before heading back in the direction of Yava-pai County. Detectives decided to follow Es-calante’s truck once it returned to the Camp Verde area and then to conduct a traffic stop if they saw any traffic violation. ¶ 5 Yavapai County Sheriff Sergeant Rumpf eventually observed a truck northbound on 1-17 matching the description of Escalante’s truck exit from the freeway toward Cottonwood with an illegal blue license-plate light. Sergeant Rumpf and another officer followed. Escalante traveled west on Highway 260, but before reaching Cottonwood, took a right turn onto Prairie Lane and headed into a residential area, eventually taking “a sharp left across both lanes of traffic and stopp[ing] in the middle of the road.” At that point, officers stopped the truck. ¶ 6 Sergeant Rumpf informed Escalante he was stopped for having an illegal license-plate light. He observed a firearm in Esca-lante’s driver door. Deputy Jeff Bowers subsequently arrived with a canine. The canine alerted to the odor of narcotics near Esca-lante’s driver door, but no narcotics were found in the truck or on Escalante’s person. Neither were drugs found outside the truck after an initial search of the roadway and surrounding ai-ea. ¶ 7 About ten or fifteen minutes later, Detective Sinn arrived and read Escalante his Miranda rights. When Detective Sinn asked Escalante where he was coming from, Escalante responded “Camp Verde,” but would not respond to specific questions as to what he was doing in Camp Verde, asserting that had no relevance to the situation. Esca-lante also mentioned he knew the officers were following him as he drove, ¶8 Officers arrested Escalante and his vehicle was taken to be searched. The search resulted in the discovery of, among other items, a loaded magazine belonging to the firearm in the driver’s-side door, confirmed to be a .380 caliber semi-automatic hand-gun; various knives, including a 3- or 4-inch pocket knife; a machete; and a “flip” cellphone. ¶ 9 Approximately two hours after Esca-lante was stopped, Deputy Bowers returned to the scene to search the roadway further. The deputy traveled eastbound on Highway 260 and made a left onto Prairie Lane where Escalante had been driving. Just after Deputy Bowers turned left onto the lane, he “saw what appeai’ed to be a [bag with] white substance laying on ... the yellow double yellow line.” The substance was later confirmed to be roughly 47.8 grams (the equivalent of 0.105381 pounds) of methamphetamine. Police officers subsequently searched the truck again and found a digital scale bearing meth-axnphetamine residue. ¶ 10 Escalante was charged with the eight counts noted above. At his request, the court severed the various counts into two trials—a jury heard counts 1, 2, 3 and 5, and a bench trial ensued on counts 4, 6, 7 and 8. Esca-lante was found guilty on all counts. He timely appealed to this court. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12-120,21(A)(1) (2016), 13-4031 (2010) and -4033(A) (2010). DISCUSSION ¶ 11 On appeal, Escalante argues the trial court erred by allowing the officers to give “drug courier profile” testimony. Because Escalante failed to object to this alleged error at trial, we review his claim for fundamental error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). On fundamental error review, Esca-lante “bears the burden to establish that ‘(1) error exists, (2) the error is fundamental, and (3) the error caused him prejudice.’ ” State v. James, 231 Ariz. 490, 493, ¶ 11, 297 P.3d 182, 185 (App. 2013) (citations omitted). Fundamental error review involves a fact-intensive inquiry, and the showing required to establish prejudice “therefore differs from case to case.” Henderson, 210 Ariz. at 568, ¶ 26, 115 P.3d at 608. ¶ 12 At trial, the state called multiple police officers to testify. Much of their testimony focused on drug trafficking methods, drug traffickers and drug trafficking organizations as informed by their experiences and drug interdiction training. The officers testified about “source cities,” reportedly including metropolitan Phoenix—and identified the area around 35th Avenue and Indian School Road to which Escalante had traveled as a “known active drug area.” The officers testified about drug corridors used for trafficking drugs, which they said include the 1-17, which Escalante took to Phoenix. The officers stated drug traffickers sometimes use surveillance equipment outside their residences, presumably like the camera found outside Escalante’s apartment. They talked about the presence of high-volume, short-term traffic outside homes used for drug dealing. They identified “heat-runs” as counter-surveillance driving techniques used by drug traffickers and testified Escalante also used such techniques. One officer testified that in assisting with the initial search of Escalante’s vehicle, based on his training and experience, he observed “several vehicle indicators as far as—or what is consistent with drug trafficking or drug activity.” Officers testified drug traffickers usually carry weapons while transporting drugs—as one testified “there’s a direct nexus between weapons, violence and drugs.” They stated that drug traffickers use scales to weigh the drugs for sale and purchase, and that the type of cellphone found in Escalante’s truck was commonly used by drug dealers. ¶ 13 Citing authority from several other jurisdictions, the state argues this testimony was not improper drug courier profile evidence, but rather admissible modus operandi evidence. We disagree with the state because even if the officers’ testimony constituted modus operandi evidence, it was improper because the operation of drug trafficking organizations was largely irrelevant to the charges against Escalante. See State v. Gonzalez, 229 Ariz. 550, 551, ¶ 1, 278 P.3d 328, 329 (App. 2012) (holding that “expert testimony as to the modus operandi of a drug organization may, depending upon the facts of the case, be admitted as evidence”) (emphasis added). I. Whether the officers’ testimony was proper modus operandi evidence ¶ 14 The principles distinguishing drug cornier profile evidence from modus operan-di evidence guide our analysis of the officers’ testimony, particularly as to Escalante’s conviction for transport of a dangerous drug for sale, in violation of A.R.S. § 13-3407 (2016) (count 1). ¶ 15 Drug courier profile evidence informally or abstractly describes characteristics “displayed by persons trafficking in illegal drugs.” State v. Lee, 191 Ariz. 542, 544, ¶ 10, 959 P.2d 799, 801 (1998) (citations omitted). This evidence is “a loose assortment of general, often contradictory, characteristics and behaviors....” Id, (citing Mark J. Radish, The Drug Courier Profile: In Planes, Trains, and Automobiles; And Now in the Jury Box, 46 Am. U.L. Rev. 747, 748 (1997)). The use of this evidence as substantive proof of guilt has been condemned, id, at 646, ¶ 12, 969 P.2d at 802 (citing State v. Walker, 181 Ariz. 476, 481, 891 P.2d 942, 948 (App. 1996)), even though it may be “offered in the context of suppression and probable cause hearings, where law enforcement’s justifications for a stop, arrest, or confiscation is at issue,” id. at 646, ¶ 11, 969 P.2d 799 (emphasis added). In agreeing that drug courier profile evidence is impermissible as substantive proof, we have concluded that the “use of profile evidence to indicate guilt .,. creates too high a risk that a defendant will be convicted not for what he did but for what others are doing.” Gonzalez, 229 Ariz. at 563, ¶ 12, 278 P.3d at 331 (quoting State v. Cijuentes, 171 Ariz. 267, 267, 830 P.2d 469, 469 (App, 1991)). ¶ 16 We have previously stated that Lee “in broad terms, prohibits the prosecution from introducing ‘drug courier profile’ evidence to prove that [a] defendant was trafficking in drugs” or from presenting evidence and tying it “to what other drug couriers do.” Beijer v. Adams ex rel. Cty. of Coconino, 196 Ariz. 79, 82-83, ¶¶ 14, 23, 993 P.2d 1043, 1046-47 (App. 1999). In Beijer, this court found that testimony about an officer’s specialized training in drug interdiction was “irrelevant and went a long way toward creating an impermissible inference,” and when coupled with testimony about why the officer’s suspicions were aroused, in effect, told the jury that “the Defendant fit the drug courier profile.” Id. at 83, ¶ 20, 993 P.2d at 1047. We noted that Lee expressly forbids testimony about where drugs originate and where drugs are distributed. Id. at ¶ 21, 993 P.2d at 1047. ¶ 17 We also recognized circumstances in which similar evidence may be admissible as modus operandi evidence. See Gonzalez, 229 Ariz. at 664, ¶ 13, 278 P.3d at 332 (citing United States v. Cordoba, 104 F.3d 226, 230 (9th Cir. 1997)) (reaffirming that modus op-erandi evidence is “properly admitted to assist [a] jury in understanding the modus operandi of a drug trafficking organization” in a case where the defendant and another individual were found with three plastic containers containing a total of 2.5 pounds of methamphetamine, and defendant denied knowing the drugs were in the car); see State v. Salazar, 27 Ariz.App. 620, 624-25, 657 P.2d 552, 556-57 (1976) (holding admissible expert testimony describing the common counter-surveillance techniques used by narcotics dealers in a case where four co-defendants were charged with conspiracy to sell and transport heroin). ¶ 18 In Gonzalez, where the defendant had denied knowing drugs were in his car, this court affirmed the trial court’s admission as modus operandi evidence of a police sergeant’s testimony that provided circumstantial evidence of the defendant’s knowledge of the drugs. 229 Ariz. at 561, 554, ¶¶ 1, 16, 278 P.3d at 329, 332. The sergeant testified “that drug-trafficking organizations, like legitimate businesses, have a profit motive, and do not ‘typically entrust $112,000 worth of their drugs to an ‘unknown transporter.’” Id. at 553, ¶ 8, 278 P.3d at 331. ¶ 19 There, the sergeant’s testimony was not offered to show the defendant “was guilty because he fit the characteristics of a certain drug courier profile[,]” but was instead offered to establish general facts about drug trafficking organizations that served to undercut the asserted defense theory. Id. at 554, ¶ 15, 278 P.3d at 332 (quoting Cordoba, 104 F.3d at 229-30). This court concluded that, given the facts of that case and considering the asserted defense, the “testimony was proper because it was limited to the general practices of drug organizations.” Id. at ¶ 16; see also State v. Garcia-Quintana, 234 Ariz. 267, 269-70, 273, ¶¶ 7, 29, 321 P.3d 432, 435-36, 438 (App. 2014) (holding that testimony regarding common counter-surveillance techniques used by drug trafficking organizations to smuggle drugs into the country was admissible to show “how the actions of Defendant fit into the modus oper-andi of a drug trafficking organization!;,]” where the defendant claimed he was not part of a drug trafficking organization and that he had not carried the several backpacks full of marijuana he was found lying near in the desert). ¶ 20 As demonstrated, case law suggests that modus operandi testimony typically is admissible only when a defendant was found with large quantities of drugs and asserts, in defense, that he had no knowledge of the drugs. Under those circumstances, what drug trafficking organizations do is relevant. This is not that kind of case. ¶ 21 As Escalante points out, at no point did the state allege he was transporting drugs as part of a drug trafficking organization. Further, as a factual matter, Escalante was not found with drugs on his person, or in his vehicle. Additionally, the amount of the methamphetamine found on the road that led to the charge in count 1 is small by comparison to the large quantities of drugs that ordinarily may permit modus operandi drug trafficking testimony, as shown in the cited cases. Nor did Escalante assert a lack of knowledge defense, as in Gonzalez and the other cited eases, that might allow the supposed modus operandi evidence offered by the state. Moreover, unlike in Salazar, see supra ¶17, Escalante was not charged with drug conspiracy. See United States v. Varela-Rivera, 279 F.3d 1174, 1179 (9th Cir. 2002) (“[E]xpert testimony on the modus op-erandi of drug trafficking organizations is inadmissible in cases where, as here, the defendant is not charged with conspiracy to distribute drugs.”). ¶ 22 We are not persuaded by the cases from other jurisdictions the state cites to support its position that the officers’ testimony constituted admissible modus operandi evidence. Each of those cases allowed modus operandi evidence in situations involving drug distribution organizations. See United States v. Spotted Elk, 548 F.3d 641, 662 (8th Cir. 2008) (involving the operation of a “drug trafficking business” where testimony about the use of plastic wrap and grease used to mask odors on drugs and drug money from K-9 units was held to be permissible modus operandi evidence); United States v. Washington, 44 F.3d 1271, 1283 (5th Cir. 1995) (involving a “drug distribution ring,” and holding, “an experienced narcotics agent may testify about the significance of certain conduct or methods of operation unique to the drug distribution business, as such testimony often is helpful in assisting the trier of fact understand the evidence”). We therefore hold the officers’ testimony cannot be deemed admissible modus operandi evidence in the context of this case. ¶23 Accordingly, even if we were convinced by the state’s additional argument that much of the officers’ testimony constituted foundation in support of their expert opinions on drug trafficking, to the extent the officers’ testimony, foundational or otherwise, pertained to the operations and methods of drug trafficking organizations not at issue in this case, it was irrelevant and therefore not allowed as modus operandi evidence. ¶24 In support of its position, the state further relies on a decision from the Court of Appeals for the D.C. Circuit for the proposition that experts are permitted to equate abstract patterns of conduct to specific cases “to the point of testifying that the defendant was involved in criminal conduct.” United States v. Boney, 977 F.2d 624, 629 (D.C. Cir. 1992) (citing United States v. Carson, 702 F.2d 351 (2d Cir. 1983)). The D.C. Circuit’s proposition is contrary to our precedent. See, e.g., Fuenning v. Superior Court, 139 Ariz. 590, 605, 680 P.2d 121, 136 (1983) (holding that a witness may not testify as to whether a defendant is innocent or guilty). We also specifically reject, as contrary to our jurisprudence, the state’s argument that the statements referencing the area of Phoenix to which Escalante traveled as a “known drug area” did not constitute inadmissible profile evidence. See Beijer, 196 Ariz, at 83, ¶ 21, 993 P.2d at 1047 (disallowing “testimony about where drugs originate and where they are distributed”). II. Whether the officers’ testimony was impermissibly used as substantive evidence of guilt (i.e., improper drug courier profile evidence), and if so, does that error amount to fundamental and prejudicial error ¶ 25 As to each relevant count, we further consider (1) whether the state offered the officers’ drag courier profile statements as substcmtive evidence of Escalante’s guilt, and if so, (2) whether Escalante has shown fundamental and prejudicial error. We conclude that while the record suggests the state im-permissibly used the officers’ testimony as substantive evidence of Escalante’s guilt as to count 1, Escalante has not met his burden under fundamental error review as to any of the counts at issue. ¶ 26 Escalante argues that the state’s references to the officers’ drag courier profile evidence, from the opening statements through closing arguments in the trial, substantively affected the jurors’ decisions and thus constituted fundamental prejudicial error. He contends that questions posed by the jurors indicate he was prejudiced by the officers’ statements and the state’s presentation of that evidence. The state argues that even if the statements should not have been admitted, the jury would have nonetheless convicted Escalante due to the other “overwhelming” evidence. ¶ 27 As an initial matter, we note Esca-lante only argues that the evidence prejudiced the jury’s consideration of the charges it was tasked to decide; he thus offers no viable challenge to his convictions by the court on counts 4, 6, 7, and 8. As to the remaining counts (counts 1 through 3 and count 5), we view the evidence in the light most favorable to sustaining the jury’s verdicts, as we are required to do on appeal. See State v. Nelson, 214 Ariz. 196, 196, ¶ 2, 150 P.3d 769, 769 (App. 2007). A. Count 1 1. The officers’ testimony constituted substantive evidence as to count 1. ¶ 28 To obtain a conviction for transporting a dangerous drug for sale, the state had to prove that Escalante knowingly “transport[ed] for sale, importfed] into this state, offer[ed] to transport for sale or import into this state, sell, transfer or offer to sell or transfer a narcotic drug.” A.R.S. § 13-3408(A)(2), (7) (2010). “Knowingly” means that a defendant acted with awareness of or belief that his conduct is of that nature or the circumstances of his conduct constitute the offense. See A.R.S. § 13-105(10)(b) (2016). The state had the burden to prove each element of this crime beyond a reasonable doubt. The reasonable doubt standard requires evidence sufficient- to satisfy each element of the crime and to convince a fact-finder of the defendant’s guilt “with utmost certainty.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). ¶ 29 As to count 1, viewing the trial in its entirety, the state used the officers’ statements to paint Escalante’s actions as those of a drag trafficker. The state’s opening statement and closing argument repeatedly referenced the officers’ statements and forcefully drew parallels between the described conduct of drug ti’affickers and Escalante’s behavior. Given that we have concluded, contrary to the only justification offered by the state for the evidence, supra ¶¶13, 22, that this testimony is not proper modus operandi evidence in the context of this case, the only purpose of the testimony was to create parallels between drug traffickers and Escalante. See Lee, 191 Am. at 546, ¶ 18, 959 P.2d at 803 (stating evidence “should not have been admitted in the first instance [where] its only purpose was to suggest that because the aceuseds’ behavior was consistent with that of known drug couriers, they likewise must have been couriers”). ¶30 In its opening statement, the state claimed that it was significant that officers saw Escalante use purported counter-surveil-ling techniques, which the state argued “will show is consistent with people who are involved in drag trafficking activities.” The state continued—“he had a loaded handgun which you will hear about evidence of drug trafficking to protect those drugs [from] being taken by somebody else. That’s what the evidence is going to show.” ¶ 31 During the state’s closing argument, the prosecutor stated, “I want to talk about drug trafficking .,. drug trafficking is a subculture ... Culture, the beliefs, the customs, the way of life, a way of thinking, a way of behaving, a way of working that exists in a place or organization.” The prosecutor asserted that the Phoenix area and 1-17 is a “pipeline for narcotics distribution, and specifically meth from Mexico.” The prosecutor recounted the testifying officers’ extensive drug interdiction training and experience and restated that the neighborhood Escalante allegedly visited in Phoenix is “a drug traffic neighborhood.” The prosecutor argued that a scale is carried by “[p]eople who deal drugs and buy drugs in bulk free sales.” ¶ 32 Based on this record, given the extent to which the officers’ drug courier profile testimony permeated the trial, we cannot conclude that as to count one—the charge of “transporting a dangerous drug for sale”— the state did not offer the officers’ drug courier testimony as substantive evidence of Escalante’s guilt. Such evidence should not have been permitted; its admission was thus error. See Gonzalez, 229 Ariz. at 553, ¶ 12, 278 P.3d at 331. 2. The state’s other evidence ¶ 33 On appeal, the state highlights several pieces of evidence it argues would have resulted in a conviction even absent the inadmissible statements by the officers. It argues the following evidence was relevant to count 1: (1)the testimony that another driver pulled over for speeding shortly after leaving Escalante’s apartment had $940 (two $100 bills and the rest in $20 bills). As noted, no drugs were found on this driver or in his car; (2) Escalante traveled almost two hours to Phoenix and stayed only 15 to 20 minutes before beginning his return to Yavapai County; (3) After Escalante was stopped, a canine alerted to the odor of narcotics on the driver’s side of Escalante’s vehicle; the dog alerts to four different types of drugs without distinguishing among them; (4) A scale bearing methamphetamine residue was found in Escalante’s truck when it was searched for the second time; (5) As noted above, approximately two hours after officers stopped Escalante’s vehicle, they discovered the plastic bag of 47.8 grams of methamphetamine on the road where Escalante had been driving. However, Escalante’s fingerprints were not found on the bag and the state offered no evidence or argument that Escalante could have been wearing gloves. Further, Escalante denied possessing the drugs; and (6) Escalante had $350 on him at the time he was pulled over. ¶ 34 There is also evidence in the record that Escalante’s cellphone contained messages saying “Hey bro give me a call. Need to place an order,” and “If you got any let me know.” The state also presented maps illustrating the area of Prairie Lane onto which Escalante turned after exiting Highway 260 and Cliff View Drive where he stopped. 3. We find no reversible error. ¶35 Under Henderson, to establish fundamental error, Escalante must show “the error complained of goes to the foundation of his case, takes away a right that is essential to his defense, and is of such magnitude that he could not receive a fair trial.” 210 Ariz. at 568, ¶ 24, 115 P.3d at 608. We find no reversible error as to count 1. ¶ 36 In light of our conclusion that the state impermissibly offered the drug courier profile evidence as substantive evidence, such evidence arguably went to the foundation of the case against Escalante on count 1. See, e.g., State v. Stevens, 228 Ariz. 411, 416-17, ¶¶ 15-16, 267 P.3d 1203, 1208-09 (App. 2012) (concluding, on fundamental error review, that evidence offered as substantive evidence of guilt went to the foundation of the case). However, viewing the trial evidence in its totality, we find that even absent the impermissible inferences, the jury had substantial evidence to convict Escalante on count 1. ¶ 37 On his return from Phoenix, Escalante exited Highway 260 onto Prairie Lane knowing officers were following him. He exited the highway far from the vicinity of his apartment in Cottonwood, under circumstances strongly suggesting that he did so to evade the officers and ultimately to dispose of the methamphetamine he had been carrying. This inference, in conjunction with the scale with methamphetamine residue found in Es-calante’s track, the methamphetamine found on the road, and the messages on his cellphone, reasonably supports the conclusion that Escalante was carrying the scale to weigh the methamphetamine he had for sale. ¶ 38 Escalante has not established other elements of fundamental error. He has not shown he was deprived of a right essential to his defense by the state’s use of the impermissible drag courier profile testimony. Instead, it appears his failure to object to the evidence may have been strategic—allowing the state to run amok with the drug courier profile evidence. See infra ¶¶42-44. Esca-lante has not shown that the error was of a magnitude such that it is unlikely that he received a fair trial. ¶ 39 Nor has Escalante affirmatively demonstrated that the drag courier pi’ofile evidence caused him prejudice. Henderson, 210 Ariz. at 568, ¶ 26, 115 P.3d at 608; see also id, at 567, ¶ 19, 115 P.3d 601, 607 (quoting State v. Valdez, 160 Ariz. 9, 13-14, 770 P.2d 313, 317-18 (1989) (explaining that under fundamental error review, we place the burden to prove prejudice on the defendant, “to discourage a defendant from ‘tak[ing] his chances on a favorable verdict, reserving the ‘hole card’ of a later appeal on [a] matter that was curable at trial, and then seeking] appellate reversal’ ”)). ¶ 40 “The showing [of prejudice] a defendant must make varies, depending upon the type of error that occurred and the facts of a particular case.” Id. at 568, ¶ 26, 115 P.3d at 608. Here, since the nature of the error Escalante complains of was the state’s dependence on the impermissible evidence, from the opening statements through closing arguments, Escalante had the burden to show that absent the inadmissible evidence, and applying the appropriate standard of proof, the jury could have reached a different result. See, e.g., id. at 569, ¶ 27, 115 P.3d at 609 (requiring the defendant to show that “a reasonable jury, applying the appropriate standard of proof, could have reached a different result than did the trial judge” where the nature of the error at issue deprived the defendant of “the opportunity to require that a jury find facts sufficient to expose him to an aggravated sentence”). ¶ 41 Escalante argues that absent the inadmissible evidence, the prosecution presented “very little evidence of guilt.” He contends the jurors’ questions demonstrate the inadmissible evidence weighed substantially on the jurors’ minds and therefore prejudiced him. Escalante specifically identifies the following questions asked by the jury: Was [Escalante] directly asked if he was in Phoenix and what was his answer? Can you verify the meth on the scale can be matched to the meth sample? Was the second phone a cell and was it on [Escalante] when he was stopped or found in the vehicle? These questions do not necessarily indicate that the jury was unduly influenced by the improper evidence. Therefore, we conclude that Escalante has not shown resulting prejudice. Moreover, if Escalante’s failure to object to the impermissible evidence was a defense strategy, under that circumstance, he cannot show prejudice and therefore could not meet his burden under fundamental error review. ¶ 42 Before trial, the state moved in limine to allow evidence of information it received from a confidential informant and a concerned citizen about Escalante’s alleged drug trafficking. It also moved to allow evidence that authorities had been told and verified that Escalante had installed “surveillance equipment often associated with drug trafficking,” that Escalante “when followed by narcotic and gang detectives engaged in driving consistent with actions of individuals selling drugs,” that surveillance revealed “high volume and short term traffic coming and going” from Escalante’s home consistent with drug trafficking, that Escalante drove on the day in question to “an area known for drugs [sic] sales and drug use” in Phoenix, and that authorities retrieved inculpatory text messages from Escalante’s cell phone. In responding to the motion, Escalante only objected to admission of the text messages, but at the related evidentiary hearing his counsel acknowledged that the officers would be “allowed to testify as to their investigation ... [and in accordance with] their training and experience what they believe that information means.” ¶ 43 While it may very well be that Esca-lante’s counsel did not object to the other evidence because he did not know he could, the record most clearly suggests counsel did not object because he did not consider the officers’ testimony to be “real evidence.” Counsel’s implicit conclusion that he did not consider the officers’ testimony to be “real evidence” is reflected in the record of the motion in limine hearing. He thereafter used his conclusion about the testimony as a talking point that informed his defense strategy throughout the trial, arguing the evidence (or the “real evidence”) was insufficient to support a finding of guilt. ¶ 44 In his brief opening statement, Esca-lante’s trial counsel referred to the “parade” of investigating police officers the prosecutor intended to present during the trial, and asserted that the whole months-long investigation of Escalante came about because “law enforcement had convinced themselves that he was selling drugs.” During his closing argument to the jury, counsel characterized the prosecution’s case as “three days [spent] blowing a lot of smoke from a lot of law enforcement officers.” He argued that the “parade” of officers showed that law enforcement had committed themselves so thoroughly to their belief that Escalante was selling drugs, notwithstanding there was nothing to show for so much investigative activity, that the reported discovery of drugs in the street and a scale in the truck could not be sustained as legitimate—suggesting that evidence was fabricated. Counsel stated: “when they pulled over Erick on the 21st they didn’t find any drugs and that was a problem ... it’s not looking good for them, so now you’ve got to start thinking about we need more evidence. And then the evidence appears after the fact.” Counsel argued that the jury was given nothing more by the state than “a parade of police officers who were convinced that Erick Escalante is a drug dealer and no hard evidence that he really is.” It thus appears the defense used the state’s irrelevancies to establish the state’s motives as ill-intentioned and its evidence as unworthy of credibility. Accordingly, the possibility that counsel may not have known he could have objected to the drug courier evidence does not foreclose the apparent probability that he did not object to the evidence at trial because he wanted to show that the state did not proffer sufficient “real evidence” to support a conviction. ¶45 A defendant cannot show prejudice, and thus cannot obtain reversal under fundamental emr review, even though the state substantively used impermissible drug courier profile evidence throughout the trial, where the record suggests the defendant did not object to the impermissible evidence as part of his defense strategy, and there is otherwise substantial evidence of his guilt. Accordingly, based on the record, we affirm Escalante’s conviction on count one. B. Count 2 ¶ 46 To obtain a conviction of “possession or use of drug paraphernalia,” the state had to prove that Escalante used or “possessed with intent to use, drug paraphernalia.” A.R.S. § 13-3415(A) (2010). Subsection (F)(2) defines drug paraphernalia as all equipment, products and materials of any land which are used, intended for use or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging ... or otherwise introducing into the human body a drug in violation of this chapter. ¶ 47 In addition to logically relevant factors, “[i]n determining whether an object is drug paraphernalia,” a fact finder shall consider, among other things, “[t]he existence of any residue of drugs on the object.” Id. at (E)(5). ¶ 48 The evidence that the scale found in the vehicle Escalante was driving was found to contain methamphetamine residue, coupled with the fact that intent is typically shown by circumstantial evidence, was sufficient to render the scale drug paraphernalia and to convict Escalante for possessing it. C. Count 3 ¶ 49 To obtain a conviction for “tampering with physical evidence,” the state had to prove that a person—here, Escalante, “with intent that [the evidence] be ... unavailable in an official proceeding ... which such person knows is about to be instituted, such person: 1. Destroys, mutilates, alters, conceals or removes physical evidence with the intent to impair its verity or availability.” A.R.S. § 13-2809(A)(1) (2010). ¶ 50 The record indicates that Esca-lante knew he was being followed by the officers on the night of his arrest, but he continued driving. Thus, drawing the neces- sary inference to sustain the jury’s verdict, we find the evidence was sufficient to support a determination by the jury, beyond a reasonable doubt, that Escalante discarded the methamphetamine found on the road as he continued driving to avoid being arrested and subsequently prosecuted. D.Count 5 ¶ 51 To obtain conviction of “misconduct involving weapons,” the state had to prove Escalante knowingly used or possessed a deadly weapon during the commission of a felony offense, while “a prohibited possessor.” A.R.S. § 13-3102(A)(4), (8) (2010). ¶ 52 The record demonstrates Esca-lante is a prohibited possessor. As previously noted, there was a .380 caliber handgun on the driver’s side inside the vehicle Escalante was driving and the relevant offense in count 1 is a felony offense. This evidence was sufficient, separate from the impermissible drug courier inference, to support the jury’s conviction on this count. ¶ 53 We thus hold Escalante has not shown that the erroneous admission and reliance on the officers’ drug courier profile testimony constitute fundamental and prejudicial error as to the convictions he challenges. III. Confrontation Clause ¶54 Escalante argues that the officers’ statements about the information received from the concerned citizens and informants violated his rights under the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Again, because Escalante failed to assert this objection at trial, we review this claim for fundamental error. Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607. As previously noted, Escalante necessarily must prove “both that fundamental error occurred and that the error caused him prejudice.” Id. at 568, ¶ 22, 115 P.3d at 608. ¶ 55 The Sixth Amendment of the United States Constitution states, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the wit nesses against him.” U.S. Const, amend. VI. This Confrontation Clause bars the admission of “testimonial hearsay.” Crawford, 541 U.S. at 53, 124 S.Ct. 1354. Hearsay is defined as a statement, other than one made by the declarant while testifying at the instant trial or hearing, offered in evidence to prove the truth of the matter asserted. Ariz. R. Evid. 801(e). ¶ 56 Here, the officers testified about tips and other information received from informants and concerned citizens. Even assuming this testimony was inadmissible, as to this issue on appeal, Escalante has again failed to satisfy his burden to establish prejudice under fundamental error review. See supra ¶¶11,40. CONCLUSION ¶ 57 For the foregoing reasons, we affirm the verdicts on all counts. . Count 4: possession of a hand-gun; count 6: possession of a machete; count 7: possession of an "Elk Ridge" knife; count 8: possession of another knife. . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . This statement should not be deemed to suggest that modus operandi evidence would not be permissible in a case presenting different facts from those present here. . See also Garcia-Quintana, 234 Ariz. at 271, ¶ 13, 321 P.3d at 436 (noting that modus operan-di evidence “focuses on the usual patterns or methods used by a criminal gang or organization to commit a crime [,]" and is "properly admitted to assist the jury, [as the trier of fact,] in understanding the modus operandi of a drug trafficking organization”) (internal quotations and citations omitted). . Escalante's opening brief references Lee in support of the proposition that admission of improper drug courier profile evidence was not harmless error. See Lee, 191 Ariz. at 546, ¶19, 959 P.2d at 803. However, as established by Henderson seven years after the Lee decision, the standard of review in this case is fundamental, not harmless, error. See Henderson, 210 Ariz. at 567-68, ¶¶ 17-20, 24, 115 P.3d at 607-08. . In this decision, we discuss all three elements which Henderson indicates are required to show fundamental error. However, we note an internal inconsistency in Henderson as to whether a defendant must prove all three elements, or whether any one of the listed elements would suffice. While the quoted text is written in the conjunctive, in support of the rule, Henderson cites State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984), which suggests that each element consti tutes a distinct error that, standing alone, may amount to fundamental error. Hunter, in turn, references State v. Libberton, 141 Ariz. 132, 138, 685 P.2d 1284, 1290 (1984), which lists only the first two elements in the disjunctive. . While we conclude that Escalante cannot meet his burden under fundamental error review, we note that this does not preclude a defendant under these circumstances from claiming ineffective assistance of counsel in a Rule 32 petition.

OPINION SWANN, Judge: ¶ 1 Kathi Buss sued Wal-Mart Stores, Inc., a company incorporated in Delaware with its principal place of business in Arkansas, in Arizona over a slip-and-fall accident that occurred at a store in Oregon. Wal-Mart filed a motion to dismiss for lack of jurisdiction, and the superior court, relying on our opinion in Bohreer v. Erie Insurance Exchange, 216 Ariz. 208, 165 P.3d 186 (App, 2007), denied it, finding Wal-Mart was subject to general jurisdiction in Arizona. Wal-Mart then filed a petition for special action. ¶ 2 Because the facts of the case have no connection to Arizona, Wal-Mart can be sued here only if the Arizona courts have general jurisdiction over it. Buss maintains that Wal-Mart’s pervasive presence and substantial business activities in Arizona are sufficient to create general jurisdiction, and any claim against Wal-Mart is therefore cognizable in Arizona. We disagree. In keeping with Goodyear Dunlop Tires Operations, S.A v. Brown, 564 U.S. 915, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011), and Daimler AG v. Bau man, — U.S. -, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014), we hold that the magnitude of a corporation’s business activities in Arizona is not sufficient to create general jurisdiction when that corporation is neither incorporated nor has its principal place of business in Arizona. We further hold that foreign corporations do not impliedly consent to general jurisdiction in Arizona merely by registering as foreign corporations and appointing agents for service of process under A.R.S. §§ 10-1501 to -1510. Wal-Mart therefore is subject only to specific jurisdiction in Arizona, and actions against it in the Arizona courts must relate to its activities in the state. JURISDICTION ¶ 3 Special action jurisdiction is discretionary, “reserved for ‘extraordinary circumstances’ and is not available ‘where there is an equally plain, speedy, and adequate remedy by appeal.’ ” Staipert v. Ariz. Bd. of Psychologist Exam’rs, 210 Ariz. 177, 182, ¶ 21, 108 P.3d 956 (App. 2005) (citations omitted). We accept jurisdiction when, as here, “the motion [to dismiss] reveals an absence of jurisdiction, as an appeal inadequately remedies a trial court’s improperly requiring a defense in a matter where it has no jurisdiction.” Sigmund v. Rea, 226 Ariz. 373, 375, ¶ 5, 248 P.3d 703 (App. 2011) (citation and internal quotation marks omitted). DISCUSSION ¶ 4 States may exercise two forms of personal jurisdiction. First, specific jurisdiction exists when the defendant establishes minimum contacts with the forum state by purposefully directing its activities to that state, and the litigation arises out of those activities. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). Second, general jurisdiction allows a forum state to hear any claim against the defendant, even when the facts giving rise to it have no connection to the forum. Goodyear, 564 U.S. at 919, 131 S.Ct. 2846. General jurisdiction exists over a corporation in several circumstances. For example, a corporation is subject to general jurisdiction in the state in which it is incorporated, the state in which it has its principal place of business, id. at 924, 131 S.Ct. 2846, a state in which it has consented to general jurisdiction, see id. at 928, 131 S.Ct. 2846, a state in which its “affiliations with the State are so ‘continuous and systematic’ as to render [it] essentially at home in the forum State,” id. at 919, 131 S.Ct. 2846 (citation omitted), and in other states in “exceptional cases” where circumstances make general jurisdiction appropriate, see Daimler, 134 S.Ct. at 761 n.19. ¶ 5 Because this case arises entirely out of Wal-Mart’s activities in Oregon, Arizona courts lack specific jurisdiction. The sole issue in this special action is the extent to which Arizona may exercise general jurisdiction over foreign corporations. Buss suggests two theories to support general jurisdiction over Wal-Mart in Arizona: (1) by appointing an agent for service of process, it has consented to general jurisdiction, and (2) the sheer magnitude of Wal-Mart’s presence in Arizona relative to other corporations means that Wal-Mart is “at home” here. We address each argument in turn. I. WAL-MART DID NOT CONSENT TO GENERAL JURISDICTION IN ARIZONA. ¶6 The superior court concluded under Bohreer that Wal-Mart impliedly consented to general jurisdiction in Arizona by registering and appointing an agent to receive process here. Bohreer held that Arizona courts may exercise general jurisdiction over a foreign insurer because the insurance statutes provide “for an irrevocable appointment of the director of insurance for service of process which remains in effect ‘as long as there is in force in this state any contract made by the insurer or obligations arising therefrom.’” 216 Ariz. at 211, ¶¶ 10-11, 165 P.3d 186 (quoting A.R.S. § 20-221(A)). The Boh-reer court interpreted § 20-221 as creating express (not implied) consent to general personal jurisdiction. ¶7 Wal-Mart argues that Bohreer was impliedly overruled by the United States Supreme Court’s recent opinions in Goodyear Dunlop Tires Operations and Daimler AG. Those cases do not address general jurisdic tion by express consent, and we need not decide the continuing vitality of Bohreer, because Wal-Mart is not registered under § 20-221. ¶ 8 No Arizona case has decided whether foreign corporations consent to general jurisdiction by registering pursuant to A.R.S. §§ 10-1501 to -1510. Those statutes provide that foreign corporations authorized to conduct business in Arizona are “subject to the same duties, restrictions, penalties and liabilities now or later imposed on a domestic corporation of like character.” A.R.S. § 10-1505(B). And foreign corporations must maintain in Arizona a known place of business and a statutory agent for service of process. A.R.S. § 10-1507. ¶ 9 We hold that these provisions do not create general personal jurisdiction over foreign corporations, either by prescription or consent. First, corporations do not expressly consent to general jurisdiction by registering. The equal treatment of foreign and domestic corporations prescribed by § 10-1505(B) refers to substantive liabilities and duties without any mention of general jurisdiction. Had the Legislature intended to endow Arizona courts with the ability to hear all cases (including those in which Arizona has no interest) against all registered foreign corporations, it would have said so. We think it is unlikely that the Legislature intended to give Arizona courts the constitutionally dubious authority to hear any case against any registered foreign corporation when such cases need not involve any Arizonans. Buss argues that it would be “manifestly unfair to Arizonans” to hold that we lack general jurisdiction over Wal-Mart such that Arizona residents cannot sue for causes of action that arise in other states. But, it is settled law that the specific-jurisdiction analysis focuses exclusively on “the relationship among the defendant, the forum, and the litigation,” Walden v. Fiore, — U.S. -, 134 S.Ct. 1115, 1126, 188 L.Ed.2d 12 (2014) (citation omitted), and the convenience to the plaintiff has no bearing on whether a defendant’s due process rights are violated by subjecting it to general jurisdiction. ¶ 10 Second, we conclude that the statutes do not create general jurisdiction by implied consent. A corporation cannot fairly be deemed to have consented to waive its due process rights when, as here, the statutes give no notice that such a waiver is the price of registration. ¶ 11 We acknowledge that some recent decisions still hold that consent to service of process is consent to general personal jurisdiction. See, e.g., Senju Pham. Co. v. Metrics, Inc., 96 F.Supp.3d 428, 439-40 (D.N.J. 2015); Otsuka Pham. Co. v. Mylan Inc., 106 F.Supp.3d 456, 467 (D.N.J. 2015). The Senju and Otsuka courts reasoned that because the Supreme Court has not expressly overruled its implied-consent jurisprudence, corporate defendants consent to jurisdiction by consenting to service of process in the forum state. Senju, 96 F.Supp.3d at 436-40; Otsuka, 106 F.Supp.3d at 467. We are not persuaded by those decisions. ¶ 12 The concept of consent implied from registration statutes originated in response to Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1877), in which the Supreme Court held that state courts’ jurisdiction was based on physical presence in the forum. Implied consent allowed state courts to assert jurisdiction over companies that at the time were considered “present” only within their respective states of incorporation. See Brown v. Lockheed Martin Corp., 814 F.3d 619, 631-32 (2d Cir. 2016) (citing Bank of Augusta v. Earle, 38 U.S. 13 Pet. 519, 10 L.Ed. 274 (1839)). Thus, registration statutes “secure[d] local jurisdiction in respect [to] business transacted within the State.” Robert Mitchell Furniture Co. v. Selden Breck Constr. Co., 257 U.S. 213, 215, 42 S.Ct. 84, 66 L.Ed. 201 (1921). The Supreme Court’s personal “jurisdiction by consent” cases, such as Pennsylvania Fire Insurance Co. of Philadelphia v. Gold Issue Mining & Milling Co., 243 U.S. 93, 37 S.Ct. 344, 61 L.Ed. 610 (1917), and Louisville & N.R. Co. v. Chatters, 279 U.S. 320, 328, 49 S.Ct. 329, 73 L.Ed. 711 (1929), were decided before International Shoe Co. v. State of Washington, Office of Unemployment Compensation & Placement, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), which held that states could exercise jurisdiction over a corporation that had “minimum contacts” with the forum. This in turn led to the doctrine of specific jurisdiction, which allowed states to assert jurisdiction over cases arising from business activities conducted by foreign corporations in or affecting them while preventing unfair assertion of jurisdiction against those who had not voluntarily established contact with the forum. See, e.g., Burger King Corp., 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 628. Today, specific jurisdiction accomplishes the same goal as jurisdiction by implied consent, but rather than focusing on a corporation’s “presence” in a forum state, specific jurisdiction is based on the relationship between the forum, the defendant, and the facts giving rise to the cause of action. See Walden, 134 S.Ct. at 1126. ¶ 13 Because the modern doctrine of specific jurisdiction amply ensures that a state has jurisdiction when a corporation’s conduct allegedly causes harm in that state, there is no need to base personal jurisdiction solely upon a murky implication of consent to suit— for all purposes and in all eases—from the bare appointment of an agent for service. We therefore agree with those decisions holding that registration statutes do not imply consent to general jurisdiction. E.g., Brown, 814 F.3d at 630—41; Display Works, LLC v. Bartley, 182 F.Supp.3d 166, 175-79 (D.N.J. 2016); State ex rel. Norfolk S. Ry. Co. v. Dolan, 512 S.W.3d 41, 51-52 (Mo. 2017). To be sure, registration and appointment may form the basis for a finding that a corporation has established minimum contacts with the forum state. But minimum contacts are not enough to create jurisdiction over cases having no substantive connection to the forum. As the Supreme Court observed in Daimler, cases “decided in the era dominated by Pennoyer ⅛ territorial thinking ... should not attract heavy reliance today.” 134 S.Ct. at 761 n.18. II. WAL-MART IS NOT “AT HOME” IN ARIZONA. ¶ 14 A state has general jurisdiction over a foreign corporation when the corporation’s “affiliations with the State are so ‘continuous and systematic’ as to render [it] essentially at home in the forum State.” Goodyear, 564 U.S. at 919, 131 S.Ct. 2846. But general jurisdiction requires more than continuous and systematic activity. Id. at 927-28, 131 S.Ct. 2846; see also Daimler, 134 S.Ct. at 761 n.19 (general jurisdiction outside the state of incorporation or forum state may be permissible in an “exceptional case”). Wal-Mart argues that after Daimler and Goodyear, foreign corporations are subject to general jurisdiction only in their respective principal places of business and states of incorporation. We need not endorse Wal-Mart’s broad reading of those eases to conclude that they do not support the exercise of general jurisdiction in Arizona on this record. ¶ 15 In Goodyear, the Supreme Court held that North Carolinians could not sue Goodyear’s foreign subsidiaries in a United States court for a tire design defect that allegedly caused an accident in France. 564 U.S. at 920-21, 929, 131 S.Ct. 2846. The Court reasoned that placement of tires into the stream of commerce, some of which may end up in the forum, is not enough to confer general jurisdiction in that forum. Id. at 926-29, 131 S.Ct. 2846. ¶ 16 In Daimler, Argentinian residents sued Daimler, a German company, in federal court in California over its Argentinian subsidiary’s alleged collaboration with Argentinian security forces in the perpetration of human rights abuses in the 1970s and 1980s in Argentina. 134 S.Ct. at 750-51, The plaintiffs claimed that Daimler was subject to general jurisdiction in California based on the contacts of its subsidiary, Mercedes. Id. at 751. The Court reasoned that “[i]t was .,. error ... to conclude that Daimler, even with [Mercedes] contacts attributed to it, was at home in California, and hence subject to suit there on claims by foreign plaintiffs having-nothing to do with anything that occurred or had its principal impact in California.” Id. at 762. ¶17 Daimler did not categorically reject the possibility that a state may exercise general jurisdiction over a corporation for other reasons: We do not foreclose the possibility that in an exceptional ease [such as Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 486 (1962) ] a corporation’s operations in a forum other than its formal place of incorporation or principal place of business may be so substantial and of such a nature as to render the corporation at home in that State. [But] the general jurisdiction inquiry does not focus solely on the magnitude of the defendant’s in-state contacts.... General jurisdiction calls for an appraisal of a corporation’s activities in their entirety, nationwide and worldwide. A corporation that operates in many places can scarcely be deemed at home in all of them. Otherwise, “at home” would be synonymous with “doing business” tests framed before specific jurisdiction evolved in the United States. Id. at 761 n.19, 762 n.20 (internal quotation, modification, and citation omitted) (emphasis added). ¶ 18 Federal circuit courts have interpreted Daimler to mean that states other than a corporation’s state of incorporation and principal place of business may exercise general jurisdiction over that corporation only in exceptional eases. Brown, 814 F.3d at 627 (“[I]n our view Daimler established that, except in a truly ‘exceptional’ case, a corporate defendant may be treated as ‘essentially at home’ only where it is incorporated or maintains its principal place of business—the ‘paradigm’ cases.”); Carmouche v. Tamborlee Mgmt., Inc., 789 F.3d 1201, 1204 (11th Cir. 2016) (noting that general jurisdiction is appropriate “only in ‘exceptional’ cases”); Kipp v. Ski Enter. Corp. of Wis., 783 F.3d 695, 698 (7th Cir. 2016) (holding any state other than the states of incorporation and principal place of business can assert general jurisdiction only by adhering to the “stringent criteria” of Daimler and Goodyear)-, Monkton Ins. Servs., Ltd. v. Ritter, 768 F.3d 429, 432 (5th Cir. 2014) (noting that it is “incredibly difficult to establish general jurisdiction in a forum other than the place of incorporation or principal place of business”); Martinez v. Aero Caribbean, 764 F.3d 1062, 1070 (9th Cir. 2014) (“Only in an ‘exceptional case’ will general jurisdiction be available anywhere else.”); In re Roman Catholic Diocese of Albany, New York, Inc., 745 F.3d 30, 39 (2d Cir. 2014) (“Daimler AG, however, reaffirmed that, under Goodyear, general jurisdiction might, ‘in an exceptional case,’ extend beyond a corporation's state of incorporation and principal place of business.... ”). ¶ 19 The Supreme Court has acknowledged only one exceptional case that would give rise to general jurisdiction over a foreign corporation. Daimler, 134 S.Ct. 746 at 761 n.19, 762 n.20 (citing Perkins, 342 U.S. 437, 72 S.Ct. 413). In Perkins, the Supreme Court held that general jurisdiction was proper in Ohio when the defendant company’s mining operation in the Philippines was shut down by the Japanese occupation, and the general manager, who was also the principal stockholder, relocated to and ran the company’s “necessarily limited wartime activities” in Ohio. 342 U.S. at 447-48, 72 S.Ct. 413. ¶ 20 Buss argues that Wal-Mart is subject to general jurisdiction based on its exceptionally substantial business activities in Arizona. As of January 2017, in Arizona Wal-Mart operates 127 retail locations and 4 distribution centers, employs 33,910 people, spent $1.5 billion with suppliers, collected $270.3 million in state sales taxes, and paid $91.5 million in state taxes. Wal-Mart was the largest employer in Arizona in 2014 and the second-largest in 2015. In 2015, it employed more Arizonans than the next two largest employers combined. But while Wal-Mart has a large economic presence in the state, there is nothing “exceptional” about its activities to give rise to general jurisdiction. ¶ 21 Were we to hold that Arizona, a state that is home to just under 34,000 of Wal-Mart’s estimated 2.3 million global employees (1.5 million of whom are employed in the United States) has general jurisdiction over Wal-Mart, we would effectively confer gener al jurisdiction over every foreign corporation with a large commercial presence in Arizona. Such a rule would be neither fair, rational nor consistent with the reasoning of Daimler and Goodyear. Neither the facts of this case nor the nature of Wal-Mart’s activities in Arizona give rise to the “exceptional case” envisioned by the Supreme Court—exigent circumstances that render traditional jurisdictional limits unworkable. ¶ 22 Moreover, a size-based approach would be both standardless and malleable. There is no constitutional doctrine establishing a threshold level of commercial activity sufficient to create general jurisdiction. And if mere size were sufficient, the fluctuating levels of each foreign corporation’s economic activity would have to be relitigated in every case before jurisdiction could be determined. We view such an approach as constitutionally untenable. ¶ 23 Buss argues that Wal-Mart’s presence here is more like Perkins by arguing it is a party to many suits in Arizona and is thus not prejudiced by having to defend this action in Arizona, and she notes that the former chairman of Wal-Mart’s board of directors resides in Arizona. We disagree. First, Wal-Mart’s contacts with the state are easily sufficient to subject it to specific jurisdiction in cases involving its activities in, or directed to, Arizona. The fact that such cases arise does not create jurisdiction over cases that have no connection to this state—as the Supreme Court noted, “[a] corporation that operates in many places can scarcely be deemed at home in all of them.” Daimler, 134 S.Ct. at 762 n.20. ¶24 Buss finally attempts to distinguish the defendants in Daimler and Goodyear from Wal-Mart by arguing that the Supreme Court distinguished between foreign corporations (i.e., corporations incorporated in other states) and alien corporations (i.e., corporations incorporated in other countries). She relies on the undecided assumptions in Daimler and Goodyear that the domestic entities were subject to general jurisdiction in the forums. Daimler, 134 S.Ct. at 768; Goodyear, 564 U.S. at 918, 131 S.Ct. 2846. But due process applies to all defendants, and personal jurisdiction jurisprudence makes no such distinction. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) (applying the Due Process Clause’s minimum-contacts analysis to a Colombian corporation sued in Texas); cf. Mathews v. Diaz, 426 U.S. 67, 77, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976) (noting that the Fifth and Fourteenth Amendments protect aliens from “deprivation of life, liberty, or property without due process of law”). ¶ 25 In sum, subjecting Wal-Mart to general jurisdiction in Arizona based on the level of its commercial activity would wrongly conflate general jurisdiction with specific jurisdiction and provide an unworkable standard that would require extensive factual findings in every case. Even without general jurisdiction in Arizona, Buss has a forum readily available to seek redress for her injuries— Oregon. CONCLUSION ¶ 26 For the foregoing reasons, we accept jurisdiction and grant relief. We direct the superior court to dismiss the action without prejudice for lack of personal jurisdiction. . The superior court did not hold an evidentiary hearing on Wal-Mart's motion to dismiss, and we therefore review the superior court's ruling de novo, "viewing the facts in the light most favorable to the plaintiff[] but accepting as true the uncontradicted facts put forward by the defendant ].” Planning Grp. of Scottsdale, L.L.C. v. Lake Mathews Mineral Props., Ltd., 226 Ariz. 262, 264 n.1, ¶ 2, 246 P.3d 343 (2011). Neither the petition nor the response include the exhibits from the motions filed in the superior court. We therefore take judicial notice of the superior court record. See In re Sabino R., 198 Ariz. 424, 425, ¶ 4, 10 P.3d 1211 (App. 2000). . Some states do assert general jurisdiction in this manner. For example, under Pennsylvania law, it "shall constitute a sufficient basis of jurisdiction to enable the tribunals of this Commonwealth to exercise general personal jurisdiction" if a corporation "carr[ies] on [ ] a continuous and systemic part of its general business within this Commonwealth.” 42 Pa.C.S.A. § 5301(a)(2)(iii). We need not opine on the constitutionality of such a scheme to observe that it evinces a legislative purpose different from that apparent from the text of Arizona’s statutes.

OPINION MILLER, Judge: ¶ 1 Dean and Mary Krieg (individually and as a marital community), Krieg’s, Inc., and the Krieg Family Trust (collectively, “Guarantors”) appeal the trial court’s grant of partial summary judgment for Ciena Capital Funding, LLC (“Ciena”) as to liability for breach of contract. They argue the court should have granted their cross-motion for summary judgment or, alternatively, genuine issues of material fact prevented summary judgment for Ciena. We affirm the court’s ruling subject to one modification as explained below. Factual and Procedural Background ¶ 2 In September 2007, DI Safford, LLC borrowed $1,128,500 from Ciena in connection with the purchase of a hotel in Safford, Arizona, and executed a loan agreement and promissory note. As part of the transaction, the Guarantors each signed materially identical agreements to guarantee DI Safford’s obligations. ¶ 3 By the terms of the agreements, Guarantors “unconditionally, absolutely and irrevocably” guaranteed DI Safford’s obligations and liabilities under the loan agreement. The agreements also stated that Guarantors’ obligations and liabilities were “direct and primary and not indirect or secondary.” Each guaranty further provided: Guarantor hereby expressly agrees (i) that the liabilities and obligations of Guarantor under this Guaranty shall not in any way be impaired or otherwise affected by the institution by or against any Borrower or any other person or entity of any bankruptcy, reorganization, insolvency or liquidation proceedings, or any other similar proceedings for relief under any bankruptcy law or similar law for the relief of debtors; (ii) that any discharge of any of the obligations and/or liabilities hereby guaranteed pursuant to any such bankruptcy or similar law or other law shall not diminish, discharge or otherwise affect in any way the obligations of Guarantor under this Guaranty; and (in) that upon the institution of any of the above actions such obligations shall be enforceable against Guarantor. Guarantors also expressly waived “any defense arising by virtue of any ... insolvency, bankruptcy, ... liquidation or dissolution of, or any cessation or limitation of liability from any cause (other than full and irrevocable payment and performance), of any Borrower.” ¶ 4 By late 2008, DI Safford was struggling to make payments on its loan. By written agreement that both parties signed in March 2009, DI Safford and Ciena agreed to reduce the monthly payment amount due for March through December 2009. DI Safford continued making payments at the reduced rate until at least November 2011. ¶5 In March 2012, DI Safford and DGMLK jointly filed for protection under Chapter 11 of the United States Bankruptcy Code, 11 U.S.C. §§ 1101-1146. The joint plan of reorganization delineated thirteen classes of claims, two of which were pertinent to this action. Class 4 provided that Ciena would “be paid $50,000 in full satisfaction of its claim” of a $1,128,500 deficiency against DI Safford on the closing date, at which point Ciena would no longer retain a lien interest in the hotel property or any personal property. Class 11 provided that Ciena’s guaranty claim against DGMLK would be “satisfied in full by DI Safford.” Ciena submitted a ballot approving the Class 4 claim on September 20, 2012. On September 26, 2012, Ciena’s counsel emailed DI Safford’s counsel to confirm they were “in agreement about the non-release of the non-debtor guarantors.” DI Safford’s counsel replied, “Yes we are in agreement—the Plan does not release or waive potential claims against the non-debtor guarantors.” Notably, the Guarantors did not participate in the bankruptcy, request relief from the guaranties, or submit themselves to the jurisdiction of the bankruptcy court. The same day, Ciena submitted a second ballot that accepted the Class 11 claim, subject to counsel’s agreement that “[t]he plan and the Class 11 treatment do not attempt to discharge the debt of the non-debtor guarantors.” The bankruptcy court later confirmed the reorganization plan. ¶ 6 Ciena brought this action against Guarantors after bankruptcy confirmation, alleging breach of contract, enforcement of guarantees, and breach of the implied covenant of good faith and fair dealing. Guarantors were represented by the same attorney who had represented DI Safford during the bankruptcy proceedings and who made the representation concerning the reorganization plan having no effect on Guarantors’ obligations. Ciena filed a motion for summary judgment on its breach of contract claim, and Guarantors filed a cross-motion for summary judgment on all claims. Following argument, the trial court issued an under-advisement ruling granting Ciena’s motion for partial summary judgment in part, and denying Guarantors’ motion for summary judgment. The court held Guarantors were liable to Ciena for breach of contract, but did not decide the issues of damages or attorney fees. The court certified its judgment pursuant to Rule 54(b), Ariz. R. Civ. P. Jurisdiction ¶ 7 This court has an independent duty to consider whether we have jurisdiction over an appeal. Ghadimi v. Soraya, 230 Ariz. 621, ¶ 7, 285 P.3d 969, 970 (App. 2012). Our jurisdiction is purely statutory. See id. Although in general only final judgments are appealable, id., A.R.S. § 12-2101 (A)(6) provides an express exception to the general rule, permitting an appeal from “an interlocutory judgment that determines the rights of the parties and directs an accounting or oth er proceeding to determine the amount of recovery.” A grant of summary judgment in favor of a plaintiff as to liability is appealable under this paragraph, provided that it is signed, it contains express language indicating finality, it determines the rights of the parties on liability, and it determines that the amount of recovery is the only remaining question to be resolved. Cook v. Cook, 26 Ariz.App. 163, 168, 647 P.2d 16, 20 (1976); see also Bilke v. State, 206 Ariz. 462, ¶¶ 23, 26-28, 80 P.3d 269, 274, 275 (2003) (approving Cook and adding that Rule 64(b) certification sufficient to establish final determination of parties’ rights). The trial court’s summary judgment ruling in the present case meets each of these requirements; therefore, we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(6). Choice of Law ¶ 8 As an initial matter, Ciena argues New York law governs this dispute, while Guarantors maintain Arizona law applies. The trial court did not expressly decide which law applied, making only a general reference to its reliance on “the cited case law” from the cross-motions for summary judgment, which included cases from both Arizona and New Yoi’k. We review choice-of-law issues de novo. Pounders v. Enserch E&C, Inc., 232 Ariz. 352, ¶ 6, 306 P.3d 9, 11 (2013). ¶ 9 Each guaranty agreement contains this choice-of-law provision: [T]his Guaranty shall be governed, at the Lender’s option by: (A) the laws of the state of New York, or (B) if guarantor resides or is organized in a state other than New York or if collateral has been pledged to secure the obligations guaranteed herein, then by the laws of the state or states where such collateral is located, or the state of the guarantor’s residence or organization. It is undisputed that the collateral hotel is located in Arizona. ¶ 10 In its amended complaint, Ciena asserted, “The Guarantees ... are governed by the laws of the state of New York or, alternatively, the laws of the state of Arizona,” Ciena also cited certain Arizona attorney fees statutes in support of its fee request in the amended complaint. Then, in its motion for partial summary judgment, which was the first substantive motion filed in the case, Ciena stated, “The Guarant[i]es are governed by New York law.” ¶ 11 As the forum state, the law of Arizona governs procedural matters as well as the choice of substantive law. Id. ¶8. Arizona follows the Restatement (Second) of Conflict of Laws (1971) (“Restatement”) to determine which state’s law applies in an action arising out of contract. Cardon v. Cotton Lane Holdings, Inc., 173 Ariz. 203, 207, 841 P.2d 198, 202 (1992). An express choice-of-law provision in a contract ordinarily will be given effect, subject to certain inapposite exceptions. See id. at 208, 841 P.2d at 203; see also Societe Jean Nicolas Et Fils v. Mousseux, 123 Ariz. 69, 61, 597 P.2d 641, 543 (1979) (contractual choice-of-law clause entered into without fraud or unfair bargaining will be enforced, so long as it is reasonable at time of litigation and does not deprive litigant of day in court). Absent a “contrary indication of intention,” a choice-of-law provision’s reference to the law of a state means that state’s “local law,” rather than its whole “law” including its choice-of-law rules. Restatement §§ 186, cmt. b; 187 cmt. h. ¶ 12 The parties agree that the choice-of-law clause in the guaranty agreements is enforceable. Guarantors argue that Ciena exercised its option under the clause, selecting Arizona law to govern this dispute in its amended complaint, notwithstanding its clear statement later in its motion for partial summary judgment that New York law applies. Guarantors offer two arguments in support of their position, but we do not find them persuasive. ¶ 13 First, Guarantors maintain that Ciena selected Arizona law by citing certain Arizona attorney fees statutes in its amended complaint. However, these citations are not inconsistent with Ciena’s ultimate selection of New York law as controlling. Assuming for the sake of argument that Ciena selected New York law to apply, the forum would adopt New York law concerning whether issues are classified as substantive or proce dural. Restatement § 7 emt. d & illus. 2 (“A concept should be classified in the way it is classified in the body of law which the court is applying.”); see, e.g., O’Leary v. Ill. Terminal R.R. Co., 299 S.W.2d 873, 877 (Mo. 1957) (Missouri court applying Illinois law would adopt Illinois case law determination of whether issue of burden of proof on contributory negligence was substantive or procedural). New York regards the issue of attorney fees as procedural for choice-of-law purposes. See, e.g., Cent. Laborers’ Pension Fund ex rel. Goldman Sachs Grp., Inc. v. Blankfein, 34 Misc.3d 456, 931 N.Y.S.2d 835, 840 (Sup. Ct. 2011). And the local law of the forum governs procedural matters. Pounders, 232 Ariz. 352, ¶ 8, 306 P.3d at 11. Therefore, Ciena’s citation of Arizona attorney fees statutes is consistent with its later selection of New York law to govern the guaranties. ¶ 14 Second, Guarantors argue Ciena selected Arizona law by including in its amended complaint a separate claim for breach of the implied covenant of good faith and fair dealing. Citing Harris v. Provident Life & Accident Ins. Co., 310 F.3d 73, 81 (2d Cir. 2002), and Hall v. EarthLink Network, Inc., 396 F.3d 500, 508 (2d Cir. 2005), Guarantors assert that under New York law, this is not a claim for which relief can be granted if there is also a breach of contract claim with the same factual basis. Even assuming (without deciding) that this is a correct statement of New York law, it would not follow that Ciena selected Arizona law in its amended complaint. At most, it would mean that Ciena’s claim for breach of the implied covenant of good faith and fair dealing should be dismissed in light of its later selection of New York law. Cf. Kenerson v. Stevenson, 621 F.Supp. 1179, 1180-81 (D. Me. 1985) (Maine federal district court, applying New Hampshire law, determined whether plaintiff failed to state claim for exemplary damages by reference to New Hampshire substantive damages law). ¶ 15 Ciena’s statement in its motion for partial summary judgment that “[t]he Guarantees are governed by New York law” was a valid and unambiguous exercise of its contractual option to select the applicable law, and did not contradict any earlier position it had taken in the amended complaint. Ciena’s election is reasonable and does not deny Guarantors their day in court. We apply New York law. Partial Summary Judgment as to Liability ¶ 16 Guarantors contend the trial court erred by denying their motion for summary judgment and instead granting in part Ciena’s motion for partial summary judgment. Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.” Ariz, R. Civ. P. 56(a). Viewing the facts in the light most favorable to the party against whom summary judgment was entered, we determine de novo whether any genuine dispute of material fact exists and whether the trial court applied the law correctly. In re Estate of Olson, 223 Ariz. 441, ¶ 11, 224 P.3d 938, 941 (App. 2010); see also Target Corp. v. Prestige Maint. USA, Ltd., 361 P.3d 493, ¶¶ 18-19 (Colo. App. 2013) (forum court will use its own standards of appellate review even if applying another jurisdiction’s substantive law), citing Restatement § 122 cmt. a. ¶ 17 “On a motion for summary judgment to enforce a written guaranty, all that the creditor need prove is an absolute and unconditional guaranty, the underlying debt, and the guarantor’s failure to perform under the guaranty.” City of New York v. Clarose Cinema Corp., 256 A.D.2d 69, 681 N.Y.S.2d 251, 253 (1998). As with other contracts, the court will interpret guaranty agreements to reflect the parties’ intentions. CIT Group/Credit Fin., Inc. v. Weinstein, 261 A,D.2d 203, 690 N.Y.S.2d 36, 36-37 (1999). ¶18 Guarantors argue that because the reorganization plan described DI Safford’s payment of $50,000 to Ciena as a “full satisfaction” of Ciena’s Class 4 deficiency claim against DI Safford, the payment completely extinguished DI Safford’s debt and left nothing for Guarantors to continue to guarantee as a matter of law. They attempt to draw a distinction between “satisfaction” of a claim on the one hand, and mere “release,” “waiver,” “modification,” or “discharge” of a claim on the other. They cite no New York cases supporting such a distinction. The trial court found this argument “unpersuasive and unsupported by law,” particularly in light of trial counsel’s September 26, 2012 email and the recital on the September 26, 2012 ballot which both confirmed that the plan would not affect the liability of any of DI Safford’s guarantors who, unlike DGMLK, were not parties to the bankruptcy action. The Guarantors in the instant appeal were not parties to the bankruptcy action. ¶ 19 Guarantors fail to explain how they can assert this defense when, in the guaranty agreements, they expressly waived “any defense arising by virtue of any ... bankruptcy ... or any cessation or limitation of liability from any cause (other than full and irrevocable payment and performance), of any Borrower” (emphasis added). But even if the defense were not waived, it is firmly rejected by New York law. See, e.g., U.S. Bank Nat’l Ass’n v. Perlmutter (In re South Side House, LLC), 470 B.R. 659, 673, 676 (Bankr. E.D.N.Y. 2012) (“A debtor’s bankruptcy case does not relieve a guarantor of its liability under the guaranty.”); Union Tr. Co. of Rochester v. Willsea, 275 N.Y. 164, 9 N.E.2d 820, 820-21 (1937) (even if creditor’s acceptance of stock incident to debtor’s bankruptcy reorganization plan extinguished debtor’s obligation, it “did not, in any way, affect the independent guaranty agreement” between creditor and guarantor); see also 11 U.S.C. § 524(e) (“discharge of a debt of the debtor” under bankruptcy law “does not affect the liability of any other entity ... for[ ] such debt”). ¶ 20 Guarantors’ argument is also at odds with other language in the guaranty agreements. The guaranties provide that Guarantors’ obligations are “direct and primary and not indirect or secondary,” and are “absolute, independent, unconditional, and irrevocable.” The parties expressly agreed that “any discharge” of any of DI Safford’s liabilities or obligations pursuant to bankruptcy law would “not diminish, discharge or otherwise affect in any way the obligations of Guarantor[s],” and that the Guarantors’ obligations would be enforceable in full “upon the institution of’ bankruptcy proceedings by DI Safford. Guarantors further agreed they would not be released until the $1,128,600 loan, specified in the written loan agreement, was “paid in full.” New York courts have affirmed summary judgment for a creditor against a guarantor where the guaranty agreement contained similarly clear language contemplating that the relevant obligations of the guarantor would survive the debtor’s bankruptcy. See, e.g., Weinstein, 690 N.Y.S.2d at 36-37 (noting such case was especially appropriate for summary judgment because intent of parties was clear from face of agreement). The trial court correctly determined Guarantors are liable to Ciena for breach of contract as a matter of law. Factual Dispute Regarding Date of Breach ¶ 21 In the alternative, Guarantors argue the trial court erred in determining there was no genuine dispute as to the date they breached the guaranty agreements. After granting partial summary judgment for Ciena on the issue of liability, the court found “for purposes of liability of all [Guarantors] with respect to [breach of contract], the default occurred on February 1, 2010.” Guarantors dispute that finding, pointing out they attached to their motion for summary judgment an affidavit from Guarantor and appellant Mary Krieg, who was also formerly a principal of DI Safford. In the affidavit, Ms. Krieg avowed it was her understanding that Ciena had orally agreed to accept reduced monthly loan payments from DI Safford for an undefined period beyond the end of 2009, and Ciena had in fact accepted such payments through November 2011, without objection. ¶ 22 Ciena argues the affidavit was insufficient to raise an issue of fact because guaranty agreements fall within New York’s statute of frauds and may not be orally modified. See N.Y. Gen. Oblig. Law § 5-701(a)(2); see also Joseph R. Awad & Co. v. Pillsbury Mills, Inc., 9 A.D.2d 870, 193 N.Y.S.2d 306, 307 (1959) (per curiam) (substantial modification of agreement required to be in writing must itself be in writing). But Ms. Krieg did not avow that the guaranty agreements were orally modified, only that the lender agreement between Ciena and DI Safford was. New York’s statute of frauds does not mandate that the contract between Ciena and DI Safford, or modifications thereto, be in writing. See N.Y. Gen. Oblig. Law § 5—701(a); see also Rosbach v. Indus. Trading Co., 81 F.Supp.2d 522, 525-26 (S.D.N.Y. 2000) ($80,-000 loan contract not within New York statute of frauds because capable of being performed within one year). Oral modifications to that contract were not barred by law. ¶ 23 Furthermore, under New York law, “Modifications of written contracts may be proved circumstantially by the conduct of the parties subsequent to the agreement.” Chase v. Skoy, 146 A.D.2d 563, 536 N.Y.S.2d 512, 513 (1989). Ciena’s acceptance of payments from DI Safford until at least November 2011 without objection is arguably inconsistent with a default date of February 1, 2010. Cf. B. Reitman Blacktop, Inc. v. Missirlian, 52 A.D.3d 752, 860 N.Y.S.2d 211, 212-13 (2008) (defendant waived right of written modification contained in written contract where parties’ conduct demonstrated mutual departure from written agreement). The trial court erred in determining there was no genuine issue of fact as to the date that DI Safford breached the loan agreement. ¶24 This error, however, was irrelevant because liability for breach of contract was the only issue on which the trial court granted summary judgment. To prove liability, Ciena only needed to show the fact of default, not the exact date of default. See Clarose Cinema Corp., 681 N.Y.S.2d at 253. It is undisputed that “the commencement of any proceeding under any bankruptcy ... laws by ... [DI Safford]” was an “Event of Default” under the terms of the loan agreement. It is also undisputed that DI Safford commenced bankruptcy proceedings under federal bankruptcy law in March 2012. Thus, there is no dispute that DI Safford defaulted; at the latest, it did so when it filed a petition in bankruptcy court. See First Nationwide Bank v. Brookhaven Realty Assocs., 223 A.D.2d 618, 637 N.Y.S.2d 418, 421 (1996) (bankruptcy default clause enforceable). Summary judgment was therefore proper as to liability. ¶25 The fact dispute is only material to the issue of damages, on which the trial court explicitly did not rule. Accordingly, we vacate the court’s finding of a date of default, and so modified, we affirm the court’s ruling. We revest jurisdiction in the trial court for further proceedings to resolve the issue of damages for breach of contract and any other outstanding issues in the case. Disposition ¶ 26 We affirm the judgment of the trial court as modified in this decision. Both Ciena and Guarantors request their attorney fees and costs on appeal, citing A.R.S. § 12-341,01, but because the case is still ongoing before the trial court, in our discretion we decline the requests without prejudice for the parties to request appellate attorney fees at the conclusion of the case. See Chapman v. The Westerner, 220 Ariz. 52, ¶ 15, 202 P.3d 517, 521 (App. 2008). . At that time, the lender was actually called BLX Capital, LLC, but it later changed its name to Ciena Capital Funding, LLC. The name change did not alter any rights or obligations related to this case. .DGMLK, LLC, which is not a party to this action, also entered into an agreement guaranteeing DI Safford's obligations. . A Chapter 11 debtor may file a proposed plan of reorganization organizing claims and interests into discrete classes and recommending a resolution as to each class. See generally 11 U.S.C. §§ 1121, 1123. Creditors whose claims are impaired under the plan vote on the plan by ballot, see 11 U.S.C, § 1126; Fed. R. Banltr. P. 3018(c), and then the bankruptcy court conducts a hearing to determine whether to confirm the plan, 11 U.S.C. § 1128. . Indeed, the amended complaint expressly left open the question of the applicable law, stating, "[T]he laws of the state of New York or, alternatively, the laws of the state of Arizona” control. . At oral argument, Guarantors' counsel argued Guarantors were prejudiced by not knowing which law would control during the eleven-month period between Ciena's complaint and its motion for summary judgment. But Ciena’s motion for summary judgment was the first substantive motion filed in the case, and Guarantors did not file a motion seeking clarification as to the applicable law at any point. Guarantors have not shown prejudice from Ciena's first election of New York law in its motion for summary judgment. .A denial of summary judgment is generally not an appealable order. See, e.g., Hourani v. Benson Hosp., 211 Ariz. 427, ¶ 4, 122 P.3d 6, 9 (App. 2005). However, we need not determine whether we have jurisdiction over this aspect of Guarantors’ appeal because, as discussed below, the trial court properly granted partial summary judgment to Ciena, . Guarantors do not address these cases in their reply brief, instead limiting their argument to Arizona case law they contend is controlling. . Guarantors argue courts generally construe guaranty agreements to limit guarantors’ liability, and resolve ambiguities in those agreements against the drafter, But both of these principles are used to help interpret ambiguous guaranties. See Jacobson v. Sassower, 66 N.Y.2d 991, 499 N.Y.S.2d 381, 489 N.E.2d 1283, 1284 (1985); Raven Elevator Corp. v. Finkelstein, 223 A.D.2d 378, 636 N.Y.S.2d 292, 293 (1996). The agreements at issue here reflect the parties' intent with clear and unambiguous language. . Even though the loan agreement between DI Safford and Ciena by its terms purported to forbid any alteration or amendment thereto without a signed writing, New York law allows for oral modification of a contract even if it contains such a provision. See Estate of Kingston v. Kingston Farms P'ship, 13 N.Y.S.3d 748, 750, 130 A.D.3d 1464 (App. Div. 2015). . Our vacatur order should not be read to prevent the trier of fact from determining that February 1, 2010, was the date of default, if that is what the evidence shows in further proceedings upon remand.

JUSTICE TIMMER, opinion of the Court: ¶ 1 A liquidated damages contract provision is enforceable if the pre-determined amount for damages seeks to compensate the non-breaching party rather than penalize the breaching party. We here hold that a nearly $1.4 million late fee assessed on a final loan balloon payment constitutes an unenforceable penalty. I. Background ¶2 In 2006, Canadian Imperial Bank of Commerce loaned Dobson Bay Club II DD, LLC and related entities (“Dobson Bay”) $28.6 million for Dobson Bay’s purchase of four commercial properties. The loan was secured by a deed of trust encumbering those properties. Under the terms of a promissory note, Dobson Bay was to tender interest-only payments to Canadian Imperial Bank until the loan matured in September 2009, when the entire principal would become due—the “balloon” payment. In 2009, the parties extended the loan maturity date to September 2012. ¶3 Dobson Bay bore significant consequences for any delay in payment. In addition to continuing to pay regular interest, Dobson Bay was required to pay default interest and collection costs, including rea sonable attorney fees, and a 5% late fee assessed on the payment amount. If Canadian Imperial Bank foreclosed the deed of trust, Dobson Bay was also obligated to pay costs, trustee’s fees, and reasonable attorney fees. ¶ 4 As the 2012 loan maturity date approached, the parties negotiated to extend that date but could not reach an agreement. The maturity date passed, and Dobson Bay failed to make the balloon payment. ¶ 5 La Sonrisa de Siena, LLC (“La Sonri-sa”) bought the note and deed of trust from Canadian Imperial Bank and promptly noticed a trustee’s sale of the secured properties. It contended that Dobson Bay owed more than $30 million, including a nearly $1,4 million late fee. Dobson Bay disputed it owed various sums, including the late fee. Litigation ensued. Dobson Bay secured new financing and paid the outstanding principal and undisputed interest in March 2013. (Dobson Bay simultaneously deposited the disputed amounts with the superior court pending the litigation.) The parties filed cross-motions for partial summary judgment on whether the late fee provision in the note was an enforceable liquidated damages provision or, instead, an unenforceable penalty. ¶ 6 The superior court granted partial summary judgment for La Sonrisa, ruling that the late fee was enforceable as liquidated damages. The court of appeals reversed, holding “as a matter of law, that absent unusual circumstances the imposition of a flat 5% late-fee on a balloon payment for a conventional, fixed-interest rate loan is not enforceable as liquidated damages.” Dobson Bay Club II DD, LLC v. La Sonrisa de Siena, LLC, 239 Ariz. 132, 140 ¶ 22, 366 P.3d 1022, 1030 (App. 2016). ¶ 7 We granted review because the enforceability of late fee provisions in commercial loan agreements presents a legal issue of statewide importance. We have jurisdiction pursuant to article 6, section 6(3) of the Arizona Constitution and A.R.S. § 12-120.24. II. Discussion A. Enforceability of liquidated damages provisions ¶ 8 Parties to a contract can agree in advance to the amount of damages for any breach. See Miller Cattle Co. v. Mattice, 38 Ariz. 180, 190, 298 P. 640, 643 (1931). Such “liquidated damages” provisions serve valuable purposes. They provide certainty when actual damages would be difficult to calculate, and they alleviate the need for potentially expensive litigation. Cf. Mech. Air Eng’g Co. v. Totem Constr. Co., 166 Ariz. 191, 193, 801 P.2d 426, 428 (App. 1989) (noting that a liquidated damages provision “promotes enterprise by increasing certainty and by decreasing risk-exposure, proof problems, and litigation costs”); Restatement (Second) of Contracts (“Restatement Second”) § 366 cmt. a. (Am. Law Inst. 1981) (“The enforcement of such provisions ... saves the tune of courts, juries, parties and witnesses and reduces the expense of litigation.”). ¶ 9 Parties, however, do not have free rein in setting liquidated damages. Because “[t]he central objective behind the system of contract remedies is compensatory, not punitive,” parties cannot provide a penalty for a breach. Restatement Second § 356 cmt. a; see also id. (“Punishment of a promi-sor for having broken his promise has no justification on either economic or other grounds and a term providing such a penalty is unenforceable on grounds of public policy,”). “A [contract] term fixing unreasonably large liquidated damages is unenforceable on grounds of public policy as a penalty.” Id. § 356(1). The contract remains valid, however, and the non-breaching party can still recover actual damages. See Gary Outdoor Advert. Co. v. Sun Lodge, Inc., 133 Ariz. 240, 243, 650 P.2d 1222, 1225 (1982); Miller Cattle, 38 Ariz. at 190, 298 P. at 643. ¶ 10 Arizona courts have used different methods to decide whether stipulated damages provisions are enforceable as liquidated damages or void as penalties. This Court has considered whether the stipulated amounts were reasonably related to actual damages. See Marshall v. Patzman, 81 Ariz. 367, 370, 306 P.2d 287, 289 (1957); Tennent v. Leary, 81 Ariz. 243, 249, 304 P.2d 384, 388 (1956); Weatherford v. Adams, 31 Ariz. 187, 197, 251 P. 453, 456 (1926); Armstrong v. Irwin, 26 Ariz. 1, 9, 221 P. 222, 225 (1923). We have also examined liquidated damages provisions prospectively, considering whether they were reasonable at the time the contracts were created. See Gary Outdoor Advert. Co., 133 Ariz. at 242-43, 650 P.2d at 1224-25; Miller Cattle, 38 Ariz. at 190, 298 P. at 643. ¶ 11 Our court of appeals has generally applied a two-part test developed under the Restatement (First) of Contracts (“Restatement First”) (Am. Law Inst. 1928) § 339. Under that test, which our dissenting colleague implicitly relies on, see infra ¶50, a stipulated damages provision is an unenforceable penalty unless “(1) the amount fixed is a reasonable forecast of just compensation for harm that is caused by the breach, and (2) the harm caused is ‘incapable or very difficult of accurate estimation.’” Dobson Bay Club, 239 Ariz. at 136 ¶ 9, 366 P.3d at 1026 (citing Restatement First § 339); see also Pima Sav. & Loan Ass’n v. Rampollo, 168 Ariz. 297, 300, 812 P.2d 1115, 1118 (App. 1991); Meek Air Eng’g Co., 166 Ariz. at 193, 801 P.2d at 428; Larson-Hegstrom & Assocs., Inc. v. Jeffries, 145 Ariz. 329, 333, 701 P.2d 587, 591 (App. 1985). ¶ 12 In this case, the court of appeals applied Restatement Second § 356(1), which reframed the Restatement First test in 1981 to harmonize with Uniform Commercial Code (“UCC”) § 2-718(1). See Dobson Bay Club, 239 Ariz. at 136 ¶ 9 n.2, 366 P.3d at 1026 n.2; Restatement Second § 356 reporter’s note. Section 356(1) provides that a liquidated damages provision is enforceable, “but only at an amount that is reasonable in the light of the anticipated or actual loss caused by the breach and the difficulties of proof of loss.” This test requires courts to consider (1) the anticipated or actual loss caused by the breach, and (2) the difficulty of proof of loss. Whether a fixed amount is a penalty turns on the relative strengths of these factors. As explained by comment b to § 356: If the difficulty of proof of loss is great, considerable latitude is allowed in the approximation of anticipated or actual harm. If, on the other hand, the difficulty of proof of loss is slight, less latitude is allowed in that approximation. If, to take an extreme case, it is clear that no loss at all has occurred, a provision fixing a substantial sum as damages is unenforceable. ¶ 13 La Sonrisa urges us to disavow the Restatement Second § 356(1) test to the extent it “retrospectively” considers actual damages. It contends that this approach undermines the contracting parties’ freedom to allocate risk and defeats the purpose of a liquidated damages provision by requiring the non-breaching party to establish actual damages. Not so. ¶ 14 Section 356(1) provides two methods for deciding whether the parties’ damages forecast was reasonable. The amount is reasonable if it approximates either the loss anticipated at the time of contract creation (despite any actual loss) or the loss that actually resulted (despite what the parties might have anticipated in other circumstances). See Restatement Second § 356 cmt. b. The non-breaching party is not required to prove actual damages to enforce a liquidated damages provision, and a court will respect the parties’ agreement if it is “reasonable” in relation to anticipated or actual loss. But if the difficulty of proof of loss is slight and either no loss occurs or the stipulated sum is grossly disproportionate to the loss, the parties’ stipulation would be unreasonable and therefore unenforceable as a penalty. See id. This approach is consistent with this Court’s opinions. See Marshall, 81 Ariz. at 370, 306 P.2d at 289 (holding that stipulated damages were “unconscionable under the circumstances” and unenforceable because the non-breaching party suffered no loss); Weatherford, 31 Ariz. at 197, 251 P. at 456 (“Where the amount retained is grossly disproportionate to the actual damages ... and, especially, when there is available a simple method for ascertaining the exact damages, [a stipulated damages provision] will be considered as a penalty.”). ¶ 15 We adopt the Restatement Second § 356(1) to test the enforceability of a stipulated damages provision. First, § 356(1) aligns with UCC § 2-718(1), which Arizona has adopted. See A.R.S. § 47-2718(A). Thus, courts can apply the same test to both UCC-govemed and non-UCC-governed contracts. Second, the test best accommodates the goal of compensating the non-breaching party for a loss rather than penalizing the breaching party. Under the Restatement Second test, courts have flexibility to respect the parties’ right to stipulate to damages for a breach but, when appropriate, prevent imposition of a penalty. B. Application of Restatement Second § 356(1) to this case ¶ 16 The late fee provision in the promissory note here provides: If any installment payable under this Note (including the final installment due on the Maturity Date) is not received by Lender prior to the calendar day after the same is due ... Borrower shall pay to Lender upon demand an amount equal to the lesser of (a) five percent (5%) of such unpaid sum or (b) the maximum amount permitted by applicable law to defray the expenses incurred by Lender in handling and processing such delinquent payment and to compensate Lender for the loss of the use of such delinquent payment.... La Sonrisa seeks 5% of the late balloon payment; “the maximum amount permitted by applicable law” is not at issue. ¶ 17 Dobson Bay, as the party seeking to avoid enforcement of the late fee provision, has the burden of persuading this Court that the provision imposes an unenforceable penalty. Cf. United Behavioral Health v. Maricopa Integrated Health Sys., 240 Ariz. 118, 122 ¶ 14, 377 P.3d 315, 319 (2016) (stating that the party claiming that a contractual arbitration provision is preempted by federal law bears the burden of proving it); Goode v. Powers, 97 Ariz. 75, 81, 397 P.2d 56, 60 (1964) (noting that a challenger to a contract bears the burden of showing illegality); Duenas v. Life Care Ctrs. of Am., Inc., 236 Ariz. 130, 136 ¶ 14, 336 P.3d 763, 769 (App. 2014) (concluding that party challenging a contract term bears the burden of showing unconscionability); see also DJ Mfg. Corp. v. United States, 86 F.3d 1130, 1134 (Fed. Cir. 1996) (“A party challenging a liquidated damages clause bears the burden of proving the clause unenforceable.”). To decide the matter, we do not apply any bright-line rules but construe the clause “according to the circumstances of the case, and in the light of all the facts surrounding it.” Miller Cattle, 38 Ariz. at 190, 298 P. at 643. ¶ 18 We review the grant of partial summary judgment de novo as an issue of law. See Cramer v. Starr, 240 Ariz. 4, 7 ¶ 8, 375 P.3d 69, 72 (2016). Whether a contract provides for liquidated damages or a penalty is also an issue of law we review de novo. See Rampello, 168 Ariz. at 300, 812 P.2d at 1118. 1. . Anticipated or actual damages ¶ 19 Dobson Bay argues that the late fee provision was neither a reasonable forecast of anticipated damages nor reasonably related to actual damages incurred as a result of the untimely balloon payment because La Sonrisa’s loss has been compensated already by payment of default interest and collection costs. La Sonrisa asserts that actual damages are irrelevant. It contends that when the loan was made, the 5% late fee was a reasonable forecast of just compensation for harm that could be caused by Dobson Bay’s default in timely making the balloon payment. a. Anticipated damages ¶ 20 The late fee did not reasonably forecast anticipated damages likely to result from an untimely balloon payment. ¶ 21 First, the 6% fee is static, payable on demand whether the payment is one day late or one year late. Five percent of the loan principal is a significant sum of money, which did not likely reflect losses from a short delay in payment. Because the fee did not account for the length of time Canadian Imperial Bank would be deprived of the balloon payment, the fee could not reasonably predict the Bank’s loss. Cf. Miller Cattle, 38 Ariz. at 190, 298 P. at 643 (stating that a principal rule used to decide whether a contract imposes a penalty or liquidated damages is whether the payment “is a fixed and definite sum, regardless of the nature or extent of the breach of the contract, or whether it is based upon, and varies with, the nature and extent of the breach”); Grand Union Laundry Co. v. Carney, 88 Wash. 327, 153 P. 5, 7 (1915) (cited with approval in Miller Cattle, 38 Ariz. at 190, 298 P. at 643) (“[Ajnother feature that some times influ- enees courts to construe a provision for liquidated damages into a penalty [is that] of fixing for any one of several different kinds and degrees of breach an equal forfeiture of money.”). ¶22 La Sonrisa asserts that the 5% late fee did not necessarily establish a fixed sum of approximately $1.4 million as “[a]t the time the parties formed their agreement, the exact amount of the final installment was unknown because the loan documents provided Dobson Bay with the flexibility to pay all, some, or none of the principal prior to the maturity date.” But the note permits Dobson Bay to prepay the loan principal only “in whole” and “not in part,” except that any condemnation or casualty insurance proceeds would be applied to pay down the principal. Thus, unless Dobson Bay prepaid the entire principal amount, meaning the late fee provision would not apply, the parties contemplated that the balloon payment would approximate the entire loan principal, requiring a late fee of roughly $1,4 million for an untimely payment. ¶ 23 Second, the late fee either duplicated other fees triggered by a default or was grossly disproportionate to any remaining sums needed to compensate for the anticipated losses identified in the late fee provision. Cf. United Dairymen of Ariz. v. Schugg, 212 Ariz. 133, 138 ¶ 16, 128 P.3d 756, 761 (App. 2006) (“The right to recover liquidated damages is limited by the express terms of the parties’ agreement.”); 11 Joseph M. Perillo, Corbin on Contracts § 58.11 at 457 (rev. ed. 2005) (“The probable injury that the parties had reason to foresee is a fact that largely determines the question whether they made a genuine pre-estimate of that injury,...”). ¶ 24 The late fee is calculated as the lesser of 5% of the delinquent payment or the maximum amount permitted by law “to defray the expenses incurred by [Canadian Imperial Bank] in handling and processing such delinquent payment and to compensate [Canadian Imperial Bank] for the loss of the use of such delinquent payment.” It is debatable whether this quoted language qualifies each calculation method or just the latter one. But it matters not. Requiring an “either-or” comparison to fix the late fee suggests that both calculation methods were intended to compensate for the same categories of loss: (1) the costs in handling and processing a late payment, and (2) the loss of use of the payment. Cf. Smith v. Melson, Inc., 135 Ariz. 119, 121, 659 P.2d 1264, 1266 (1983) (“A contract should be read in light of the parties’ intentions as reflected by their language and in view of all the circumstances.”); State ex rel. Goddard v. R.J. Reynolds Tobacco Co., 206 Ariz. 117, 122 ¶¶ 23-24, 75 P.3d 1075, 1080 (App. 2003) (stating that words used in a contract must be read in context); see also In re MM. Ctr. E. Retail Prop., Inc., 433 B.R. 335, 344, 363 (Bankr. D.N.M. 2010) (interpreting almost identical language as stating the purpose for the late fee). ¶ 25 Both categories of loss identified in the late fee provision are substantially addressed elsewhere in the promissory note and deed of trust. Assuming that “handling and processing” includes actions taken to collect the late payment, those costs would be compensated by Dobson Bay’s required payment of “all costs of collection,” including reasonable attorney fees, and, in the event of foreclosure, “all expenses incident to such proceeding,” including attorney fees and trustee’s fees and costs. The loss of use of money would be compensated by continuing payments of regular interest plus default interest. Cf. Ariz. E.R.R. Co. v. Head, 26 Ariz. 259, 262, 224 P. 1057, 1058 (1924) (“Interest is the compensation paid for the use of money”). ¶ 26 What’s left to compensate by payment of a $1.4 million late fee? La Sonrisa and the dissent rely on an affidavit from Mitchel Medigovich, a commercial lending expert, who opined that a 5% late fee is a reasonable forecast of just compensation for impairment of a bank’s economic interests due to an untimely balloon payment. But much of this anticipated impairment falls outside the two categories of loss identified by the parties in the late fee provision. For example, Medigo-vich states that a predetermined late fee compensates for post-default “reputational risks,” “regulatory risks,” and the “risk of expense of preserving the collateral.” Medi-govich addresses the categories of loss identified in the late fee provision by stating that late fees properly subsidize a lender’s debt collection practices and compensate for the loss of expected funds. He does not explain, however, what amounts, if any, are reasonably needed to compensate for these expected losses when, as here, the borrower is already obligated to pay all collection costs and interest at both the regular rate and a default rate. Consequently, Medigovich’s affidavit does not persuade us that a flat $1.4 million late fee was a reasonable forecast of Canadian Imperial Bank’s anticipated losses from a late balloon payment that would not have been compensated by the payment of regular interest, default interest, and collection costs. ¶ 27 This case is distinguishable from Met-Life Capital Financial Corp. v. Washington Avenue Associates L.P., 159 N.J. 484, 732 A.2d 493 (1999), on which La Sonrisa and the dissent rely. There, the court concluded that a 5% late charge assessed against delinquent monthly installment payments of about $14,000 was enforceable as liquidated damages. Id. at 495-96, 502. The reasonableness of applying the charge against a final balloon payment was not at issue. See id. at 495 (“We now consider whether the five percent late charge assessed against each delinquent payment ... constitute^] reasonable stipulated damages provisions.”); see also MetLife Capital Financial Corp. v. Washington Ave. Assoc., L.P., 313 N.J.Super, 525, 713 A.2d 527, 531 (N.J. App. 1998) (stating that application of the late charge against a final balloon payment of about $69,000 was not at issue), affd in part, rev’d in part, 159 N.J. 484, 732 A.2d 493 (1999). Assessing a $700 late fee for an untimely installment payment may well reflect a reasonable assessment of the internal costs of monitoring and collecting late installment payments during the loan tenure. But that is a far cry from assessing a nearly $1.4 million fee for a delayed balloon payment of the loan principal, particularly given that the lender here was otherwise entitled to compensation for its collections costs and loss of use of the funds. ¶ 28 In sum, a flat 5% late fee did not reasonably predict the damages that would be sustained by Canadian Imperial Bank for a late balloon payment of the entire loan principal. b. Actual damages ¶ 29 The $1.4 million late fee did not reasonably approximate either the actual costs of handling and processing the late balloon payment or the loss of use of that payment. ¶30 The summary judgment papers did not address the actual losses incurred by Canadian Imperial Bank and La Sonrisa after Dobson Bay’s default. Nevertheless, the record reflects that neither lender spent significant time handling and processing the late payment. The only outstanding payment was the last payment, and nothing suggests that either lender had much to “handle and process” before the trustee’s sale was initiated. Cf. In re Mkt. Ctr. E. Retail Prop., Inc., 433 B.R. at 364 (concluding that after default on a balloon payment “there would be little or no more administrative expenses in handling and processing delinquent payments” and “[a]ll that is left to do is have the attorneys sue to foreclose”). The note already required Dobson Bay to pay any collection costs, including attorney fees. It is inconceivable that any remaining administrative collection costs approached $1.4 million, particularly in light of the short time between the default and initiation of the trustee’s sale—about three months. Thereafter, the deed of trust applied to require Dobson Bay to pay attorney fees and trustee’s fees and costs. ¶ 31 La Sonrisa was also compensated for the loss of use of money suffered by it and its assignor, Canadian Imperial Bank, by Dob-son Bay’s obligation to pay regular and default interest. Cf. K.B. v. State Farm Fire & Cas. Co., 189 Ariz. 263, 267, 941 P.2d 1288, 1292 (App. 1997) (“An assignee steps into the shoes of her assignor.”). Dobson Bay was current on the loan until the maturity date. La Sonrisa did not dispute Dobson Bay’s representation at oral argument before this Court that La Sonrisa received between $600,000 and $700,000 in default interest alone for the six-month delay in paying the balloon amount. ¶ 32 In sum, nothing indicates that either lender, separately or together, suffered an uncompensated loss that approached $1.4 million. 2. Difficulty of proof of loss ¶33 We next consider the difficulty of proving the losses actually sustained by Canadian Imperial Bank and La Sonrisa in handling and processing the late balloon payment and by being deprived of use of that payment. Restatement Second § 356 cmt. b & illus. 2-4. In doing so, we examine the difficulty of either proving that a loss occurred or establishing its amount with certainty. Id. § 356 cmt. b. ¶ 34 La Sonrisa would have had no difficulty proving it sustained a loss in handling and processing the late balloon payment, if a loss occurred. (Because La Sonrisa noticed the trustee’s sale about a week after acquiring the loan, it may not have expended any resources handling and processing the balloon payment.) It could have produced evidence of the tasks undertaken by it to do so. La Sonrisa would have had slightly more difficulty precisely proving the amount of damages incurred from any such loss depending on what activities constituted “handling and processing” and how it allocated the costs of these activities. Cf. Garrett v. Coast & S. Fed. Sav. & Loan Ass’n, 9 Cal.3d 731, 108 Cal. Rptr. 845, 511 P.2d 1197, 1203 (1973) (invalidating a late fee provision and noting that “[t]he lender’s charges could be fairly measured by the period of time the money was wrongfully withheld plus the administrative costs reasonably related to collecting and accounting for a late payment”). ¶ 35 La Sonrisa would have had no difficulty proving that either lender sustained a loss by being deprived of the use of the balloon payment. Interest on the outstanding amount could have been assessed to compensate for the loss of use of money. Cf. Ariz. E.R.R. Co., 26 Ariz. at 262, 224 P. at 1058. And La Sonrisa would be entitled to collect interest earned when Canadian Imperial Bank was the note payee and the loan was in default. Cf K.B., 189 Ariz. at 267, 941 P.2d at 1292. Indeed, the promissory note required Dob-son Bay to pay regular interest and default interest for that purpose. ¶ 36 In sum, under the circumstances here, the difficulty of proving La Sonrisa’s loss as identified in the late fee provision was slight. 3. Consideration of factors ¶ 37 We are persuaded that the late fee is an unenforceable penalty. The difficulty of proving losses attributable to handling and processing the balloon payment was slight. We therefore give less latitude to Canadian Imperial Bank and Dobson Bay’s approximation of anticipated or actual harm. See Restatement Second § 356 cmt. b. ¶ 38 As explained, the late fee neither reasonably forecasted anticipated damages for the losses identified in the late fee provision nor reasonably approximated the actual losses. In view of Dobson Bay’s obligation to pay regular and default interest, collection costs, trustee’s fees and costs, and attorney fees as a consequence of the six-month delay in paying the balloon, an approximate $1.4 million late fee is unreasonable and an unenforceable penalty. La Sonrisa is not precluded, however, from seeking actual damages incurred for handling and processing the late balloon payment and for losing use of the payment if La Sonrisa has not already been compensated for that loss by the other fees and costs Dobson Bay is required to pay under the note and deed of trust. See Gary Outdoor Advert. Co., 133 Ariz. at 243, 650 P.2d at 1225. C. The dissent ¶39 Our dissenting colleague colorfully compares our decision to a child’s cry of “backsies” to sidestep a promise. Rather than invoking playground rules, however, we apply long-established common law principles that render contractual penalty provisions— even when agreed upon by sophisticated parties—unenforceable as a matter of public policy. This is nothing unique. Courts will likewise disregard the parties’ intent and refuse to enforce contract terms that are unconscionable, illegal, or otherwise against public policy. Cf. Maxwell v. Fidelity Fin. Servs., Inc., 184 Ariz. 82, 88, 907 P.2d 51, 57 (1995) (“[E]ven if the contract provisions are consistent with the reasonable expectations of the party they are unenforceable if they are op pressive or unconscionable(internal quotations and alterations omitted)); Goodman v. Newzona Inv. Co., 101 Ariz. 470, 474, 421 P.2d 318, 322 (1966) (recognizing “the fundamental right of the individual to [have] complete freedom to contract ... so long as his contract is not illegal or against public policy”). That the dissent prefers to ignore these principles does not affect their applicability, ¶40 The dissent is also incorrect that our decision runs afoul of the Arizona Constitution’s “contract clause,” article 2, § 25, an argument La Sonrisa has never made. Our colleague contends that we assign Dobson Bay a burden of persuasion that is so insubstantial it “impair[s] the obligation .of contract.” See infra ¶46. But judicial invalidation of a contract provision does not implicate the contract clause. Cf. Tidal Oil Co. v. Flanagan, 263 U.S. 444, 451, 44 S.Ct. 197, 68 L.Ed. 382 (1924) (finding no violation of the federal contract clause where a state supreme court declared a contract void and unenforceable because “the obligation of contracts against state action[ ] is directed only against impairment by legislation and not by judgments of courts”); Barrows v, Jackson, 346 U.S. 249, 260, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953) (citing Tidal and holding that a state court’s refusal to enforce a racially restrictive covenant did not violate the federal contract clause); see also Fields v. Elected Officials’ Ret. Plan, 234 Ariz. 214, 218 ¶ 16, 320 P.3d 1160, 1164 (2014) (noting that the Court interprets Arizona’s contract clause using an “analysis similar to that employed by the Supreme Court” when interpreting the federal contract clause); Hall v. Elected Officials’ Ret. Plan, 241 Ariz. 33, 383 P.3d 1107, 1126 ¶ 69 (2016) (Bolick J., dissenting in part and concurring in the judgment in part) (noting, with regard to the state contract clause, that “[historically, Arizona courts have applied the United States Supreme Court's test for determining violations of the Contract Clause of the Federal Constitution”). ¶ 41 Even if the contract clause had been argued here and applies, it would not change our decision. The contract clause only limits the state’s ability to impair existing contract obligations; it does not curtail application of proscriptive principles that existed at the time of contract creation. Cf. State v. Direct Sellers Ass’n, 108 Ariz. 165, 169-70, 494 P.2d 361, 365-66 (1972) (“The [contract clause of the federal constitution] means only that no state may impair the obligation of an [ejxisting contract.’’); Foltz v. Noon, 16 Ariz. 410, 417, 146 P. 610, 512 (1915) (noting that a statute will not violate the Arizona Contract Clause “when applied to contracts made subsequent to its taking effect”); Samaritan Health Sys. v. Superior Court, 194 Ariz. 284, 293 ¶ 41, 981 P.2d 584, 593 (App. 1998) (“[Arizona’s] contract impairment clause only limits the legislature’s ability to impair obligations under existing contracts.”). Our cases proscribed penalty clauses long before origination of the loan here, and the note incorporated this proscription. Cf. Bhd. of Am. Yeomen v. Manz, 23 Ariz. 610, 615, 206 P. 403, 404 (1922) (“It is a familiar rule that the law in force at the time a contract is executed enters into and forms a part of the contract.”); Qwest Corp. v. City of Chandler, 222 Ariz. 474, 484 ¶ 34, 217 P.3d 424, 434 (App. 2009) (“[A]ll contracts incorporate applicable statutes and common-law principles.”). Consequently, our refusal to enforce a penalty provision did not impair the parties’ contract obligations here. III. Conclusion ¶ 42 We vacate the court of appeals’ opinion, reverse the trial court’s partial summary judgment in favor of La Sonrisa on the liquidated damages claim, and remand to that court for further proceedings, including entry of partial summary judgment for Dobson Bay on its declaratory relief claim concerning the late fee. We award Dobson Bay its reasonable attorney fees pursuant to A.R.S. § 12-341.01 subject to its compliance with ARCAP 21(c).

JUSTICE BOLICK, opinion of the Court: ¶ 1 We consider whether police can form a reasonable suspicion that an individual is engaged in criminal activity and is armed and dangerous, thus justifying a pat-down search, based merely on where they encounter the individual (e.g., a “high-crime neighborhood”) and a companion’s flight. Viewing the totality of the circumstances, we hold that the police here did not have an individualized reasonable suspicion sufficient to justify the pat-down search of Anthony Benard Primous; therefore, the trial court erred in denying his motion to suppress evidence found in the search. I. BACKGROUND ¶2 One February morning, five Phoenix police officers went to an apartment complex in a high-crime neighborhood, They were looking for a suspect with an outstanding warrant who they believed carried and sold weapons. ¶ 3 Officers Ohland and Casillas approached four men who were talking outside the apartment complex, which had external surveillance cameras. Two were standing and two were seated, including Primous, who held an infant on his lap. None of the men were the suspect. ¶ 4 Ohland and Casillas identified themselves as police officers and asked the men how they were doing. Both officers thought one of the men appeared nervous. When that person noticed three other officers approaching, he ran and was chased by those officers. The other men remained and made no sudden moves. Primous remained seated with the infant on his lap. He did not appear nervous or to have a weapon. ¶ 5 Ohland and Casillas announced they were going to pat down the men for weapons. Before the frisk commenced, one of the men handed Ohland a baggie of marijuana. Oh-land then patted down all three men. The search revealed no weapons, but Ohland felt an object in Primous’s pocket, which turned out to also be a baggie of marijuana. ¶ 6 Primous was charged with misdemean- or marijuana possession. He moved to suppress the marijuana as the product of an unlawful search. After an evidentiary hearing, the trial court concluded the “officers had a reasonable suspicion that criminal activity may be afoot” and “appropriately decided to perform a pat-down search for officer safety.” Assessing the “totality of the circumstances,” the court noted “the conduct of the one individual who ran, coupled with the reason for [the officers’] encounter with the group, the dangerousness of the area, the number of individuals remaining compared to the number of officers, and the cameras.” Based on those factors, the trial court denied the motion. Primous was convicted following a bench trial and placed on one year of unsupervised probation. ¶7 The court of appeals affirmed. The court applied a two-step analysis to assess the propriety of the frisk: whether officers reasonably suspected that the person who was searched (1) was committing or had committed an offense and (2) was armed and dangerous. State v. Primous, 239 Ariz. 394, 396 ¶ 9, 372 P.3d 338, 340 (App. 2016) (citing Arizona v. Johnson, 666 U.S. 323, 326-27, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009)). As to the second prong, the court considered “whether a reasonably prudent [officer] in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Id. (citing Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). ¶ 8 The court of appeals framed the issue as “whether the suggestion of wrongdoing created by Defendant’s companions justified a frisk of Defendant, who remained seated and gave no indication of complicity in either the flight or the drug possession.” Id. ¶ 11. The court concluded that “[c]ompanionship with a suspected criminal may, in view of the totality of the circumstances, justify a protective stop and frisk even absent a particularized reasonable suspicion that the person to be searched is committing or has committed a crime.” Id. at 397 ¶ 13, 372 P.3d at 341. Based on the facts identified by the trial court, the court of appeals determined that the frisk was justified and affirmed the trial court’s ruling. Id. at 397-98 ¶¶ 14-16, 372 P.3d at 341-42. ¶ 9 We granted review because identifying the circumstances that may justify a pat-down search involves recurring legal issues of statewide importance. We have jurisdiction under article 6, section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24. II. DISCUSSION ¶ 10 We review rulings on motions to suppress for abuse of discretion, considering only the evidence presented at the suppression hearing and viewing it in the light most favorable to sustaining the trial court’s ruling. State v. Butler, 232 Ariz. 84, 87 ¶ 8, 302 P.3d 609, 612 (2013). “An error of law constitutes an abuse of discretion.” State v. Bernstein, 237 Ariz. 226, 228 ¶ 9, 349 P.3d 200, 202 (2016). We review the constitutionality of the frisk de novo. See State v. Havatone, 241 Ariz. 506, 509 ¶ 11, 389 P.3d 1251, 1254 (2017). A. The Frisk ¶ 11 Although a frisk is less intrusive than a full-body search, the Fourth Amendment prohibits any search of an individual unless the police have a reasonable belief that crime is afoot and the individual is armed and dangerous. The controlling Arizona case is State v. Serna, 235 Ariz. 270, 331 P.3d 405 (2014), which neither the State nor the court of appeals cited. There this Court held that in the context of a consensual encounter, “an officer may frisk an individual only when the officer possesses both a reasonable suspicion that the person to be searched has engaged or is about to engage in criminal activity and a reasonable belief that the person is armed and dangerous.” Id. at 276 ¶ 28, 331 P.3d at 411 (emphasis added). Reasonable suspicion in turn requires “a particularized and objective basis” for the suspicion. Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). ¶ 12 In Serna, police were patrolling a known gang neighborhood at night and encountered a man and woman standing in the middle of the street. 235 Ariz. at 271 ¶ 2, 331 P.3d at 406. As the patrol car approached, the duo walked in opposite directions, and the officers engaged defendant Serna in a consensual encounter. Id. He was polite and cooperative. Id. at 272 ¶ 3, 331 P.3d at 407. The officers noticed a bulge in his waistband, which Serna disclosed was a gun. Id. The officers removed the gun and patted him down. Id. In response to the officers’ subsequent questioning, Serna admitted that he had a felony conviction. Id. This Court reversed the trial court’s denial of Serna’s motion to suppress the gun in a prosecution for prohibited possession of a firearm by a convicted felon. Id. at 272 ¶ 4, 277 ¶ 30, 331 P.3d at 407, 412. Because there was no reasonable suspicion that Serna was engaged in criminal activity, we concluded that “the mere presence of a weapon does not afford officers constitutional permission to search weapons-carrying individuals. To conclude otherwise would potentially subject countless law-abiding citizens to pat-downs solely for exercising them right to carry a firearm.” Id. at 275 ¶ 23, 331 P.3d at 410. ¶ 13 The State seemingly agrees that nothing Primous did or said gave rise to a reasonable suspicion that he was engaged in criminal activity or was armed or dangerous. He was not the suspect police were seeking. When police approached, he was seated with an infant on his lap, talking -with three other men. He did not react in a suspicious manner to the police encounter or when one of the other men ran away. He was cooperative. In sum, Primous gave the police no justification to search him. Any other justification could only have arisen from the surrounding circumstances. ¶ 14 In approving the frisk, the trial court relied on five circumstances, the “totality” of which it considered to give rise to reasonable suspicion that “crime was afoot”: (1) the individual who ran, (2) the reason for the police encounter with the group, (3) the dangerousness of the area, (4) the number of individuals remaining at the scene compared to the number of officers, and (5) the surveillance cameras. From these same circumstances, the court of appeals concluded “we cannot say that [the officer] unreasonably suspected that Defendant might be armed and dangerous.” Primous, 239 Ariz. at 397 ¶ 14, 372 P.3d at 341. We disagree. ¶ 15 What is striking about the five factors relied upon by the courts below is that Primous had control over none of them. Although “[t]he officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or others was in danger.” Terry, 392 U.S. at 27, 88 S.Ct. 1868. The ultimate inquiry is whether police have reasonable suspicion that the person searched was either engaged in criminal activity or armed and dangerous. Serna, 235 Ariz. at 276 ¶ 28, 331 P.3d at 411. The surrounding circumstances here do not sufficiently suggest that Primous was engaged in crime or that he was armed and dangerous to justify a pat-down for weapons. ¶ 16 The court of appeals justified the frisk largely on Primous’s fleeing companion, holding that “[c]ompanionship with a suspected criminal may, in view of the totality of the circumstances, justify a protective stop and frisk even absent a particularized reasonable suspicion that the person to be searched is committing or has committed a crime.” Primous, 239 Ariz. at 397 ¶ 13, 372 P.3d at 341 (citing Trice v. United States, 849 A.2d 1002, 1004, 1008-09 (D,C.App. 2004); United States v. Flett, 806 F.2d 823, 827-28 (8th Cir.1986)). Thus, “[d]espite Defendant’s passivity and the absence of any objective evidence of criminal collusion with his companions,” the court of appeals could not “say that [Officer] Ohland unreasonably suspected that Defendant might be armed and dangerous.” Id. ¶ 14. ¶ 17 The court of appeals’ analysis understates the personalized and particularized showing required by the Fourth Amendment. Analysis of the United States Supreme Court’s jurisprudence shows that more is required than appears here. In Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), for example, a search warrant was executed for a bar and bartender suspected of selling heroin. The police frisked all of the bar’s patrons for weapons, finding heroin in defendant Ybarra’s pocket. Id. at 88-89, 100 S.Ct. 338. Upon entering the tavern, the police did not recognize Ybarra and had no reason to believe that he had committed, was committing, or was about to commit any offense under state or federal law. Ybarra made no gestures indicative of criminal conduct, made no movements that might suggest an attempt to conceal contraband, and said nothing of a suspicious nature to the police officers. In short, the agents knew nothing in particular about Ybarra, except that he was present, along with several other customers, in a public tavern at a time when the police had reason to believe that the bartender would have heroin for sale. Id. at 90-91, 100 S.Ct. 338. The Court concluded that “a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.” Id. at 91, 100 S.Ct. 338. ¶ 18 Moreover, the police “neither recognized [Ybarra] as a person with criminal history nor had any particular reason to believe that he might be inclined to assault them.” Id. at 93, 100 S.Ct. 338. His “hands were empty” and he “gave no indication of possessing a weapon, made no gestures or other actions indicative of an intent to commit an assault, and acted generally in a manner that was not threatening.” Id. The Court thus concluded that the frisk “was simply not supported by a reasonable belief that he was aimed and presently dangerous, a belief which this Court has invariably held must form the predicate for a pat-down of a person for weapons,” Id. at 92-93, 100 S.Ct. 338. ¶ 19 As in Ybarra, the facts surrounding the police encounter with Primous did not generate the requisite personalized and particularized reasonable suspicion that he was engaged in crime or was presently armed and dangerous. The encounter took place in broad daylight. None of the men were the suspect who occasioned the police presence. Once one of the men fled, the remaining men, including Primous who was seated with an infant on his lap, exhibited no hostile, furtive, or even uncooperative behavior. Primous had been talking with the man who ran, but that mere proximity or companionship did not suggest Primous was engaged in criminal activity or dangerous. The surveillance cameras could have been intended to protect apartment dwellers against crime rather than the police, and in any event did not suggest Primous was dangerous. In sum, nothing about the environment gave rise to a reasonable suspicion that Primous was involved in a crime, much less that he was aimed and dangerous to police officers. ¶ 20 Nor were Primous and his companions acting in concert in such a way as to give rise to a reasonable suspicion that they all were engaged in a criminal activity and might be armed and dangerous. See Flett, 806 F.2d at 828 (holding that frisk was appropriate where subject of arrest was an “enforcer” for a violent gang and companion was dressed in gang attire and identified as a member); cf. Bernini v. City of St. Paul, 665 F.3d 997, 1003-04 (8th Cir.2012) (arrest appropriate where the “group was acting as a unit” and “the group, as a whole, was committing one or more offenses”). Here, Primous and his companions were engaged in no apparent concerted action other than conversation. ¶ 21 Cases relied upon by the court of appeals or the State are either distinguishable or overtaken by Ybarra. See, e.g., United States v. Berryhill, 445 F.2d 1189, 1193 (9th Cir.1971) (pre-Ybarra case allowing frisk of a criminal’s companion at time of arrest); United States v. Bell, 762 F.2d 495, 500-02 (6th Cir.1985) (holding search was permissible where car containing defendant was driven by a person suspected of being armed and dangerous, defendant generally matched description of criminal accomplice, defendant was uncooperative, and there was risk to bystanders in the crowded parking lot); Flett, 806 F.2d at 828 (focusing “not [on] whether the officer had an indication that the person armed was dangerous, but rather, whether the officer reasonably perceived the subject of the frisk as potentially dangerous”); Trice, 849 A.2d at 1008 (noting that defendant “appeared to be the companion of a potentially violent, fleeing criminal and not a mere bystander”). Reaffirming and applying the clear two-part test set forth in Serna, we conclude that the facts here were insufficient to support a reasonable suspicion that Primous was involved in a crime and was armed and dangerous. Thus, unsupported by reasonable suspicion, the frisk of Primous violated the Fourth Amendment. ¶ 22 The amici who support Primous ask us to categorically exclude the dangerousness of the surroundings from an officer’s calculus “unless officers can point to a specific attribute of the neighborhood relevant to the particular person and criminal activity under investigation,” on the grounds that such factors are a proxy for race. We decline to do so. ¶23 Although the fact that the encounter occurred in a dangerous neighborhood does not by itself authorize police to pat down people they encounter during an investigation, it is not irrelevant in determining whether an individual suspect is involved in criminal activity and armed and dangerous. In Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), the United States Supreme Court sustained a frisk by police officers who were patrolling an area known for heavy narcotics trafficking where the defendant fled upon seeing the officers. The Court held that “the fact that the stop occurred in a ‘high crime area’ [is] among the relevant contextual considerations in a Terry analysis,” but observed that “[a]n individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.” Id. at 124, 120 S.Ct. 673. ¶ 24 In Wardlow, ample suspicion that the defendant was engaged in criminal activity and was armed and dangerous arose not only from his presence in a high-crime area, but also “his unprovoked flight upon noticing the police.” Id. By contrast, here the question is whether reasonable suspicion justified frisking Primous not because of anything he did or said but because someone else with whom he was conversing fled when police approached, while Primous remained seated and cooperative. The fact that the encounter occurred in a high-crime neighborhood was insufficient to justify the search of an individual who gave no indication that he was involved in a crime or posed an imminent threat to the officers. The Fourth Amendment shields such individuals from pat-downs regardless of their neighborhood. This rule amply protects law-abiding residents of high-crime neighborhoods from being searched solely because of their surroundings. B. Motion to Suppress ¶ 25 The State also argues that the marijuana baggie illegally seized from Pri-mous should not be suppressed as evidence because there would be no deterrent value given that police officers will take whatever steps they deem necessary to protect them safety. See, e.g., Ybarra, 444 U.S. at 108, 100 S.Ct. 338 (Rehnquist, J., dissenting) (observing that excluding evidence will have little deterrent effect where frisk is based “on an officer’s well-honed sense of self-preservation”). We find the argument unpersuasive. Suppressing the illegally seized evidence here helps ensure that frisks are based upon the legitimate factors outlined above and do not devolve into a de facto policy of frisking all individuals with whom police have investigative encounters in high-crime neighborhoods. Cf. Herring v. United States, 555 U.S. 135, 144, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (exclusionary law serves to deter “recurring or systemic” negligence). “While we understand the need for police officers to protect themselves in the course of their duties, we must balance that weighty interest against the ‘inestimable right’ of citizens to be free from unreasonable governmental searches and seizures.” Serna, 235 Ariz. at 276 ¶ 29, 331 P.3d at 411 (citing Terry, 392 U.S. at 8-9, 88 S.Ct. 1868). III. CONCLUSION ¶ 26 Because the sole evidence supporting Primous’s conviction was the product of an illegal search, we vacate the court of appeals’ opinion and reverse Primous’s conviction and probationary term.

OPINION THOMPSON, Judge: ¶ 1 Appellants, John Moreno (John) and his wife Bernadette Bruce-Moreno (Bernadette) (collectively, the Morenos) appeal from the trial court’s order permitting Digital Systems Engineering, Inc. (DSE) to garnish John’s wages in his current marital community with Bernadette, whom he remarried after divorce, to fulfill his liabilities associated with the Morenos’ prior marital community, despite a contrary stipulated judgment tantamount to an agreement by DSE to limit the scope of John’s liability. For the reasons that follow, we reverse the trial court’s order and vacate the garnishment writ. FACTUAL AND PROCEDURAL HISTORY ¶ 2 In April 2007, DSE filed a lawsuit against Bernadette, who is its former employee, and her husband, John. In the lawsuit, DSE alleged that from 2001 to 2006 Bernadette engaged in fraudulent transactions causing DSE nearly $800,000 in damages. DSE sought relief from both Bernadette and John in their individual capacities and from their marital community. After a bench trial in 2008 and 2009, the superior court found that John was not individually liable, and entered judgment, on September 4, 2009, only against his undivided one-half interest in his marital property with Bernadette. ¶ 3 John appealed the judgment and DSE filed a cross-appeal challenging the court’s ruling that John was not individually liable. On appeal, this court affirmed both the judgment on the fraud claim and the determination that John was not individually liable. See Digital Sys. Eng’g, Inc. v. Bruce-Moreno, 1 CA-CV 09-0574, 2010 WL 5030808, at * 7, ¶ 36 (Ariz. App. Nov. 16, 2010). However, we reversed the court’s damages award and remanded the case for further determinations as to the amount of DSE’s damages on the fraud claim and directed that the judgment granted to DSE against John for unjust enrichment be vacated. Id. ¶ 4 Back in the trial court, in April 2011, DSE filed a Request for Judicial Notice, asking the court to take judicial notice of the fact that the Morenos had entered into a marital settlement agreement and that the marriage was dissolved on September 8, 2009. On August 3, 2011, the court took judicial notice, as DSE requested. ¶ 5 Before the trial to determine DSE’s damages, DSE and John entered a stipulated judgment, on September 2, 2011, which the court filed on September 7, 2011. As relevant here, the Stipulated Judgment provided: JUDGMENT IS ENTERED IN FAVOR OF PLAINTIFF [DSE] AND AGAINST JOHN MORENO’S UNDIVIDED ONE-HALF INTEREST IN HIS MARITAL COMMUNITY WITH BERNADETTE BRUCE-MORENO ... THE CLAIM AGAINST JOHN MORENO’S SOLE AND SEPARATE PROPERTY IS DISMISSED WITH PREJUDICE. (Emphasis added.) ¶ 6 The Morenos remarried two years later. In December 2015, DSE served a Writ of Garnishment on John’s employer. The More-nos objected to the garnishment on the grounds that: (1) the Stipulated Judgment is, by its terms, limited to recovery from John’s interest in the prior marital community; (2) under Arizona law, the Morenos’ remarriage after divorce did not “resume” their prior marital community, but instead created a new and distinct community, beyond the reach of the Stipulated Judgment; (3) John’s current wages are property of the new community, and not the prior; and (4) Arizona law supports limiting an innocent spouse’s liability to the community property that existed at the time of any tortious acts. In response, DSE argued that the Stipulated Judgment was a community debt that the Morenos could not discharge in divorce and that John’s wages are garnishable after divorce and remarriage. ¶ 7 A garnishment objection hearing was held on January 26, 2016. Relying on Community Guardian Bank v. Hamlin, 182 Ariz. 627, 898 P.2d 1005 (App. 1995), the superior court denied the Morenos’ objection and affirmed the Writ of Garnishment, ordering that John’s wages “are garnishable.” ¶ 8 The Morenos timely appealed the ruling. We have jurisdiction pursuant to Arizona Revised Statutes (AR.S.) sections 12-120.21 (2016) and ~2101(5)(c) (2016). DISCUSSION ¶ 9 In relying on Hamlin in ruling John’s wages are garnishable, the court specifically found that: [P]ursuant to Community Guardian Bank v. Hamlin, 182 Ariz. 627, 898 P.2d 1005 (Ariz. App. 1995), separate wages of a spouse can be garnished to satisfy the community obligation. The fraud claim created a community obligation for which John Moreno is jointly liable. Id. Divorce does not absolve spouses of community obligations, and a judgment creditor has the right to pursue collection from both spouses including garnishing wages to satisfy a community obligation. Id. Because the court’s ruling raises issues of law, we review de novo. Citibank (Arizona) v. Bhandhusavee, 188 Ariz. 434, 435, 937 P.2d 356, 357 (App. 1996). Ultimately, we hold that the trial court erred by relying on Hamlin in this context, and in simultaneously disregai'd-ing community property distinctions. ¶ 10 We first address certain preliminary matters to clarify the arguments presented on appeal. DSE mischaracterizes the More-nos’ argument in objecting to its garnishment of John’s current wages. On appeal, DSE essentially purports that the Morenos ask this court to find that divorce and remarriage terminated John’s obligation under the Stipulated Judgment. Not only would such an argument be unsupported by the chronological order of the facts in this case, it would broaden the scope of the issues the Morenos actually present. The record clearly shows the Morenos were divorced two years prior to the Stipulated Judgment. Thus, contrary to inferences that may be drawn from DSE’s overarching argument, the evidence does not compel the conclusion that the Morenos divorced each other to avoid liability pursuant to a not-yet-existing Stipulated Judgment. As to the Morenos’ related request, as properly presented, they ask this court, as they did the trial court, to limit enforcement of the Stipulated Judgment to its terms. The Stipulated Judgment was rendered specifically against John’s “undivided one-half interest in his marital community with [Bernadette,]” and disclaimed any effort by DSE to execute on John’s separate property. The paramount issue before us is whether the superior court erred in relying on Hamlin for its ruling, which, as the court pronounced, stands for the proposition that “[d]ivorce does not absolve spouses of their community obligations.” Hamlin, 182 Ariz. at 631, 898 P.2d at 1009. ¶ 11 “[Stipulation as to ‘judgment’ necessarily imports a finality of determination of the controversy” between parties. Wolf Corp. v. Louis, 11 Ariz.App. 362, 366, 464 P.2d 672, 676 (1970). “If the trial court’s finding is contrary to a deliberate stipulation, it must fall.” Id. A stipulation “constitutes] an abandonment of any contention to the contrary,” and is foreclosed from being repudiated on appeal. Id. Accordingly, here, the Stipulated Judgment to which both John and DSE consented guides our analysis. ¶ 12 The trial court’s ruling improperly deflects the focus of the Morenos’ objections from the language of the Stipulated Judgment, to an inquiry about whether divorce discharges community liabilities. The court’s ruling also fails to reflect this court’s 2010 ruling limiting John’s liability. See Digital Sys. Eng’g, Inc., 1 CA-CV 09-0674, 2010 WL 5030808, at * 7, ¶ 36 (affirming the ruling that “only [John’s] undivided one-half interest in the marital community is liable for the judgment in this matter”). Moreover, Hamlin concerned a default judgment against a community while the parties were married, in contrast to the Stipulated Judgment here, which occurred after the Morenos had divorced. See Hamlin, 182 Ariz, at 630-31, 898 P.2d at 1008-09. Therefore, it is irrelevant to this appeal. ¶ 13 We agree with the Morenos that the Stipulated Judgment limits DSE’s recovery from John to his “undivided one-half interest” in the only marital community to which the Stipulated Judgment could have referred. See Reese v. Cradit, 12 Ariz.App. 233, 238, 469 P.2d 467, 472 (1970) (stating that when one spouse did not participate in the tort of the other, the innocent spouse may be held liable only as a member of the community and such liability is limited to the extent of the community property “as it existed at the time of the [tort]”). The marital community formed by the remarriage between Bernadette and John in 2013 is a new and distinct community which, by the very terms of the Stipulated Judgment, does not fall within its ambit. See, e.g., Mejak v. Granville, 212 Ariz. 666, 557, ¶ 9, 136 P.3d 874, 876 (2006) (applying the principle of interpreting a document “so that no provision is rendered meaningless, insignificant, or void[,]” to interpretation of a statute); Aztar Corp. v. U.S. Fire Ins. Co., 223 Ariz. 463, 476, ¶ 45, 224 P.3d 960 (App. 2010) (applying similar principles to contract interpretation). ¶ 14 DSE argues that John remarried Bernadette and now “seeks to reinstate the ‘two-dollar bankruptcy1 ” which was repealed by Arizona’s legislature in 1973. See A.R.S. § 25-216 (repealed 1973); AR.S. § 25-215 (2007). The “two-dollar bankruptcy” scheme involves a situation where an individual has separate debts that he then attempts to avoid by pointing to the fact of his subsequent marriage (or remarriage). Here, John has never been determined to be individually liable to DSE—every pertinent judgment, and most importantly, the Stipulated Judgment, foreclosed any possibility of John (or his separate property that had not been a part of the community) being so liable. See supra ¶¶ 2, 3, 5, and 12. Of course, John’s earnings after divorce were his separate property, and after DSE’s own stipulation, DSE could not have reached those earnings while John remained divorced. This point is bolstered by the fact that there is no evidence in the record that DSE attempted to garnish John’s wages pursuant to his liability under the Stipulated Judgment during the time he was unmarried. It thus appears DSE’s Writ of Garnishment rests on some novel legal claim that John’s remarriage to Bernadette reactivates some foregone right to garnish his wages. Such a “reactivation” claim would be without legal grounding. ¶ 15 Therefore, in light of the Stipulated Judgment, we-hold that the trial court erred in ruling that DSE could garnish John’s wages, which constitute community earnings of the marital community existing as of 2018, to satisfy the community liabilities of the marital community that ended in 2009. Further, given our holding, we grant the More-nos attorneys’ fees and costs pursuant to A.R.S. § 12-1598.07 (2016), in an amount to be determined upon compliance with Arizona Rule of Civil Appellate Procedure 21. We deny DSE’s request for attorneys’ fees, as sought pursuant to A.R.S. §§ 12-1698.07 (awarding costs and fees only to the prevailing party), -349 (2016) (allowing for fees where a party “[b]rings or defends a claim without substantial justification,” among other things), and 13-2314.04 (2010) (discussing civil remedies a private person injured by racketeering may obtain). CONCLUSION ¶ 16 For the foregoing reasons, we reverse the trial court’s order rendering John’s current wages garnishable. We vacate the Writ of Garnishment. . The superior court originally entered judgment in July 2009. It amended that judgment in September 2009 because the original judgment incorrectly stated that John had been found individually liable. . We cite the current version of the applicable statutes, unless revisions material to this decision have occurred since tire events in question. . Any argument that DSE may posit suggesting that John divorced Bernadette to avoid his liability pursuant to the Stipulated Judgment is speculative at best. In fact, John’s position on appeal is that "the Stipulated Judgment [declaring his liability] remains in effect.” It is also noteworthy that DSE knew of the divorce prior to consenting to the Stipulated Judgment. . Stating "[t]he community property is liable for the premarital separate debts or other liabilities of a spouse, incurred after September 1, 1973 but only to the extent of the value of that spouse's contribution to the community property which would have been such spouse's separate property if single." (Emphasis added.)

OPINION BROWN, Judge: ¶ 1 Jessie T. appeals the juvenile court’s delinquency adjudication finding that he committed animal cruelty in violation of Arizona Revised Statutes (“A.R.S.”) section 13-2910(A)(9) (subjecting an animal to cruel mistreatment), a class six felony. Because we conclude that the State failed to present sufficient evidence to support the court’s adjudication, we modify the adjudication to reflect that Jessie committed the lesser-included offense of inflicting unnecessary physical injury to any animal, a class one misdemeanor, in violation of A.R.S. § 13-2910(A)(3). BACKGROUND ¶2 Police detectives discovered a Face-book photo of Jessie holding a pellet gun in one hand and a black cat by its tail in the other. The detectives also observed photos of a subsequent mutilation of what appeared to be the same cat. Jessie later admitted to a police officer that he shot the cat and did so “because it was a stray, and it was black.” Jessie also admitted that after the shooting, he took pictures of a female friend disemboweling the cat. ¶ 3 The State filed a delinquency petition alleging Jessie intentionally or knowingly subjected an animal to cruel mistreatment in violation of A.R.S. § 13-2910. A person commits cruelty to animals if the person ... [intentionally or knowingly subjects any animal to cruel mistreatment. “Cruel mistreatment” means to torture or otherwise inflict unnecessary serious physical injury on an animal or to kill an animal in a manner that causes protracted suffering to the animal. A.R.S, § 13-2910(A)(9), (H)(2). ¶ 4 At the adjudication hearing, after the close of the State’s evidence, Jessie moved for a judgment of acquittal pursuant to Rule of Procedure for the Juvenile Court 29(D)(2). The State responded that it had made a “showing beyond a reasonable doubt” because “[Jessie] did cause reasonable risk of death or serious injury to the eat, because he shot the cat and killed it.” The court denied the motion, ¶5 In its closing argument, the State asked the juvenile court to focus on “inflicting unnecessary physical injury to an animal” and argued that Jessie “did create a reasonable risk of death or serious impairment, because he actually killed the cat.” The State highlighted the Facebook photo of Jessie holding the cat by the tail as evidence that he “actually did kill the cat." Alternatively, the State argued that if it had failed to meet its burden of proving Jessie subjected the cat to cruel mistreatment under A.R.S. § 13-2910(A)(9), the court should adjudicate him delinquent for violating A.R.S. § 13-2910(A)(3), as a lesser-included offense that prohibits unnecessarily inflicting “physical injury” to any animal. Defense counsel countered that “killing an animal and causing serious physical injury [are] not the same.” Counsel also pointed to the distinct elements of “killing” and “serious physical injury” within the statute to support his argument. The State responded that it was only attempting to prove that Jessie inflicted serious physical injury upon the cat—an injury that created a reasonable risk of death as evidenced by the cat’s actual death. ¶ 6 The juvenile court found Jessie delinquent for subjecting the cat to cruel mistreatment by shooting it with a pellet gun. The court explained that it “d[id] not know which injury ultimately caused the death of the eat, but [found] that [Jessie’s] act of shooting the cat constituted ‘serious physical injury5 as contemplated by A.R.S. § 13-2910(H)(2) and A.R.S. § 13-105(39).” The court placed Jessie on probation and, over his objection, designated the offense a felony. This timely appeal followed, DISCUSSION ¶ 7 Jessie admits he shot the cat with a pellet gun, but contends that the juvenile court erred when it found him delinquent for cruel mistreatment because there was no evidence the eat suffered before it died. He argues that “the purpose of [A.R.S. § 13-2910(A)(9) ] is clearly to prevent the suffering of animals as each method of inflicting cruel mistreatment ... requires suffering.” The State does not address Jessie’s statutory construction argument but summarily contends that by shooting the cat, Jessie inflicted serious physical injury because the cat died. Although the State was not required to prove “suffering” to support a delinquency finding under A.R.S. § 13-2910(A)(9), the State was required to prove that the pellet gun shot resulted in serious physical injury to the cat, and not merely that the cat died. ¶ 8 When reviewing a challenge to the sufficiency of the evidence, we do not reweigh the evidence but review the evidence in the light most favorable to upholding the adjudication. In re Kyle M., 200 Ariz. 447, 448, ¶ 6, 27 P.3d 804 (App. 2001). We will reverse for insufficient evidence only when there is a “complete absence of probative facts to support a judgment or when a judgment is clearly contrary to any substantial evidence.” Id. at 448-49, ¶ 6, 27 P.3d 804. ¶ 9 We review de novo the interpretation of statutes. Id. at 448, ¶ 6, 27 P.3d 804. Our primary goal is to fulfill the purpose of the statutory provisions at issue. State v. Cabrera, 202 Ariz. 296, 299, ¶ 14, 44 P.3d 174 (App. 2002). If the statutory language is clear and unambiguous, we give it effect and do not employ other rules of statutory construction to discern the legislature’s intent. State v. Christian, 205 Ariz. 64, 66, ¶ 6, 66 P.3d 1241 (2003). We also consider the statutory scheme as a whole and presume that the legislature does not include statutory provisions that are “redundant, void, inert, trivial, superfluous, or contradictory.” State v. Moerman, 182 Ariz. 255, 260, 895 P.2d 1018 (App. 1994), A, Cruel Mistreatment—Serious Physical Injury ¶ 10 To support a delinquency finding for cruel mistreatment of an animal, the State was required to prove that (1) Jessie tortured or otherwise inflicted unnecessary serious physical injury on the cat, or (2) he killed the cat in a manner that caused protracted suffering. A.R.S. § 13-2910(A)(9), (H)(2). Because the State did not attempt to show that Jessie tortured the cat or killed it in a manner causing protracted suffering, we focus only on whether the State established beyond a reasonable doubt that Jessie inflicted unnecessary serious physical injury. ¶ 11 “Serious physical injury includes physical injury that creates a reasonable risk of death, or that causes serious and permanent disfigurement, serious impairment of health or loss or protracted impairment of the function of any bodily organ or limb.” A.R.S. § 13-105(39) (emphasis added) (internal quotations omitted). “Serious physical injury” is an element of the offense that must be separately established beyond a reasonable doubt. See State v. George, 206 Ariz. 436, 441-42, ¶¶ 10-14, 79 P.3d 1050 (App. 2003). ¶ 12 According to the State, Jessie’s admission that he intentionally shot the cat was sufficient to show he inflicted an injury on the eat and thereby created a reasonable risk of death. The State does not contend that Jessie caused the cat to suffer disfigurement, serious impairment of health, loss of limb or bodily organ, or protracted impairment of the function of any limb or bodily organ. For this reason, our focus is further limited to whether the State proved the cat suffered a significant injury that was sufficient to create a reasonable risk of death. ¶ 13 The plain language of the cruel mistreatment subsections at issue, A.R.S. § 13-2910(A)(9), (H)(2), indicates that killing an animal without proof of protracted suffering does not equate to causing serious physical injury. State v. Williams, 175 Ariz. 98, 100, 854 P.2d 131 (1993) (recognizing that “best and most reliable index of a statute’s meaning” is its language). Killing an animal does not constitute cruel mistreatment unless the killing causes protracted suffering. See State v. Pitts, 178 Ariz. 405, 407, 874 P.2d 962 (1994) (“When possible, we interpret statutes to give meaning to every word.”). Accepting the State’s argument that evidence of death alone is sufficient to constitute “reasonable risk of death” would stretch the scope of the animal cruelty statute beyond its plain meaning. If the legislature intended that killing an animal without causing protracted suffering be categorized as cruel mistreatment, it presumably could have done so, but did not. Instead, the legislature’s drafting choice shows that the crime of cruel mistreatment to animals requires proof of torture, serious physical injury, or killing with protracted suffering. ¶ 14 Moreover, the use of “serious physical injury” (A.R.S. § 13-2910(A)(9),(H)(2)) and “physical injury” (A.R.S. § 13-2910(A)(3)) to distinguish offenses within the animal cruelty statute is consistent with the statutory construction of the assault statutes, A.R.S. §§ 13-1203, -1204. Thus, this court’s analysis in George, in which we considered the legal difference between “serious physical injury” and “physical injury” in the context of an aggravated assault conviction and a gunshot wound, is instructive. 206 Ariz. 436, 79 P.3d 1050. ¶ 15 The defendant in George shot a woman, causing a bullet to pass from the right side of her neck through her right underarm. Id at 439, ¶ 2, 79 P.3d 1050. Evidence presented at trial showed the victim lost a significant amount of blood, some sensation, strength and muscle control to her right arm, and “had not regained full function of her arm during her two-day hospital stay.” Id at 440, ¶ 4, 79 P.3d 1050. Her physician, however, “refused to speculate on whether that impairment would be temporary, protracted, or permanent.” Id Noting that the State “presented no evidence that the injury itself had exposed [the victim] to a reasonable risk of death or had caused her to suffer serious or permanent disfigurement,” id at 440, ¶ 5, 79 P.3d 1050, we held it was insufficient to support a finding of serious physical injury because there was “no evidence that [the •victim’s] injuries had caused her to suffer a sustained impairment of her health or a protracted impairment of the use of her arm,” id at 442, ¶ 13, 79 P.3d 1050. Construing A.R.S. § 13-105(39), we explained that the legislature had enacted a tiered sentencing scheme based upon the severity of the injury, and “that the legislature intended serious physical injury to refer to an injury more serious than those injuries justifying a mere nondangerous, class four felony classification.” George, 206 Ariz. at 441, ¶¶ 8, 9, 79 P.3d 1050 (citations and internal quotations omitted); see also State v. Martinez, 220 Ariz. 56, 58, ¶ 10, 202 P.3d 521 (App. 2008) (applying George and noting the tiered structure of punishment is based on the severity of the injury). ¶ 16 Similar to the statutory analysis in George, we construe the Arizona animal cruelty statute to give meaning to the tiered offenses the legislature created. The legislature has indicated that a person commits cruel mistreatment of an animal if there is evidence of torturing, serious physical injury, or death with protracted suffering. If such evidence is lacking, the legislature has imposed a less severe penalty, a class one misdemeanor, for a person who “inflicts unnecessary physical injury” on an animal. See A.R.S. § 13-2910(A)(3). ¶ 17 The State’s presentation of evidence and its arguments to the juvenile court, as well as its position on appeal, focused solely on the theory that Jessie created a reasonable risk of death simply by shooting the eat with a pellet gun. The juvenile court, however, was unable to determine the effect of the pellet gunshot. Although a reasonable inference can be drawn that the cat was injured in some manner by the shot from the pellet gun, see infra ¶ 21, on this record the same inference cannot be drawn to establish, beyond a reasonable doubt, that Jessie created a reasonable risk of death by shooting the cat. See George, 206 Ariz. at 442, ¶ 14, 79 P.3d 1050 (“[Ajlthough a gunshot wound may, in most circumstances, result in severe injuries that seriously impair the victim’s health, the mere fact that a victim has been shot, without more, does not warrant that finding.”). Without evidence establishing the seriousness of the injury, the State necessarily failed to prove an element of the offense. See id. at ¶ 6 (explaining that “the state presented no evidence that the injury itself had exposed [the victim] to a reasonable risk of death”) (emphasis added); see also A.J.R. v. State, 3 N.E.Sd 1000, 1006-07 (Ind. Ct. App. 2014) (holding, in a juvenile adjudication for animal cruelty, that the Indiana statute “[could] not be fairly interpreted so as to include any injury that results in the death of the animal,” but that “the type of injury is a key component of and necessary condition to making a determination of [cruelty].”) (citation omitted). Because no reasonable evidence in this record establishes that Jessie caused an unnecessary serious physical injury to the cat, the adjudication for cruel mistreatment of an animal cannot be sustained. ¶ 18 The dissent would sua sponte raise accomplice liability as a basis for finding that the State met its burden of proving that Jessie committed cruel mistreatment. See infra ¶ 29. The dissent relies on the well-recognized legal principle in civil cases that we may affirm the superior court’s decision “even if the trial judge was right for the wrong reasons.” See infra ¶ 28. But the dissent cites no authority suggesting such principle may be applied to affirm a criminal conviction on a theory never raised in the juvenile court. See U.S. Const, amend. YI (“In all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation.”); see also State in Interest of D.B., 289 P.3d 459, 471, ¶ 44 (Utah 2012) (noting that the Sixth Amendment is satisfied when a defendant (1) receives adequate notice that the State is pursuing accomplice liability and (2) the State has not affirmatively misled the defendant) (internal citations omitted). By intentionally narrowing its theory of proof, see supra ¶¶ 10, 12, the State necessarily rejected a theory of accomplice liability. Applying a new theory of criminal liability on appeal, sua sponte, to sustain the delinquency adjudication would violate Jessie’s constitutional right to due process. Cf. State v. Alvarado, 178 Ariz. 539, 544, 875 P.2d 198 (App. 1994) (deciding in the context of a bench trial “whether the verdict was based on the right or the wrong legal theory argued by the State would have the appearance of giving the State a second try at convicting Appellant without giving Appellant the due process of a second trial”). ¶ 19 Moreover, we cannot affirm an adjudication “when there is a complete absence of probative facts to support a judgment,” Kyle M., 200 Ariz. at 448-49, ¶ 6, 27 P.3d 804. According to the officer, Jessie admitted photographing the mutilation of the cat; however, the State did nothing to suggest it was relying on the admission as an alternative theory of proof to establish accomplice liability. Cf. State v. Woods, 168 Ariz. 543, 544, 815 P.2d 912 (App. 1991) (“In Arizona, being an accomplice is not a separately chargeable offense; it is merely a theory that the state may utilize to establish the commission of a substantive criminal offense.”). Nor did the State seek to prove that Jessie’s friend committed cruel mistreatment as a principal by mutilating the cat while it was still alive, as there was no evidence presented as to when the mutilation occurred. See State v. Hickle, 133 Ariz. 234, 238, 650 P.2d 1216 (1982) (“[T]o prove accomplice liability, the State must show that [the defendant] participated or aided the planning or commission of the crime.... His presence at the scene of the crime is not necessarily enough.”). Nor did the juvenile court give any indication it was relying on Jessie’s act of photographing the mutilation to find that he was an accomplice to the cruel mistreatment offense. ¶ 20 On this record, the evidence presented by the State was insufficient to prove, beyond a reasonable doubt, that Jessie intentionally or knowingly committed cruel mistreatment in violation of A.R.S § 13-2910(A)(9). B. Lesser-included Offense ¶ 21 Regardless of the extent of the injury caused, Jessie may nonetheless be criminally liable for animal cruelty under the lesser-included offense of A.R.S. § 13-2910(A)(3), a class one misdemeanor. That subsection prohibits intentionally, knowingly, or recklessly inflicting unnecessary physical injury on an animal. “Whether an offense is a lesser-included offense of another crime involves a matter of statutory interpretation which we review de novo.” In re James P., 214 Ariz. 420, 423, ¶ 12, 153 P.3d 1049 (App. 2007). ¶22 A crime is a lesser-included offense of another crime if “it is, by its very nature, always a constituent part of the greater offense, or whether the charging document describes the lesser offense even though it does not always make up a constituent part of the greater offense.” State v. Brown, 196 Ariz. 206, 207, ¶ 5, 986 P.2d 239 (App. 1999). “[F]or one offense to be included within another, greater offense, the greater must have all the elements of the lesser plus at least one additional element.” James P., 214 Ariz. at 424, ¶ 19, 153 P.3d 1049. To sustain a conviction of a lesser-included offense, “[i]t must also be shown that the lesser cannot be committed without always satisfying the corresponding elements of the greater.” Id, ¶ 23 The elements of the felony, cruel mistreatment, are (1) intentionally or knowingly, (2) subjecting an animal (mammal, bird, reptile or amphibian) to, (3) unnecessary serious physical injury (including torture) or killing an animal in a manner that causes protracted suffering to the animal. A.R.S. § 13-2910(A)(9), (H)(1) and (2). The elements of the class one misdemeanor, animal cruelty by infliction of unnecessary physical injury, are (1) intentionally, knowingly, or recklessly, (2) inflicting upon an animal (mammal, bird, reptile or amphibian), (3) unnecessary “impairment of physical condition.” A.R.S. §§ 13-2910(A)(3), (H)(1), -105(33). Because inflicting an unnecessary impairment of physical condition is always a constituent part of the greater offense of cruel mistreatment involving unnecessary serious physical injury, and because cruel mistreatment includes all elements of subsection (A)(3) plus at least one additional element (serious physical injury including torture, or killing with protracted suffering), it is a lesser-included offense of AR.S. § 13-2910(A)(9). ¶ 24 A trier of fact could reasonably infer that shooting the cat was unnecessary, because Jessie admitted he shot the cat for no reason other than it was “black” and a “stray.” A trier of fact could also find that shooting the cat with a pellet gun necessarily caused some type of physical impairment. Thus, we conclude there was sufficient evidence to find beyond a reasonable doubt that Jessie committed animal cruelty, in violation of A.R.S. § 13-2910(A)(3). See Ariz. R. Crim. P. 31.17(d) (stating that when an appellate court finds that the evidence introduced at trial is not legally sufficient to support a conviction, but is legally sufficient to establish the defendant’s guilt of a lesser-included offense, it may modify the judgment to reflect a conviction for the lesser-included offense and remand for resentencing); George, 206 Ariz. at 442, ¶ 14, 79 P.3d 1050 (modifying judgment because evidence was insufficient to support the conviction for aggravated assault causing serious physical injury but was sufficient to support the lesser-included offense of assault causing temporary but substantial impairment). CONCLUSION ¶ 25 Based on the foregoing, we conclude that insufficient evidence exists to establish that Jessie committed an act of cruel mistreatment; however, we modify the juvenile court’s delinquency adjudication to reflect that Jessie is delinquent for violating A.R.S. § 13-2910 (A)(3), as a class one misdemean- or. . Although A.R.S. § 13-105 was later amended for technical reasons, the changes are immaterial to our analysis. . In George, we also recognized that because the legislature apparently modeled its definition of "serious physical injury” after the Model Penal Code, the legislature intended to describe "drastic harms” and injuries of "extreme gravity.” 206 Ariz. at 441, ¶ 12, 79 P.3d 1050 ("The distinction between bodily injury [for simple assault] and serious bodily injury is one of the chief determinants of grading under the assault offense.... This differential [in punishment range] is appropriate in light of the very broad coverage achieved under the lesser requirement and the extreme gravity of injury punished under the greater.” (quoting Model Penal Code and Commentaries § 211.1 cmt. 3 (1980))). Those same considerations apply to the animal cruelty statute. . The State does not raise this argument on appeal; however, pursuant to Ariz. R. Crim. P. 31.17(d), we may consider whether section 13-2910(A)(3) is a lesser-included offense of section 13-2910(A)(9) and whether the evidence was legally sufficient to establish that Jessie committed the purported lesser-included offense.

OPINION CAMPBELL, Judge: ¶ 1 Following a jury trial, Paul Patrick Wayne Clow was convicted of a single count of continuous sexual abuse of a child. On appeal, Clow argues the court misinterpreted Adzona Revised Statutes (“A.R.S.”) section 13-1417(A) (2010) , which requires the sexual conduct to span a period of three months. This is the sole issue addressed in this opinion. For the reasons that follow, we affirm. FACTS AND PROCEDURAL BACKGROUND ¶ 2 In July 2014, Clow placed an ad to rent out two rooms of his house. The ad specifically stated that the space would accommodate a single-parent family, The victim’s mother (“Mother”) was the first person to respond to the ad, and she and her three sons, T.F, (age 10), J.F. (age 7—the victim), and A.F. (age 5), moved in on August 2, 2014. Because Mother did not have rent money at the time of move-in, Clow agreed that Mother could pay rent as soon as she was able. ¶ 3 Mother testified at trial that within a “couple [of] days,” she began a sexual relationship with Clow, and Clow let the rent “slide.” Clow also immediately became involved with the children, taking them to parks, stores, and other outings. Clow also supervised the children while Mother interviewed for jobs. By the end of August, Clow regularly participated in the children’s bath and bedtime routines, including lying down with the children and “rubfbing] their back[s] [to] help them to fall asleep.” ¶ 4 On November 9, 2014, while driving in the car with the children, Mother asked the victim whether Clow had ever told him “to keep secrets from mommy.” The victim answered “yes.” When Mother asked what type of secrets, the victim answered that Clow had told him how to have sex. At that point, Mother stopped the car and spoke with the victim outside the presence of the other children. Mother asked the victim whether Clow had touched him inappropriately and the victim stated that Clow had touched his penis both over and under his clothing. ¶ 5 Mother immediately contacted the police. The next day, Detective P.E. conducted a forensic interview of the victim. In response to questioning, the victim said Clow had touched his “private part,” and pointed to his genitals. Detective P.E. asked when the touching started and he responded “August 1st.” When asked about the frequency of the touching, the victim said Clow either touched the victim’s penis or rubbed his own erect penis against the victim “every day.” ¶ 6 The State charged Clow with one count of continuous sexual abuse of a child. At trial, the victim testified that Clow repeatedly touched and rubbed his penis and did so “[ajbout 24 times.” During follow-up questioning, the victim clarified that he was unsure of the exact number of times, but knew it happened “a lot.” Initially, the victim testified that he did not know when the molestation began, but, later, recalled that he had told Detective P.E. the touching started at the beginning of August 2014, and confirmed that he had told her the truth. The victim testified that Clow touched his penis every day until Mother reported the touching to the police. Mother testified that she reported the touching to the police on November 9, 2014. ¶ 7 After a five-day trial, the jury convicted Clow as charged. The court sentenced Clow to a term of twenty-five years’ flat time in prison, an aggravated sentence. Clow timely appealed. We have jurisdiction pursuant to A.R.S. § 12-120,21(A)(1) (2016), A.R.S. §§ 13-4031 (2010), -4033(A)(1) (2010). DISCUSSION ¶ 8 Clow argues the State presented insufficient evidence to sustain his conviction for continuous sexual abuse of a child. Specifically, Clow contends he did not sexually abuse the victim for “a period of three months or more” as required under the relevant statute, A.R.S. § 13-1417(A), an issue he raised in his motion for judgment of acquittal. See Ariz. R. Crim. P. 20. ¶ 9 We review a trial court’s denial of a Rule 20 motion for a judgment of acquittal de novo. State v. West, 226 Ariz. 559, 562, ¶ 15, 250 P.3d 1188, 1191 (2011) (citation omitted). “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 562, ¶ 16, 250 P.3d at 1191 (quotations and citations omitted). Sufficient evidence upon which a reasonable jury can convict may be direct or circumstantial. Id. (citation omitted). A judgment of acquittal is appropriate only when “there is no substantial evidence to warrant a conviction.” Ariz. R. Crim. P. 20(a). ¶ 10 We also interpret statutes de novo. State v. Neese, 239 Ariz. 84, 86, ¶ 8, 366 P.3d 561, 563 (App. 2016) (citation omitted). When the language of a statute is clear, “we need not look further to determine the statute’s meaning and apply its terms as written.” State v. Lee, 236 Ariz. 377, 383, ¶ 16, 340 P.3d 1085, 1091 (App. 2014) (citation omitted). Unless the legislature clearly expresses an intent to give a term a special meaning, we ascribe the plain and ordinary meaning to statutory terms. State v. Dixon, 216 Ariz. 18, 20, ¶ 7, 162 P.3d 657, 659 (App. 2007) (quotation and citation omitted). “In determining the ordinary meaning of a word, we may refer to an established and widely used dictionary.” State v. Mahaney, 193 Ariz. 566, 568, ¶ 12, 975 P.2d 156, 158 (App. 1999) (citation omitted). ¶ 11 As applicable here, “[a] person who over a period of three months or more in duration engages in three or more acts [of sexual conduct, sexual assault, or molestation] with a child who is under fourteen years of age is guilty of continuous sexual abuse of a child.” A.R.S. § 13-1417(A). Clow does not challenge the jury’s finding that he perpetrated at least three qualifying acts of sexual abuse against the victim or that the victim is a child under fourteen years of age. Instead, his challenge is confined to the meaning of the phrase “over a period of three months or more in duration.” ¶ 12 According to Clow, the term “month” is defined “as the entirety of the month,” such that “portions of differing months” may not be combined to constitute a month. Applying this definition to the facts, Clow contends he only had access to the victim during two entire “months,” September and October 2014, and during the “portions” of August and November 2014 when the victim’s family shared his home. Clow contends that the portions of August and November cannot be added together to comprise an additional “month” within the meaning of A.R.S. § 13-1417(A). ¶ 13 Title 13 does not expressly define “month.” Common definitions of “month” include: (1) one of the twelve divisions of a year; (2) a period extending from a date in one calendar month to the corresponding date the next month; (3) four weeks; and (4) thirty days. Webster’s II New College Dictionary (3d ed. 2005). Under Clow’s interpretation of A.R.S. § 13-1417(A), “month” is defined as one of the twelve divisions of a year. Although that is a common definition for the term, in application here, such a construction is untenable. See State v. Barragan-Sierra, 219 Ariz. 276, 282, ¶ 17, 196 P.3d 879, 885 (App. 2008) (explaining courts “employ a common sense approach” to interpreting a statute, “reading the statute in terms of its stated purpose and the system of related statutes of which it forms a part, while taking care to avoid absurd results”) (citations omitted), ¶ 14 For example, under Clow’s interpretation, a person who commences sexual abuse of a child on January 2nd and continues to abuse that child daily until April 29th (118 days) would not be guilty of continuous sexual abuse of a child because the duration of the abuse included only two full “months.” In contrast, a person who commences sexual abuse of a child on January 1st and continues to abuse the child daily until March 31st (90 days) would be guilty of continuous sexual abuse of a child because the period of abuse encompassed three full “months.” Thus, Clow’s interpretation operates to exclude sexual abuse that occurs for a duration greater than 90 days, but involves partial calendar months, and such a reading is therefore inconsistent with the intent of the legislation. ¶ 15 Adopting any of the three remaining common definitions, see supra ¶13, on the other hand, would lead to consistent, logical results. Therefore, to avoid an absurd result, we conclude a “month,” for purposes of A.R.S. § 13-1417(A), is a period extending from a date in one calendar month to the corresponding date the next month. See A.R.S. § 1-211(C) (2016) (“Penal statutes shall be construed according to the fair import of their terms, with a view to effect their object and to promote justice.”); A.R.S. § 1-215, -(23) (Supp. 2016) (if not otherwise expressed, defining “ ‘month’ ” to mean calendar month unless “context otherwise requires”). ¶ 16 In this ease, the record reflects that the victim’s family moved in with Clow on August 2, 2014. The victim testified that the sexual abuse began in early August and did not end until Mother reported the abuse to the police, which other evidence shows occurred on November 9, 2014. This trial record provides sufficient evidence from which a reasonable jury could find that Clow began sexually abusing the victim by August 9, 2014, and continued sexually abusing the victim until November 9, 2014. Therefore, because the trial evidence was sufficient to support the guilty verdict, Clow has not shown the court erred by denying his motion for judgment of acquittal. CONCLUSION ¶ 17 Clow’s conviction and sentence are affirmed. . Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated. . In a separate memorandum decision, State v. Clow, 1 CA-CR 16-0033, 2017 WL 976945 (Ariz. App. March 14, 2017), filed simultaneously with the opinion, we reject Clow’s remaining arguments. Additional factual and procedural history is provided therein. See Ariz. R. Sup. Ct. 111; Ariz. R. of Crim. P. 31.26. .Wc view the facts in the light most favorable to sustaining the verdict. State v. Payne, 233 Ariz. 484, 509, ¶ 93, 314 P.3d 1239, 1264 (2013).

OPINION McMURDIE, Judge: ¶ 1 Philip Brailsford (“Petitioner”) petitions this Court for special action relief, challenging the magistrate’s finding of probable cause. Petitioner argues the magistrate precluded him from presenting all witnesses related to his justification defenses, thereby denying him due process and entitling him to a new probable cause finding. We accept jurisdiction, but because matters related to a contested justification defense need not be resolved at a preliminary hearing, we deny relief. FACTS AND PROCEDURAL BACKGROUND ¶2 On January 18, 2016, Petitioner, a Mesa police officer, and several other Mesa officers responded to an emergency call from a local hotel. The caller had indicated that someone was pointing a rifle out of a fifth-floor hotel room. Upon arrival, Petitioner was assigned as a lethal coverage officer for the immediate-action team of officers who responded to the call. ¶ 3 The officers found two individuals in the hotel room—a woman and a man (“D.S.”)—and told them to come out of the room. The woman came out first, followed by D.S. A police sergeant, Sergeant Langley, instructed them to lie face down on the hallway carpet, which they did. As instructed by the sergeant, the woman crawled towards the police officers. An officer grabbed her and pulled her behind the other officers, leaving D.S. lying face down in the hallway. The sergeant instructed D.S. to get on his knees and crawl toward the officers. The sergeant warned D.S. that if he did not comply “[there was] a very severe possibility that [he was] going to get shot.” As D.S. crawled toward the officers, he abruptly put his hand behind his back and, Petitioner .shot and killed D.S. ¶ 4 Petitioner was charged with second-degree murder. A Maricopa County Superior Court Judge, acting as the magistrate, presided over a preliminary hearing. The State offered testimony from Mesa Police Department Detective Sipe. Detective Sipe testified he responded to the 9-1-1 emergency call, reviewed the footage of the incident from the body cameras worn by Petitioner and Officer Doane, and offered his opinion regarding the tactics employed throughout. ¶5 The State rested and the magistrate, after reviewing the exhibits admitted into evidence including the video from the body cameras, found that there was probable cause for the charge. Petitioner proceeded with an offer of proof to rebut the magistrate’s finding of probable cause. Petitioner offered to call as witnesses Sergeant Langley and Officers Doane and Jacobs of the Mesa Police Department, and Emanuel Kapelsohn, an expert in law enforcement use of force. The magistrate found the issue before him was Petitioner’s state of mind, and whether Petitioner was justified in shooting D.S. The magistrate, after considering Petitioner’s offer of proof, allowed Sergeant Langley to testify. ¶ 6 Sergeant Langley testified that the woman was taken into custody and “she was no longer in play.” The team then focused on the man. D.S. was instructed in the same manner as the woman and told to put his hands in the air; D.S., instead, put his hands behind his back. ¶ 7 Detective Sipe testified that D.S.’s action of putting his hands behind his back appeared to be an attempt by D.S. to be handcuffed, Sergeant Langley disagreed with Sipe and testified that it appeared D.S. was not understanding the instructions. Langley said he told D.S. to keep his hands in the air and start crawling toward the officers. But as D.S. crawled towards the officers, he stopped and put his right hand behind his back. Langley believed that the motion was an indication that D.S. may have been drawing a weapon. Langley stated that the only reason he did not fire his weapon was because Petitioner was in his line of fire. ¶ 8 After hearing Petitioner’s offer of proof and the testimony of Sergeant Langley, the magistrate found the offer of proof and evidence was insufficient to rebut the finding of probable cause. ¶ 9 Petitioner filed a motion for a new finding of probable cause pursuant to Arizona Rule of Criminal Procedure 5.5 in the superior court, arguing he was denied due process when the magistrate refused to hear all of the proffered evidence and refused to consider his justification defenses. Furthermore, Petitioner argued no credible evidence of guilt was adduced. The superior court denied the motion and Petitioner filed this petition for special action. JURISDICTION AND STANDARD OF REVIEW ¶ 10 We have discretion to accept special action jurisdiction and do so “when statutes or procedural rules require immediate interpretation,” Escalanti v. Super. Ct., 165 Ariz. 385, 386, 799 P.2d 5 (App. 1990), and when a petition “presentís] a purely legal issue of first impression that is of statewide importance,” State ex rel. Thomas v. Duncan, 216 Ariz. 260, 262, ¶ 5, 165 P.3d 238 (App. 2007). See Ariz. R.P. Spec. Act. 8(a). ¶ 11 This petition raises an issue regarding the way a magistrate is to consider justification defenses presented in a preliminary hearing, specifically self-defense by a police officer. See A.R.S. §§ 13-409 and -410. A challenge to procedures used to establish probable cause “has no equally plain, speedy, or adequate remedy by appeal.” Chronis v. Steinle, 220 Ariz. 559, 560, ¶¶ 3-4, 208 P.3d 210, 211 (2009) (probable cause for aggravating circumstances in capital prosecution); State ex rel. Berger v. Justice Ct. of Ne. Phoenix Precinct, Maricopa County, 112 Ariz. 24, 25, 536 P.2d 1042, 1043 (1975) (state’s challenge to magistrate order allowing discovery at a preliminary hearing). Generally, errors at a preliminary hearing must be remedied before trial; “[o]nce [the] trial is over and properly completed, a ‘nonjurisdic-tional’ error at a preliminary hearing is lost.” State v. Lenahan, 12 Ariz.App. 446, 449, 471 P.2d 748 (1970), overruled on other grounds by State v. Sample, 107 Ariz. 407, 410, 489 P.2d 44, 47 (1971), disapproved of on other grounds by Mincey v. Arizona, 437 U.S. 385, 403, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); State v. Neese, 126 Ariz. 499, 502, 616 P.2d 959 (App. 1980) (preliminary hearings are to determine the existence of probable cause to believe the individual committed an offense; once a jury determines guilt beyond a reasonable doubt in a full-scale trial, the question of probable cause is moot). ¶ 12 Thus, in the exercise of our discretion, we accept special action jurisdiction. “In reviewing a trial judge’s order within the context of a special action, ordinarily we must find the judge abused his discretion or exceeded his jurisdiction or legal authority before we may grant relief.” Francis v. Sanders, 222 Ariz. 423, 426, ¶ 10, 215 P.3d 397, 400 (2009) (quotation omitted); see also Ariz. R.P. Spec. Act. 3. In reviewing the merits of a magistrate’s decision, however, we determine de novo whether the court committed an error of law or whether the record lacks substantial support for the decision rendered. See Files v. Bernal, 200 Ariz. 64, 65, ¶ 2, 22 P.3d 57 (App. 2001). The magistrate in a preliminary hearing rules upon the admissibility of the evidence. Zarate v. Jennings, 17 Ariz.App. 401, 406, 498 P.2d 475 (1972), This court has jurisdiction pursuant to A.R.S. § 12-120.21(A)(4). DISCUSSION ¶ 13 The purpose of the preliminary hearing is not to conduct a trial on the merits, but to “determine whether a public offense has been committed and whether there is sufficient cause to believe that the accused committed it.” State v. Altman, 107 Ariz. 93, 95, 482 P.2d 460, 462 (1971). A. Petitioner Was Afforded a Pair and Complete Preliminary Hearing. ¶ 14 Petitioner argues he was denied due process when the magistrate both refused to allow all of his proffered witnesses to testify, and also faded to consider his justification defenses. As a result, Petitioner claims he was denied a fair and complete preliminary hearing. ¶ 15 “A preliminary hearing is not a trial in an ordinary sense, and although it must comport with the requirements of due process, not all procedures for a trial have to be employed.” State ex rel. Berger v. Jennings, 110 Ariz. 441, 442, 520 P.2d 313, 314 (1974). Unlike a trial, the purpose of the preliminary hearing is to determine whether probable cause exists to cause the accused to answer for the charge and for the courts to retain jurisdiction over the accused. Id. at 441, 520 P.2d at 313. ¶ 16 To comport with due process, by rule a magistrate should conduct a preliminary hearing as follows: The preliminary hearing shall be held before a magistrate who shall admit only such evidence as is material to the question whether probable cause exists to hold the defendant for trial. All parties shall have the right to cross-examine the witnesses testifying personally against them, and to review their previous written statements prior to such cross-examination. At the close of the prosecution’s case, including cross-examination of prosecution witnesses by the defendant, the magistrate shall determine and state for the record whether the prosecution’s case establishes probable cause. The defendant may then make a specific offer of proof, including the names of witnesses who would testify or produce the evidence offered. The magistrate shall allow the defendant to present the offered evidence, unless the magistrate determines that it would be insufficient to rebut the finding of probable cause. Ariz.R.Crim.P. 5.3. Before the adoption of Rule 5.3, the rule regarding the presentation of evidence at a preliminary hearing mandated that a criminal defendant be allowed to present defense witnesses. After the defendant has made a statement or waived his right to do so, he may, if he desires, be sworn and testify in his own behalf. Whether or not the defendant testifies, any witnesses produced by him shall be sworn and examined. Ariz.R.Crim.P, 26 (1956); accord State v. Essman, 98 Ariz. 228, 231-32, 403 P.2d 540 (1965) (due process requires magistrate to allow defendant to present witnesses at a preliminary hearing) superseded by rule, Ariz. R. Crim. P. 5.3 cmt. (1973) (“This provision overrules State v. Essman, ... and limits the 1956 Ariz. Rules of Criminal Procedure, Rule 26.”) (citation omitted). ¶ 17 Under Rule 5.3, once the State has concluded its presentation of evidence, the magistrate is then obligated to state on the record whether the State has met its burden of establishing probable cause that a crime has been committed, and it is defendant who has committed it. If the magistrate finds probable cause, then the criminal defendant may make an offer of proof identifying witnesses and evidence the defendant wants to present. Whether to allow such evidence to be presented is within the discretion of the magistrate, given the issues in volved in the ease and the type of evidence being offered. ¶ 18 In this ease, at the preliminary hearing, the parties did not dispute that Petitioner shot and killed D.S. The State called Detective Sipe to testify. Sipe testified he reviewed the footage of the body cameras, and concluded that portions of the video reveal that D.S. did not pose a threat. Sipe also interviewed various officers present at the incident, who stated they did not feel threatened; in fact, one officer put away his handgun in favor of a Taser. The video reveals D.S. did not reach in his pockets or verbally threaten the officers. Sipe also testified the techniques implemented during the investigation were not techniques he was familiar with, and alternative means of arrest were available that did not include lethal force. Petitioner’s counsel was afforded the opportunity to cross-examine Sipe, and did so. ¶ 19 As noted above, after the magistrate found probable cause, Petitioner made an offer of proof and the magistrate allowed Sergeant Langley to testify, but disallowed Petitioner’s other three witnesses. The magistrate, in his discretion under Rule 5.3, limited Petitioner’s evidence, and therein lies Petitioner’s argument that he was not afforded due process. We disagree. ¶ 20 According to the offer of proof, Petitioner’s witnesses would have testified that the incident was a high-risk incident, that Petitioner’s lethal force was reasonable and justified, and that training tactics would perceive D.S.’s movement as a deadly threat. In fact, much of the testimony Petitioner sought to offer was already provided by Sergeant Langley, and through the cross-examination of Detective Sipe. Langley testified he perceived a threat from D.S., elaborated as to D.S.’s movement, and testified to officer training and use of lethal force. Because much of this testimony was already offered through Langley, the magistrate did not abuse his discretion in limiting Petitioner’s evidence to one witness and finding it to be cumulative to the finding of probable cause. The magistrate need not determine ultimate guilt or innocence, only whether there is probable cause to believe Petitioner is guilty of the offense charged. See Application of Williams, 85 Ariz. 109, 118, 333 P.2d 280 (1958). ¶ 21 Upon review of the transcripts and exhibits from the preliminary hearing including the videos of the incident, Petitioner was provided a fair opportunity to present his case. See State v. Stefanik, 106 Ariz. 466, 468, 478 P.2d 90, 92 (1970). Petitioner was represented by counsel and was permitted, within the magistrate’s discretion, to present Sergeant Langley’s testimony to refute the finding of probable cause. The magistrate found the testimony did not rebut the finding of probable cause, and found any other testimony to be offered by Officers Doane and Jacobs, and defense expert Kapelsohn, would be cumulative. In reviewing the record de novo, we find that the record supports the decision rendered. B. The Ultimate Question of Guilt or Innocence Is Not Decided at a Preliminary Hearing. ¶ 22 Petitioner also argues that the magistrate did not give sufficient credence to his justification defenses, thereby applying an incorrect legal standard in determining probable cause. Petitioner supports his argument that he was denied due process of law by citing Crimmins v. Super. Ct., In & For Maricopa County, 137 Ariz. 39, 43, 668 P.2d 882, 886 (1983); and Korzep v. Super Ct., In & For County of Yuma, 172 Ariz. 534, 539, 838 P.2d 1295 (App. 1991). These cases are inapposite here. ¶23 In Crimmins, our supreme court granted special action relief and remanded for a new determination of probable cause because the prosecution did not adequately inform the grand jury of the facts and law, and did not properly instruct as to defen dant’s possible statutory defenses. Crimmins, 137 Ariz. at 43, 668 P.2d at 886. In Konep, the court remanded for a new probable cause determination for the grand jury to consider a more favorable interpretation of justification in A.R.S. § 13-411, 172 Ariz. at 539, 838 P.2d 1295. While a grand jury proceeding and a preliminary hearing are similar in objective, they differ in form. See State v. Bojorquez, 111 Ariz. 549, 553, 535 P.2d 6, 10 (1975). These cases do not inform our resolution of whether the magistrate in this case properly considered Petitioner’s defenses. ¶ 24 “A magistrate conducting a preliminary hearing should be mindful that his duty is not [to] determine the ultimate guilt or innocence of a defendant, ... but only to determine whether there is probable cause to believe defendant guilty of the offense charged, and leave to the trial tribunal the final determination of the application of the law to the facts.” Williams, 85 Ariz. at 117-18, 333 P.2d 280. The State must set forth proof of a crime and that someone is responsible for that crime; “the evidence need not be of the quantum of proof beyond a reasonable doubt.” State v. Jones ex rel. County of Maricopa, 198 Ariz. 18, 22, ¶ 12, 6 P.3d 323 (App. 2000). “The issue of innocence or guilt is not before the magistrate. That function is constitutionally placed elsewhere. The full and complete exploration of all facets of the case is reserved for trial and is not the function of a preliminary examination.” Altman, 107 Ariz. at 95, 482 P.2d at 462. ¶ 25 In Altman, the defendant argued he was denied an adequate preliminary hearing because the magistrate did not allow him to develop his defense of entrapment during cross-examination of the State’s witness. Our supreme court rejected this argument, holding entrapment is an affirmative defense to be resolved at trial. 107 Ariz. at 95, 482 P.2d at 462. The Altman court relied on Marcum v. Sheriff, Clark County, 86 Nev. 175, 177, 451 P.2d 845 (1969), which held the affirmative defense of entrapment is to be resolved at trial. See also People v. Moore, 180 Mich. App. 301, 446 N.W.2d 834, 837 (1989) (entrapment defense may not be raised at preliminary hearing). ¶ 26 Arizona’s legislature has enacted several affirmative defenses that require a criminal defendant to convince a jury, by a preponderance of the evidence, the criminal conduct was otherwise excused. See, e.g., A.R.S. §. 13-206 (Entrapment). Under Altman, a magistrate can properly exclude evidence and argument from a preliminary hearing regarding such affirmative defenses as such defenses are to be raised at trial, 107 Ariz. at 96, 482 P.2d at 462, Petitioner argues he did not raise any affirmative defenses in this case, and argues non-affirmative defenses can be raised at a preliminary hearing, While we recognize Petitioner’s defense is not an affirmative defense, and can be raised in a preliminary hearing, we disagree that error occurred in this case. ¶ 27 As noted above, the purpose of the preliminary hearing is for the State to produce competent evidence to convince the magistrate that a trial should be held; resolution of non-affirmative defenses is premature at the preliminary hearing stage if the evidence is controverted. See State v. Fuchs, 78 Nev. 63, 368 P.2d 869, 871 (1962) (exculpatory statement by criminal defendant that she was justified in killing her husband in order to protect her three-year-old son was left for the trier of fact to consider at trial); State v. Jones, 233 Kan. 170, 660 P.2d 965, 969-70 (1983) (magistrate does not resolve issues of self-defense at a preliminary hearing, “[w]here there is a conflict in testimony, a question of facts exists for the jury, and the magistrate must draw the inference favorable to the prosecution”); People v. Medley, 339 Mich. 486, 64 N.W.2d 708 (1954) (magistrate does not resolve self-defense claim at preliminary hearing when evidence is in conflict). Therefore, a magistrate is required to consider a defendant’s justification defense but does not resolve the ultimate question if the evidence is in conflict, as that resolution is left to the jury. ¶28 The magistrate did not err in this case. The magistrate stated on the record that he considered Petitioner’s justification defense but nonetheless found there was insufficient evidence to rebut the probable cause determination. Because the evidence was in conflict whether Petitioner was justified, the proper place to resolve the issue is at a jury trial. CONCLUSION ¶ 29 Because we find Petitioner was not denied a procedural right at his preliminary hearing, and credible evidence of guilt without justification was adduced, neither the magistrate nor the superior court erred by limiting Petitioner’s evidence and denying Petitioner’s motion for a new probable cause determination. Accordingly, we accept jurisdiction of the petition for special action, but deny relief. . A superior court judge may properly sit as a committing magistrate for the purpose of holding a preliminary examination to determine probable cause. Sheridan v. Super. Ct., 91 Ariz. 211, 213-14, 370 P.2d 949 (1962); Dunlap v. Super. Ct., In & For County of Maricopa, 169 Ariz. 82, 84, 817 F.2d 27 (App. 1991). . Unless otherwise noted in the text, we cite to the current version of applicable statutes or rules when no revision material to this case has occurred. . We are mindful that a preliminaiy hearing is a constitutional right in our state. No person shall be prosecuted criminally in any court of record for felony or misdemeanor, otherwise than by information or indictment; no person shall be prosecuted for felony by information without having had a preliminary examination before a magistrate or having waived such preliminary examination. Ariz. Const, art. 2, § 30. . Petitioner asserted justification defenses under the following statutes; A.R.S. §§ 13—405(A)(2) (use of deadly physical force), -406 (defense of a third person), -410(C) (use of deadly physical force in law enforcement), and -411(A) and (C) (use of force in crime prevention). . Arizona's preliminary hearing provision conditioning the defense presentation of witnesses upon the approval of the magistrate is consistent with procedures adopted in other states. See, e.g., Cal. Penal Code § 866; Conn. Gen. Stat. Ann. § 54-46a; N.Y. Crim. Proc. Law § 180.60 (judicial permission extends only to witnesses other than the defendant, as the defendant may testify "as a matter of right”). . The importance of the holding in Altman is heightened by the fact that at the time of the decision the rules of criminal procedure mandated that criminal defendants could present evidence on their behalf at a preliminary hearing. See ¶ 16. Nonetheless, the supreme court held that the defendant was not entitled to elicit his affirmative defense through cross examination. 107 Ariz. at 93, 482 P.2d at 462. . The Legislature has set the burden of proof for affirmative defenses as follows: Except as otherwise provided by law, a defendant shall prove any affirmative defense raised by a preponderance of the evidence. Justification defenses under chapter 4 of this title are not affirmative defenses. Justification defenses describe conduct that, if not justified, would constitute an offense but, if justified, does not constitute criminal or wrongful conduct, If evidence of justification pursuant to chapter 4 of this title is presented by the defendant, the state must prove beyond a reasonable doubt that the defendant did not act with justification. A.R.S. § 13-205. .The Legislature has defined what is and is not an affirmative defense. B. For the purposes of this section, "affirmative defense" means a defense that is offered and that attempts to excuse the criminal actions of the accused or another person for whose actions the accused may be deemed to be accountable. Affirmative defense does not include any justification defense pursuant to chapter 4 of this title or any defense that either denies an element of the offense charged or denies responsibility, including alibi, misidentification or lack of intent. A.R.S. § 13-103(B) (emphasis added); see also State v. Bayardi, 230 Ariz. 195, 199, ¶¶ 13-21, 281 P.3d 1063 (App. 2012) (discussing distinction between affirmative defenses, justifications and defenses that deny an element of the charge),

VICE CHIEF JUSTICE PELANDER, opinion of the Court: ¶ 1 The primary issue we address here is whether the state may constitutionally prohibit a city’s practice, prescribed by local ordinance, of destroying firearms that the city obtains through forfeiture or as unclaimed property. We conclude that a generally applicable state statute on this subject controls over a conflicting municipal ordinance, that the legislature may require the Attorney General to investigate and file a special action in this Court regarding alleged violations of the state law, and that this Court has mandatory jurisdiction to resolve whether the allegedly conflicting ordinance violates state law. Applying those principles here, we accept jurisdiction of the State’s special action and hold, in accordance with article 13, section 2 of the Arizona Constitution, that AR.S. §§ 12-945(B) and 13-3108(F) supersede Tucson Code § 2-142. BACKGROUND ¶ 2 In 2000, the Arizona Legislature passed House Bill 2095, which declared: It is the intent of the legislature to clarify existing law relating to the state’s preemption of firearms regulation in this state. Firearms regulation is of statewide concern. Therefore, the legislature intends to limit the ability of any political subdivision of this state to regulate firearms and ammunition. This act applies to any ordinance enacted before or after the effective date of this act. 2000 Ariz. Sess. Laws, ch. 376, § 4 (2d Reg. Sess.). That legislation also amended AR.S. § 13-3108(A) to provide: “[A] political subdivision of this state shall not enact any ordinance, rule or tax relating to the transportation, possession, carrying, sale, transfer, purchase, acquisition, gift, devise, storage, licensing, registration, discharge or use of firearms or ammunition ... in this state.” Id. § 2 (codified as amended at A.R.S. § 13-3108(A)). ¶3 In 2005, the City of Tucson passed Ordinance No. 10146 (the “Ordinance”), which enacted Tucson Code §§ 2-140 to - 142. Section 2-142 governs the “[disposition of unclaimed and forfeited firearms by the [Tucson] police department.” Tucson Code § 2-142. The Tucson Code permits the Tucson Police Department to keep a forfeited firearm for its own purposes or to lend or transfer it to another law enforcement agency or museum; otherwise, the Code states that the police “shall dispose” of unclaimed and forfeited firearms ‘by destroying” them. Id. ¶ 4 In 2013, the legislature amended two statutes governing the destruction of firearms. Section 13-3108 was revised to add new subsection (F), which provides: “[A]ny agency or political subdivision of this state and any law enforcement agency in this state shall not facilitate the destruction of a firearm. ...” 2013 Ariz. Sess. Laws, ch. 145, § 6 (1st Reg. Sess.) (codified as amended at A.R.S. § 13~3108(F)). And § 12-945(B), contained in an article that governs the disposal of “unclaimed property in [the] hands of [a] public agency,” was amended to state: [I]f the property is a firearm, the agency shall sell the firearm to any business that is authorized to receive and dispose of the firearm under federal and state law and that shall sell the firearm to the public according to federal and state law, unless the firearm is otherwise prohibited from being sold under federal and state law. 2013 Ariz. Sess. Laws, eh. 145, § 5 (1st Reg. Sess.) (codified as amended at AR.S. § 12-945(B)). Also enacted by the legislature in 2013, A.R.S. § 12-943 provides that certain specified property, including firearms, “in the possession of a ... city ... may only be disposed of pursuant to this article.” 2013 Ariz. Sess. Laws, eh. 145, § 3 (1st Reg. Sess.). ¶ 5 Pursuant to the Ordinance, between 2013 and October 2016, the City of Tucson destroyed approximately 4,800 unclaimed or forfeited firearms. In March 2016, the legislature passed Senate Bill 1487, codified primarily in A.R.S. § 41-194.01. 2016 Ariz. Sess. Laws, ch. 36, § 1 (2d Reg. Sess.). It establishes a framework under which, “[a]t the request of one or more members of the legislature, the attorney general shall investigate any ordinance, regulation, order or other official action adopted or taken by the governing body of a county, city or town that the member alleges violates state law or the Constitution of Arizona.” A.R.S. § 41-194.01(A). The statute gives the Attorney General thirty days to investigate and provide a “written report of findings and conclusions.” Id. § 41-194,01(B). ¶ 6 If the Attorney General concludes that the regulation or ordinance at issue affirmatively “[violates any provision of state law, ... the attorney general shall provide notice to the county, city or town ... of the violation, [and the local government] has thirty days to resolve the violation.” A.R.S. § 41-194.01(B)(1). If the Attorney General concludes that the matter has not been resolved in that time frame, he “shall ... [n]otify the state treasurer who shall withhold [from the offending entity] and redistribute state shared monies” until the “offending ordinance ... is repealed or the violation is otherwise resolved.” A.R.S. § 41-194.01(B)(l)(a)-(b). ¶ 7 If the Attorney General concludes that the regulation or ordinance at issue “[m]ay violate a provision of state law, ... [he] shall file a special action in [the] supreme court to resolve the issue, and the supreme court shall give the action precedence over all other cases.” A.R.S. § 41-194.01(B)(2). And “[t]he court shall require the county, city or town to post a bond equal to the amount of state shared revenue paid to the county, city or town pursuant to § [§ ] 42-5029 and 43-206 in the preceding six months.” Id. ¶ 8 In October 2016, Representative Mark Finchem asked the Attorney General’s Office to investigate whether the Ordinance violates state law. The Office investigated, and the City provided public records and a written response. The City contended that the Ordinance was a valid exercise of the City’s “organic law” as a charter city, see Ariz. Const, art. 13, § 2, and that the state’s firearms statutes “have no application to the City.” ¶ 9 In November 2016, the Attorney General issued his report, concluding that the Ordinance “may violate one or more provisions of state law” because it requires the destruction of firearms, conflicting with A.R.S. § 13-3108(F), which prohibits any “political subdivision” from “facilitating] the destruction of a firearm.” The Attorney General rejected Tucson’s charter city argument. ¶ 10 After the Attorney General’s Office sent its report to the City, the Tucson City Council met in December and refused to repeal or otherwise change the Ordinance. The City did, however, “suspend the implementation of gun destruction required by [the Ordinance] until the issue is adjudicated.” That same day the Attorney General’s Office filed this special action pursuant to § 41-194.01(B)(2). ¶ 11 Several days later, the City filed a complaint in Pima County Superior Court, seeking an injunction against implementation of § 41-194.01 and a declaration that the statute is unconstitutional. The City responded in this Court to the State’s special action petition and also moved to dismiss it, arguing that the State’s allegations are covered by § 41-194.01(B)(1), not (B)(2), that the State sought relief not provided for in (B)(2), and that dismissal would “allow full consideration of the issues raised in the [City’s] superior court action.” Earlier this year, we ordered the parties to brief several discrete issues raised in this special action and held oral argument, -without prejudice to the parties continuing to litigate the superior court action. DISCUSSION I. Separation of Powers Challenge to S.B. 1487 ¶ 12 This litigation was prompted by a single state legislator’s request for the Attor ney General to investigate, as required under S.B. 1487 and codified in A.R.S. § 41-194.01(A), whether the City’s Ordinance violates state law. Based on the Attorney General’s investigation and conclusion that the Ordinance may violate state statutes, and the City’s refusal to repeal or otherwise change the Ordinance, the State filed this special action pursuant to § 41-194.01(B)(2). ¶ 13 As it has in its pending superior court action, the City raises a host of constitutional challenges to S.B. 1487, but we address only those portions of the law that are directly implicated here. The City contends that S.B. 1487 violates the separation of powers doctrine, see Ariz. Const, art. 3, § 1, by directing the Attorney General to investigate alleged violations upon a single legislator’s request and, if the Attorney General concludes that a local ordinance “may violate” state law, requiring him to file a special action in this Court “to resolve the issue.” § 41-194,01(A), (B)(2), These statutory procedural mandates, the City asserts, unconstitutionally infringe on both executive and judicial powers. We reject these arguments. ¶ 14 In determining whether a statute violates separation of powers, we examine: (1) the essential nature of the power being exercised; (2) the legislature’s degree of control in the exercise of that power; (3) the legislature’s objective; and (4) the practical consequences of the action. State ex rel. Woods v. Block, 189 Ariz. 269, 276, 942 P.2d 428, 435 (1997). As for the first factor, implementing the law, disbursing appropriations, and enforcing legislative conditions on appropriations are essentially executive functions. See id. at 277, 942 P.2d at 436 (stating that “acts necessary to carry out the legislative policies and purposes already declared by [the Legislature] are administrative” and, thus, “executive function[s]”) (first alteration in original) (internal quotation marks omitted) (quoting Pioneer Trust Co. v. Pima Cty., 168 Ariz. 61, 65, 811 P.2d 22, 26 (1991)). Under S.B. 1487, the executive branch exercises those powers. ¶ 15 Regarding the second factor, neither the requesting legislator(s) nor the legislature as a whole controls the “exercise” of the executive branch’s investigative and enforcement power under S.B. 1487. In fact, the legislature has no role beyond initiating Attorney General review. The Attorney General retains his discretion to apply independent legal analysis and judgment when opining whether a municipal action violates state law. He also retains discretion to choose the legal positions he will advance should he file a special action under § 41-194.01(B)(2). A legislator does not control the investigation itself, decision-making related to the investigation, or any action taken upon a determination under § 41-194.01. Cf. McDonald v. Thomas, 202 Ariz. 35, 41 ¶ 17, 40 P.3d 819, 825 (2002) (upholding legislative enactments that increased the power of clemency board recommendations and imposed time limitations on the Governor’s power to act on those recommendations because “the governor—and the governor alone—has the final word with regard to whether clemency is granted”). But cf. Woods, 189 Ariz. at 276-78, 942 P.2d at 435-37 (holding that the legislatively created Constitutional Defense Council, the controlling members of which were appointed by the legislature, violated separation of powers because it “create[d] conflict between an executive agency and a legislative agency performing an executive function”). ¶ 16 Nor does the third or fourth factor support a finding that S.B. 1487 violates separation-of-powers principles. The enactment itself suggests that the legislature’s apparent objective in S.B. 1487 was not to usurp executive or judicial authority but rather to require and incentivize political subdivisions to comply with state law. Likewise, the practical consequence of S.B. 1487 is to encourage compliance with state law, not to coerce, control, or interfere with executive powers or prerogatives. ¶ 17 S.B, 1487 permits a single legislator to initiate and require an investigation by the Attorney General’s Office. See § 41-194.01(A). But other statutes similarly allow or direct the initiation of an investigation or issuance of an opinion upon legislative request. See A.R.S. §§ 32-3246(D), 41-193(A)(7). We do not view S.B. 1487 as materially different for separation-of-powers pur poses, and the City cites no authority for finding it unconstitutional. ¶ 18 The Attorney General’s duties are “prescribed by law,” Ariz. Const, art. 5, § 9, and through S.B. 1487 the legislature has validly established that a single legislator may compel an Attorney General investigation and opinion (and nothing more) regarding whether a local ordinance violates state law. That this procedure may cause the Attorney General’s Office to focus and expend resources to identify possibly conflicting local laws and to resolve any related issues in this Court does not offend separation-of-powers principles. The procedure authorized by § 41-194.01(A) is very different from a legislative attempt to direct the exercise of prose-cutorial discretion in a criminal case or civil enforcement action. ¶ 19 Upon the Attorney General’s determination that a local law “[m]ay violate a provision of state law,” S.B. 1487 also requires the Attorney General to file a special action “to resolve the issue” in this Court, which shall prioritize the action “over all other cases.” § 41-194.01(B)(2). Those provisions do not unconstitutionally infringe on judicial power. The Attorney General is not exercising a judicial function in determining whether an action may violate state law. Rather, such determinations are legal opinions, which the Attorney General routinely and permissibly issues in other contexts. See § 41-193(A)(7) (stating that “[ujpon demand by the legislature, or either house or any member thereof,” the Attorney General’s Office shall “render a written opinion upon any question of law relating to their offices”); cf. A.R.S. § 41-1481(B) (requiring, at any citizen’s request, the Attorney General’s Civil Rights Division to investigate complaints of employment discrimination); id. § 41-1491.09 (providing the same for Fair Housing complaints). ¶ 20 Moreover, as this case illustrates, judicial review is available when the Attorney General determines that a local ordinance “may violate” state law. And even if the Attorney General were to conclude under § 41-194.01(B)(1) that a local law violates state law, the offending municipality has a cure period and (as the State concedes) may file an action challenging the conclusion and any withholding of funds. See, e.g., Ariz. R.P. Spec. Actions 1(a). In either case, the Court must decide, or at least retains discretion to decide, the issue. Because S.B. 1487 “leaves the judiciary free to make its own determination based on the particular facts of a case,” it “comports with separation of powers.” State v. Rios, 225 Ariz. 292, 299 ¶ 22, 237 P.3d 1052, 1059 (App. 2010); cf. Cactus Wren Partners v. Ariz. Dep’t of Bldg. & Fire Safety, 177 Ariz. 569, 563, 869 P.2d 1212, 1216 (App. 1993) (concluding that because a statute did not “constitute[ ] a ‘coercive influence’ upon the judiciary,” it did not unconstitutionally usurp judicial power). II. Jurisdiction ¶ 21 We next address whether this Court’s special action jurisdiction under § 41-194.01(B)(2) is mandatory, as the State contends, or discretionary, as the City asserts. Based on the statute’s text, its underlying legislative intent, and the legislature’s constitutional authority to prescribe this Court’s jurisdiction, we conclude that our jurisdiction in this matter is mandatory. ¶ 22 When, as here, the Attorney General determines that a municipal ordinance or regulation “may violate” state law and then files a “special action” in this Court pursuant to § 41-194.01(B)(2)’s mandate, the statute compels us “to resolve the issue” and “give the action precedence over all other cases.” As long as it comports with the Arizona Constitution, that language quite clearly makes our jurisdiction mandatory. See Litgo N.J. Inc. v. Comm’r N.J. Dep’t of Envtl. Prot., 725 F.3d 369, 394-95 (3d Cir. 2013) (characterizing as “a mandate” Congress’s statement that a particular claim “shall be brought” in a “district court”). ¶ 23 Our state constitution identifies the various components of this Court’s subject matter jurisdiction and, in a catch-all provision, vests the Court with “[s]uch other jurisdiction as may be provided by law.” Ariz. Const, art. 6, § 5(6); see also A.R.S. § 12-102(A) (“The supreme court shall discharge the duties imposed and exercise the jurisdiction conferred by the constitution and by law.”). Under that authority, the legislature may expand, but not contract, this Court’s original jurisdiction as long as doing so does not otherwise violate the constitution. That is precisely what the legislature did by enacting § 41-194.01(B)(2). No constitutional impediment prevents or nullifies that action. ¶ 24 Section 41-194.01(B)(2) provides “mandatory” jurisdiction for this Court in the sense that this is a statutory special action rather than a “discretionary” special action. (The latter reflects the Court’s constitutional authority to issue extraordinary writs under article 6, section 5(1), which historically were a form of discretionary relief, see Dobson v. State, 233 Ariz. 119, 121 ¶ 6, 309 P.3d 1289, 1291 (2013).) “[Statutory special actions ‘are not at all discretionary.’ ” Circle K Convenience Stores, Inc. v. City of Phoenix, 178 Ariz. 102, 103, 870 P.2d 1198, 1199 (App. 1993) (quoting Ariz. R.P. Spec. Action 1 state bar committee’s note to subsec. (b)); accord Book Cellar, Inc. v. City of Phoenix, 139 Ariz. 332, 336, 678 P.2d 517, 521 (App. 1983). By requiring the Attorney General to file “a special action” in this Court if he determines that a local ordinance “may violate” state law, and by directing the Court “to resolve the issue” and “give the action precedence over all other cases,” § 41-194.01(B)(2), the legislature clearly intended for us to have mandatory jurisdiction. ¶ 25 The City contends that § 41-194.01(B)(2) is inapplicable and thus cannot support jurisdiction here because the State asserts in its special action briefs that Tucson Code § 2-142 “does in fact violate,” not merely that it “may violate,” state law. “Under § 41-194.01(B)(1),” the City argues, “the Attorney General’s finding that a local ordinance ‘does’ violate state law triggers a different path—administrative action by the Attorney General and Treasurer—not a special action under (B)(2).” But the City misapprehends the relationship between (B)(1) and (B)(2). The latter recognizes that there might be circumstances, as this case illustrates, when a local ordinance arguably violates state law, but the issue is not settled by existing case law. In light of (B)(2), the most reasonable interpretation of (B)(1) is that it allows a “does violate” determination only when existing law clearly and unambiguously compels that conclusion. Otherwise, it is this Court’s responsibility “to resolve the issue” via a process that, as the State notes, is “akin to a standard declaratory judgment action.” § 41-194.01(B)(2); see also A.R.S. § 12-1831 to -1846; cf. Ariz. Indep. Redistricting Comm’n v. Brewer, 229 Ariz. 347, 354-55 ¶¶ 33-34, 275 P.3d 1267, 1274-75 (2012) (stating that this Court is authorized and obligated “to interpret and apply constitutional law,” that is, “to say what the law is”) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803)). ¶ 26 Finally, we reject the City’s contention that “§ 41-194.01(B)(2)’s purported mandatory jurisdiction unconstitutionally invades the Court’s rule making authority” concerning “procedural” matters. See Ariz. Const, art. 6, §§ 1, 5(5). Because article 6, section 5(6) of the Arizona Constitution expressly authorizes the legislature to expand this Court’s original jurisdiction, it arguably does not matter whether S.B. 1487’s grant of such jurisdiction is “procedural” or “substantive.” Even if that distinction were pertinent here, however, the City’s contention is without merit. ¶ 27 Although “the legislature and this Court both have rulemaking power, ... in the event of irreconcilable conflict between a procedural statute and a rule, the rule prevails.” Seisinger v. Siebel, 220 Ariz. 85, 89 ¶ 8, 203 P.3d 483, 487 (2009). But because “the legislature has plenary power to deal with any topic unless otherwise restrained by the Constitution,” if a “statute conflicting with a court-promulgated rule is ‘substantive,’ the statute must prevail.” Id. at 92 ¶ 26, 203 P.3d at 490 (citations omitted). “[T]he precise dividing line between substance and procedure” is at best elusive. Id. at 92 ¶ 29, 203 P.3d at 490. ¶ 28 Even assuming that subsection (B)(2)’s vesting of mandatory jurisdiction in this Court is purely procedural, we find no “irreconcilable conflict” between that provision and our procedural rules. Id, at 89 ¶ 8, 203 P.3d at 487. And pursuant to its plenary constitutional and statutory authority, see Ariz. Const, art. 6, § 5(6); A.R.S. § 12-102(A), in other contexts the legislature has vested this Court with mandatory jurisdiction when doing so did not conflict with court rules. See, e.g., A.R.S. § 16-351(A) (providing that superior court rulings on nominating petitions “shall be appealable only to the supreme court”); id, § 13-4031 (providing that criminal actions in which a death sentence is imposed “may only be appealed to the supreme court”); cf. Fleischman v. Protect Our City, 214 Ariz. 406, 408-09 ¶ 12, 153 P.3d 1035, 1037-38 (2007) (identifying areas in which the legislature has vested exclusive jurisdiction in this Court), In addition, as it has in § 41-194.01(B)(2), the legislature has required this Court to give precedence to certain other actions. See A.R.S. § 48-3706(C) (requiring this Court to “give[ ] precedence” to special actions from water conservation district orders). ¶ 29 In short, § 41-194.01(B)(2)’s mandatory jurisdiction and procedural framework do not run afoul of this Court’s rule-making authority. And, as the State has acknowledged, the “mandatory” jurisdiction under (B)(2) would not require the Court to decide a case that is moot or otherwise nonjusticia-ble. Accordingly, we exercise the jurisdiction established by subsection (B)(2) and deny the City’s motion to dismiss the special action. III. Bond Requirement ¶ 30 Section 41-194.01(B)(2) provides that “[t]he court shall require the county, city or town to post a bond equal to the amount of state shared revenue [ (“SSR”) ] paid to the county, city or town pursuant to § [§ ] 42-5029 and 43-206 in the preceding six months.” In an uncontested declaration filed in this Court, the City states that its SSR for the 2016-2017 fiscal year is approximately $115 million or 23.5% of the City’s budget. Similarly, in its pending superior court action, the City alleged that diming the six-month period between June and November 2016, “the City received SSR under §§ 42-5029 and 43-206 in the aggregate amount of $55,639,999.37,” and that the City could not post a bond at or near that amount as it would “exceed[ ] the sum total of the City’s available reserves by nearly $5 million.” The State has not requested—and this Court has not ordered—posting of a bond in this action. Whether the statute requires the Court to order a bond even absent any request is not before us. ¶ 31 The State contends that S.B. 1487 makes the (B)(2) bond mandatory but that this Court has authority to reduce or waive the bond in certain circumstances, for example, when requiring the bond would lead to absurd or impossible results or cause a “severe financial hardship.” The City acknowledges (B)(2)’s mandatory wording (“shall”), but argues we should interpret the bond provision “as directory, and therefore discretionary,” because otherwise it poses “an unconstitutional financial blockade to judicial access.” See Ariz. Downs v. Ariz. Horsemen’s Found., 130 Ariz, 550, 554-55, 637 P.2d 1053, 1057-58 (1981) (interpreting “shall” as permissive rather than mandatory to preserve a statute’s constitutionality). ¶32 We agree with the State that the bond provision is mandatory, but we share the City’s concerns regarding the bond’s purpose, basis, practical application, and constitutionality. See Ariz. Const, art. 3, § 1 (“Distribution of Powers”); id. art. 6, § 1 (“Judicial power; courts”), § 5(5) (vesting the Supreme Court with “[pjower to make rules relative to all procedural matters in any court”); cf. Eastin v. Broomfield, 116 Ariz, 576, 586, 570 P.2d 744, 754 (1977) (finding a non-waivable cost bond requirement in medical malpractice cases unconstitutional under article 2, section 13 of Arizona Constitution, “by denying access to the courts”); New v. Ariz. Bd. of Regents, 127 Ariz. 68, 70, 618 P.2d 238, 240 (App. 1980) (finding a bond requirement in negligence actions against the state unconstitutional as “a monetary blockade to access to the courts”). ¶ 33 The statute does not identify the purpose of a large bond, the practical application or enforcement of the bond requirement, or the disposition of the bond proceeds upon the conclusion of the special action; nor does it provide that posting the bond is, or is not, a precondition for a political subdivision to defend its position or for this Court to address and rule on the merits. But even assuming that failure to comply with the bond requirement would not bar a city from challenging a (B)(2) action, that requirement, if enforced, would likely dissuade if not absolutely deter a city from disputing the Attorney General’s opinion of a local law’s constitutional validity. Such acquiescence, in turn, would displace this Court from its constitutionally assigned role under article 6 of interpreting Arizona’s constitution and laws—effectively preventing final judicial resolution of the issue on which the Attorney General has specifically requested a ruling pursuant to § 41-194.01 (B)(2). Cf. Forty-Seventh, Legislature v. Napolitano, 213 Ariz. 482, 485 ¶ 8, 143 P.3d 1023, 1026 (2006) (“To determine whether a branch of state government has exceeded the powers granted by the Arizona Constitution requires that we construe the language of the constitution and declare what the constitution requires.”). In effect, the bond requirement problematically instructs us to charge a substantial fee—unrelated to securing a monetary judgment or costs for a non-appealing party—if a political subdivision defends on constitutional grounds a local ordinance the Attorney General challenges in an original action filed in our Court. ¶34 In any event, although the purpose, practical application, and ramifications of the bond requirement are unclear, the State asserts that if it is meant to ensure that a city “does not benefit from receiving SSR while possibly violating state law, then an agreement to cease the violating action (and enforcement thereof) is likely to fulfill that purpose in the same way as a bond.” Because that is the situation here (inasmuch as the City voluntarily agreed to suspend Tucson Code § 2-142 pending this litigation), the State sees no reason to impose the bond requirement against the City. In addition, assuming the bond requirement is unconstitutional, the State asserts that it can be severed because, “[e]ven without the bond provision, the statute would achieve the Legislature’s purpose—incentivizing state-law compliance and quickly resolving whether a subdivision is violating state law.” See State Comp. Fund v. Symington, 174 Ariz. 188, 195-96, 848 P.2d 273, 280-81 (1993) (setting forth requirements for finding severability). ¶ 35 In his concurrence, Justice Gould declares the bond provision “unenforceable because it is incomplete and unintelligible.” Infra ¶85 (Gould, J., concurring in part and in the result). Neither party made this argument. And given the procedural posture of this case, there is no reason to address the enforceability of (B)(2)’s bond provision. Whether the bond requirement may, as written, be constitutionally enforced, or ignored under the novel theory advanced by Justice Gould, can be addressed in future cases where that issue is specifically raised and we have the benefit of full briefing on that particular point. Here, we instead turn to the issue raised by the special action petition— whether the Ordinance conflicts with and violates state law. Cf. Slayton v. Shumway, 166 Ariz. 87, 92, 800 P.2d 590, 595 (1990) (we generally seek to avoid constitutional issues when interpreting and applying statutes). IV. Validity of Tucson Code § 2-142 under State Law ¶ 36 With certain exceptions, Tucson’s Ordinance provides that the City’s police department “shall dispose” of unclaimed and forfeited firearms “by destroying” them. Tucson Code § 2-142. State law, in contrast, specifically prohibits any political subdivision or law enforcement agency from “facili-tat[ing] the destruction of a firearm,” A.R.S. § 13-3108(F), and instead, with certain exceptions, requires public agencies to “sell the firearm to any business that is authorized to receive and dispose of the firearm under federal and state law,” AR.S. § 12-945(B); see also id. § 12-943 (providing that certain specified property, including firearms, “that is in the possession of a ... city ... may only be disposed of pursuant to this article”). Thus, the Tucson Code unquestionably conflicts with Arizona law on this subject. ¶ 37 Under state law, a political subdivision may not “enact any ordinance ... relating to,” among other things, the possession, sale, transfer, purchase, acquisition, or use of firearms in Arizona. A.R.S. § 13-3108(A). In no uncertain terms, the Arizona Legislature has declared that “[fjirearms regulation is of statewide concern” and has expressed its intent to preempt “firearms regulation in this state” and thereby “limit the ability of any political subdivision of this state to regulate firearms.” 2000 Ariz. Sess. Laws, ch. 376, § 4 (2d Reg. Sess.). We of course respect the legislature’s statements, but “whether state law prevails over conflicting charter provisions under Article 13, Section 2 is a question of constitutional interpretation.” City of Tucson v. State (Tucson II), 229 Ariz. 172, 178 ¶ 34, 273 P.3d 624, 628 (2012); cf. Clayton v. State, 38 Ariz. 136, 145, 297 P. 1037 (1931) (subject to judicial review, the state legislature, not a city, determines whether a particular subject “is of general statewide concern or of purely municipal concern"). Thus, pursuant to § 41-194.01(B)(2), the Attorney General properly asked this Court to resolve that legal issue. ¶38 Despite the legislature’s broad pronouncements regarding firearms, the City argues that Tucson Code § 2-142 does not violate state law because it is authorized and protected by article 13, section 2 of the Arizona Constitution. The clear conflict between its Code and state law, the City asserts, “does not require the repeal of [the Ordinance] because as a charter city it is authorized to determine matters of local concern free from the Legislature’s interference.” According to the City, “[disposition of the City’s own property—even firearms—is solely a matter of local concern,” and therefore Tucson Code § 2-142 “supersedes A.R.S. §§ 12-945(B) and 13-3108(F)” under article 13, section 2. The State counters that its applicable, firearms-related statutes implicate several matters of statewide, not merely local, concern and therefore govern over the conflicting municipal Ordinance. We agree with the State. ¶39 Our analysis begins with the “home rale charter” provision in Arizona’s Constitution, which from statehood has provided that any city with a population of more than 3,500 “may frame a charter for its own government consistent with, and subject to, the Constitution and the laws of the state.” Ariz. Const, art. 13, § 2. Once adopted and approved, a city’s charter is, “effectively, a local constitution.” Tucson II, 229 Ariz. at 174 ¶ 10, 273 P.3d at 626. By statute, the roots of which also trace back to statehood, see Rev. Stat. of Ariz., Civ. Code, tit. 7, ch. 16, ¶¶ 2033, 2036 (1913), the charter “shall prevail” over any conflicting law relating to charter cities in force when the charter was adopted and approved. AR.S. § 9-284(A) (also stating that the charter “shall operate as a repeal or suspension of the law to the extent of conflict, and the law shall not thereafter be operative as to such conflict”). “The charter,” however, “shall be consistent with and subject to the state constitution, and not in conflict with ... general laws of the state not relating to cities.” A.R.S. § 9-284(B); see City of Tucson v. Ariz. Alpha of Sigma Alpha Epsilon (Arizona ASAE), 67 Ariz. 330, 335, 195 P.2d 562 (1948) (noting that § 9-284’s predecessor statute “supplements” article 13, section 2 of the Arizona Constitution). ¶40 “The purpose of the home rule charter provision of the Constitution was to render the cities adopting such charter provisions as nearly independent of state legislation as was possible.” City of Tucson v. Walker, 60 Ariz. 232, 239, 135 P.2d 223 (1943) (internal quotation mark omitted) (quoting Axberg v. City of Lincoln, 141 Neb. 55, 2 N.W.2d 613, 614 (1942)). Consistent with that purpose, we have articulated the following rule: Where the legislature has enacted a law affecting municipal affairs, but which is also of state concern, the law takes precedence over any municipal action taken under the home rale charter. But where the legislative act deals with a strictly local municipal concern, it can have no application to a city which has adopted a home rale charter. Whether or not an act of the legislature pertains to a matter of local or state-wide concern becomes a question for the courts when a conflict of authority rises. Id.; see also Tucson II, 229 Ariz. at 174 ¶ 10, 273 P.3d at 626 (“[A] home rale city deriving its powers from the Constitution is independent of the state Legislature as to all subjects of strictly local municipal concern.”) (internal quotation marks omitted) (quoting City of Tucson v. Tucson Sunshine Climate Club, 64 Ariz. 1, 8-9, 164 P.2d 598 (1946)); Luhrs v. City of Phoenix, 52 Ariz. 438, 442-43, 83 P.2d 283 (1938); Clayton, 38 Ariz. at 144-46, 297 P. 1037; id. at 468, 83 P.2d 283 (on denial of motion for rehearing in Clayton). ¶ 41 Tucson has been a charter city pursuant to article 13, section 2 since 1929. See Tucson II, 229 Ariz. at 173 ¶ 1, 273 P.3d at 625. Its charter broadly states that the City has the “power ... [t]o purchase, receive, have, take, hold, lease, use and enjoy property of every kind and description, both within and without the limits of said city, and control and dispose of the same for the common benefit.” Tucson City Charter, ch. 4, § 1(4). Based on that authority, in 2005 the City passed the Ordinance in which Tucson Code § 2-142 was enacted. ¶ 42 Under this state’s well-established jurisprudence, whether the City’s Code controls over the conflicting state laws essentially hinges “on whether the subject matter is characterized as of statewide or purely local interest.” Tucson II, 229 Ariz. at 176 ¶ 20, 273 P.3d at 628 (citing Strode v. Sullivan, 72 Ariz. 360, 365, 236 P.2d 48 (1951)). We acknowledge that the extensive Arizona case law in this area is muddled. As we noted in Tucson II, “[mjany municipal issues will be of both local and state concern,” and thus differentiation is “problematic in application” because it “often involves case-specific line drawing,” and “[t]he concepts of ‘local’ versus ‘statewide’ interest do not have self-evident definitions.” 229 Ariz. at 176 ¶ 20, 273 P.3d at 628; see also Luhrs, 52 Ariz. at 442-43, 83 P.2d 283 (to same effect); John D. Leshy, The Arizona State Constitution 334 (2d ed. 2013) (observing that “the numerous court decisions addressing issues of charter city power show considerable variation in the flexibility with which they construe charters”); cf. Strode, 72 Ariz. at 366, 236 P.2d 48 (noting the “difference of opinion” in case law “as to what activities of a charter city are of local interest or concern and therefore free from legislative interference”). ¶ 43 Our concurring colleague, Justice Bol-ick, faults Strode as setting Arizona courts on a wayward path that is untethered to article 13, section 2, asserts that Strode and similar cases should be overruled, and disavows as irrelevant in cases like this any distinction between matters of statewide interest and those of purely local concern. Infra ¶¶76-78, 80 (Bolick, J., concurring in part and in the result). Notably, well before Strode, this Court in several cases (including Clayton, which Justice Bolick applauds, infra ¶73-74) recognized as significant the distinction that he deems immaterial. See, e.g., Clayton v. State, 38 Ariz. 466, 468, 300 P. 1010 (1931) (on motion for rehearing) (stating that where “the subject is of state-wide concern, and the legislature has appropriated the field and declared the rule, its declaration is binding throughout the state” and controls over conflicting local laws); Luhrs, 52 Ariz. at 442, 83 P.2d 283 (same, and recognizing this as “the general rule”); Walker, 60 Ariz. at 239, 135 P.2d 223 (quoting Axberg, 2 N.W.2d at 614) (noting that if a state statute addresses a matter of purely local concern it does not apply to a charter city’s law on that subject). ¶44 The unarticulated but obvious take away from Justice Boliek’s concurrence is this: assuming it is constitutional, a state statute on any particular topic will always trump and invalidate a political subdivision’s conflicting ordinance, even if the topic indisputably is solely and purely one of local concern. Under that view, one must wonder what is left of charter cities’ authority under article 13, section 2. ¶ 45 While thought-provoking, Justice Bolick’s concurrence is puzzling not because of its content but rather because of its gratuitous nature. No party or amicus has briefed or argued that Strode was wrongly decided, that its analysis conflicts with the constitution, or that it or any other case should be overruled. We generally do not reach out to decide important constitutional issues or to upset established precedent when no party has raised or argued such issues. See, e.g., State v. Valenzuela, 239 Ariz. 299, 306 ¶ 21, 371 P.3d 627, 634 (2016) (declining to address issues “[t]he parties did not brief’); State v. Martinez, 230 Ariz. 208, 212 ¶ 10 n.2, 282 P.3d 409, 413 (2012) (refusing to address Arizona constitutional issues “not separately argued”). But cf. Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 319-21 & 320 n.6, 349-50, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971) (overruling a prior case when the federal government, appearing as amicus curiae, urged that result and the parties addressed the issue at oral argument). Exercising judicial restraint, we therefore decline to sua sponte address further the points that only Justice Bolick makes. ¶ 46 In the end, we find no need here to overhaul our longstanding analytical approach to resolving conflicts between state and local laws. This case does not fall within the “doubtful or twilight zone separating those matters that are clearly of municipal concern from those that are not.” Clayton, 38 Ariz. at 148, 297 P. 1037; see also Ariz. ASAE, 67 Ariz. at 336, 195 P.2d 562 (also referring to “a twilight zone” in which it is difficult to clearly discern whether legislation is of general or rather merely local concern). The State identifies several matters of alleged statewide concern implicated by its statutes and on which Tucson Code § 2-142 encroaches: regulating firearms under the state’s police powers; regulating police departments (and other government agencies) handling forfeited or unclaimed property; protecting the constitutional right to bear arms; and regulating city budgets and finances. To varying degrees, we are persuaded that at least some of those asserted state interests exist and prevail over the Ordinance. ¶ 47 Unlike municipalities, which have “no inherent police power,” the state has broad police power, including “[t]he protection of life, liberty, and property, and the preservation of the public peace and order, in every part, division, and subdivision of the state,” Luhrs, 52 Ariz. at 444, 83 P.2d 283 (internal quotation marks omitted) (quoting Kansas City v. J.I. Case Threshing Mach. Co., 337 Mo. 913, 87 S.W.2d 195, 202 (1935)); see also State v. Jaastad, 43 Ariz. 458, 463, 32 P.2d 799 (1934) (“The police power inheres in the state and not in its municipalities.” (quoting Clayton, 38 Ariz. at 145, 297 P. 1037)), Matters involving the police power generally are of statewide concern. See Associated Dairy Prods. v. Page, 68 Ariz. 393, 396-97, 400-01, 206 P.2d 1041 (1949) (noting “concern of the state in the exercise of its police powers” and holding that regulation of milk products was within scope of statewide concern for public health); see also City of Scottsdale v. State, 237 Ariz. 467, 471 ¶ 17, 352 P.3d 936, 940 (App. 2015) (“Arizona courts have rejected municipal ordinances that conflict with state statutes ..., particularly when such ordinances involve the police powers of the state.”). ¶ 48 The laws at issue here implicate the state’s police power in several respects: the disposition of forfeited or unclaimed property, the conduct of law enforcement officers, including their handling of unclaimed property, and the regulation of firearms. ¶ 49 The Tucson Police Department’s disposition of property (whether forfeited or unclaimed) is an exercise of police power granted by the state. See A.R.S. §§ 12-940 to -945 (relating to disposition of unclaimed property); A.R.S. §§ 13-4301 to -4315 (forfeiture); see also Van Oster v. Kansas, 272 U.S. 465, 467, 47 S.Ct. 133, 71 L.Ed. 354 (1926) (“[A] state in the exercise of its police power may forfeit property....”). Thus, the state’s authority validly extends over the possession and disposition of the firearms. See McMann v. City of Tucson, 202 Ariz. 468, 472 ¶ 9, 47 P.3d 672, 676 (App. 2002) (“In general, when a city acts ‘as an agent of the state,’ the subject upon which it acts is not of solely local concern.” (quoting Luhrs, 52 Ariz. at 443, 83 P.2d 283)). ¶50 Relatedly, regulating police departments’ conduct, including their handling of unclaimed property, is also a matter of statewide concern. See A.R.S. §§ 12-940 to -945. Arizona case law recognizes the statewide interest in subjects even tangentially connected to the work of public safety officers and criminal justice. See Jett v. City of Tucson, 180 Ariz. 115, 121, 882 P.2d 426, 432 (1994) (removal of city magistrates from office); Walker, 60 Ariz. at 237, 135 P.2d 223 (police pensions); Luhrs, 52 Ariz. at 448, 83 P.2d 283 (police and firefighter minimum wage); Prendergast v. City of Tempe, 143 Ariz. 14, 17-18, 691 P.2d 726, 729 (App. 1984) (pay for police officers’ lunch hour). “[A] policeman ... in the regular line of duty is performing a governmental function....” Luhrs, 52 Ariz. at 446, 83 P.2d 283; see also id. at 444, 83 P.2d 283 (“Certain functions have ... definitely been determined governmental, the control of which remains in the state.”). And the Ordinance relates to the day-to-day work of police as much as the matters addressed in the above-cited cases. ¶ 51 Regulation of firearms, including their preservation or destruction, also involves the state’s police power and is of statewide concern. See Dano v. Collins, 166 Ariz. 322, 324, 802 P.2d 1021, 1023 (App. 1990) (compiling cases from other jurisdictions where firearm regulations were upheld as valid exercises of police power); State v. Beadle, 84 Ariz. 217, 221-22, 326 P.2d 344 (1958) (“The purpose of an Act, promulgated under the State’s police power, is to protect the public health, safety or welfare.”). The legislature has indicated that the disposal of firearms by government agencies is itself a component of firearm regulation by specifically including the disposal restrictions within a comprehensive statutory firearms regulation scheme. See A.R.S. § 13-3108; cf. Tucson Sunshine Climate Club, 64 Ariz. at 8, 164 P.2d 598 (requiring municipalities to participate in a general advertising plan would show the matter is of statewide concern). Because both Tucson Code § 2-142 and the state laws with which it conflicts involve the state’s police power and matters “that the entire state is interested in,” the matters at issue here “are proper subjects for general laws.” Luhrs, 52 Ariz. at 448, 83 P.2d 283 (holding that “the matter of pensioning policemen, as also the matter of fixing a minimum wage for policemen and firemen, is of state-wide concern”). Accordingly, although the state laws in question undoubtedly “affect[ ] municipal affairs,” they are also of “state concern” and therefore “take[ ] precedence” over the City’s conflicting Ordinance. Walker, 60 Ariz. at 239, 135 P.2d 223. ¶ 52 The City points to the lack of any evidence “of a gun shortage in Tucson, leaving Tucsonans or visitors without access to firearms in the City,” or any evidence “that the ordinance impacts anyone or anything outside of Tucson.” But as the State observes, “[t]he number of firearms affected by [Code § 2-142] has nothing to do with the nature of the regulated subject matter. As this Court has explained, ‘whether general state laws displace charter provisions depends on whether the subject matter is characterized as of statewide or purely local interest.’ ” (citing Tucson II, 229 Ariz. at 176 ¶ 20, 273 P.3d at 628). ¶ 53 The State and amicus National Rifle Association argue that preserving the right to bear arms under the federal and state constitutions is also a subject of state concern. See U.S. Const. amend. II; Ariz. Const. art. 2, § 26; see also McDonald v. City of Chicago, 561 U.S. 742, 767, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) (describing the right to bear arms as “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition”) (internal quotation marks omitted) (first citing Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); and then quoting Washington v. Glucksberg, 521 U.S. 702, 721, 117 S.Ct. 2302, 138 L.Ed.2d 772 (1997)); District of Columbia v. Heller, 554 U.S. 570, 635, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) (noting that the people “elevate[d] above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home”), We agree with that proposition, but even assuming that the Ordinance somehow implicates that right, we need not address this argument inasmuch as the superiority of state law over the Ordinance is clearly established based on the state’s asserted police powers discussed above. ¶ 54 The confluence of the state’s broad police powers, Arizona’s comprehensive statutory and regulatory schemes regarding firearms and unclaimed or forfeited property, and the state’s interests in regulating law enforcement agencies’ handling of such property, all lead to one conclusion; the pertinent state statutes, §§ 12-943, -945(B), and 13-3108(F), embrace a topic of statewide interest and concern and, conversely, the Ordinance does not address a matter of purely local concern. Therefore, the Ordinance cannot legally coexist with the applicable and controlling state law. ¶ 55 The City’s contrary arguments are not persuasive. Relying on article 13, section 2 of the Arizona Constitution and a handful of Arizona cases, the City contends that it “has charter authority to dispose of property it owns,” including firearms. Because the state statutes address matters of statewide interest, however, whatever powers the City seeks to exercise under its home-rule charter authority and related ordinances must be “consistent with, and subject to, the Constitution and laws of the state.” Ariz. Const., art. 13, § 2; accord AR.S. § 9-284(B). Orn-eases have consistently recognized this significant constitutional restraint on charter cities’ powers. See, e.g., Tucson II, 229 Ariz. at 174 ¶ 9, 273 P.3d at 626; Strode, 72 Ariz. at 364, 236 P.2d 48 (observing that a charter city does not have “carte blanche authority or plenary power to adopt any legislation that it might desire”); Tucson Sunshine Climate Club, 64 Ariz. at 4, 6, 164 P.2d 598 (a charter city’s powers extend “not only in matters of local concern, but also in matters of state-wide concern, within its territorial limits, unless the Legislature has appropriated the field, and directly or by necessary implication established a rule, beyond which the city may not go”); Luhrs, 52 Ariz. at 442, 83 P.2d 283 (recognizing the “general rule” that when “the subject is of statewide concern, and the Legislature has appropriated the field and declared the rule, its declaration is binding throughout the state” (quoting Clayton, 38 Ariz. at 468, 300 P. 1010)). ¶ 66 This Court has narrowly limited the concept of “purely municipal affairs,” or “local interest or concern,” see Strode, 72 Ariz. at 365-66, 236 P.2d 48, restricting the extent to which charter city ordinances can prevail over state law. In only two areas have we upheld a municipal ordinance that directly conflicts with state law. First, we have held that the “method and manner of conducting elections in the city ... is peculiarly the subject of local interest and is not a matter of statewide concern.” Strode, 72 Ariz. at 368, 236 P.2d 48; see also Tucson II, 229 Ariz. at 177 ¶¶ 30-31, 273 P.3d at 629 (concluding that “Tucson’s manner of electing its city council members supersedes the conflicting provisions of [state law],” and observing that “[i]f the ‘home rule’ provisions of Article 13, Section 2 are to have effect, they must at the least afford charter cities autonomy in choosing how to elect their governing officers”). These cases are inapposite and unhelpful to the City, inasmuch as the conflict here does not involve municipal elections or “the authority of charter cities to structure how their governing officers are elected.” City of Tucson v. State (Tucson III), 235 Ariz. 434, 435 ¶ 2, 333 P.3d 761, 762 (App. 2014). ¶ 57 Second, this Court has held that “the manner and method of disposal of real estate of a city is not a matter of state-wide public concern.” Arizona ASAE, 67 Ariz. at 336, 195 P.2d 562; see also McMann, 202 Ariz. at 470 ¶ 1, 472 ¶¶ 10-11, 474 ¶ 18, 47 P.3d at 674, 676, 680 (upholding city ordinance requiring lessees of city-owned real property to perform “instant background checks for prospective gun purchasers during gun shows held at the [City’s convention center]” because “the use permit” is “essentially a lease” and thus “a disposition of property,” a city was “engaging in business activities,” and “the legislature did not clearly intend to preempt the City from requiring [such] background checks”). These cases likewise do not support the City’s position here. ¶ 58 Unlike this case, neither Arizona ASAE nor McMann involved a clear conflict between a municipal law or action and a state law of general application and concern. In Arizona ASAE, for example, this Court determined that the state law at issue clearly “ha[d] no application to charter cities” and observed that other Arizona cities and towns have “no interest” in what Tucson’s charter provides regarding “the manner and method of disposal of [a city’s] real estate.” 67 Ariz. at 335, 336, 196 P.2d 562. And in McMann, the state had not attempted to regulate (as an exercise of its police power) the leasing of city property. See McMann, 202 Ariz. at 473 ¶ 14, 47 P.3d at 677 (noting that “the context of [the subject statute] in the entire [state] legislative scheme does not establish a clear legislative intent to preempt the City’s ordinance”); cf. City of Scottsdale, 237 Ariz. at 471 ¶ 16, 472 ¶ 23, 352 P.3d at 940 (distinguishing Arizona ASAE and McMann because “selling and leasing property owned by a municipality do not implicate the police powers of the state,” and holding that a state statute “preempts local ordinances that impose a blanket prohibition on sign walkers conducting business on public sidewalks”). Because the statutes here involve matters of “statewide concern” and “the legislature has appropriated the field” regarding governmental entities’ destruction or disposal of firearms, “its declarations are binding throughout the state, and all cities and municipalities, including charter cities, are precluded” from directly contravening the statutes through local laws. Arizona ASAE, 67 Ariz. at 336, 195 P.2d 562. ¶ 69 Other arguments presented by the City and amicus the League of Arizona Cities and Towns are also unpersuasive. Relying on iMkrs, the League asserts that “whether the property at issue is real or personal, guns or butter, if it is owned by a charter city, its use or disposition is a matter in which the Legislature is constitutionally proscribed from interfering.” See Luhrs, 52 Ariz. at 442-43, 83 P.2d 283 (noting that when the particular activity “is exercised by the city in its proprietary capacity, it is a power incident to home rule”); see also Tucson Sunshine Climate Club, 64 Ariz. at 8, 164 P.2d 598 (observing that in advertising its advantages, city was “acting in its proprietary rather than its governmental capacity” and “not acting as the agent of the state”); cf. Ariz. Const, art. 13, § 5 (“Every municipal corporation within this State shall have the right to engage in any business or enterprise which may be engaged in by a person, firm, or corporation by virtue of a franchise from said municipal corporation”). ¶60 This argument, however, skirts the pivotal inquiry in cases like this: “whether the subject matter is characterized as of statewide or purely local interest.” Tucson II, 229 Ariz. at 176 ¶ 20, 273 P.3d at 628. Thus, even if relevant, the City’s ownership interest or proprietary capacity is not determinative. In addition, the City does not destroy firearms in a proprietary capacity (and the City does not specifically argue otherwise). Cf. City of Scottsdale v. Mun. Court, 90 Ariz. 393, 398-99, 368 P.2d 637 (1962) (a city’s operation of a sewage plant is a governmental function); Jones v. City of Phoenix, 29 Ariz. 181, 181-82, 239 P. 1030 (1925) (a city’s disposal of garbage is a governmental function). Just as a city’s wastewater management and disposal are governmental functions, so too is the City’s destruction of firearms. ¶ 61 Notably, over the past seventy years only a few of the many Arizona cases addressing city/state conflicts under article 13, section 2 have cited, let alone based the decision on, a proprietary/governmental distinction that originated from dicta in Luhrs, 52 Ariz. at 443, 83 P.2d 283 (stating that if a municipality’s activity “is carried on ... as an agent of the state[,] ... it is of general or public concern,” but “[i]f it is exercised by the city in its proprietary capacity, it is a power incidental to home rule”). See Tucson Sunshine Climate Club, 64 Ariz. at 8, 164 P.2d 598 (same); McMann, 202 Ariz. at 472 ¶ 11, 47 P.3d at 676 (noting that Tucson’s “[ojperation of a convention center is a constitutionally permitted business activity”); Shaffer v. Allt, 25 Ariz. App. 565, 569-70, 545 P.2d 76 (1976) (referring to a city’s “proprietary powers” and holding that local ordinance allowing city to purchase liquor license and sell alcoholic beverages at city recreation facility was not inconsistent with the Arizona Constitution or “any general law of the state”). Because the proprietary/govemmen-tal distinction is murky and unhelpful in resolving disputes of this kind, we do not view it as an appropriate factor in determining whether a state law relates to a matter of “statewide or purely local interest.” Tucson II, 229 Ariz. at 176 ¶ 20, 273 P.3d at 628; cf. Ryan v. State, 134 Ariz. 308, 310, 656 P.2d 597, 599 (1982) (abolishing as an unnecessary, “speculative exercise” the “public/private duty doctrine” in determining governmental immunity issues). ¶62 The City also proposes a balancing test, under which courts would balance the competing state and municipal interests to determine if the asserted statewide interest is “sufficiently concrete and identifiable to outweigh the local interest of home rule cities in municipal self-government.” In support of that concept, the City cites Johnson v. Bradley, in which the California Supreme Court stated that “as a condition of state legislar- tive supremacy,” the state must show “a dimension demonstrably transcending identifiable municipal interests,” so that the phrase “statewide interest” does not invade areas of intramural concern only, thereby preserving core values of charter city government. 4 Cal.4th 389, 14 Cal.Rptr.2d 470, 841 P.2d 990, 996 (1992). Under California law, if a statewide concern is established, a charter city’s contrary law is preempted only if the state law is “reasonably related” to resolving the state’s interest and “narrowly tailored” to limit incursion into legitimate municipal interests. Id., 14 Cal.Rptr.2d 470, 841 P.2d at 999-1000 (citation and internal quotation marks omitted). Johnson was based on California’s constitution, which exempts from the control of state law “all ordinances and regulations in respect to municipal affairs.” Cal. Const, art. XI, § 6(a). Arizona has no counterpart, but instead requires a city charter to be consistent with “the laws of the state.” Ariz. Const, art. 13, § 2. ¶ 63 We reject the California approach and the City’s proposed balancing test. It would not aid courts in determining if a particular subject is of statewide interest or rather purely local concern. We therefore decline to follow Johnson and cases from other states that embrace a balancing approach. See U.S. Elevator Corp. v. City of Tulsa, 610 P.2d 791 (Okla. 1980); Madison Teachers, Inc. v. Walker, 358 Wis.2d 1, 851 N.W.2d 337 (2014). ¶ 64 In addition, a balancing test finds only limited, marginal support in Arizona. In Tucson v. State (Tucson I), without citing any Arizona authority, the court of appeals found “a balancing test” appropriate in determining whether local or statewide interests were “paramount.” 191 Ariz. 436, 439, 957 P.2d 341, 344 (1997). More recently, however, the court of appeals correctly found that a trial court erred in applying a balancing test to resolve a city/state dispute, aptly noting that this Court has never used or approved such a test in this context. Tucson III, 235 Ariz. at 439 ¶ 16 n.6, 333 P.3d at 766 (App. 2014), We agree and therefore disapprove Tucson I’s use of a balancing test in its analysis. In short, we find such a test is neither helpful nor appropriate, and instead would potentially cause confusion and inconsistent results, in resolving issues under article 13, section 2, Y. Conclusion ¶ 66 The state laws here, A.R.S. §§ 12-946(B) and 13-3108(F), involve matters of statewide, not purely local, interest and thus displace the City’s inconsistent Ordinance, Tucson Code § 2-142, regarding destruction of firearms. Having decided the legal issue presented under A.R.S. § 41-194.01(B)(2), we do not address other issues pertaining to S.B. 1487. The State is awarded its reasonable attorney fees under A.R.S. § 12-348.01, upon its compliance with ARCAP 21. . S.B. 1487 is also codified in A.R.S. §§ 42-5029(L) and 43-206(F), which direct the State Treasurer to implement monetary penalties imposed by A.R.S. § 41-194.01. 2016 Ariz. Sess. Laws, ch. 35, §§ 2-3 (2d Reg. Sess.). . Because § 41-194.01(B)(1) is not at issue here and does not directly impact the questions before us, we express no opinion on the constitutionality of that subsection, including its provision permitting the Attorney General to unilaterally decide whether appropriated monies should be withheld by the State Treasurer from the offending political subdivision and redistributed.

OPINION HOWE, Judge: ¶ 1 This appeal is from a deficiency action that lender ZB, N.A. brought against Daniel J. Hoeller and Azar F. Ghafari (collectively, “Borrowers”) on a loan used to finance the purchase of commercial real estate in Missouri, secured by a deed of trust on the property. Borrowers moved for summary judgment, arguing that because the promissory note included a Utah choice-of-law provision, the action was time-barred by Utah’s 90-day statute of limitations. The trial court denied the motion, finding that the deed of trust’s Missouri choice-of-law provision applied and that the lawsuit was timely under Missouri’s five-year statute of limitations. ZB subsequently moved for summary judgment on the merits, and the trial court granted the motion. ¶2 We hold that the promissory note’s choice-of-law provision—not the deed of trust’s—applies to the deficiency action because deficiency actions stem from the underlying debt. We further conclude that the deed of trust is effectively extinguished after the security property is sold at a trustee’s sale and therefore provides no remedies to the lender beyond the trustee’s sale. Accordingly, we reverse and remand for entry of judgment in Borrowers’ favor, FACTS AND PROCEDURAL HISTORY ¶3 In the summer of 2004, Borrowers— then California residents—purchased commercial real estate located in Missouri, Borrowers financed the purchase through a loan from ZB—principally located in Utah—secured by a deed of trust to the property. The promissory note contained a choice-of-law provision stating that it “will be governed by, construed and enforced in accordance with federal law and the laws of the State of Utah.” The note also contained a fee provision which provided for the award of ZB’s expenses, including attorneys’ fees, to collect on the note if Borrowers did not pay. The provision was silent on Borrowers’ right to receive payment for its expenses in successfully defending an action by ZB on the note. ¶4 The deed of trust similarly required that the laws of Utah govern it, “except and only to the extent of procedural matters related to the perfection and enforcement of Lender’s rights and remedies against the Property, which matters shall be governed by the laws of the State of Missouri.” One remedy provided for by the deed of trust in case of a default on the loan was the ability to foreclose on the property and collect any resulting deficiency from Borrowers with interest. “In the event that the enforceability or validity of any provision of this Deed of Trust is challenged or questioned,” the deed continued, “such provision shall be governed by whichever applicable state or federal law would uphold or would enforce such challenged or questioned provision.” ¶ 5 Borrowers made payments on the loan for eight years. But in 2012, Borrowers could not continue making payments and consequently defaulted on the loan. ZB foreclosed on the property and at the trustee’s sale purchased the property for a credit bid for $102,469—an amount less than the unpaid balance on the debt. This left a principal deficiency amount of $147,374.73 plus accruing interest. ¶6 In September 2014, ZB initiated this deficiency action against Borrowers—who had since moved to and become residents of Arizona—to recover that unpaid amount, Representing themselves, Borrowers moved to dismiss the action. They argued that the action was time-barred under A.R.S. § 33-814, which requires that a deficiency action be filed within 90 days after the sale of trust property. ZB opposed the motion, arguing that under the deed of trust’s terms regarding its “rights and remedies against the property,” Missouri law and its five-year statute of limitations applied. ¶7 The trial court agreed with ZB and denied Borrowers’ motion. In making its ruling, the trial court looked to the Restatement (Second) of Conflict of Laws § 187, which requires the application of the “laws of the state chosen by the parties to govern their contractual rights ... if a particular issue is one which the parties could have resolved by explicit provision in their agreement directed to that issue.” The court noted the applicable statute of limitations was “clearly ... one such issue.” Thus, the court concluded that because the deed of trust specified that Missouri law must govern procedural matters relating to the enforcement of ZB’s rights and remedies against the property, the Missouri statute of limitations applied and the action was not time-barred. ¶ 8 Borrowers again moved to dismiss, arguing that Utah’s laws and statute of limitations applied because the promissory note’s choice-of-law provision required that Utah’s laws apply to it. Borrowers also argued that the provision requiring the application of Missouri’s laws in the deed of trust applied only to ZB’s remedies against the property itself, not the debt. But the trial court denied the motion “for the same reasons set forth” in its previous ruling. ¶ 9 Two months later, ZB moved for summary judgment, arguing that no genuine issues of material fact existed regarding the unpaid amount. The court denied the motion, however, because ZB cited to Arizona and Missouri law instead of Utah law. Specifically, the court stated that although it had previously held that the Missouri statute of limitations applied “to matters regarding the enforcement of the deficiency as directed by the Deed of Trust,” the court did not hold that Missouri law applied to the substantive elements of ZB’s remedies for default. Instead, the trial court concluded that ZB’s substantive rights are governed by the promissory note, which established that Utah law governed. ¶ 10 The following month, ZB again moved for summary judgment, this time stating that it had previously “erred in believing that Arizona law applied to the Note itself,” and agreeing that “Utah law applies.” ZB then established Borrowers’ liability for the debt pursuant to Utah law. Borrowers, too, moved for summary judgment, arguing anew that Utah law and its statute of limitations applied, rendering ZB’s deficiency action time-barred. After hearing oral argument on both motions, the trial court granted summary judgment in ZB’s favor. The trial court affirmed its previous holding that Missouri’s statute of limitations applied pursuant to the deed of trust. The court also noted that, as the parties agreed, Utah law governed Borrowers’ liability under the promissory note. After the trial court entered its judgment consistent with this ruling, Borrowers timely appealed. DISCUSSION 1. Summary Judgment ¶ 11 Borrowers do not challenge the finding that they defaulted on the loan nor the amount of the deficiency. They argue, however, that the trial court erred by concluding that Missouri’s laws—particularly its statute of limitations—applied to ZB’s deficiency action against them. Specifically, the parties disagree only whether the promissory note’s or the deed of trust’s choice-of-law provision applies to establish the timeliness of ZB’s deficiency action. We review choice-of-law issues de novo as questions of law. Garcia v. Gen. Motors Corp., 195 Ariz. 510, 516 ¶ 19, 990 P.2d 1069, 1075 (App. 1999). Similarly, we review the trial court’s ruling on motions for summary judgment de novo. MidFirst Bank v. Chase, 230 Ariz. 366, 368 ¶ 6, 284 P.3d 877, 879 (App. 2012). Summary judgment should be granted only if no genuine issue as to any material fact exists and the moving party is entitled to judgment as a matter of law. Ariz. R. Civ. P. 56(a). Because the promissory note’s choice-of-law provision applies to this deficiency action, the action is time-barred and the trial court erred by granting summary judgment in ZB’s favor. ¶ 12 Substantive matters are governed by the “law of the jurisdiction to which the court is referred by the choice-of-law rules of the forum.” Cardon v. Cotton Ln. Holdings, Inc., 173 Ariz. 203, 206, 841 P.2d 198, 201 (1992). Trustee’s sales of real property are themselves procedural matters governed by the law of the state where the property is located. Id, But any subsequent deficiency action in Arizona is a substantive matter, and therefore governed by Arizona’s choice-of-law rules. Parkway Bank & Tr. Co. v. Zivkovic, 232 Ariz. 286, 289 ¶ 11, 304 P.3d 1109, 1112 (App. 2013). The Arizona Supreme Court has expressly adopted the Restatement (Second) of Conflict of Laws (“Restatement”) to resolve these issues. Schwartz v. Schwartz, 103 Ariz. 562, 565, 447 P.2d 254, 257 (1968), abrog’d on other grounds, Fernandez v. Romo, 132 Ariz. 447, 646 P.2d 878 (1982). ¶ 13 As relevant to the foreclosure of a mortgage on land, the Restatement directs that the method of foreclosure of a mortgage and the resulting interests in that land are determined by the laws of the state where the property is located. Restatement § 229. Issues relating to the foreclosure but not affecting any interest in the actual property, however, are determined by the law governing the underlying debt. Id. at § 229 cmt. e. In other words, the courts will apply the choice-of-law provision in the promissory note. The Restatement directs that a contractually agreed-upon choice-of-law provision governs if that choice is valid and effective. Restatement § 187(2). A choice-of-law provision is valid and effective if “the law of the state chosen by the parties to govern their contractual rights and duties ... is one which the parties could have resolved by an explicit provision in their agreement directed at that issue.” Restatement § 187(1); see Cardón, 173 Ariz. at 208, 841 P.2d at 203 (stating that the parties’ choice-of-law provision was valid and effective because the parties could have contractually agreed to the relevant issue). ¶ 14 Applying these principles, ZB’s deficiency action is time-barred by Utah’s statute of limitations. The basis of ZB’s action against Borrowers is the deficiency Borrowers owed to ZB on the promissory note after the foreclosure of the commercial property. The action thus has no effect on any interest in the actual property. See Nat’l Bank of Ariz. v. Schwartz, 230 Ariz. 310, 312 ¶ 7, 283 P.3d 41, 43 (App. 2012) (“The debt arises from the promissory note. It is contractual .... Rather than the deficiency flowing from the foreclosure ... the debt and all the potential recovery flow from the promissory note.”). Because the action is not based on the foreclosed property, but on the underlying debt, the Restatement states that the provisions of the promissory note govern the deficiency action. The promissory note’s choice-of-law provision declares clearly without exceptions that Utah law applies. ZB even conceded before trial—and does not now dispute—that “Utah law applies” to “the Note itself.” This choice to be governed by Utah law was valid and effective because nothing in Utah law would have precluded the parties from explicitly agreeing to limit ZB’s right to pursue a deficiency action up to 90 days from the date of the sale of the property held as security for the debt. ¶ 15 Under Utah law, ZB had 90 days from the date of the sale of the Missouri property pursuant to the deed of trust to initiate a deficiency action. Utah Code Ann. § 57-1-32. Because ZB waited almost two years to initiate this action, the action is time-barred. The trial court thus erred in granting ZB summary judgment. ¶ 16 ZB argues, however, that regardless of its right to recover a deficiency through the promissory note, the parties created an additional remedy for ZB by adding a deficiency remedial provision to the deed of trust. ZB and Borrowers agreed in the deed of trust to apply the law of whichever relevant jurisdiction that would enforce and uphold ZB’s rights to recover through a deficiency action. ZB further argues that because the deed of trust includes- deficiency as a remedial provision, the deficiency’s procedural matters should be governed by the deed’s governing law provision. But ZB’s argument is -unavailing for two reasons. ¶ 17 First, the deed of trust serves only to secure the performance of a loan contract, which allows trust property to be sold and transferred after a breach or default of the underlying loan contract. See AR.S. §§ 33-801(8) and -807(A); see also Hogan v. Wash. Mut. Bank, N.A., 230 Ariz. 584, 587 ¶ 10, 277 P.3d 781, 784 (2012) (“The note is a contract that evidences the loan and the obligor’s duty to repay. The trust deed transfers an interest in real property, securing the repayment of the money owed under the note.”). Once that purpose was served through the trustee’s sale, the deed of trust and its choice-of-law provision no longer had effect. Cf. Long v. Corbet, 181 Ariz. 153, 157, 888 P.2d 1340, 1344 (App. 1994) (concluding that a junior creditor’s deed of trust was “extinguished” when a senior creditor sold the deed of trust property at a trustee’s sale, although the debt secured by the junior creditor’s deed of trust was not). The deed of trust is effectively extinguished after a trustee’s sale of the security property. Contrary to ZB’s argument, then, the remedial provisions do not survive after the successful sale of the property. Moreover, the remedial provision did not create an additional right for ZB; the provision was merely a reference to the deficiency remedy that ZB had under the promissory note itself. Applying Utah’s laws does not deprive ZB of its right to recover through a deficiency. Utah’s laws provide lenders the right to initiate a deficiency action. Utah Code Ann. § 57-1-32. ZB simply failed to invoke its right under Utah’s laws within the statutorily allotted time. ZB did not need a provision in the deed of trust to initiate this action. ¶ 18 Second, even if the trustee’s sale did not effectively extinguish the deed of trust, the deed would not require application of Missouri law. Contrary to ZB’s argument, the deed’s provision requiring the application of “whichever applicable [state law] would uphold or enforce” a challenged provision does not apply because Borrowers have not “challenged” any of the deed’s provisions. A challenge to a contract provision’s enforceability is based on the provision’s legality or public policy. See Landi v. Arkules, 172 Ariz. 126, 133, 835 P.2d 458, 465 (App. 1992) (“An agreement is unenforceable if the acts to be performed would be illegal or violate public policy.”). The Borrowers here merely responded to a deficiency action against them with an affirmative defense that the action is untimely. This is a challenge to the deficiency action’s timeliness, not the deed provision’s legality or public policy. The trial court thus erred by granting summary judgment in ZB’s favor. 2. Attorneys’ Fees ¶ 19 Borrowers and ZB each request attorneys’ fees and costs. Although we would ordinarily be required to award fees under the promissory note’s fee provision, A.R.S. § 12-341.01, that provision allows for fees only for ZB, When a provision allows for awarding fees only to one party and is silent on awarding fees to the other parties to a contract, fees may be awarded to the other parties pursuant to A.R.S. § 12-341.01. See Pioneer Roofing Co. v. Mardian Constr. Co., 162 Ariz. 466, 471, 733 P.2d 652, 668 (App. 1986). Because Borrowers are the successful party in a contested action arising out of the promissory note—a contract—we grant Borrowers their reasonable attorneys’ fees under A.R.S. § 12-341.01 upon compliance with Arizona Rule of Civil Appellate Procedure 21 and deny fees and costs to ZB. CONCLUSION ¶ 20 For the foregoing reasons, we reverse the trial court’s judgment and remand for entry of judgment in Borrowers’ favor.

OPINION ECKERSTROM, Chief Judge: ¶ 1 In this special action, the State of Arizona seeks relief from the respondent judge’s order precluding recordings of jail telephone calls and visits involving the real party in interest, defendant Bryan Lietzau, and the judge’s order precluding a transcript purportedly showing text messages between Lietzau and the minor victim. Because the state has not asserted it would have presented any precluded recordings at trial absent the respondent’s order, we decline to accept jurisdiction to consider that issue. However, because the respondent erred by concluding the state could not present sufficient evidence to authenticate the transcript pursuant to Rule 901, Ariz. R. Evid., and the state has no remedy by appeal, we accept jurisdiction to address that issue and grant relief. See Ariz. R. P. Spec. Actions 1(a), 3(c). Background ¶ 2 Lietzau was charged with six counts of sexual conduct with a minor under the age of fifteen based on his alleged sexual relationship with then thirteen-year-old S. in 2014. The state disclosed a document purporting to be a transcript of text messages between Lietzau and the victim. Lietzau’s probation officer had manually transcribed the messages from a smartphone he had taken from Lietzau on December 10, 2014. The transcript consists of dozens of messages sent over a four-day period from December 6 to December 10, 2014, and reflects a romantic and sexual relationship between the participants. ¶3 Lietzau moved to exclude the text-message transcript, arguing inter alia that the state could not provide sufficient proof the messages were between him and the victim and thus could not comply with Rule 901. Lietzau asserted both he and S. had denied messaging each other and that a third party, T., had used Lietzau’s phone to message S.—which T. had corroborated during an interview. Lietzau also pointed out that the messages were not found in a later forensic examination of the phone, that the probation officer could not recall the program he had used to view the messages on the phone, and that the service for the phone was registered to Lietzau’s mother. ¶ 4 The state responded that the probation officer had claimed Lietzau told him the messages were from S. and that the messages were consistent with other evidence. The state noted that S. had admitted having a sexual relationship with Lietzau and that she would testify about exchanged text messages between them. Additionally, according to the state, recordings of jail calls showed Lietzau had asked family members to contact S., had given her a phone, and referred to the fact he had carved “[S.] is mine” on his arm. The state also noted that Lietzau had identified himself in one of the messages. After hearing argument, the respondent judge granted Lietzau’s motion, stating the transcript was precluded because the phone was not in Liet-zau’s name and “other people had access to it.” This petition for special action followed. Discussion ¶ 5 We review the respondent judge’s authentication ruling for an abuse of discretion. State v. Forde, 233 Ariz. 543, ¶ 74, 315 P.3d 1200, 1220 (2014). “An ‘abuse of discretion’ is discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.” Torres v. N. Am. Van Lines, Inc., 135 Ariz. 35, 40, 658 P.2d 835, 840 (App. 1982), quoting Quigley v. City Ct. of Tucson, 132 Ariz. 35, 37, 643 P.2d 738, 740 (App. 1982). A trial court abuses its discretion if it makes an error of law in reaching its decision or makes a discretionary finding of fact that is not justified by reason. State v. Aguilar, 224 Ariz. 299, ¶ 6, 230 P.3d 358, 359-60 (App. 2010). ¶ 6 “To authenticate an item of evidence, the ‘proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.’ ” Forde, 233 Ariz. 543, ¶ 74, 315 P.3d at 1220, quoting Ariz. R. Evid. 901(a). The trial court “does not determine whether the evidence is authentic, but only whether evidence exists from which the jury could reasonably conclude that it is authentic,” State v. Lavers, 168 Ariz. 376, 386, 814 P.2d 333, 343 (1991). If that standard is met, any uncertainty goes to the weight rather than the admissibility of the evidence. State v. George, 206 Ariz. 436, ¶ 31, 79 P.3d 1050, 1060 (App. 2003). ¶ 7 “[A] flexible approach is appropriate, allowing a trial court to consider the unique facts and circumstances in each case—and the purpose for which the evidence is being offered—in deciding whether the evidence has been properly authenticated.” State v. King, 226 Ariz. 253, ¶ 9, 245 P.3d 938, 942 (App. 2011), quoting State v. Haight-Gyuro, 218 Ariz. 356, ¶ 14, 186 P.3d 33, 37 (App. 2008) (alteration in King). A party can authenticate evidence by various means, including “[testimony of a witness with knowledge” or “[distinctive characteristics and the like,” such as the “contents, substance, internal patterns, or other distinctive characteristics” of the evidence. Ariz, R. Evid. 901(b)(1), (4). Telephone conversations, which are analogous to text messages, may also be authenticated by “evidence that a call was made to the number assigned at the time to ... a particular person, if circumstances, including self-identification, show that the person answering was the one called.” Ariz. R. Evid. 901(b)(6)(A). ¶ 8 Two Arizona cases have addressed the authentication of text messages. In Forde, our supreme court found sufficient authentication evidence when the seized phone was taken from, and registered to, the sender, the text message was sent to a phone registered to the defendant, and that phone was found in her possession. 233 Ariz. 543, ¶¶ 75-76, 315 P.3d at 1220-21. Similarly, this court found sufficient evidence to authenticate a text message from the victim when the recipient testified she often communicated with the victim via text, had saved the number in her own phone denominated with a nickname, that nickname was displayed when she received the text, and the victim’s phone was found next to her body. State v. Damper, 223 Ariz. 572, ¶¶ 18-19, 225 P.3d 1148, 1162-53 (App. 2010). ¶ 9 Lietzau cites numerous out-of-state cases addressing the authentication of text messages. Those cases generally require some indicia of authorship before a text message can be attributed to a particular person. See State v. Koch, 157 Idaho 89, 334 P.3d 280, 288 (2014) (proponent must provide “direct or circumstantial corroborating evidence of authorship” to authenticate text message); Rodriguez v. State, 273 P.3d 845, 849 (Nev. 2012); Commonwealth v. Koch, 39 A.3d 996, 1005 (Pa. Super. 2011) (finding authentication insufficient in absence of “evidence tending to substantiate that Appellant wrote the drug-related text messages”). We find this approach to be consistent with Arizona law. Such indicia was present in Damper, where the victim regularly communicated via text with the recipient using a particular phone, and that phone was found near the victim’s body. 223 Ariz. 572, ¶¶ 18-19, 225 P.3d at 1152-53. ¶ 10 The issue of authorship was not addressed in Forde. Instead, the defendant there challenged whether there was evidence the message was “one intended for [her].” 233 Ariz. 543, ¶ 75, 315 P,3d at 1220. But sufficient indicia of authorship was present, given that the phone from which the messages were sent was found in the sender’s possession. Id. ¶¶ 75-76. In any event, nothing in the authority Lietzau cites supports a conclusion the authentication in this case was insufficient as a matter of law. Instead, as we explain, there was ample evidence from which a jury could conclude the messages were between Lietzau and the victim. ¶ 11 The respondent judge’s authentication ruling was based on his determination that Lietzau did not have exclusive access to the phone and the phone was not registered in his name. But we have found no authority requiring exclusive possession. And, although the phone was not registered to Lietzau, that fact does not demand the conclusion that Lietzau could not have sent the text messages in light of other evidence linking the phone and messages to Lietzau. There is no suggestion that Lietzau’s mother was the author or recipient of the messages. Nor would a jury have to accept T.’s claim that he had regularly used Lietzau’s phone to message the victim. T. claimed their relationship was platonic. The content of the messages is not consistent with a platonic relationship. And the messages include references to T. in the third person. ¶ 12 Lietzau asserts that, because the state provided “none of th[e] information” our supreme court detailed in Forde, it has provided insufficient evidence to authenticate the text messages. But Forde cannot reasonably be read to establish a minimum threshold for authentication. Instead, what constitutes sufficient authentication will vary from case to case. See King, 226 Ariz. 253, ¶ 9, 245 P.3d at 942. And Lietzau is incorrect that “there is no basis to conclude the outgoing messages were sent by [him], or that the incoming messages were intended for and received by him.” ¶ 13 The transcript contains numerous indications that the messages are between Lietzau and the victim. In one message, Liet-zau identifies himself. Given that the phone was found in his possession, Lietzau’s self-identification would permit a jury to find that he participated in the text conversation. See Ariz. R. Evid. 901(6)(A). Other messages address the victim by name. Several messages are described as photographs of Lietzau— including photographs of Lietzau’s arm with the phrase “[S.] is mine” “cut into it.” And, a jury could conclude all the transcribed messages constitute conversations between the same two individuals—the nicknames, topics, and tone of the conversations are consistent throughout. See Ariz. R. Evid. 901(4). ¶ 14 Additionally, extrinsic evidence connects the messages to Lietzau and the victim. For instance, in the initial messages, Lietzau informs the victim that he had obtained a phone for her and that he would pay for it. The state identified jail recordings in which Lietzau stated he had (through his mother) provided a phone for the victim. And, consistent with the transcript, Lietzau stated during a jail call that he had the victim’s name on his am. ¶ 15 Moreover, in its motion below, the state avowed the victim would testify she and Lietzau had discussed via text message her possibly being pregnant and getting a pregnancy test. A conversation consistent with that avowal appears in the message transcript. See Ariz. R. Evid. 901(b)(1). And the messages are consistent with her later admission that she had a sexual relationship with Lietzau. This evidence, taken as a whole, would permit the jury to conclude the messages are a conversation between Lietzau and the victim. The evidence is sufficient to meet the authentication requirement of Rule 901 and the respondent abused his discretion in finding otherwise. In this context, Liet-zau’s contention—that these messages do not reflect conversations between himself and the victim—properly address the weight, not the admissibility, of that evidence. See George, 206 Ariz. 436, ¶ 31, 79 P.3d at 1060. Disposition ¶ 16 We decline special action jurisdiction to address whether the respondent judge erred in precluding recordings of jail phone calls and visits. We accept special action jurisdiction to address whether the respondent erred in precluding the text-message transcript and, for the reasons stated, we grant relief. We vacate the respondent judge’s order precluding the transcript. . In its review of Koch, the Pennsylvania Supreme Court observed that the approach in Forde was "permissive” because it did not "require at least some corroboration of authorship.” 630 Pa. 374, 106 A.3d 705, 714 (2014). As we have noted, however, authorship was not challenged in Forde. . In any event, neither party suggests we should assess the messages separately to determine if the state has provided sufficient authentication evidence to show some of the messages, but not others, were between Lietzau and the victim.

OPINION JOHNSEN, Judge: ¶ 1 The superior court denied a motion to dismiss in favor of arbitration under the Federal Arbitration Act, holding the moving parties waived their right to compel arbitration by failing to raise it as an affirmative defense in their answer. Exercising our discretion to accept special action review and applying federal law, we hold there was no waiver and reverse the order denying the motion to dismiss. FACTS AND PROCEDURAL BACKGROUND ¶ 2 Security Alarm Financing Enterprises, L.P. filed a complaint alleging contract and tort claims against several former employees and them new employer. The complaint alleged breach of contract, misappropriation of trade secrets, unfair competition and tortious interference with business expectancies. In answering the complaint, Amy Fuller, Molly Griffis, and Carlee and Darryl Reeves (collectively “Appellants”) did not raise any affirmative defense concerning arbitration. ¶3 Security acknowledges that 29 days after Appellants answered the complaint, their counsel contacted Security to raise the existence of arbitration agreements Appellants each had signed when they started work with Security. (The arbitration agreements were stand-alone contracts separate from the confidentiality agreements on which Security’s contract claims were based.) Each of the identical three-page arbitration agreements specified that it “is governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq.,” and that it would apply “to any dispute arising out of or related to” the employee’s “employment with ... [Security] ... or termination of employment.” Appellants asked whether Security would agree to arbitration; a month later, Security responded that it would not agree. Four days after receiving Security’s response, Appellants moved to dismiss the complaint and to compel arbitration. The superior court denied the motion, finding Appellants waived their right to compel arbitration by failing to cite the arbitration agreement as an affirmative defense in their answer. Appellants then appealed. DISCUSSION A. Jurisdiction. ¶ 4 This court derives its jurisdiction wholly from statute. See Garza v. Swift Transp. Co., 222 Ariz. 281, 283, ¶ 12, 213 P.3d 1008, 1010 (2009). Generally speaking, an order denying a motion to dismiss is not reviewable by appeal because it is not a final judgment. See Brumett v. MGA Home Healthcare, L.L.C., 240 Ariz. 420, 426, ¶ 4, 380 P.3d 659, 665 (App. 2016). ¶ 5 Appellants, however, suggest Arizona Revised Statutes (“A.R.S.”) section 12-2101.01(A)(1) (2017) grants this court jurisdiction over the denial of their motion to dismiss and to compel arbitration. That statute grants the court of appeals jurisdiction to hear an appeal from “[a]n order denying an application to compel arbitration made under § 12-1502 or 12-3007.” But Appellants did not move to compel arbitration under either A.R.S. § 12-1502 (2017) (adopted from the Uniform Arbitration Act) or A.R.S. § 12-3007 (2017) (adopted from the Revised Uniform Arbitration Act). Indeed, Arizona’s versions of the Uniform Arbitration Act and the Revised Uniform Arbitration Act expressly do not apply to arbitration agreements, such as the one at issue here, between an employer and its employee. A.R.S. §§ 12—1517 (2017), -3003(B)(1) (2017). Instead, Appellants moved to compel arbitration under the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16 (2017), which the arbitration agreement expressly adopted. Because Appellants did not move to compel arbitration under A.R.S. §§ 12-1502 or -3007, and because no other statute grants this court appellate jurisdiction, we lack jurisdiction to consider Appellants’ appeal from the order denying their motion. ¶ 6 Alternatively, Appellants ask us to treat their appeal as a petition for special action. In our discretion and pursuant to A.R.S. § 12-120.21(A)(4) (2017), we may exercise special action jurisdiction “under appropriate circumstances.” Phillips v. Garcia, 237 Ariz. 407, 410, ¶ 6, 351 P.3d 1105, 1108 (App. 2016). Special action jurisdiction is proper when a party has no “equally plain, speedy, and adequate remedy by appeal,” Arizona Rule of Procedure for Special Actions 1(a), and in cases “involving a matter of first impression, statewide significance, or pure questions of law,” State ex rel. Pennartz v. Olcavage, 200 Ariz. 582, 585, 118, 30 P.3d 649, 652 (App. 2001). ¶7 Appellants have no adequate remedy by appeal from the order denying their motion to compel arbitration. See Yarbrough v. Montoya-Paez, 214 Ariz. 1, 2, 147 P.3d 755, 756 (App. 2006) (accepting special action jurisdiction of order transferring venue). Further, the primary issue presented here is a question of law, namely, what a party must show to establish that an adversary has waived a right to arbitration under the FAA. As presented, this dispute “require[s] neither factual review nor interpretation.” Orme School v. Reeves, 166 Ariz. 301, 303, 802 P.2d 1000, 1002 (1990). It likewise is an issue of first impression in this state. See State ex rel. Thomas v. Duncan, 216 Ariz. 260, 262, ¶ 5, 165 P.3d 238, 240 (App. 2007). ¶ 8 Accordingly, we exercise our discretion to accept special action jurisdiction to determine whether the superior court erred by denying Appellants’ motion to dismiss and to compel arbitration. B. Denial of the Motion to Compel Arbitration. ¶ 9 We review the denial of a motion to compel arbitration de novo. Sun Valley Ranch 308 Ltd. P’ship v. Robson, 231 Ariz. 287, 291, ¶ 9, 294 P.3d 125, 129 (App. 2012). Further, whether conduct amounts to waiver of the right to arbitrate is a question of law we review de novo. In re Estate of Cortez, 226 Ariz. 207, 210, ¶ 3, 245 P.3d 892, 895 (App. 2010). ¶ 10 The parties disagree about whether Arizona law or federal law governs waiver of a right to arbitration under the FAA. Depending on the circumstances of a particular case, which law applies may make a difference because the legal standards governing waiver may not be precisely the same. In arguing that Appellants waived arbitration by failing to plead it in their answer, Security relies on our decision in Cortez as “controlling.” See 226 Ariz. at 211, ¶ 6, 246 P.3d 892 (“An assertion that arbitration is mandatory is an affirmative defense to a complaint. It is well established that any defense not set forth in an answer or pre-answer motion to dismiss is waived.” (Citation omitted.)). Security argues that under Arizona law, Appellants’ failure to plead arbitration was sufficient by itself to constitute waiver. By contrast, under the FAA, conduct inconsistent with an intent to arbitrate by itself is not sufficient to establish waiver; at a minimum, the court also must consider whether the party opposing arbitration has suffered prejudice by the other party’s inconsistent acts. Compare Richards v. Ernst & Young, LLP, 744 F.3d 1072, 1074 (9th Cir. 2013) (waiver requires showing of prejudice), with Zuckerman Spaeder, LLP v. Auffenberg, 646 F.3d 919, 922 (D.C. Cir. 2011) (potential prejudice is among circumstances to be considered). ¶ 11 Two respective provisions of the FAA guide analysis of challenges to a party’s right to compel arbitration. First, under 9 U.S.C, § 2, a written arbitration agreement “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” The cases make clear that the inquiry under § 2 of whether an arbitration agreement is “valid, irrevocable, and enforceable” is governed by state law, i.e,, the law pertaining to “revocation of any contract.” See, e.g., Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 686, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996) (state law governs general issues concerning the validity, revocability and enforceability of contracts); Perry v, Thomas, 482 U.S. 483, 492, n.9, 107 S.Ct. 2520, 96 L.Ed.2d 426 (1987); Hudson v. Citibank (S.D.) NA, 387 P.3d 42, 47 (Alaska 2016). Thus, when an Arizona court determines the validity or enforceability of an arbitration agreement under the FAA, it applies Arizona common law pertaining to contracts. See, e.g., WB, The Bldg. Co. v. El Destino, LP, 227 Ariz. 302, 308, ¶ 14, 257 P.3d 1182, 1188 (App. 2011). ¶ 12 But the issue here is not whether Arizona contract-law principles invalidate the arbitration agreements Security asked Appellants to sign. The issue is whether Appellants waived their right to enforce those agreements. That issue is resolved not under state-law principles pursuant to § 2 of the FAA, but under federal-law principles dictated by the other provision in the FAA applying to challenges to arbitration, 9 U.S.C. § 8. Under § 3: If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration. ¶ 13 Pursuant to 9 U.S.C. § 3, a state court must order arbitration so long as the moving party “is not in default in proceeding with such arbitration.” This provision, as a matter of federal law, governs the determination of whether a party has “default[edj” by waiving the right to seek arbitration under an otherwise enforceable agreement. See Ehleiter v. Grapetree Shores, Inc., 482 F.3d 207, 217 (3d Cir. 2007); Marie v. Allied Home Mortg. Corp., 402 F.3d 1, 13 (1st Cir. 2005) (citing cases); S & H Contractors, Inc. v. A.J. Taft Coal Co., 906 F.2d 1607, 1514 (11th Cir. 1990) (“Our determination of whether S & H waived its right to arbitration, as opposed to whether the contract is void under Alabama law, is controlled solely by federal law.”); Cornell & Co. v, Barber & Ross Co., 360 F.2d 612, 513 (D.C. Cir. 1966) (“Once having waived the right to arbitrate, that party is necessarily ‘in default in proceeding with such arbitration,’ ”); Hudson, 387 P.3d at 47; see also Barber & Ross Co. v. Cornell & Co., 242 F.Supp. 825, 826 (D.D.C. 1965) (moving party was “in default” because “the litigation machinery had been substantially invoked ... by the time ... an intention to arbitrate was communicated”). In the face of these authorities, Security cites no case holding that waiver of a right to arbitrate under the FAA is governed by state-law principles under § 2 of the FAA rather than by federal-law principles under § 3. ¶ 14 Accordingly, turning to the federal law of waiver under the FAA, the Ninth Circuit Court of Appeals has held that waiver of a right to arbitration under 9 U.S.C. § 3 requires a showing of “(1) knowledge of an existing right to compel arbitration; (2) acts inconsistent with that existing right; and (3) prejudice to the party opposing arbitration resulting from such inconsistent acts.” Richards, 744 F.3d at 1074. Many other circuit courts impose the same requirements. See, e.g., Shy v. Navistar Int’l Corp., 781 F.3d 820, 827-28 (6th Cir. 2015) (“Both inconsistency and actual prejudice are required.”); In re Checking Account Overdraft Litig., 754 F.3d 1290, 1294 (11th Cir. 2014); Wheeling Hosp., Inc. v. Health Plan of the Upper Ohio Valley, Inc., 683 F.3d 577, 586-87 (4th Cir. 2012); Ehleiter, 482 F.3d at 222 (“[Prejudice is the touchstone for determining whether the right to arbitrate has been waived.”); Seguros Banvenez, S.A. v. S/S Oliver Drescher, 761 F.2d 855, 862 (2d Cir. 1985). Other courts have held that while prejudice is not required, it is a factor to be considered in determining whether waiver has occurred. See, e.g., Zuckerman Spaeder, 646 F.3d at 922 (potential prejudice is among circumstances to be considered); St. Mary’s Med. Ctr. of Evansville, Inc. v. Disco Aluminum Prods. Co., Inc., 969 F.2d 585, 590 (7th Cir. 1992) (“If prejudice is relevant, even if not dispositive, the district court should consider it just as it should consider any other relevant factor.”); Hudson, 387 P.3d at 47-48. ¶ 15 In interpreting a federal statute, in the absence of guidance by the United States Supreme Court, Arizona courts will look first to a “clear rule” issued by the Ninth Circuit Court of Appeals if that rule appears just. Weatherford ex rel. Michael L. v. State, 206 Ariz. 529, 532-33, ¶¶ 8-9, 81 P.3d 320, 323-24 (2003). When other courts are divided on an issue of federal substantive law, following Ninth Circuit precedent “furthers federal-state court relationships” and promotes “predictability and stability of the law,” Id. at 533, ¶ 9, 81 P.3d 320. ¶ 16 On this question, we adopt the Ninth Circuit rule for the additional reason that it has the benefit of clarity and certainty. As interpreted by the Ninth Circuit, waiver under 9 U.S.C. § 3 requires proof that the party seeking arbitration knew of an “existing right to compel arbitration,” it nevertheless committed “acts inconsistent with that existing right,” and those inconsistent acts caused prejudice to the party opposing arbitration. Richards, 744 F.3d at 1074. In applying this standard, we keep in mind that “any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1988). ¶ 17 Applying 9 U.S.C. § 3 to the facts of this ease, we conclude Appellants did not waive their right to arbitration of Security’s claims against them. To be sure, Appellants were aware of the arbitration agreement, at least constructively, and they undeniably did not raise arbitration as an affirmative defense in their answer. But they contacted Security to commence the arbitration process within a month of answering the complaint. Most significantly, Security has not shown it was prejudiced by Appellants’ delay. ¶ 18 In support of its argument to the contrary, Security contends it went to the trouble of preparing its initial disclosure statement under Arizona Rule of Civil Procedure 26.1 before the court ruled on Appellants’ motion to dismiss. But Security’s complaint against Appellants also named other defendants with which Security has no arbitration agreements. Having chosen to join all the defendants in a single action, Security accepted the possibility that its claims would have to proceed on dual tracks, one through the superior court and the other through arbitration. Under both state and federal principles, in these circumstances, enforcement of parties’ rights “requires piecemeal resolution when necessary to give effect to an arbitration agreement.” Moses H. Cone, 460 U.S. at 20, 103 S.Ct. 927; Forest City Dillon, Inc. v. Superior Court, 138 Ariz. 410, 412, 676 P.2d 297, 299 (App. 1984). Accordingly, Appellants’ failure to cite the arbitration agreement in their answer did not compel Security to prepare a disclosure statement in support of its claims; Security was obligated to prepare that disclosure for the other defendants regardless of any purported waiver by Appellants. ¶ 19 Nor did Appellants unfairly benefit by receiving a copy of the disclosure statement Security provided to the other defendants. The arbitration agreements Appellants signed at Security’s request expressly grant the parties “the right to conduct adequate civil discovery.” Security further argues it suffered prejudice because Appellants twice asked for extensions of time to respond to the complaint, but it does not state how the delay caused injury to the company. Moreover, the delay at issue here is the 29 days after answering the complaint it took Appellants to raise the arbitration agreement, not any delay before they filed their answer. For the same reasons, Security’s contention that it was prejudiced by its pre-litigation efforts to “deliver[ ] cease and desist letters” to Appellants and in “framing its litigation strategy” is unfounded. ¶ 20 In sum, Security makes no showing that it was prejudiced by Appellants’ failure to cite the arbitration agreement in their answer or by the subsequent 29-day delay before Appellants first raised the issue of arbitration. Accordingly, the superior court erred by denying Appellants’ motion to compel arbitration. CONCLUSION ¶ 21 Accepting special action jurisdiction, we grant relief by reversing the superior court’s order denying Appellants’ motion to dismiss and to compel arbitration. . Absent material revision after the relevant date, we cite a statute’s current version. . Because state law does not apply, we need not decide whether, as Security argues, Cortez and Arizona law require denial of a motion to compel arbitration brought by a party that has answered the complaint without reserving the right to arbitrate. We note, however, that evidence in Cortez established far more than a mere failure to plead arbitration as an affirmative defense; the defendant there also "participated substantially in the litigation and thereby exhibited additional conduct inconsistent with enforcing tire [arbitration] agreement." 226 Ariz. at 211, ¶ 6, 245 P.3d 892; see City of Phoenix v. Fields, 219 Ariz. 568, 575, ¶ 30, n.4, 201 P.3d 529, 536 (2009) (party may waive arbitration by "participating] substantially in litigation without promptly seeking an order from the court compelling arbitration”). Further, Security incorrectly argues that application of 9 U.S.C, § 3 to this case “illogically presumes in the first instance” that Cortez "somehow adopted a state waiver standard that would violate requirements of the FAA.” The FAA was not at issue in Cortez, and our decision in that case did not mention the federal statute.

OPINION HOWE, Judge: ¶ 1 Patricia L. Williamson appeals the trial court’s order dismissing her medical malpractice action with prejudice for failure to serve a preliminary expert opinion affidavit as A.R.S. § 12-2603 requires. For the following reasons, we affirm the judgment as modified to reflect that the dismissal is without prejudice, PACTS AND PROCEDURAL HISTORY ¶2 In October 2013, Williamson filed a medical malpractice action against Kevin J. O’Brien, DPM, stemming from a podiatry surgery, Williamson did not certify whether an expert opinion was necessary to prove her claim as AR.S. § 12-2603(A) requires. ¶ 3 O’Brien moved for an order compelling Williamson to serve a preliminary expert opinion affidavit in compliance with AR.S, § 12-2603. The trial court determined that expert testimony was necessary to prove Williamson’s claim and ordered her to serve a preliminary expert opinion affidavit. Williamson did not comply with the order, so O’Brien moved for dismissal. Williamson then requested additional time to comply with the order, whieh the court granted. The trial court told Williamson that “if you fail to comply with the court’s order by October the 6th, 2014, and that if the defendant moves to dismiss this lawsuit with prejudice ... you can anticipate that the court will grant that motion to dismiss and your case will be over.” ¶ 4 Before the extended deadline, Williamson filed a document titled “Order-Medical Expert Affidavit” that contained almost 70 pages of medical records purporting to be a medical expert affidavit by Ronald Killian, DPM. The trial court acknowledged that Williamson filed the document but stated that it “takes no action.” O’Brien again moved for dismissal arguing that the document Williamson submitted did not meet A.R.S, § 12-2603(B)’s requirements. The court dismissed the complaint with prejudice and entered judgment in favor of O’Brien for costs. ¶ 5 After the trial court entered an order containing finality language pursuant to Arizona Rule of Civil Procedure (“Rule”) 54(c), Williamson timely appealed. DISCUSSION ¶ 6 We review de novo dismissal for a failure to serve a preliminary expert opinion affidavit required by A.R.S. § 12-2603. Romero v. Hasan, 241 Ariz. 385, 386 ¶ 6, 388 P.3d 22, 23 (App. 2017). We discern Williamson’s arguments as best we can and consider only those that are adequately supported. In re Aubuchon, 233 Ariz. 62, 64-65 ¶ 6, 309 P.3d 886, 888-89 (2013). Unsupported arguments are considered waived. Ritchie v. Krasner, 221 Ariz. 288, 305 ¶ 62, 211 P.3d 1272, 1289 (App. 2009). ¶ 7 To the extent Williamson argues that the court improperly granted dismissal because it overlooked the “affidavit” she filed, we reject her argument. Before dismissing the action, the court acknowledged receiving the document titled “Order-Medical Expert Affidavit,” but expressly stated that it took no further action. ¶ 8 Additionally, if Williamson’s argument is that the purported “affidavit” containing medical records was sufficient to comply with A.R.S. § 12-2603, we likewise reject her argument. Section 12-2603 requires that the expert affidavit contain the expert’s qualifications, the factual basis for each claim, the acts or omission that allegedly deviated from the standard of care resulting in liability, and the manner in which the deviation caused harm. A.R.S. § 12-2603(B)(l)-(4). The purported “affidavit” Williamson filed is nothing more than a copy of medical records. Section 12-2603 does not provide for use of medical records in lieu of serving the preliminary expert opinion affidavit containing the requisite information. ¶ 9 Section 12-2603(F) requires that the trial court dismiss a claim when the claimant fails to file and serve a preliminary expert opinion affidavit after the court has ordered compliance. Because Williamson failed to comply with the order to serve the affidavit, the court appropriately dismissed her claim. ¶ 10 However, the statute does not authorize dismissals with prejudice. Sanchez v. Old Pueblo Anesthesia, P.C., 218 Ariz. 317, 323-24, ¶¶ 20-26, 183 P.3d 1285, 1291-92 (App. 2008). Although O’Brien correctly asserts that Rule 37(b)(2) authorizes dismissal for the failure to comply with a court order, that rule pertains to discovery sanctions and does not authorize dismissals with prejudice for failure to comply with A.R.S. § 12-2603. Ariz. R. Civ. P. 37(b)(2)(A)(v). A dismissal under AR.S. § 12-2603 is not a sanction for a discovery violation, but a substantive pleading failure, Boswell v. Fintelmann, 242 Ariz. 52, 54 ¶ 5, 392 P.3d 496, 498 (App. 2017), because the statute is “meant to certify that the action ... is not meritless,” Jilly v. Bayes, 221 Ariz. 40, 43 ¶ 6, 209 P.3d 176, 179 (App. 2009). ¶ 11 We acknowledge, however, that another panel of this Court has held that a dismissal under A.R.S. § 12-2603 is for failure to prosecute. See Passmore v. McCarver, 1 CA-CV 15-0420, 242 Ariz. 288, 395 P.3d 297, 300-01, 2017 WL 1279028 at *2 ¶8 (Ariz. App. Apr. 6, 2017). In so holding, Passmore relies on Gomey v. Meany for the proposition that A.R.S. § 12-2603 seeks to curb frivolous lawsuits by “setting deadlines for the early involvement of the plaintiffs expert witness.” 214 Ariz. 226, 229 ¶ 8, 150 P.3d 799, 802 (App. 2007) (emphasis added). But interpreting Gomey to require the early involvement of a plaintiffs expert witness for purposes of A.R.S. § 12-2603—as Passmore does—would conflict with our supreme court’s rulemaking authority as discussed in Jilly. See Jilly, 221 Ariz. at 42-43 ¶ 6, 209 P.3d at 178-79. In Jilly, we found that A.R.S. § 12-2603 did not violate our supreme court’s rulemaking authority because it referred to “preliminary” expert opinions and not the “expert at trial.” Id. at ¶¶ 6-7. Gor-ney therefore does not support Passmore’s view. ¶ 12 Accordingly, because an A.R.S. § 12-2603 dismissal is a substantive pleading failure, and not a sanction for a discovery violation or a failure to prosecute, the court erred by dismissing Williamson’s claim with prejudice. This error does not necessitate that the judgment be vacated, however. We may modify the judgment to reflect that it is without prejudice to refile if Williamson can obtain the appropriate affidavit. See Boswell, 242 Ariz. at 55 ¶ 9, 392 P.3d at 499. CONCLUSION ¶ 13 For the foregoing reasons, we affirm the judgment as modified to reflect that the dismissal is without prejudice.

OPINION HOWE, Judge: ¶ 1 Robert Nixon appeals the trial court’s order denying his request to restore his gun rights. He argues that the statute suspending his gun rights, A.R.S. § IS—904(A)(5)—enacted in 1994—cannot be applied to him because the law at the time his civil rights were suspended in 1987 upon his felony conviction did not deprive him of his gun rights. He contends that A.R.S. § 13-904(A)(5) cannot retroactively apply to him. We reject this argument and affirm the trial court’s ruling. Applying the statute to a person convicted of a felony before 1994 does not constitute retroactive application because the statute merely relates to circumstances at the time the statute was enacted—the person’s status as a convicted felon—and does not attach new legal consequences to a pre-1994 conviction. FACTS AND PROCEDURAL HISTORY ¶ 2 In 1987, Nixon pled guilty to attempted child molestation for an incident that occurred with a child under 15 years old. The trial court sentenced him to 15 years’ probation. At the time of Nixon’s conviction, a felony conviction suspended a person’s right to vote, right to hold public office, right to serve as a juror, and any other rights reasonably necessary for security during the time of imprisonment. A.R.S. § 13-904(A)(l)-(4). In 1994, the Arizona Legislature amended AR.S. § 13-904 to include suspension of a person’s right to possess a gun or firearm. See 1994 Ariz. Sess. Laws, eh. 200, § 5; see also AR.S. § 13-904(A)(5). For a first-time felony offender, civil rights are automatically restored upon the completion of probation, except the right to possess a gun or firearm, which can be restored only by application to the court. A.R.S. § 13-912(A)-(B). ¶ 3 Nixon completed probation in 2002. Although Nixon was not required to ask a court to restore his civil rights, he nevertheless filed a motion seeking restoration of his civil rights in 2007. In that motion, he asked that his gun rights be restored as well. The trial court denied the request, noting the seriousness of the offense and the victim’s age. In 2016, Nixon renewed his request, arguing that because he was a first-time felony offender his civil rights were automatically restored when he completed probation. And just as he did in his 2007 request for restoration of his civil rights, he also requested to have his gun rights restored. The trial court granted the automatic restoration of Nixon’s civil rights but denied the restoration of his gun rights. ¶ 4 In denying Nixon’s request to restore his gun rights, the trial court determined that its decision was discretionary. The court’s ruling noted the victim’s age and Nixon’s conviction as reasons for denying the restoration. The trial court also referenced “Cfi 13-907(e)(4),” which is the statute that involves setting aside judgments of guilt. The specific subsection cited states that convictions like Nixon’s cannot be set aside. Nixon timely appealed. DISCUSSION 1. A.R.S. § 13—904(A)(5) Was Not Applied Retroactively ¶ 5 Nixon contends that the trial court erred by applying A.R.S. § 13-904(A)(5) to him because doing so is a retroactive application in violation of A.R.S. § 1-244. We review de novo issues involving interpretation, application, and retroactivity of statutes. State v. Carver, 227 Ariz. 438, 441, ¶ 7, 258 P.3d 256, 259 (App. 2011). We presume that the statute in question is constitutional and Nixon has the burden to prove otherwise. See Zuther v. State, 199 Ariz. 104, 111, ¶ 23, 14 P.3d 295, 302 (2000). ¶ 6 The parties agree that A.R.S. § 13-904’s express language does not state that it applies retroactively, and “[n]o statute is retroactive unless expressly declared therein.” See A.R.S. § 1-244. The parties disagree, however, on whether the trial court retroactively applied AR.S. § 13-904. A statute applies retroactively only when it “attaches new legal consequences to events completed before its enactment,” State v. Aguilar, 218 Ariz. 25, 34, ¶ 33, 178 P.3d 497, 506 (App. 2008). ¶ 7 Nixon argues that the “completed event” here is his 1987 conviction and that A.R.S. § 13—904(A)(6) adds a legal consequence to that completed event. The statute is not retroactive “simply because it may relate to antecedent facts,” however. See Aranda v. Indust. Comm’n of Ariz., 198 Ariz. 467, 472, ¶ 24, 11 P.3d 1006, 1011 (2000). Contrary to Nixon’s argument, the statute does not change the consequences of Nixon’s past acts. Instead, the statute relates to conditions that existed in 1994. That is, if a person was a convicted felon in 1994 whose civil rights had not yet been l’estored, then the right to possess a gun or firearm also would be suspended. Because Nixon was a convicted felon in 1994 and had yet to have his civil rights restored, his right to possess a gun or firearm also was suspended. ¶ 8 The State argues that this case is indistinguishable from State v. Olvera, 191 Ariz. 75, 952 P.2d 313 (App. 1997). In Olvera, a defendant on trial for being a prohibited possessor of a firearm who had been convicted in 1992 argued that AR.S. § 13-904 did not suspend his right to possess firearms in 1992, and that applying A.R.S. § 13-904(A)(5) to him would be an impermissible retroactive application of the statute. 191 A’iz. at 76, 952 P.2d at 314. We found that A.R.S. § 13-904(A)(5) was not retroactively applied to Olvera even though his conviction occurred before 1994 because its application was based on his status as a felon in 1994. Id. at 77, 962 P.2d at 315 (“The statutory change made him a felon whose right to possess a firearm was suspended.”). The factual circumstances here are not distinguishable from Olvera. Both Olvera and Nixon were convicted before 1994 and had them right to possess a gun or firearm suspended by A.R.S. § 13-904(A)(5). Nixon counters that Olvera is distinguishable because it merely dealt with whether A.R.S. § 13-905(A)(5) was an ex post facto law. But Olvera?s analysis was not so limited. In Olvera, we not only held that the statute was not an ex post facto law, we also held that applying it to a person who had been convicted of a felony before 1994 was not an improper retroactive application. 191 Ariz. at 76, 952 P.2d at 314. The same analysis applies here. The only effect that the statute had on Nixon was to change his status as a felon to a prohibited possessor from 1994 onward. Thus, AR.S. § 13-904(A)(5) prospectively applies to convicted felons who had yet to have their civil rights restored when it became effective, regardless whether the conviction occurred before or after its effective date. 2, The Right to Possess a Gun or Firearm Is Not Automatically Restored ¶ 9 Nixon next argues that the trial court erred by denying the restoration of his gun rights because they should have been automatically restored when he completed probation in 2002, For a first-time felony offender, civil rights are automatically restored when the term of probation is completed and all fines are paid. A.R.S. § 13-912(A). This statute expressly states, however, that “[t]his section does not apply to a person’s right to possess weapons ... unless the person applies to a court pursuant to § 13-905 or 13-906.” A.R.S. § 13-912(B). Here, Nixon unnecessarily applied for the restoration of his civil rights in 2007 because those rights—except for his gun rights— were automatically restored in 2002. Nixon’s right to possess a gun or firearm, however, was suspended in 1994 when the Arizona Legislature amended A.R.S. § 13-904 to add the right to possess a gun or firearm. See supra ¶7, Therefore, although Nixon’s other civil rights wei’e automatically restored in 2002, his gun rights were not, Nixon applied to have his gun rights restored in 2007 and 2016, which the trial court denied in both instances. Accordingly, Nixon’s argument that his gun rights were automatically restored in 2002 is without merit, ¶ 10 Nixon further argues that the trial court erred by citing an incorrect statute in denying his restoration request. The trial court’s decision to restore civil rights, including gun rights, is reviewed for an abuse of discretion. See AR.S. § 13-908 (“[T]he restoration of civil rights and the dismissal of the accusation or information under the provisions of this chapter shall be in the discre tion of the superior court judge[.]”). The trial court denied Nixon’s request to restore his gun rights and used the abbreviation “Cf.” in citing the statute that controls setting aside judgments of guilt. The abbreviation “Cf” is used in a citation when “[the] authority supports a proposition different from the main proposition but sufficiently analogous to lend support. Literally, ‘cf.’ means ‘compare.’” The Bluebook: A Uniform System of Citation Rule 1.2(a), at 59 (Columbia Law Review Ass’n et al. eds,, 20th ed. 2015). The statute the trial court compared its decision to, A.R.S. § 13—907(E)(4), states that a person convicted of an offense where the victim is a minor under 16 years old is ineligible to have his or her judgment of guilt set aside. That the trial court compared the discretionary decision to restore gun rights with a different section that referenced Nixon’s specific conviction does not demonstrate an abuse of discretion. The trial court apparently noted the separate statute to show the seriousness of Nixon’s conviction, not as authority to deny the restoration request. Thus, the trial court was correct in noting that it had the discretion to deny Nixon’s request for gun rights and did not err by merely referencing another statute. CONCLUSION ¶ 11 For the foregoing reasons, we affirm.

OPINION McMURDIE, Judge: ¶ 1 In this case, we are asked to determine if a parent has “failed to appear” for a termination adjudication hearing within the meaning of Arizona Revised Statutes (“A.R.S.”) section 8-863(C) and Arizona Rule of Juvenile Procedure 66(D)(2), if the parent appeared approximately 26 minutes late. We are also asked to determine if the superior court improperly restricted a parent’s counsel’s participation at the hearing, and violated the parent’s right to be heard by refusing to allow the parent to testify because of tardiness, We hold a parent has not “failed to appear” simply because he or she is tardy without good cause. We further hold the restriction placed on counsel prior to the parent’s arrival at the hearing, and refusal to allow the parent to testify based on a tardy arrival, violated the parent’s constitutional rights to due process. We therefore reverse and remand the case for further proceedings. FACTS AND PROCEDURAL BACKGROUND ¶ 2 Brenda D. (“Mother”) is the biological parent of Z.D., born in July 2005. Z.D. was bom with Down Syndrome, and has permanent special needs. ¶ 3 In July 2014, the Department of Child Safety (“DCS”) filed a dependency petition alleging Z.D. dependent due to Mother’s neglect, unstable home, and mental illness. Z.D. was adjudicated dependent as to Mother in May 2015. In October 2015, DCS filed a motion to terminate the parent-child relationship between Z.D. and her parents. DCS alleged three grounds for severance as to Mother: (1) history of substance abuse; (2) nine or more months in an out-of-home placement; and (3) fifteen or more months in an out-of-home placement. ¶ 4 The severance hearing was scheduled for two days, beginning on June 15, 2016. On the first day of the hearing, Mother’s counsel informed the court that Mother was having severe back pain. The court continued the start of the hearing until the next day, but warned Mother’s counsel that Mother needed to appear in person with medical documentation supporting her assertion of back pain. The next day, Mother was not present when the hearing began and, given her absence and the lack of an explanation, the superior court found Mother lacked good cause for her absence. The court then advised the parties, “[s]o, the only thing that [Mother’s counsel] has an opportunity to address is the weight of the evidence, not the admissibility of the evidence.” The healing then went forward. ¶ 5 DCS called a department case manager to testify. After the direct examination, the superior court gave Mother’s counsel limited opportunity to cross examine the case manager, reminding counsel he was limited to the “weight of the evidence.” ¶ 6 Mother arrived 25 minutes after the hearing started, but prior to the close of DOS’s case. Mother requested she be allowed to testify, and told the court her late arrival was due to a bus delay. The superior court denied Mother’s request, and found Mother failed to appear in court at the start of the hearing without good cause. ¶7 The superior court found all three grounds for severance proven by clear and convincing evidence, and terminated Mother’s parental rights. The court also found the severance was in Z.D.’s best interests. Mother timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 8-235(A), 12-120.21(A)(1) and -2101(A). DISCUSSION ¶ 8 “A parent has a constitutional right to raise his or her child without governmental intervention.” Carolina H. v. ADES, 232 Ariz. 569, 571, ¶ 6, 307 P.3d 996 (App. 2013) (citing Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000)). “The government may not interfere with that fundamental right unless a court finds that: (1) the parent is unable to parent the child for any reason defined by statute; and (2) the parent has been afforded due process.” Id. We view the facts “in the light most favorable to affirming the [superior] court’s findings.” Manuel M. v. ADES, 218 Ariz. 205, 207, ¶ 2, 181 P.3d 1126 (App. 2008). We do not reweigh the evidence on appeal. Jesus M. v. ADES, 203 Ariz. 278, 282, ¶ 12, 53 P.3d 203 (App. 2002). ¶ 9 Mother asserts her due process rights were violated. We are confronted with a situation where the superior court did not allow Mother to testify and restricted Mother’s counsel’s participation at the hearing because Mother did not appear at the start of the termination hearing. For the reasons discussed below, we agree with Mother’s claim. We reverse and remand the case to the superior court for further proceedings consistent with this opinion, A. Waiver of Rights for Failure to Appear at a Termination Hearing. ¶ 10 Arizona Revised Statutes section 8-863(C) provides as follows regarding when parents waive their legal rights and are deemed to have admitted the allegations contained in a motion filed pursuant to section 8-S62(D) (“Permanency hearing”): If a parent does not appear at the hearing, the court, after determining that the parent has been served as provided in subsection A of this section, may find that the parent has waived the parent’s legal rights and is deemed to have admitted the allegations of the petition by the failure to appear, The court may terminate the parent-child relationship as to a parent who does not appear based on the record and evidence presented as provided in rules prescribed by the supreme court. A.R.S. § 8-863(C); see also § 8-537(C) (same directive for termination proceeding initiated by petition and analyzed in Christy A. v. ADES, 217 Ariz. 299, 173 P.3d 463 (App. 2007)). The Supreme Court has promulgated Rule 66(D)(2) to give effect to the statutory directives: If the court finds the parent ... failed to appear at the termination adjudication hearing -without good cause shown, had notice of the hearing, was properly served pursuant to Rule 64 and had been previously admonished regarding the consequences of failure to appear, including a warning that the hearing could go forward in the absence of the parent ... and that failure to appear may constitute a waiver of rights, and an admission to the allegation[s] contained in the motion or petition for termination, the court may terminate parental rights based upon the record and evidence presented if the moving party or petitioner has proven grounds upon which to terminate parental rights. Ariz. R.P. Juv. Ct. 66(D)(2). ¶ 11 Courts interpreting the statutes and rule have disagreed regarding when and how a superior court should apply a parent’s failure to appear. See Manuel M., 218 Ariz. at 214, ¶ 31, 181 P.3d 1126 (disagreeing with Christy A., 217 Ariz. at 306, ¶ 24, 173 P.3d 463); but cf. Bob H., 226 Ariz. at 283, ¶ 17, 237 P.3d 632 (agreeing with Christy A. in part). We add our voice to the interpretation of the statutes and rule as it applies to the facts of this case, and as noted below, disagree in part with the holding in Bob H. ¶ 12 In this ease, we hold the superior court erred when it determined Mother failed to appear, because she arrived after the hearing started, but before the presentation of all evidence concluded. Further, even though Mother was present and prepared to proceed after DOS’s portion of the case, the superior court erroneously found Mother waived her right to testify and to contest both the truth, as well as the sufficiency, of DOS’s factual allegations supporting the grounds of severance, and to present evidence relevant to the best interests of her child. ¶ 13 In determining whether a parent failed to appear for purposes of waiver of his or her right to testify, we disagree with the decision and reasoning stated in Bob H., 225 Ariz. at 282, ¶¶ 11-13, 237 P.3d 632. In Bob H., mother arrived 30 minutes late, but before the close of DOS’s case, and in time to testify in her own case. See id. This court affirmed the superior court’s finding of no good cause for mother’s failure to appear at the scheduled start of the hearing, and the court’s waiver of mother’s rights. See id. The court explained, “[w]hile it might be said that arriving late is better than not arriving at all, we cannot see how arriving late can constitute good cause for a failure to timely appear.” Id. at 282, ¶ 12, 237 P.3d 632 (emphasis added). ¶ 14 The requirement to “timely appear,” however, is prescribed neither by A.R.S. §§ 8-863(0), -537(C), nor by Rule 66(D). Neither the statutes nor the procedural rule require a parent to be present during DOS’s case, or during his or her own counsel’s presentation of evidence outside of the parent’s testimony. See Manuel M., 218 Ariz. at 214, ¶ 31, 181 P.3d 1126. ¶ 15 Both sections 8-863(0) and -537(C) state: “If a parent does not appear at the hearing, the court ... may find that the parent has waived the parent’s legal rights and is deemed to have admitted the allegations of the petition by the failure to appear.” A.R.S. §§ 8-863(0), -537(C) (emphasis added). The word “timely” does not appear in either statute. See id. If the legislature intended to prescribe sanctions for the failure to timely appear, it would have included the word “timely,” as it has done in various other sections of Title 8. See, e.g., A.R.S. § 8-106.01(G) (“timely notices of claims of paternity”); A.R.S. § 8-390(A) and (D) (notice of scheduled proceedings to be provided “in a timely manner”); A.R.S. § 8-459(A)(l) (“timely permanency for children”); A.R.S. § 8-616.03(6) (“timely return of children to their natural parents”); A.R.S. § 8-530(A)(3) (“timely responses from agency personnel”); A.R.S. § 8-817(B)(4) and (5) (“timely disclosure of information”); A.R.S. § 8-822(A)(2) (“timely interview”); A.R.S. § 8-862(E) (“reasonable efforts to place the child in a timely manner in accordance with the permanency plan”); A.R.S. § 8-882(6) (requirement to keep a court “timely informed”). ¶ 16 Similarly, Rule 66(D)(2) discusses the requirements and consequences of a parent’s “failure to appear.” Nowhere does the Rule discuss a “timely appearance” of a parent. Moreover, Rule 66(D) stresses the informal presentation of evidence, as much as “the requirements of due process and fairness permit.” Ariz. R.P. Juv. Ct. 66(D), ¶ 17 Additionally, the permissive language used in sections 8-863(C) and -537(C) does not obligate the superior court to find a waiver, even in the case of a parent who did not appear at all. The statutes merely suggest the court “may find” the parent who “does not appear at the hearing ... has waived [his or her] legal rights and is deemed to have admitted the allegations of the petition.” A.R.S. §§ 8-863(C) and -637(C) (emphasis added). ¶ 18 Therefore, we hold the superi- or court retains full discretion to assess “what constitutes good cause for failure to appear,” Bob H., 225 Ariz. at 282, ¶ 12, 237 P.3d 632, and to apply that discretion at the severance hearing as it deems proper. But should a parent appear before the close of the hearing, such parent’s due process rights cannot be violated by restricting the parent’s participation. See Manuel M., 218 Ariz, at 214, ¶¶ 28-31, 181 P.3d 1126. We also hold that only if a parent has failed to appear by the time both parties have fully presented their case, may the court treat the parent’s absence as a waiver of the parent’s legal rights and deem the parent to have admitted the well-pled factual allegations of the petition. See A.R.S. §§ 8-863(0) and -537(C). We further hold the superior court remains within its discretion to consider all evidence, even evidence presented by the parent after the close of the moving party’s case, related to both the statutory grounds for severance as well as to the best interests of the child. B. Fundamental Error Review. ¶ 19 DCS argues Mother failed to raise her due process argument in the court below, waiving it for our consideration on appeal. See Dombey v. Phoenix Newspapers, Inc., 150 Ariz. 476, 482, 724 P.2d 662 (1986) (“ ‘[A]s a general proposition an appellate court will not consider a question not first raised’ in the trial court.”) (quoting Town of S. Tucson v. Bd. of Supervisors of Pima County, 52 Ariz. 575, 582, 84 P.2d 581 (1938)). At the termination hearing, however, Mother objected to the superior court’s denial of her right to testify. On the record, Mother herself repeatedly entreated the superior court for an opportunity to be heard, over the court’s rejections. Though Mother “did not object with the ‘magic words’ of due process, [she] implicitly raised the ... argument ] below .., and ... preserved the issue for our review.” See Volk v. Brame, 235 Ariz. 462, 469, ¶ 22, n.6, 333 P.3d 789 (App. 2014) (quoting State v. Martinez, 172 Ariz, 437, 440, 837 F.2d 1172 (App. 1992)). ¶ 20 Regardless of any asserted waiver of this argument, the court’s denial of Mother’s right to testify was a fundamental error, because it “ ‘goes to the veiy foundation’ of [the] case.” Monica C. v. Arizona Dept. of Economic Sec., 211 Ariz. 89, 94, ¶ 24, 118 P.3d 37 (App.2005) (quoting Data Sales Co. v. Diamond Z Mfg., 205 Ariz. 594, 601, ¶ 31, 74 P.3d 268 (App. 2003)). Mother was prejudiced by the court denying her right to testify because she arrived before the presentation of all evidence concluded. See Monica C., 211 Ariz. at 94-95, ¶ 25, 118 P.3d 37 (prejudice must be found to justify relief under fundamental error analysis). C. Denial of Right to an Effective Participation of Counsel. ¶ 21 Mother argues the superior court erred by instructing her attorney to address only the weight of the evidence, not its admissibility, when she failed to timely appear. Mother asserts this instruction amounted to a denial of her right to effective participation of counsel, We agree. ¶ 22 “[T]he denial of the right to effective participation of counsel constitutes a denial of due process of law so gross as to lack a necessary attribute of a judicial determination.” Ariz. State Dep’t. of Pub. Welfare v. Barlow, 80 Ariz. 249, 253, 296 P.2d 298 (1966). A parent who has waived his or her right to contest DOS’s factual allegations by failing to appear, nonetheless “retains [his or] her rights, through counsel, to attend and participate in the termination hearing, pose evidentiary objections, cross-examine witnesses, and present evidence relevant to the child’s best interests.” Marianne N. v. DCS, 240 Ariz. 470, 474, ¶ 13, 381 P.3d 264 (App. 2016) (emphasis added). The limitation on the scope of parent’s rights in such a hearing does not limit the traditional means of attorney participation. Manuel M., 218 Ariz. at 214, ¶ 31, 181 P.3d 1126. Parent’s counsel, thus, has the right, among other rights, to call witnesses to challenge DCS in establishing the legal grounds for termination of the parent-child relationship. See id. at 214-15, ¶¶ 28-32, 181 P.3d 1126. ¶ 23 We disagree with Christy A., 217 Ariz. at 306, ¶ 24, 173 P.3d 463, to the extent the holding “could be read to preclude a parent’s counsel from ‘contesting] the statutory bases for termination’ and from presenting affirmative evidence to do so.” Manuel M., 218 Ariz. at 214, ¶ 31, 181 P.3d 1126 (quoting Christy A., 217 Ariz. at 306, ¶ 24, 173 P.3d 463). We agree with Manuel M. in that, when a parent fails to appear, the parent’s absence cannot be deemed as an admission of legal conclusions. 218 Ariz. at 214, ¶¶ 28, 30, 181 P.3d 1126 (superior court has a duty “to determine whether the grounds for termination have been proven by the record and evidence—a process that would become unnecessary if we construed a parent’s failure to appear as a wholesale admission to the legal grounds contained in the allegations.”). We disagree with Manual M. to the extent it limits counsel’s ability to present affirmative evidence questioning the “factual allegations ... deemed admitted,” Id. at ¶ 30. ¶ 24 In our opinion, a parent’s waiver by his or her failure to appear does not apply until it becomes clear, at the close of the hearing, the parent actually failed to appear. See AR.S. §§ 8-863(C), -537(C); Ariz. R.P. Juv. Ct. 66(D)(2), Only then, may the court apply the parent’s waiver and deem admitted the well-pled factual allegations, whether pled in a motion pursuant to A.R.S. § S-863(C), or in a petition pursuant to AR.S. § 8-537(C), ¶ 25 Here, without being able to object to the admission of evidence, Mother’s counsel could not effectively participate in the severance hearing. See Marianne N., 240 Ariz. at 474-75, ¶ 13, 381 P.3d 264. The superior court’s discretion in admitting or excluding evidence does not abridge Mother’s due process right to present evidence, cross-exam witnesses, or object to evidence through counsel, “an important component of the fact-finding process, intended to enhance the accuracy of the [superior] court’s determinations.” Manuel M., 218 Ariz. at 211-12, ¶ 21, 181 P.3d 1126. ¶ 26 We conclude the superior court abused its discretion in limiting the scope of Mother’s counsel’s participation, and that Mother was denied a fair trial. See Christy A., 217 Ariz. at 308, ¶ 81, 173 P.3d 463 (the superior court abuses its discretion when “the exercise of such discretion result[s] in a miscarriage of justice or deprive[s] one of the litigants of a fair trial”) (quoting O’Bielly Motor Co. v. Rich, 3 Ariz.App. 21, 27, 411 P.2d 194 (1966)). D. Court’s Flexibility to Manage Its Docket. ¶27 Nothing in this opinion should be construed to curtail the superior court’s flexibility in managing its dockets. See Findlay v. Lewis, 172 Ariz. 343, 346, 837 P.2d 146 (1992) (“A trial court has broad discretion over the management of its docket. Appellate courts do not substitute their judgment for that of the trial court in the day-today management of cases.”). But, the superi- or court’s discretion has limits “and cannot be exercised unreasonably.” Volk, 235 Ariz. at 468, ¶¶ 20-21, 333 P.3d 789 (“When the court allows no time to hear testimony, or when the time available for each necessary witness does not allow for meaningful direct testimony and efficient but adequate cross-examination, the court violates the parties’ due process rights.”); Goldberg v. Kelly, 397 U.S. 264, 268-69, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (“The opportunity to be heard must be tailored to the capacities and circumstances of those who are to be heard.”); Brown v. U.S. Fid. & Guar. Co., 194 Ariz. 85, 91, ¶ 29, 977 P.2d 807 (App. 1998) (time limits predetermined by the court “must be reasonable under the circumstances ,.. [and] should be sufficiently flexible to allow adjustment during [the hearing]”). Although due process requires the court to “remain sufficiently flexible in its allotment of time[,] ... we do not suggest that the court must indulge inefficient use of time by parties or their counsel.” Volk, 235 Ariz. at 469, ¶ 22, 333 P.3d 789. ¶ 28 Here, Mother appeared within the time allotted for her case. She did not delay the hearing or request the regularly scheduled hearing time be extended to accommodate her late arrival. The court’s calendar was thus not offended. Similarly, DCS was not prejudiced by Mother’s readiness to testify prior to its case closure. Mother’s late appearance caused no harm to the court, or DCS, and could reasonably have been accommodated. CONCLUSION ¶ 29 For the foregoing reasons, we reverse the superior court’s severance of Mother’s rights to Z.D., and remand for a new severance adjudication hearing regarding both the statutory grounds for termination and the bests interests of the child determination, consistent with this opinion. . Z.D.'s alleged Father R.N., J.F., or John Doe’s parental rights were terminated due to abandonment. None of the alleged Fathers are a party to this appeal. . We cite to the current version of applicable statutes or rules when no revision material to this case has occurred. . We accept the superior court's discretionary finding Mother had no good cause for her failure to appear at the start of the termination hearing. See Adrian E. v. ADES, 215 Ariz. 96, 101, ¶ 15, 158 P.3d 225 (App. 2007) ("[A] finding of good cause for a failure to appear is largely discretionary.”) (quoting John C. v. Sargeant, 208 Ariz. 44, 47, ¶ 13, 90 P.3d 781 (App. 2004)); Bob H. v. ADES, 225 Ariz. 279, 282, ¶¶ 11-13, 237 P.3d 632 (App. 2010) ("The juvenile court is in the best position to make discretionary findings such as what constitutes good cause for failure to appear.”). . Although we have recognized that Article 5 of Title 8 is not applicable to the parental termination proceeding initiated by motion "except to the extent prescribed in § 8-863,” A.R.S. § 8-532(C); Adrian E., 215 Ariz. at 100, ¶ 13, 158 P.3d 225 (exception prescribed by § 8-863 not applicable), we have also concluded that sections 8-863(C) and -537(C) are consistent with each other and with Rule 66(D)(2). Manuel M., 218 Ariz. at 210, ¶ 14, n.6, 181 P.3d 1126. . When interpreting statutes, we apply their plain language, unless doing so would lead to an absurd, illegal, or unconstitutional result. Bilke v. State, 206 Ariz. 462, 464, ¶ 11, 80 P.3d 269 (2003); Merlina v. Jejna, 208 Ariz. 1, 3, ¶ 7, 90 P.3d 202 (App. 2004) (the same rules of statutory construction apply in the interpretation of a procedural rule) (citing Devenir Assocs. v. City of Phoenix, 169 Ariz. 500, 503, 821 P.2d 161 (1991)). . In her opening brief, Mother only challenges the limitation placed on counsel. Mother does not specifically argue that the limitation prevented counsel from calling Mother as a witness once she arrived. Generally, it is not our role to sua sponte address issues not raised by the appellant. Crystal E. v. DCS, 1 CA-JV 16-0236, 241 Ariz. 576, 578, 390 P.3d 1222, 2017 WL 897343, at *2, ¶ 6 (App. Mar. 7, 2017). While this court does not search the record for fundamental error, we will not ignore it when we find it. Id„ at ¶ 8. In this case, because the issue of not allowing Mother to testify is intertwined with the issue concerning the restrictions placed on counsel, we chose to address the issue without asking for additional briefing from the parties. Id. ("[I]n the interests of justice and because of the inherent constitutional ramifications, if we discover [potential fundamental error] when considering a severance appeal, we may appropriately ask for supplemental briefing from the parties and consider whether reversal is warranted.”) (emphasis added). . Prior to the hearing, Mother had filed various objections to DCS’s disclosure statement.

OPINION KESSLER, Judge: ¶ 1 Appellant Green Cross Medical (“Green Cross”) appeals the superior court’s summary judgment dismissing its breach of contract complaint against John V. Gaily, Trustee of the John V. Gaily Family Protective Trust (“Gaily”). We hold that the lease between Gaily and Green Cross to permit Green Cross to operate a medical marijuana dispensary was not void from its inception, and to the extent Green Cross is seeking damages for the breach, the lease was enforceable. Accordingly, we remand for further proceedings consistent with this opinion. FACTUAL AND PROCEDURAL HISTORY ¶ 2 The relevant facts are undisputed. Gaily is the owner of commercial property located in Winslow, Arizona (“Property”). In 2012, Gaily entered into a lease agreement with Green Cross for the Property to allow Green Cross to operate a medical marijuana dispensary. The lease provided that there was an “application first term” allowing Green Cross to lease the property until it was issued a dispensary operating license from the State of Arizona. The lease did not specify how long the application first term would run, but it provided for an increase in the rent once the first term ended. ¶3 Less than two weeks after entering into the lease, Green Cross received a letter from Gally’s attorney stating that Gaily was revoking the lease. Green Cross filed this breach of contract complaint, a motion for a temporary restraining order (“TRO”), and a motion for a preliminary injunction. Gaily argued that he was required to revoke the lease because a prior month-to-month lessee who had wanted to operate a medical marijuana dispensary on the Property allegedly had a superior interest in the Property. The superior court issued the TRO and later a preliminary injunction, barring Gaily from revoldng the lease. Gaily appealed that decision and the superior court stayed further proceedings pending the appeal. We affirmed the superior court’s orders. Green Cross Medical, Inc. v. Gaily, 1 CA-CV 12-0610, 2013 WL 5436817 (Ariz. App. Sep. 26, 2013) (mem. decision). ¶4 On remand, the parties filed cross-motions for summary judgment. For the first time in the superior court, Gaily argued that he was entitled to judgment as a matter of law because the lease was illegal and therefore unenforceable. Green Cross did not obtain the necessary permission under the Arizona Medical Marijuana Act, Arizona Revised Statutes (“A.R.S.”) §§ 36-2801, et seq. (“AMMA”), to operate a medical marijuana dispensary. However, Green Cross sought partial summary judgment on liability for possible damages for Gally’s revocation of the lease. The superior court denied Green Cross’s motion and granted Gally’s, holding that the lease violated both federal and state law and was therefore void for illegality. Green Cross timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes § 12-2101(A)(1) (2016). DISCUSSION ¶ 5 We review a grant of summary judgment de novo as an issue of law. Acosta v. Phx. Indem. Ins. Co., 214 Ariz. 380, 381, ¶ 2, 153 P.3d 401 (App. 2007) (citation omitted). We will affirm if there are no disputed issues of material fact and the prevailing party is entitled to judgment as a matter of law, viewing the facts in the light most favorable to the party against whom summary judgment was entered. Id. (citations omitted). Additionally, we review issues of statutory construction and interpretation de novo. Stein v. Sonus USA Inc., 214 Ariz. 200, 201, ¶ 3, 150 P.3d 773 (App. 2007) (citation omitted). ¶ 6 The issue presented is whether a contract for the lease of real property to a party applying to operate a medical marijuana dispensary is void for illegality. The superior court held that the lease was illegal under state law for, “among other things, production of marijuana and conspiracy to sell or transfer marijuana.” Additionally, the superi- or court found that the lease agreement violated the Controlled Substances Act, 21 U.S.C. §§ 801 et seq. (“CSA”). Specifically, the court cited 21 U.S.C. § 856(a)(l)-(2) (2003), which states: [I]t shall be unlawful to—knowingly open, lease, rent, use, or maintain any place, whether permanently or temporarily, for the purpose of manufacturing, distributing, or using any controlled substance; manage or control any place, whether permanently or temporarily, either as an owner, lessee, agent, employee, occupant, or mortgagee, and knowingly and intentionally rent, lease, profit from, or make available for use, with or without compensation, the place for the purpose of unlawfully manufacturing, storing, distributing, or using a controlled substance. ¶ 7 At the time Gaily terminated the lease, Green Cross had not received the necessary permission to operate a dispensary. But the lease permitted Green Cross to sublease the Property—a valuable commercial right that existed independent of any concerns over the legality of medical marijuana. And nothing in the lease suggested it would be void or voidable if Green Cross did not receive a license to run a dispensary. ¶ 8 We find no statute, state or federal, that bars leasing property to a person or business that is applying for a license to run a medical marijuana dispensary under the AMMA with a right to sublease. Even assuming, arguendo, that the operation of a dispensary would have violated federal law, the right to sublease was a valuable property right that involves no controversy over its legality. As such, Green Cross can seek damages for the loss of the lease. ¶ 9 Gaily argues that Green Cross is not entitled to any damages, asserting that the lease was void from the outset because it would have violated state and federal law if Green Cross ever used the Property for an AMMA-compliant medical marijuana dispensary. Accordingly, we will address the interplay between state and federal law to determine if Gaily can be liable for any damages to Green Cross. The issue is one of first impression in Atizona, and there are conflicting superior court decisions on this issue. I. Illegality Under State Law ¶ 10 We conclude the lease is not illegal under Arizona law for several reasons. First, the AMMA protects the rights of dispensaries to enter into leases and contracts if they are in compliance with the AMMA. Section 36-2811(E) provides that a registered nonprofit medical marijuana dispensary is not subject to prosecution ... and may not be denied any right or privilege ... by a court or ... entity, for acting pursuant to [the AMMA] and department regulations to acquire, possess, cultivate, manufacture, deliver, transfer, ... sell or dispense marijuana or related supplies ... to ... qualifying patients [or] ... designated caregivers. A.R.S. § 36-2811(E) (2010) (emphasis added). The ability to enforce a lease or contract is a right or privilege under Arizona law, subject only to reasonable regulation by the government when a public interest is involved. Schrey v. Allison Steel Mfg. Co., 75 Ariz. 282, 286-87, 255 P.2d 604 (1963), Parties have the legal right to make whatever contracts they desire, subject to liability for their breach except when “the acts to be performed under the contract are themselves illegal or contrary to public policy, or if the legislature has clearly demonstrated its intent to prohibit maintenance of a cause of action, then recovery should be denied.” E & S Insulation Co. of Ariz., Inc. v. E.L. Jones Const. Co., 121 Ariz. 468, 470, 591 P.2d 560 (App. 1979). That limitation, however, is not inflexible and the court must look to the legislative intent. Ruelas v. Ruelas, 7 Ariz. App. 98, 101, 436 P.2d 490 (1968) (citations omitted). Given the language of the AMMA, a court may not void or refuse to enforce a dispensary’s lease with a landlord simply because the dispensary would be supplying marijuana in compliance with the AMMA. ¶ 11 Second, while Gaily correctly notes that no provision of the AMMA expressly lists landlords as entitled to immunity for leasing property to authorized dispensaries, we will not interpret a statute in a manner that would lead to an absurd result. City of Phoenix v. Superior Court In & For Maricopa County, 101 Ariz. 265, 267, 419 P.2d 49, 51 (1966) (citations omitted). The AMMA provides protection against arrest and prosecution for qualifying patients, caregivers, physicians, providers, and dispensaries so long as they are in compliance with the AMMA and administrative rules promulgated under the AMMA. See A.R.S. § 36-2811. An interpretation that allows a dispensary to lease premises for use compliant with the AMMA, but authorizes the State to prosecute a landlord leasing property to a dispensary compliant with the AMMA (or a court to void an AMMA-compliant lease) would render the statute futile and violate A.R.S. § 36-2811(E). If the State is prohibited from acting directly, it cannot circumvent the law by acting indirectly to obtain the same result. See Danielson v. Evans, 201 Ariz. 401, 409, ¶ 27, 36 P.3d 749 (App. 2001) (citations and quotations omitted). Accordingly, Gaby’s proposed interpretation of the AMMA as not providing immunity for landlords would lead to an absurd result and is untenable. We therefore reject it. ¶ 12 This conclusion is reinforced by the fact that to operate under the AMMA, a dispensary must certify to the Arizona Department of Health Services that it has a secured facility and that the dispensary has permission from the landowner to operate a dispensary. See A.R.S. § 36-2804(B)(l) (2010) (providing that the department shall register a dispensary if, inter alia, the prospective dispensary shows it has a physical address for the dispensary and for cultivation of marijuana); Ariz. Admin. Code R9-17-304(C)(7)(a) (2012) (requiring documentation of permission from owner of the physical address of the proposed dispensary). When a statute is silent or ambiguous on a specific issue, we defer to the implementing agency’s interpretation of the statute if the agency’s construction is a permissible construction even if it is not the most reasonable construction, Kobold v. Aetna Life Ins. Co., 239 Ariz. 269, 262, ¶ 9, 370 P.3d 128 (App. 2016) (citations omitted). To ensure proper administration of the AMMA and protect the public interest, the department is empowered to ensure that any property to be used as a dispensary has the landowner’s authorization and to adopt implementing rules. A.R.S. § 36-2803(A) (2016). To hold that a court can void or refuse to enforce an otherwise enforceable dispensary lease authorized by the AMMA and the implementing regulations simply because the property would be used as a- dispensary—in compliance with the AMMA—would violate those regulations, lead to an absurd result, and frustrate the purpose of the statute. ¶ 13 Gaily argues that despite the passage of the AMMA, under Arizona law a landlord could still be prosecuted for accomplice liability, conspiracy liability, and facilitation liability. The criminal statutes for conspiracy, accomplice, and facilitation liability each require that a criminal offense be attached to the action in some way. See A.R.S. §§ 13-1003(A) (2016) (“A person commits conspiracy if, with the intent to promote or aid the commission of an offense ...”); 13-1004(A) (2016) (“A person commits facilitation if, acting with knowledge that another person is committing or intends to commit an offense ...”); 13-303(A)(1) (2008) (“The person is made accountable for [another’s criminal] conduct by the statute defining the offense ...”). Gaily could not lawfully be prosecuted for any of these underlying crimes because running a medical marijuana dispensary in compliance with the AMMA is not an offense. Cheatham, 240 Ariz. at 3 ¶ 9, 375 P.3d at 68 (holding the “AMMA has made the possession and use of marijuana lawful for medicinal purposes under the terms and conditions set forth in that Act”). ¶ 14 Gaily also argues that a landlord could be prosecuted for the possession, use, or sale of marijuana. However, nothing in the lease even suggests that Gaily would be using, selling, or possessing marijuana simply because he leased the Property to a dispensary compliant with the AMMA. ¶ 15 We emphasize that nothing in the AMMA requires a landlord to rent a property to a proposed dispensary. Gaily was free not to enter into the lease if he was uncomfortable with the proposed use of the Property. But once he chose to do so, he was not free to rescind his contractual commitments without facing potential monetary liability. Accordingly, leasing property to a medical marijuana dispensary that is in compliance with the AMMA is not illegal under Arizona law. Thus, the superior court erred when it found the lease was void and dismissed the complaint seeking damages for the breach. II. Federal Illegality ¶ 16 Gaily also argues and the superior court held that the lease was illegal under the CSA. As we explained in White Mountain Health Ctr., Inc. v. Maricopa County, 241 Ariz. 230, 386 P.3d 416 (App. 2016), the sale and use of marijuana for medical purposes is illegal under federal law. Id. at 238, ¶ 30, 386 P.3d 416; see also United States v. McIntosh, 833 F.3d 1163, 1167 (9th Cir.2016) (reiterating that “the CSA prohibits what the State Medical Marijuana Laws permit”). Similarly, it is illegal under the CSA to lease property knowing it would be used for the illegal production or distribution of controlled substances. See 21 U.S.C. § 856(a)(1)— (2). ¶ 17 However, that does not render the contract in this case unenforceable under all circumstances. “[E]ven where contracts concern illegal objects, where it is possible for a court to enforce a contract in a way that does not require illegal conduct, the court is not barred from according such relief.” Mann v. Gullickson, 2016 WL 6473215, *7 (N.D. Cal. Nov. 2, 2016). Thus, just as Arizona law notes that the rule of voiding illegal contracts is flexible and we must look to the legislative intent, Ruelas, 7 Ariz.App. at 101, 436 P.2d 490, other courts have held that before voiding a contract on the basis that it violates a statute, the court must consider the policy behind the statute and whether voiding the agreement will result in a disproportionate forfeiture, unjust enrichment, windfalls, and deterrence of illegal conduct. Mann, 2016 WL 6473215 at *6-7 (collecting cases). The court must also weigh the relative moral culpability of the contracting parties. Id. ¶ 18 Here, in analyzing whether the lease was void ab initio we find persuasive the reasoning in Mann and Green Earth Wellness Ctr., LLC v. Atain Specialty Ins. Co., 163 F.Supp.3d 821, 832-33 (D.Colo.2016). In Mann, the issue was whether a contract to sell a business that involved consulting for medical marijuana dispensaries and related businesses and selling plant growing equipment and related information was void for illegality under federal law. Mann, 2016 WL 6473215 at *1-2. Even though those activities were legal under state law, the buyer refused to pay on the notes owed to the seller and sought to dismiss the seller’s breach of contract action on the grounds that the contracts were void ab initio for violation of federal law. Id. at *2. The court rejected that argument, concluding that the contract related to lawful activity under California law, and federal policy on medical marijuana authorized by states was in a state of flux. Id. at *7-8. The court also held that requiring the buyer to pay the notes would not require her to violate the CSA because the buyer was not required under the note to possess or sell marijuana in violation of federal law. Id. As to the third factor of disproportionate forfeiture and unjust enrichment, the court reasoned that voiding the note would be contrary to state policy on medical marijuana because California, like other states, had authorized use, possession, and distribution of medical marijuana for the health of their residents. Id. at *9. The court also found that the buyer understood upon signing the con tract that possession, sale, and use of marijuana was prohibited by the CSA so that the moral culpability factor could equally lie with both parties. Id. The court also weighed the effect on the public if the contract was found to be void. It noted that such a holding would encourage other potentially illicit conduct such as the nonpayment for services rendered pursuant to a contract. Id. ¶ 19 Similarly, in Green Earth, the court rejected a claim that a commercial insurance policy protecting a retail medical marijuana business was unenforceable. Green Earth, 163 F.Supp.3d at 823. The plaintiff in that case had purchased commercial insurance for its medical marijuana business. Id. The plaintiff later filed claims for smoke and ash damage from a nearby wild fire and for theft of some of its product. Id. When the insurer denied those claims, the plaintiff sued the insurer on a number of grounds including breach of contract. Id. The court rejected the insurer’s assertion that in light of the CSA, it would be illegal to pay for the plaintiffs damages. The court noted that the United States had shown an ambivalence in prosecuting medical marijuana cases when the use or distribution was authorized by state law, and it was doubtful the plaintiff would be prosecuted. Id. at 832-33. The court concluded that the parties had entered into the policy of their own will, knowingly and intelligently, and given the lack of clear and consistent federal public policy in the area, the insurer was obligated to comply with the contract. Id. ¶20 Here, balancing the federal government’s interest in enforcing the CSA with Arizona’s interest in effectuating the AMMA leads us to conclude that the contract action seeking damages is not barred simply because the lease would violate the CSA. As to public policy, Mann explained federal policy as to medical marijuana has been in flux for years. Mann, 2016 WL 6473215 at *4. As Green Cross pointed out, beginning in 2009, before this lease was signed, the United States Department of Justice had instructed United States Attorneys not to prosecute persons acting in compliance with state medical marijuana laws. Similarly, as we noted in White Mountain, 241 Ariz. at 246-47, ¶ 54, 386 P.3d 416, in 2016, Congress barred the Department of Justice from using any funding to prosecute people using or distributing medical marijuana in compliance with state laws. Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, 129 Stat. 2242 (2015). Pursuant to that act, the Department of Justice may not use any of its funding “with respect to ... Arizona ... to prevent [it] from implementing [its] own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” Id. at § 542, 2332-33. The United States Court of Appeals for the Ninth Circuit has held that the Appropriations Act prohibits the Department of Justice from interfering with the implementation of such laws not simply by suing states with medical marijuana laws, but also by prosecuting private individuals under the CSA for conduct compliant with the state medical marijuana law in their jurisdiction. McIntosh, 833 F.3d at 1176-78. Thus, while the lease might technically be in violation of 21 U.S.C. § 856(a)(1)—(2), Congress has, for the time being, forbidden enforcement of that section for all purposes relevant to this case. ¶ 21 In contrast, Arizona voters passed the AMMA to allow such use and distribution and prevented denials of rights and privileges related to compliant medical marijuana distribution and use. Given the federal government’s lack of interest in prosecuting individuals in compliance with the AMMA, as well as a public policy that favors enforcement of the lease compliant with state law, the purported illegality here does not render the lease void as illegal, at least for purposes of a damages action. Cf. Reed-Kaliher v. Hoggatt, 207 Ariz. 119, 124, ¶ 21, 347 P.3d 136, 141 (2015) (noting that by prohibiting AMMA-eompliant marijuana use, a trial court would not be authorizing or sanctioning a violation of federal law, but merely recognizing the statutory limit on the court’s authority to impose probation conditions). ¶ 22 Second, just as in Mam and Green Earth, allowing a damage action for wrongful termination of the lease would not be requiring persons to violate the CSA. It would only be enforcing Green Cross’s contract rights under the lease at least for an award of damages. ¶ 23 Third, voiding leases relating to property used for medical marijuana dispensaries could lead to unjust enrichment or an unconscionable windfall for the person who breaches the lease. The lessee-dispensary might incur damages from the futile development of the property and certainly would have relied on the lease for its application to ran a dispensary under the AMMA. To allow a landlord carte blanche to void the lease simply because it might violate the CSA, even though the landlord knew the proposed use of the land when he entered the lease, would undermine the sanctity of contracts and leave a dispensary without a remedy for any monetary losses caused by the breach. Conversely, it would allow lessees to breach leases when it suited their needs to relocate. ¶ 24 Fourth, there is no question of moral responsibility here. Both parties knew the purpose for which the land would be used under the lease if Green Cross obtained the necessary approval from the Department of Health Services. Moreover, Gaily was not surprised that the land would be put to that use since his initial argument against enforcement of the lease was that another proposed medical marijuana dispensary had a superior interest in the Property. ¶ 25 Accordingly, we conclude that enforcing the lease at least for purposes of a damages action is appropriate. Such an approach is consistent with state law and the policies behind the AMMA, would enforce the right of contract for dispensaries or applicants for dispensaries, would deter wrongful breaches of leases with persons who had leased the premises for AMMA-eompliant purposes, and would avoid unjust enrichment by a party seeking to terminate such a lease after gaining the benefit of the lease. III. Restatement (Second) of Contracts ¶ 26 Our conclusion that the court erred in dismissing a damages action for a breach of the lease is further supported by the Restatement (Second) of Contracts § 178 (1981), which sets forth factors to consider when applying the common law doctrine of illegality. Those factors include the parties’ justified expectations regarding the contract, as well as the legislative and public policy interests in enforcing or not enforcing the terms of the contract. ¶27 Here, to void the lease at issue for illegality so as to preclude a breach of contract action for damages would be contrary to the parties’ contemplated expectations and would contradict both the legislative intent and public policy underlying the AMMA. The use of medical marijuana under the AMMA requires dispensaries, and dispensaries require contracts, including lease agreements. To hold dispensary leases void ab initio because they involve lawful distribution of medical marijuana under state law could make the AMMA futile and undermine the policy behind it. ¶ 28 Finally, there is a strong public interest in enforcing contracts and leases compliant with state law. Otherwise, parties to a lease of this nature could feel free to breach the lease after gaining advantage from it. This is especially true for dispensaries who have to certify that the lease and property is appropriate and authorized for dispensary use. ¶ 29 In applying these factors, we recognize there is a tension between the CSA and the AMMA because the CSA still criminalizes the sale, use, or possession of medical marijuana whereas the AMMA offers immunity and protections for those persons operating in compliance with the AMMA. Nevertheless, refusing to enforce such contracts would undermine the medical marijuana program the voters approved. Enforcing such contracts leaves the federal government in the same position it has chosen with respect to medical marijuana in Arizona. If the federal government wishes to end such programs by enforcing the CSA, it has the power to do so provided Congress permits use of federal funds to conduct such prosecutions and the Department of Justice desires to bring such actions. We conclude the lease was enforceable at least for purposes of a damages action for its breach. CONCLUSION ¶ 30 For the foregoing reasons, we reverse the superior court’s judgment and remand for further proceedings consistent with this ruling. We grant Green Cross’s request for taxable costs and attorneys’ fees incurred on appeal under AR.S. §§ 12-341 and 12-341.01 upon timely compliance with Arizona Rule of Civil Appellate Procedure 21. . We cite to the current versions of any statute unless the statute was amended after the pertinent events and such amendment would affect the result of this appeal. . For a detailed explanation of how an applicant for a medical marijuana dispensaty can obtain permission to operate under the AMMA, see White Mountain Health Ctr., Inc. v. Maricopa County, 241 Ariz. 230, 233-34, ¶¶ 3-7, 386 P.3d 416 (App. 2016). . Compare Hammer v. Today's Health Care II, Nos. CV 2011-051310 and -051311, 2012 WL 12874349 (Maricopa Cty. Super. Ct. Apr. 17, 2012) (holding dispensary contract void as illegal) with Weiss v. Fortin, No. CV 2013-00278 (Maricopa Cty. Super. Ct. Sept 20, 2013) (holding dispensary contract enforceable under AMMA). . Gaily cites State v. Cheatham, 237 Ariz. 502, 353 P.3d 382 (App. 2015), for the conclusion that the AMMA does not decriminalize marijuana possession or use, but only provides immunity for such possession or use consistent with the AMMA. Id. at 504-05, ¶ 9, 353 P.3d 382. Thus, he argues that since there is no express immunity for landlords renting to dispensaries, the lease here is still in violation of the AMMA. That reliance is misplaced for several reasons, First, Cheatham was vacated by the Arizona Supreme Court after Gally's answering brief was filed. State v. Cheatham, 240 Ariz. 1, 375 P.3d 66 (2016). Second, as the supreme court noted, the only issue in Cheatham was whether the smell of marijuana supported probable cause for a search after enactment of the AMMA. Id. at 3, ¶¶ 9-10, 375 P.3d at 68. Cheatham has no bearing on the AMMA's provisions for AMMA-compliant dispensaries; the AMMA prohibits a court from denying any right or privilege to an entity "acting pursuant to [the AMMA] and department regulations to acquire, possess, cultivate, manufacture, deliver, transfer, ... sell or dispense marijuana or related supplies ... to ... qualifying patients or ... designated caregivers.” A.R.S. § 36-2811(E). Third, as we explain infra, ¶¶11—12, the State may not prosecute landlords for renting property compliant with the AMMA. . Indeed, taken to its logical conclusion, if a court could void or refuse to allow a damages action for breach of a lease to a compliant dispensary based solely on the proposed use of the property, it could also void a sale of property to a dispensary. Similarly, such a conclusion would allow dispensaries who wanted to get out of their leases to simply bring an action to void the lease ab initio, leaving the landlords at risk of loss. . Gaily also argues that even if the lease were legal under the AMMA, the AMMA is preempted by the CSA. That argument was made before our decision in White Mountain, which held that the CSA does not preempt the AMMA. White Mountain, 241 Ariz. at 237-57, ¶¶ 25-56, 386 P.3d 416. . In response to our request for further briefing, Gaily contends that the Appropriations Act's ban on use of federal funds to enforce prohibitions against medical marijuana when the actions are compliant with state medical marijuana laws might not survive into the next Congressional term. However, we cannot predict the future and must apply the law as it exists at the time we render our decision barring a manifest injustice. Bradley v. Richmond Sch. Bd., 416 U.S. 696, 711, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974). We find no manifest injustice in holding Gaily to his contract with Green Cross for purposes of damages. If Congress ends the ban on such actions and the Department of Justice decides to prosecute persons operating in compliance with state medical marijuana laws, such action might affect the length of time for which damages can be sought, but that does not support voiding the lease from its inception. Gaily also contends in his Supplemental Brief that the Appropriations Act limitation was passed after he had breached the lease and should have no bearing on his decision not to want to abide by a lease in violation of the CSA. As we note, prior to the lease being signed, the Department of Justice had already decided not to bring prosecutions for conduct compliant with state medical marijuana laws. The Appropriations Act merely codified that policy. Moreover, Gaily was more than willing to lease to a dispensary in violation of the CSA when he knew that the lease violated federal law. Indeed, he was willing to lease it on two different occasions to two different AMMA dispensary applicants. He cannot later escape liability for his breach. Nor does Gaily cite to us any authority that merely by possibly being liable for damages for breaching such a lease he would be subject to criminal liability under 21 U.S.C. § 856(a)(1)—(2).

OPINION JOHNSEN, Judge: ¶ 1 In this dispute between two lenders, we address the doctrines of “replacement” and equitable subrogation as they apply to respective lien rights. We affirm the superior court’s application of the replacement doctrine to a claim by US Bank, N.A. for declaratory relief. We vacate the court’s application of equitable subrogation and remand for entry of judgment in favor of JPMorgan Chase Bank, N.A. (“Chase”) on US Bank’s second claim for declaratory relief. We also remand for consideration of US Bank’s remaining claims. FACTS AND PROCEDURAL BACKGROUND ¶ 2 In 1997, Dietrich and Susanne Loeper obtained a $200,000 home equity line of credit (“HELOC”) from Chase’s predecessor in interest, Bank One, Arizona, N.A. (“Bank One”). The HELOC was secured by a deed of trust on the Loepers’ home (“HELOC Deed of Trust”). In 2001, the HELOC was modified to increase the available credit to $260,000. ¶ 3 In 2004, the Loepers executed a note and deed of trust in favor of US Bank’s predecessor in interest, First Magnus Financial Corporation (“FMF”) for $387,000 (“2004 FMF Note” and “2004 FMF Deed of Trust”). At that time, Bank One executed and recorded a subordination agreement waiving the HELOC Deed of Trust’s priority in favor of the 2004 FMF Deed of Trust. ¶ 4 In 2005, the Loepers executed a new note and deed of trust in favor of FMF for $682,000 (“2005 FMF Note” and “2005 FMF Deed of Trust”), and used $384,040.34 from the loan proceeds to pay off the 2004 FMF Note. The 2004 FMF Deed of Trust was released. The closing statement also allocated $211,148.30 from the proceeds of the new loan to pay off the HELOC. According to Chase, which by then owned the HELOC, it received and deposited this sum but did not close the HELOC or release the HELOC Deed of Trust because the payment “was $3,452.13 short of what was required to pay off the Loan.” Chase advised the title company of the shortfall, but no action was taken to correct it. Thereafter, the Loepers continued to take advances on the HELOC, resulting in an unpaid balance of more than $203,000 by 2013. ¶ 5 Meanwhile, the Loepers defaulted on the 2005 FMF Note, and the trustee began non-judicial foreclosure proceedings. The trustee obtained a trastee sale guaranty report, which showed the HELOC Deed of Trust as superior to the 2005 FMF Deed of Trust. Thereafter, the trustee under the HE-LOC Deed of Trust also began foreclosure proceedings. ¶ 6 US Bank, now holder of the 2005 FMF Note and Deed of Trust, then filed a four-count complaint in superior court for (1) declaratory relief-lien priority pursuant to the replacement doctrine, (2) declaratory relief-lien priority pursuant to equitable subrogation, (3) unjust enrichment, and (4) estoppel. The parties agreed to postpone any trustee’s sale until the superior court’s final ruling on the lien priorities. ¶7 Following discovery, US Bank moved for summary judgment on counts one and two of the complaint, and Chase cross-moved for summary judgment on all four counts. Following oral argument, the superior court granted US Bank’s motion and denied Chase’s cross-motion. Applying both the replacement doctrine and equitable subrogation, the court concluded that “equity favors subordinating Chase’s lien to US Bank’s lien.” The court then entered judgment pursuant to Arizona Rule of Civil Procedure 54(b), awarding US Bank its attorney’s fees. Chase timely appealed, and we have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(1) (2017). DISCUSSION A. General Principles. ¶8 Previously recorded deeds of trust normally take priority over later deeds of trust. See BAC Home Loans Servicing, LP v. Semper Invs. L.L.C., 230 Ariz. 587, 590, ¶ 6, 277 P.3d 784, 787 (App. 2012). Two equitable doctrines, replacement and subro-gation, however, may permit a later-recorded deed of trust to assume priority over an earlier deed of trust. See Markham Contracting Co. v. Fed. Deposit Ins. Co., 240 Ariz. 360, 363, ¶ 16, 379 P.3d 257, 260 (App. 2016). Although replacement and subrogation are similar doctrines, they apply in different situations. Subrogation applies when there are two different lenders “because, by definition, one cannot be subrogated to one’s own previous deed of trust.” Cont’l Lighting & Contracting, Inc. v. Premier Grading & Utils., LLC, 227 Ariz. 382, 385, ¶ 10, 258 P.3d 200, 203 (App. 2011). Conversely, replacement applies to a refinancing by the same lender. See Markham, 240 Ariz. at 363, ¶ 15, 379 P.3d 257. ¶ 9 The superior court applied both doctrines in this case. We review de novo the application of these equitable doctrines. See Brimet II, LLC v. Destiny Homes Mktg., LLC, 231 Ariz. 457, 459, ¶ 10, 296 P.3d 993, 995 (App. 2013). In considering their application, we “examine the totality of the equities.” Markham, 240 Ariz. at 364, ¶ 18, 379 P.3d 257. B. Replacement. ¶ 10 Chase argues the HELOC Deed of Trust is superior to the 2005 FMP Deed of Trust “under the rule of first in time, first in right.” ¶ 11 Arizona expressly has adopted the replacement doctrine as defined by the Restatement (Third) of Property: Mortgages (“Restatement”) § 7.3 (1997): If a senior mortgage is released of record and, as part of the same transaction, is replaced with a new mortgage, the latter mortgage retains the same priority as its predecessor, except ... to the extent that any change in the terms of the mortgage or the obligation it secures is materially prejudicial to the holder of a junior interest in the real estate.... Cont’l Lighting, 227 Ariz. at 388, ¶ 22, 258 P.3d 200 (citing Restatement § 7.3). The rationale behind the replacement doctrine is that “the intervening lienholder suffers no prejudice because its lien maintains the same position it occupied before the subsequent lender satisfied the pre-existing obligation.” Lamb Excavation, Inc. v. Chase Manhattan Mortg. Corp., 208 Ariz. 478, 481, ¶ 11, 95 P.3d 542, 545 (App. 2004). ¶ 12 Applying Restatement § 7.3 in Continental Lighting, this court held that: where a senior lien is released of record and, as part of the same transaction, is replaced with a new lien, the latter retains the same priority as its predecessor, except to the extent that any change in the terms of the security document or the underlying debt it secures is materially prejudicial to a junior lienholder’s interest in the real property. 227 Ariz. at 388, ¶ 22, 258 P.3d 200. In Continental Lighting, the amount of the new loan exceeded the balance on the original loan; therefore, the new deed of trust assumed the priority of the original deed of trust to the extent of the balance on the original loan paid off by the new loan. Id. at 388-89, ¶ 23, 258 P.3d 200. ¶ 13 Here, the Loepers used the 2005 FMF Note proceeds to satisfy and replace the 2004 FMF Note and the 2004 FMF Deed of Trust. Therefore, application of the replacement doctrine is appropriate. Pursuant to the suboi’dination agreement, the 2004 FMF Deed of Trust had priority over the HELOC Deed of Trust. Therefore, applying the replacement doctrine, the 2005 FMF Deed of Trust, which replaced the 2004 FMF Deed of Trust, retained priority over the HELOC Deed of Trust to the extent of $384,040.34, the amount paid on the 2004 FMF Note from the proceeds of the 2005 FMF Loan. Chase suffers no prejudice from application of the replacement doctrine because the HELOC Deed of Trust maintains the same position it occupied before the 2005 Deed of Trust replaced the 2004 Deed of Trust. ¶ 14 Accordingly, we affirm the superior court’s application of the replacement doctrine and conclude that the 2005 FMF Deed of Trust takes priority over the HELOC Deed of Trust to the extent of $384,040.34. C. Equitable Subrogation. ¶ 15 Chase next argues that, even if the replacement doctrine applies, equitable subrogation does not apply because US Bank’s predecessor, FMF, “was aware of Chase’s lien and failed to take proper steps to ensure that it was satisfied and released.” ¶ 16 As with replacement, Arizona has adopted the definition of subrogation set forth in Restatement § 7.6: “One who fully performs an obligation of another, secured by a mortgage, becomes by subrogation the owner of the obligation and the mortgage to the extent necessary to prevent unjust enrichment.” (Emphasis added); Sourcecorp, Inc. v. Norcutt, 229 Ariz. 270, 273, ¶¶ 10, 12, 274 P.3d 1204, 1207(2012) (adopting Restatement § 7.6). This court has held that “the doctrine of equitable subrogation allows a subsequent lender who applies funds to a primary and superior encumbrance to be substituted in the priority position of the primary lienholder.” BAC Home Loans, 230 Ariz. at 590, ¶ 6, 277 P.3d 784; see also Mosher v. Conway, 45 Ariz. 463, 472, 46 P.2d 110 (1935) (“The general rule is that a person having an interest in property who pays off an encumbrance in order to protect his interest is subrogated to the rights and limitations of the person paid.”). ¶ 17 As our supreme court has explained, however, “[ejquitable subrogation is generally permitted only when a person fully discharges a debt secured by a mortgage.” Weitz Co. v. Heth, 235 Ariz. 405, 411, ¶ 20, 333 P.3d 23, 29 (2014) (emphasis added). In announcing this general rule, the court relied on Restatement § 7.6 comment a, which states: Where subrogation to a mortgage is sought, the entire obligation secured by the mortgage must be discharged. Partial subrogation to a mortgage is not permitted. The reason is that partial subrogation would have the effect of dividing the security between the original obligee and the subrogee, imposing unexpected burdens and potential complexities of division of the security and marshaling upon the original mortgagee. However, if the payor can negotiate a full settlement of the obligation for less than its face value, subrogation will be recognized, (Emphasis added.) ¶ 18 Weitz involved a construction loan secured by a deed of trust on a high-rise condominium project. 236 Ariz. at 408, ¶ 3, 333 P.3d 23. As the individual condominium units were sold, the purchase monies were applied to the construction loan and the lender released the sold units from the deed of trust. Id. at ¶ 5. After the majority of units were sold, the general contractor recorded a mechanics’ lien against the project. Id, at ¶ 6. Our supreme court held that the condominium purchasers and their lenders could be equitably subrogated to the lender’s deed of trust because they fully discharged that portion of the construction loan allocated to them properties and obtained releases from the lender. See id. at 411, 412, ¶¶ 22, 26, 333 P.3d 23. ¶ 19 Here, FMF did not fully discharge the obligation secured by the HELOC Deed of Trust, negotiate a full settlement of the HE- LOC for less than face value or obtain a release from Chase. Accordingly, the doctrine of equitable subrogation does not apply and the HELOC Deed of Trust retains priority over the 2005 FMF Deed of Trust for any amount above and beyond $384,040.34. See Weitz, 235 Ariz. at 411, ¶ 20, 333 P.3d 23; Restatement § 7.6 cmt. a. ¶20 Accordingly, we vacate that part of the superior court’s order applying the doctrine of equitable subrogation and direct entry of judgment in favor of Chase on US Bank’s second claim for declaratory relief. D. Attorney’s Fees. ¶21 After granting summary judgment in favor of US Bank, the superior court awarded US Bank $41,912 in attorney’s fees. On appeal, Chase argues the award was improper because the claims for declaratory relief do not arise out of contract as required by AR.S. § 12-341.01 (2017). ¶ 22 Section 12-341.01(A) authorizes an award of attorney’s fees to the successful party “[i]n any contested action arising out of a contract.” “[T]his court will look to the nature of the action and the surrounding circumstances to determine whether the claim is one ‘arising out of a contract.’ ” Marcus v. Fox, 150 Ariz. 333, 335, 723 P.2d 682, 684 (1986) (“[Ajttorney’s fees are not appropriate based on the mere existence of a contract somewhere in the transaction.”). The application of A.R.S. § 12-341.01 is a question of statutory interpretation, which we review de novo. See Ramsey Air Meds, L.L.C. v. Cutter Aviation, Inc., 198 Ariz. 10, 13, ¶ 12, 6 P.3d 315, 318 (App. 2000). ¶ 23 Although the underlying loans were the product of contracts between the Loe-pers and their respective lenders, US Bank’s claims for declaratory relief, which request application of the equitable doctrines of replacement and subrogation, do not arise out of contract. See Brimet II, 231 Ariz. at 461, ¶ 22, 296 P.3d 993 (“This was a statutory quiet title action that turned on the application of the equitable doctrines of replacement and subrogation; it did not arise out of contract.”); see also Caruthers v. Underhill, 230 Ariz. 513, 526, ¶ 57, 287 P.3d 807, 820 (App. 2012) (“The contract must be the essential basis of the action and not merely a factual predicate.”). For this reason, and because we vacate the superior court’s ruling on US Bank’s second claim for declaratory relief, we also vacate the superior court’s award of attorney’s fees and costs. CONCLUSION ¶ 24 For the foregoing reasons, we affirm the entry of summary judgment on US Bank’s claim for declaratory relief under the replacement doctrine. We vacate the entry of summary judgment on US Bank’s claim seeking declaratory relief under the doctrine of equitable subrogation. On remand, the superior court is directed to enter summary judgment in favor of Chase on the equitable subrogation claim. We also vacate the superi- or court’s award of attorney’s fees and costs. ¶ 25 For the reasons set forth above, we deny US Bank’s request for an award of fees on appeal pursuant to A.R.S. § 12-341.01. Chase is entitled to costs on appeal upon compliance with Arizona Rule of Civil Appellate Procedure 21. See Henry v. Cook, 189 Ariz. 42, 43, 938 P.2d 91, 92 (App. 1996) (“[A] party who succeeds on less than all claims is sufficiently successful to recover costs under the statute.”). . In the statement of facts it filed on summary judgment, Chase explained that: A check in the amount of $211,148.30 was received by Chase on or about September 16, 2005, which was insufficient to pay off the [HELOC], Guaranty Title Agency was advised that the payment was $3,452,13 short of what was required to pay off the [HELOC], on or about September 18, 2005. The [HELOC] was not paid in full and the line of credit remained open. US Bank did not controvert that statement. Chase has named the title company as a non-party at fault. . Absent material revision after the relevant date, we cite a statute’s current version. . In this opinion, we use the terms "mortgage,” “deed of trust” and “lien” interchangeably. See Weitz Co. v. Heth, 235 Ariz. 405, 409, 1112, n.2, 333 P.3d 23, 27(2014). . We review de novo the superior court’s grant of summary judgment, See Weitz, 235 Ariz. at 409, ¶ 11, 333 P.3d 23. Summary judgment is appropriate if there is no genuine issue of material fact and "the moving party is entitled to judgment as a matter of law." Ariz. R. Civ. P. 56(a); see also Orme Sch. v. Reeves, 166 Ariz. 301, 305, 802 P.2d 1000, 1004 (1990). We view the facts in the light most favorable to the party against which judgment was entered. See Cont’l Lighting & Contracting, Inc. v. Premier Grading & Utils., LLC, 227 Ariz. 382, 384, ¶ 2, 258 P.3d 200, 202 (App. 2011). .Restatement § 7.3 applies both to the replacement and modification of mortgages. See Restatement § 7.3. This case involves replacement, which occurs when "a lender releases its original lien of record, discharging it with the proceeds of the second loan secured by a new mortgage that is recorded either immediately or shortly after releasing the initial loan as part of the same replacement loan transaction.” Cont’l Lighting, 227 Ariz. at 387, ¶ 16, n.3, 258 P.3d 200 (citing Restatement § 7.3 cmt. a). . US Bank also argues that "Arizona case law is clear that an additional advance which may be made under loan documents loses its priority to the interests of a subsequent creditor after the mortgagee has actual notice of the subsequently acquired interest in the property.” Under Arizona case law, however, this rule applies only if the advance is optional. La Cholla Grp., Inc. v. Timm, 173 Ariz. 490, 492, 844 P.2d 657, 659 (App. 1992). “The general rule appears to be that, as to obligatory advances where the existence of the mortgagee’s obligation to advance funds is of record, the advances have priority over any intervening liens.” Id. Because advances under the HELOC Deed of Trust were obligatory and not optional, US Bank’s argument fails.

OPINION RYAN, Judge. Congress did not enact specific statutes of limitations for claims brought under § 1983 of the Civil Rights Act, § 504 of the Rehabilitation Act, or Title II of the Americans with Disabilities Act. Instead, the time limits of the most appropriate state statute are to be applied. In this appeal, we hold that the most appropriate statute of limitations for all three acts is Arizona Revised Statutes Annotated (“A.R.S.”) § 12-542, setting a two-year limit for personal injury actions. Accordingly, we conclude that the trial court erred in applying different statutes of limitations and thus reverse the judgment dismissing appellant’s claims on statute of limitations grounds. FACTS AND PROCEDURAL HISTORY Bonnie Madden-Tyler (“appellant”) was employed by the office of the Clerk of the Maricopa County Superior Court as director of information services. In October 1992 she was assigned to a project to reorganize the office’s file room. The project involved placing files in boxes and moving shelving units. During a project planning meeting, appel-lee Jackie Crawford, appellant’s supervisor, informed appellant and other staff members that the County could not afford to hire outside labor to assist with the project, and therefore the office staff would be required to do the work. Appellant informed Crawford that she could not do the physical labor involved because she had a very weak lower back and had undergone medical treatment for it in the past. Crawford told appellant that she still would have to perform the work required to complete the project. On October 22, 1992, appellant worked from about 6 p.m. until midnight moving and unboxing files. When she left the office, she felt pain in her back. The next morning, she informed appellee Judith Allen, clerk of the superior court, that she had hurt her back and needed help to complete the project. Allen did not provide appellant with more help. Appellant received medical treatment for her back pain. On December 22, 1992, she had surgery for a ruptured lumbar disk. After using all her accrued sick and vacation leave and compensatory time, appellant returned to work. Because of her back condition, she could work only part-time. Appellant resigned from her job on April 1, 1993, because she could not control her work flow and her back pain made it difficult for her to concentrate. She filed a workers’ compensation claim and received benefits. Appellant wrote to the U.S. Department of Justice (“DOJ”) and requested a waiver of the 180-day period for filing a claim with the Equal Employment Opportunity Commission (“EEOC”). The DOJ granted the waiver. On March 31, 1994, appellant filed the lawsuit from which this appeal arose. Appellant filed a charge of handicap discrimination with the EEOC on April 5, 1994; the EEOC issued a right-to-sue letter on April 22, 1994. In her amended complaint, appellant brought claims against the defendants for violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 to 12213; violation of § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; wrongful constructive discharge in violation of public policy; and violation of her civil rights under 42 U.S.C. § 1983. She also brought a claim against Crawford for tortious interference with contract. Appellees asked for dismissal of appellant’s wrongful discharge and tortious interference claims on grounds that she had failed to raise those claims with the Maricopa County Merit Commission and that workers’ compensation was her exclusive remedy for tort claims arising out of her work-related injury. The trial court dismissed those two claims. Next, appellees requested summary judgment on the remaining claims, arguing that they had been untimely filed under the applicable statutes of limitations. Appellees separately asked for summary judgment on the basis that, as a matter of law, appellant was not disabled at the time she was injured. The trial court found a genuine issue of fact as to whether appellant was disabled under the ADA and denied that motion for summary judgment. However, the court concluded that appellant’s Title I ADA claim was barred by the federal 180-day claim statute, that the appropriate limitations period for her Title II ADA and Rehabilitation Act claims was the 180-day limit under Arizona’s Civil Rights Act (“ACRA”), and that her claims were filed later than 180 days after the claims accrued and the DOJ did not waive that limitations period. It therefore granted summary judgment on those claims. The court requested supplemental memoran-da on the statute of limitations governing appellant’s § 1983 claim. The court subsequently ruled that a one-year statute of limitations applied to appellant’s § 1983 claim, and it granted summary judgment in favor of appellees on that claim. The court entered final judgment in favor of appellees and appellant timely appealed. We have jurisdiction. A.R.S. § 12-2101(B). DISCUSSION A. Limitations Period for § 1983 Claim Appellant first argues that under federal law, her § 1983 claim is governed by the two-year statute of limitations in A.R.S. § 12-542(1) for personal injury actions. Appellees respond that the one-year statute of limitations in A.R.S. § 12-821 should apply because appellant’s personal injury action is against public employees, and § 12-821 controls in such actions. Federal statutes contain no specific limitation period for civil rights claims brought under § 1983. Wilson v. Garcia,. 471 U.S. 261, 266, 105 S.Ct. 1938, 1941, 85 L.Ed.2d 254 (1985). If no limitation period exists for a federal cause of action, a local time limitation will apply unless it conflicts with federal law or policy; federal interests must predominate. Id. at 266-67, 105 S.Ct. at 1941-42; see also Baker v. Board of Regents of State of Kan., 991 F.2d 628, 630 (10th Cir.1993). In 42 U.S.C. § 1988, Con gress implicitly endorsed this approach for civil rights claims. Wilson, 471 U.S. at 266-67,105 S.Ct. at 1941-42. Before Wilson, § 1988 required courts to select the “most analogous” or “most appropriate” state statute of limitations as the governing statute. Blake v. Dickason, 997 F.2d 749, 750 (10th Cir.1993). In Wilson, “the Supreme Court abandoned that uncertain and confusing practice in favor of a simple, bright-line rule.” Id. In deciding that § 1983 claims “are best characterized as personal injury actions,” the Wilson Court held that the general personal injury statute of limitations of the forum state should be applied to all § 1983 claims. 471 U.S. at 280, 105 S.Ct. at 1949; Blake, 997 F.2d at 750. “The characterization of all § 1983 actions as involving claims for personal injuries minimizes the risk that the choice of a state statute of limitations would not fairly serve the federal interests vindicated by § 1983.” Wilson, 471 U.S. at 279, 105 S.Ct. at 1949. Although appellees acknowledge that a personal injury statute of limitations applies to the § 1983 claim, they urge us to apply A.R.S. § 12-821 rather than A.R.S. § 12-542(1). Section 12-821 requires that a person who wishes to file a claim against a public entity or employee must do so within one year after the cause of action accrues. Two factors work against appellees’ position. First, in Wilson, a § 1983 case against a New Mexico state police officer and police chief, the defendants argued that the action was barred by the statute of limitations in the New Mexico Tort Claims Act. That Act provided that any action “against a governmental entity or a public employee for torts shall be forever barred, unless such action is commenced within two years after the date of occurrence.” 471 U.S. at 263 n. 2, 105 S.Ct. at 1940 n. 2 (citing N.M.Stat.Ann. § 41-4-15(A) (1978)). The Wilson Court noted that the plaintiffs claim could have been characterized “as governed by the special New Mexico statute authorizing recovery against the State for the torts of its agents.” Id. at 273, 105 S.Ct. at 1945. But the Court rejected the special statute of limitations and instead applied New Mexico’s three-year general statute governing actions for “injury to the person or reputation of any person.” Id. at 280,105 S.Ct. at 1949. Second, in revisiting the question of the applicable statute of limitations for a § 1983 claim, the Supreme Court in Owens v. Okure, 488 U.S. 235, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989), clarified the rule from Wilson. In Owens, the police officer defendants argued that because the plaintiff had alleged intentional torts, New York’s one-year statute of limitations for intentional torts should govern. The Court rejected this argument and held that “where state law provides multiple statutes of limitations for personal injury actions, courts considering § 1983 claims should borrow the general or residual statute for personal injury actions.” 488 U.S. at 249-50,109 S.Ct. at 582. We conclude that applying a statute specific to tort actions against governmental entities and employees conflicts with the Supreme Court’s preference for “a simple, broad characterization of all § 1983 claims [that] best fits the statute’s remedial purpose.” Wilson, 471 U.S. at 272, 105 S.Ct. at 1945. Therefore, we hold that the two-year limitations period of A.R.S. § 12-542(1) applies to appellant’s § 1983 claim. Because her complaint was filed within two years from the time her claim accrued on October 22, 1992, we reverse the trial court’s entry of judgment in favor of appellees on appellant’s § 1983 claim. B. Statute of Limitations for Rehabilitation Act Claim Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Rehabilitation Act”) also contains no statute of limitations. Appellant therefore argues that the two-year statute of limitations in A.R.S. § 12-542 should apply to her Rehabilitation Act claim because it is the most analogous state statute of limitations. Appellees counter that ACRA is the state statute most analogous to the Rehabilitation Act. They maintain that the 180-day statute of limitations of A.R.S. § 41-1481 governs appellant’s Rehabilitation Act claim. Since the Rehabilitation Act contains no statute of limitations for actions filed seeking relief for violations of its provisions, a court must select the most analogous state statute to determine the applicable limitations period. Morse v. University of Vt., 973 F.2d 122, 125 (2nd Cir.1992); Hall v. Knott County Bd. of Educ., 941 F.2d 402, 407-08 (6th Cir.1991), cert, denied, 502 U.S. 1077, 112 S.Ct. 982, 117 L.Ed.2d 144 (1992); see also Goodman v. Lukens Steel Co., 482 U.S. 656, 660,107 S.Ct. 2617, 2620, 96 L.Ed.2d 572 (1987). The objective of § 504 of the Rehabilitation Act is to prohibit “discrimination, exclusion or denial of benefits to otherwise qualified handicapped individuals.” Morse, 973 F.2d at 126 (quoting S.Rep.No. 318, 93d Cong. 1st Sess. 504 (1973) reprinted in 1973 U.S.C.C.A.N. 2076, 2143). “In prohibiting discrimination on the basis of a person’s handicap, § 504 has the same type of broad, remedial goals as §§ 1981 and 1983,” and it encompasses “a wide diversity of claims.” Id.; see also Alexopulos v. San Francisco Unified Sch. Dist., 817 F.2d 551, 554 (9th Cir.1987) (finding § 504 closely analogous to § 1983). As noted earlier, discrimination claims under 42 U.S.C. §§ 1981 and 1983 are essentially claims for personal injury. See Goodman, 482 U.S. at 661, 107 S.Ct. at 2621 (§ 1981 actions); Wilson, 471 U.S. at 280, 105 S.Ct. at 1949 (§ 1983 actions). Following this rationale, a number of federal courts have decided that state statutes of limitations governing personal injury actions should apply in cases brought under § 504 of the Rehabilitation Act. E.g., South-erland v. Hardaway Management Co., 41 F.3d 250 (6th Cir.1994); Baker, 991 F.2d 628; Hickey v. Irving Indep. Sch. Dist., 976 F.2d 980 (5th Cir.1992); Morse, 973 F.2d 122. The Morse court explained: The Supreme Court’s reasoning in Wilson and Goodman — rejecting a case-by-case approach to statute of limitations questions — is thus equally compelling with respect to § 504 actions. The selection of one particular state statute of limitations applicable to all claims brought under § 504 provides that certainty and consistency the lack of which was criticized in Wilson and Goodman. 973 F.2d at 126-27. Appellees assert, however, that because A.R.S. § 41-1463 prohibits employment discrimination against, among others, disabled persons, it is most analogous to the Rehabilitation Act and its statute of limitations should govern actions brought under the federal act. Appellees cite this court’s comments that ACRA “is generally similar in both intent and purpose to the Federal Rehabilitation Act of 1973.” Bogue v. Better-Bilt Aluminum Co., 179 Ariz. 22, 27, 875 P.2d 1327, 1332 (App.1994); see also Capitano v. Arizona, 178 Ariz. 599, 602 n. 4, 875 P.2d 832, 835 n. 4 (App.1993); Matos v. City of Phoenix, 176 Ariz. 125, 128, 859 P.2d 748, 751 (App.1993). In support of this assertion, appellees rely on two federal cases in which the appellate courts applied the limitation periods of state statutes prohibiting disability discrimination. In Wolsky v. Medical College of Hampton Roads, the court found that Virginia’s Rights of Persons with Disabilities Act was “modeled after and is almost identical to the Rehabilitation Act.” 1 F.3d 222, 224 (4th Cir. 1993), cert, denied, 510 U.S. 1073, 114 S.Ct. 881, 127 L.Ed.2d 77 (1994). The court thus concluded that the one-year statute of limitations in the Virginia Act, not the longer general personal injury statute of limitations, should apply to an action brought under the Rehabilitation Act. Id. The Wolsky court distinguished Morse and Hall because in those cases “the respective states had not enacted statutes forbidding discrimination against disabled persons.” Id. The Fourth Circuit reached a similar conclusion in McCullough v. Branch Banking & Trust Co., 35 F.3d 127 (4th Cir.1994), cert, denied, 513 U.S. 1151, 115 S.Ct. 1101, 130 L.Ed.2d 1069 (1995), based on the forum state’s specific act protecting disabled individuals from discrimination. Id. at 130. The court found that the North Carolina act’s 180-day filing requirement was like a statute of limitations and applied it instead of the general statute of limitations for personal injury actions to bar the plaintiffs Rehabilitation Act claim. Id. at 132. The case before us is different, however, and Wolsky and McCullough do not control. First, the Virginia and North Carolina statutes on which Wolsky and McCullough rely do not require the filing of an administrative charge before filing a lawsuit. See N.C.Gen. Stat. § 168A-1 to -12; Va.Code Ann. § 51.5-1 to -59. Second, the Virginia and North Carolina acts create — for one distinct class of individuals — rights that are enforced solely in the courts. N.C.Gen.Stat. § 168A-ll(a); Va.Code Ann. § 51.5-46. In contrast, ACRA requires that a charge first be filed with the ACRD within 180 days after the alleged unlawful employment practice occurred. A.R.S. § 41-1481(A); see Ornelas v. SCOA Indus., Inc., 120 Ariz. 547, 547, 587 P.2d 266, 266 (App.1978). ACRA also requires, among other things, that a filed charge remain confidential. Id. A charge is also subject to conciliation or other means of settlement. A.R.S. § 41-1481(B). Such procedures and time limits are not compatible with the underlying federal policies of § 504. See Burnett v. Grattan, 468 U.S. 42, 50,104 S.Ct. 2924, 2930, 82 L.Ed.2d 36 (1984) (“[A] state law is not ‘appropriate’ if it fails to take into account practicalities that are involved in litigating federal civil rights claims and policies.”); accord Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 729 (6th Cir.1996) (applying state statute of limitations for personal injury claims instead of administrative limitations period to allow federal claim to proceed). ACRA contains no statute of limitations for filing a court action in the absence of filing an administrative charge. After a charge of discrimination is filed with the ACRD or with the EEOC, the ACRD has ninety days in which to give notice to the charging party of either its dismissal of the charge or its failure to settle the matter or pursue a civil action before the charging party may bring a civil action against the respondent named in the charge. AR.S. § 41-1481(D). The charging party has one year after the filing of the charge to bring such an action. Id. Under this statutory scheme, the filing of a charge of discrimination with an administrative agency is a prerequisite to filing a lawsuit on the alleged discrimination. See Ornelas, 120 Ariz. at 547-48, 587 P.2d 266. But actions brought under § 504 of the Rehabilitation Act may be filed without first exhausting administrative remedies. E.g., Miener v. State of Mo., 673 F.2d 969, 978 (8th Cir.), cert, denied, 459 U.S. 909, 103 S.Ct. 215, 74 L.Ed.2d 171 (1982); Pushkin v. Regents of Univ. of Colo., 658 F.2d 1372, 1382 (10th Cir.1981); Kling v. County of Los Angeles, 633 F.2d 876, 879 (9th Cir.1980). Regulations governing § 504, specifically, 45 C.F.R. § 84.61, adopt the enforcement procedures of Title VI of the Civil Rights Act of 1964, 45 C.F.R. §§ 80.6-80.10; the same procedures were also adopted to enforce Title IX of the Education Amendments of 1972, 45 C.F.R. § 86.71. Kling, 633 F.2d at 879. The Kling court explained that in Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), the Supreme Court held that a plaintiff need not exhaust Title IX administrative remedies before filing a private action. 633 F.2d at 879. Because the administrative procedures under § 504 are the same as those under Title IX, and because administrative procedures afford inadequate relief to complainants, the Kling court concluded that exhaustion is not required under § 504. Id. The procedure for filing an action under the Rehabilitation Act differs from the procedure prescribed in ACRA. Because the 180-day statute of limitations of ACRA attaches to the administrative charge, we conclude that this limitation period cannot apply to a Rehabilitation Act claim. Likewise, the one year time limit of A.R.S. § 41-1481(D) is also tied to the administrative charge and therefore is not applicable to this federal claim. Accordingly, we follow the reasoning of Morse and apply the state’s general personal injury statute of limitations to a Rehabilitation Act claim. 973 F.2d at 125; see also Hall, 941 F.2d at 407-08. That Arizona statute is A.R.S. § 12-542, which provides for a two-year limitation period. Thus, appellant’s Rehabilitation Act claim was timely filed in the superior court, and we reverse the summary judgment granted to appellees on this claim. C. Statute of Limitations for the ADA Claims Appellant also brought ADA claims under Title I, which deals with disability discrimination in employment, and Title II, which concerns disability discrimination in public services. Different procedures and policies apply to these parts of the ADA. Because Title II is most similar to the Rehabilitation Act, we begin with it. 1. Title II Like the Rehabilitation Act, the ADA contains no statute of limitations. Title II of the ADA incorporates the same rights, remedies, and procedures as the Rehabilitation Act. See 42 U.S.C. § 12133. In Tyler v. City of Manhattan, 857 F.Supp. 800, 812 (D.Kan.1994), an action brought under Title II of the ADA, the court ruled that it had jurisdiction notwithstanding the plaintiffs failure to exhaust his administrative remedies. The court cited to a section in 28 C.F.R. Part 35 for the proposition that compliance procedures provide a private right of action for persons with disabilities, who need not first exhaust federal administrative remedies. Id. Similarly, the court in Ethridge v. State of Alabama, 847 F.Supp. 903, 906-07 (M.D.Ala.1993), noted that filing a charge with the EEOC was not required under Title II because that title incorporated the Rehabilitation Act’s enforcement procedures, which do not require non-federal employee-plaintiffs to exhaust administrative remedies. Accord Smith v. Barton, 914 F.2d 1330, 1338 (9th Cir.1990), cert, denied, 501 U.S. 1217, 111 S.Ct. 2825, 115 L.Ed.2d 995 (1991). Because the procedures for Title II and the Rehabilitation Act are the same and exhaustion of administrative remedies is required for neither, we conclude that the statute of limitations in A.R.S. § 12-542 should apply to appellant’s Title II claim. Accordingly, we reverse summary judgment against appellant on this claim. 2. Title I Title I of the ADA is governed by the procedures of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000(e) et seq. See 42 U.S.C. § 12117(a); Kent v. Director, Mo. Dep’t of Elem. & Secondary Educ., 792 F.Supp. 59, 62 (E.D.Mo.1992). Before bringing suit under Title VII, the plaintiff must file a discrimination charge with the EEOC within 180 days of the alleged unlawful practice and receive a right-to-sue letter from the EEOC. Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 626 (9th Cir.1988) (citing 42 U.S.C. § 2000e — 5(f)(1)); see also Kent, 792 F.Supp. at 62. Filing a timely charge with the EEOC is not a jurisdictional prerequisite to filing a court action, but it operates as a statute of limitations that is subject to waiv er, estoppel, and equitable tolling. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 394, 102 S.Ct. 1127, 1132, 1133, 71 L.Ed.2d 234 (1982). Thus, Title I differs from Title II in that Title I has “a statutory-prerequisite analogous to a statute of limitations.” Sherman v. Standard Rate Data Serv., Inc., 709 F.Supp. 1433, 1436-37 (N.D.Ill.1989). This statutory prerequisite is similar to that found in ACRA requiring the filing of an administrative charge with the ACRD before pursuing a civil court action. See A.R.S. § 41-1481(A). Appellees argue that appellant’s Title I action must be dismissed because she did not file a charge with the EEOC within 180 days of the alleged unlawful practice or even before she filed her lawsuit. Appellant disagrees, arguing that the DOJ waived the requirement that she file a charge with the EEOC. The letter to appellant from the DOJ mentions nothing about a claim under Title I of the ADA; it refers only to Title II and to § 504 of the Rehabilitation Act. In the letter, the DOJ states: Because of your immediate complaint to your supervisor and your diligence in pursuing the information about a remedy other than workman’s compensation, the Department grants your request for a waiver from the 180 day filing requirement. The DOJ advised appellant that she was entitled to file a private suit in federal court under Title II and that there was no requirement that she exhaust administrative remedies prior to filing a Title II complaint. We conclude that there remains a question of fact regarding whether the DOJ waived the 180-day filing requirement for appellant’s Title I claim. While the DOJ granted a “waiver from the 180 day filing requirement,” it omitted any reference to appellant’s Title I claim, instead stating only that she was not required to exhaust administrative remedies before filing a Title II action. It could be inferred that the DOJ’s waiver of the 180-day filing requirement applied to something other than the Title II claim since that claim could be filed in court without exhausting administrative remedies. Accordingly, we reverse summary judgment on the ADA Title I claim and remand for further proceedings. D. Attorneys’ Fees Appellant requests attorneys’ fees and costs under Arizona Rules of Civil Appellate Procedure 21(C), 42 U.S.C. § 1988(b), 29 U.S.C. § 794(a), and 42 U.S.C. §§ 12101 to - 12213. We decline to award fees and costs because plaintiff has not yet prevailed on the merits of her federal claims. See Hewitt v. Helms, 482 U.S. 755, 757, 760,107 S.Ct. 2672, 2674, 2675, 96 L.Ed.2d 654 (1987) (per curiam) (denying fees and costs because interlocutory ruling that complaint should not be dismissed does not amount to victory on merits or render plaintiff “prevailing party”); Hanrahan v. Hampton, 446 U.S. 754, 757, 100 S.Ct. 1987, 1989, 64 L.Ed.2d 670 (1980) (same). CONCLUSION In summary, we reverse the judgment finding that appellant’s federal claims were barred by the statutes of limitations. We remand for further proceedings consistent with this opinion. FIDEL, Acting P.J., concurs. . Because this appeal is from summary judgment, we view the facts in the light most favorable to the non-moving party. Gonzalez v. Satrustegui, 178 Ariz. 92, 97, 870 P.2d XI88, 1193 (App.1993). . Appellant named as defendants Allen in her official capacity as Clerk of the Maricopa County Superior Court; the Honorable C. Kimball Rose, presiding judge of the court; and Crawford in her individual capacity (collectively "defendants" or “appellees”). Appellant also sued Maricopa County and the members of the Board of Supervisors, but the trial court dismissed the County and supervisors from the action upon stipulation by the parties. . Amended A.R.S. § 12-821 became effective after appellant’s cause of action accrued. “No statute is retroactive unless expressly declared so by the Legislature.” Wilco Aviation v. Garfield, 123 Ariz. 360, 362, 599 P.2d 813, 815 (App. 1979); A.R.S. § 1-244. The version in effect in 1992 required plaintiffs to file claims "within twelve months after the cause of action accrues” and barred untimely claims “except upon a showing of excusable neglect” or, if there is no excusable neglect, "if the absence of excusable neglect is because of the conduct of the claimant’s attorney.” A.R.S. § 12-821(A). The amended version simplifies the language and deletes the excusable neglect exceptions. . The Rehabilitation Act at 29 U.S.C. § 794(a) says in part: No otherwise qualified individual with a disability in the United States, as defined in section 706(8) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. . See A.R.S. §§ 41-1401 through -1492.12. ACRA makes it unlawful for an employer to discriminate against or refuse to hire or accommodate an individual on the basis of "race, color, religion, sex, age, handicap or national origin.” A.R.S. § 41 — 1463(B)(1)—(3). . 42 U.S.C. §§ 12111 — 12117. . 42 U.S.C. §§ 12131 — 12134. . "The remedies, procedures and rights set forth in § 794(a) of Title 29 [the Rehabilitation Act] shall be the remedies, procedures, and rights this subchapter provides to any person alleging discrimination on the basis of disability in violation of § 12132 of this Title.”

OPINION MOELLER, Justice. FACTS AND PROCEDURAL HISTORY In 1987, Seymour Harold Adler (“defendant”) pled guilty in Maricopa County Superior Court to seven counts of sale of unregistered securities, all class four felonies. The court placed defendant on probation for four years and probation authorities permitted defendant to move to California, expecting that he would be supervised by California authorities under the Interstate Compact Agreement. California authorities rejected supervision of defendant on October 29,1987, but Arizona probation officials were unaware of the rejection until June 16,1988. On July 15,1988, defendant’s probation officer filed a petition to revoke defendant’s probation and the trial court issued a warrant for defendant’s arrest. The petition alleged that defendant had violated his probation by failing to do the following: report to his probation officer from March through July, 1988; cooperate in the Interstate Compact program; notify the probation officer of changes in his employment status; obtain approval from his probation officer before changing his place of residence; and pay his probation fee of $30 per month. The state made no effort to proceed with the probation revocation hearing in absentia. In 1990, almost two years after the petition to revoke probation was filed, Arizona probation officials were notified that defendant was arrested in Seattle on federal charges arising out of conduct that occurred before defendant was convicted in Arizona. Defendant pled guilty to the new charges and received a federal prison sentence. On December 16, 1991, from the federal prison, defendant filed a motion for speedy trial in his probation violation case or, in the alternative, for final disposition in absentia. The state responded by letter to the defendant that it could not obtain custody of defendant until after he had completed his federal sentence; therefore, defendant would have to wait until his federal sentence was completed before obtaining a hearing on the probation violation charges. After this exchange, defendant made additional efforts to obtain a hearing while he was in federal custody. The state, again by letter to the defendant, told him it would not initiate any proceeding to obtain custody of him because it had no legal obligation to do so. Notwithstanding, the state did obtain a writ of habeas corpus ad prose-quendum to seek custody of defendant, but made no attempt to serve it. On October 12, 1994, more than six years after the petition to revoke had been filed, defendant moved to dismiss the petition, arguing that the lengthy delay by the state violated his constitutional right to due process of law. This motion was denied. The trial court held defendant’s probation revocation hearing on January 6, 1995, at which time defendant appeared telephonically from the federal prison in Arizona and defendant’s counsel was present in chambers. After the hearing, the trial court found that defendant violated his probation and set a date for the disposition hearing. Defendant, through counsel, requested that his sentence run concurrently with his federal sentence or that his sentence be ordered to begin as of the date defendant filed his motion for a speedy hearing. On January 27, 1995, with defendant again appearing telephonically, the trial court revoked defendant’s probation and sentenced him to four years imprisonment on each count, to run concurrently with each other but consecutive to the federal sentence. Defendant appealed. The court of appeals affirmed the judgment of the trial court, finding “no constitutional basis for dismissing the petition to revoke.” State v. Adler, 187 Ariz. 572, 575, 931 P.2d 1082, 1085 (App. 1996). Judge Grant dissented, finding that the delay was unreasonable and violated defendant’s due process rights. Id. (Grant, J., dissenting). Defendant petitioned this court for review. We have jurisdiction pursuant to Arizona Constitution article VI, section 5(3), and Arizona Rule of Criminal Procedure 31.19. Finding ourselves in agreement with Judge Grant’s dissent, we vacate the opinion of the court of appeals and remand the case to the trial court for dismissal. QUESTION PRESENTED Whether defendant’s due process rights were violated by the delay in his probation revocation proceedings. DISCUSSION I. Introduction A person whose probation is subject to revocation is protected by the Due Process Clauses of the Fifth and Fourteenth Amendments and is entitled to a revocation hearing. Gagnon v. Scarpelli 411 U.S. 778, 781-82, 93 S.Ct. 1756, 1759-60, 36 L.Ed.2d 656 (1973). The hearing must be held within a reasonable time. See id.; Morrissey v. Brewer, 408 U.S. 471, 485, 92 S.Ct. 2593,2602, 33 L.Ed.2d 484 (1972). Federal courts have held that revocation of probation after unreasonable delay is an abuse of discretion. See, e.g., United States v. Hamilton, 708 F.2d 1412, 1415 (9th Cir.1983) (three-year delay unreasonable). The purpose of providing a timely hearing is to hold the proceeding “while information is fresh and sources are available.” Morrissey, 408 U.S. at 485, 92 S.Ct. at 2602. We turn, then, to a discussion of the factors and authorities that lead us to conclude that defendant’s rights were violated. A. Reason for the delay The state argues that it was neither required nor authorized to obtain custody of the defendant for the purpose of holding a probation revocation hearing. In a letter from the county attorney to defendant’s attorney, the county attorney stated, “Maricopa County would not initiate the extradition of Mr. Adler on his probation revocation warrant because there is no legal requirement that we do so. This decision is also based on the cost factor.” Letter from Richard Mesh, Maricopa County Attorney, to Louis Katz, defendant’s attorney, June 20, 1994. Although the Interstate Agreement on Detainers did not authorize the state to obtain defendant for a probation revocation hearing, the state could have sought defendant’s presence through a writ of habeas corpus ad prosequendum. See 28 C.F.R. §§ 527.30-.31. “It is generally true that the state may use a writ of habeas corpus ad prosequendum to return the accused to the county where charges have been filed.” State v. Loera, 165 Ariz. 543, 545, 799 P.2d 884, 886 (App.1990). The state, in fact, procured such a writ from the state court but never served it or requested it to be honored. The only reason the state gave for failing to make such a request was that the federal warden has discretion as to whether the writ will be honored. We fail to see how the fact that the warden might have refused to comply with the request excuses the state’s fail ure to make the request, particularly in light of defendant’s request for a timely hearing. B. Proceeding in absentia At any time after the filing of the petition to revoke until the state learned that the defendant was in federal custody, the state could have proceeded in absentia. See Ariz. R.Crim. P. 27.9(b); State v. Bly, 120 Ariz. 410, 412, 586 P.2d 971, 973 (1978). If good faith efforts had been made to locate and notify defendant in 1988, the probation officer could have petitioned the court to revoke defendant’s probation in absentia sixty days after his whereabouts became unknown. See Ariz. R.Crim. P. 27.9. The sentencing, however, would have waited until defendant was present. See Bly, 120 Ariz. at 413, 586 P.2d at 974; see also State v. Fettis, 136 Ariz. 58, 59, 664 P.2d 208, 209 (1983) (holding that a defendant could not be sentenced in absentia, absent exceptional circumstances); Ariz. R.Crim. P. 26.9. Had the state proceeded in absentia, defendant could have been sentenced when he went into federal custody in 1990, either by securing his presence in state court by use of a writ or in the manner in which he was finally sentenced in 1995. After defendant was in federal custody, he requested a prompt hearing and offered to waive his right to be present in his “Motion for Speedy Trial or the Alternate [sic] Defendant’s Request for Final Disposition in Ab-sentia” of December 16, 1991. The state did nothing and the hearing did not take place until January 6, 1995, more than three years after defendant made his request. When the hearing and sentencing were finally held, the defendant appeared tele-phonically rather than in person. This could have been accomplished three years earlier when defendant initially requested a speedy disposition. Although defendant, in his 1991 motion, did not specifically offer to appear telephonically, he offered to waive his presence entirely. As Judge Grant noted in her dissent, “Clearly, the leap from full waiver of presence to a waiver of physical presence is not a long one. The state’s claim that it did not consider allowing Defendant to be present telephonically because Defendant did not specifically ask for a telephonic hearing is meritless.” State v. Adler, 187 Ariz. 572,577, 931 P.2d 1082, 1087 (App.1996) (Grant, J., dissenting). The state is familiar with telephonic proceedings. It participates in such hearings with defendants involved in the Probation Reconciliation Program. The state could have had defendant appear telephoni-cally when defendant made his initial request for a hearing. C. State v. Flemming The court of appeals sought to distinguish State v. Flemming, 184 Ariz. 110, 907 P.2d 496 (1995), from the present case. In Flem-ming, the defendant was arrested on new charges in Pinal County while on probation in Maricopa County. 184 Ariz. at 112, 907 P.2d at 498. He pled guilty to the Pinal County charges and started serving his prison time. While in prison, he tried to get his probation violation resolved with Maricopa County in a speedy manner. Id. The defendant was not brought before the judge on the probation violation charges until twenty-seven months after the probation officer filed the petition to revoke. Id. We find many similarities between Flem-ming and the present case. Both defendants requested a speedy disposition of the probation violation charges. Id. Both defendants were in prison at the time they made the request. Id. Both defendants had the possibility of receiving a concurrent sentence. Id. at 116, 907 P.2d at 502. A lengthy period of time passed between the filing of the petition to revoke and the hearing. Id. at 112, 907 P.2d at 498. In both cases, the state did not have a legitimate explanation for the unreasonable delay. Although Flemming was in state custody whereas defendant was in federal custody, the state could have taken reasonable, good faith efforts to obtain defendant’s presence through a writ of habeas corpus ad prosequendum or to hold a hearing by telephone or pursuant to defendant’s waiver of presence, all of which it chose not to do. We stated in Flemming, “Neither [the] rules, nor the Constitution, contemplates that probation revocation proceedings will begin after a lengthy prison term ends.” Flemming, 184 Ariz. at 116-17, 907 P.2d at 502-03. Therefore, in this case, as in Flem-ming, the delay in proceedings was unreasonable. Accordingly, we turn to the issue of prejudice, which the court of appeals concluded had not been established. D. Prejudice to Defendant If a person is denied a timely hearing, as defendant was, prejudice resulting from the delay must still be shown to set aside the probation revocation. State v. Belcher, 111 Ariz. 580, 581, 535 P.2d 1297, 1298 (1975); State v. Lee, 27 Ariz.App. 294, 295, 554 P.2d 890, 891 (1976). Defendant contends that he could not properly defend the charges brought against him because the delay in the proceedings resulted in the loss of phone records, personal records such as calendars, notes, and toll call records, and evidence supporting his claim of inability to pay due to poverty. Since he has been in federal prison, all of defendant’s personal, financial, and phone records have been destroyed so he can no longer provide evidence to show that he did not violate probation. We acknowledge and take into account the difficulty of showing a concrete example of prejudice when the delay itself has allegedly led to the loss of the evidence that would show prejudice. But on one score, prejudice has clearly been shown: the loss of an opportunity to have the prison sentence imposed for probation violation run concurrently with the federal prison sentence. After defendant obtained counsel and was trying to get a hearing, the state, on at least one occasion, told defendant that it would recommend that defendant’s incarceration time for his probation violation run concurrent with his federal prison time. The county attorney stated in a letter to defendant’s attorney: [O]n the court’s finding of a violation of probation, the State would recommend that Mr. Adler should receive the maximum term of five (5) years imprisonment on each of the seven (7) counts to be served concurrently with each other and his federal sentence. The Arizona and federal sentences are not likely to be coterminous, and therefore the remainder would be served in Arizona. Letter from Richard Mesh, Maricopa County Attorney, to Louis Katz, defendant’s attorney, June 20,1994. By the time the revocation hearing was finally held, defendant had effectively been denied any opportunity for a concurrent sentence. Had defendant been sentenced when he should have been, he may well have been able to serve most or all of his state time while he was serving his federal time. The state nevertheless argues that defendant was not prejudiced by the delay because he could not have been sentenced in absentia; sentencing would have waited until defendant was released from federal custody and was before the state court. Therefore, according to the state, defendant would not have had the opportunity to receive concurrent sentences. This fails to take into account that the state could have requested his presence through a writ. It also overlooks the fact that defendant was sentenced via telephonic presence when he was finally sen tenced. If that was appropriate in 1995, it was also appropriate in 1991. Although sentencing in absentia is undesirable, State v. Fettis, 136 Ariz. 58, 59, 664 P.2d 208, 209 (1983), sentencing with counsel present and the defendant present by telephone with consent is entirely different. Sentencing in ab-sentia is not permitted because the time for appeal begins to run from the entry of judgment and sentence whether or not the defendant is present and the defendant needs to be advised of appeal rights. Ariz. R.Crim. P. 26.9 cmt. Additionally, an absent defendant loses the opportunity to exercise his right of allocution and the judge is not able to personally question and observe the defendant. Fettis, 136 Ariz. at 59, 664 P.2d at 209. The telephonic presence alleviates most of these concerns, particularly where, as here, it is with defendant’s consent. We are not persuaded by the state’s present argument that defendant has shown no prejudice because he never should have been sentenced in the manner in which he was sentenced, and in which he could have been sentenced years earlier. CONCLUSION There was unreasonable delay in prosecuting this probation violation proceeding and defendant was prejudiced by the delay. The opinion of the court of appeals is vacated, as is the finding of probation violation and the sentence imposed as a result of that finding. This case is remanded to the trial court to dismiss the petition for revocation of probation with prejudice. ZLAKET, C.J., JONES, V.C.J., and FELDMAN, J., concur. . The probation officials found out about the rejection when they contacted the Santa Monica, California probation office on June 16. The California office indicated that it sent a rejection notice to its Interstate Compact Office in October 1987. However, the Arizona probation officials never received that information. . The trial judge never took any action on this motion, which was filed with the clerk but probably not with the trial judge. . The petition to proceed in absentia need contain only the following information: (1) all violations of the terms and regulations of probation; (2) an allegation that the location of the probationer is unknown; (3) the efforts made to locate the probationer; and (4) the probationer’s last known address. Ariz. R.Crim. P. 27.9(b). . In the present case, defendant’s probation officer ultimately made no recommendation on whether the sentences should run consecutively or concurrently. However, the state informed defendant at least once that it was going to ask for defendant’s sentences to run concurrently with his federal sentences. Letter from Richard Mesh, Maricopa County Attorney, to Louis Katz, defendant’s attorney, June 20, 1994. . In this case, the possibility that the federal government might not have honored the writ of habeas corpus ad prosequendum is not a legitimate explanation for the failure of the state to request that it be honored. Rather, the state’s inaction appears to relate to the fact that it did not feel that it was legally required to take any action. See Letter from Richard Mesh, Maricopa County Attorney, to Louis Katz, defendant's attorney, June 20, 1994. . We have already noted that the state did secure such a writ but failed to process it.

OPINION THOMPSON, Presiding Judge. If a creditor purchases non-residential real property at a trustee’s sale, after default on the debt which the property secured, does the creditor take subject to a claim of adverse possession? We hold that until a party has a possessory right to the real property which would allow a cause of action against an adverse possessor, the statute of limitations on an action for recovery for real property will not run. See Ariz.Rev.Stat. Ann. (A.R.S.) § 12-526(A). Accordingly, we affirm. FACTS AND PROCEDURAL HISTORY The property at issue in this quiet title action is a section of a Yuma parking lot (parking lot). It is unclear exactly when adverse possession of the parking lot began. However, appellant Assistance League of Yuma (Assistance League) admitted at oral argument that the record was devoid of evidence indicating that the adverse possession began prior to the lien. The dispositive facts are undisputed. On December 6, 1984, plaintiff Jerome S. Shull & Associates acquired an interest in real property including the disputed parking lot area by deed of trust; the deed of trust was a security interest on a $170,000 promissory note. In April 1991, Shull & Associates assigned its beneficial interest to plaintiffs Stat-o-matic Retirement Fund and the Eddie Cantor Associates Inc. Money Purchase Pension Plan (the creditors). Subsequently, the debt- or on the underlying note defaulted. As the highest bidder in the trustee’s sale on May 26,1992, the creditors acquired title by trustee’s deed. Assistance League claimed a portion of the parking lot by adverse possession. On December 12,1994, a quiet title action was filed by plaintiffs. Plaintiffs next collectively filed a motion for summary judgment arguing that, as lienholders, the statute of limitations did not begin to run against them until they acquired the right of possession to the property at the trustee’s sale. Assistance League countered that plaintiffs took the deed of trust subject to their adverse possession claim. The trial court granted the summary judgment motion and quieted title to the property in plaintiffs. Assistance League timely appealed. DISCUSSION Assistance League makes three arguments in support of its adverse possession claim: (1) title owners who purchase at trustee’s sale are not entitled to the same protections as lienholders; (2) “tacking” should apply against the creditors; and (3) plaintiffs took title subject to any claims that existed prior to the execution of the deed of trust, including its adverse possession claim. We disagree. A claimant of title by adverse possession must show that the adverse possession was actual, open and notorious, hostile, under a claim of right and was exclusive and continuous for ten years. Lewis v. Pleasant Country, Ltd., 173 Ariz. 186, 189, 840 P.2d 1051, 1054 (App.1992); A.R.S. §§ 12-521(A) and 12-526(A). We follow, as we must, the statute as enacted by the legislature A person who has a cause of action for recovery of any lands, tenements or here-ditaments from a person having peaceable and adverse possession thereof, cultivating, using and enjoying such property, shall commence an action therefor within ten years after the cause of action accrues, and not afterward. A.R.S. § 12-526(A) (emphasis added). Claims of adverse possession are disfavored and the claimant bears the burden of proof. Tenney v. Luplow, 103 Ariz. 363, 367, 442 P.2d 107, 111 (1968). 1. Lienholder v. Title Holder Plaintiffs assert that as former lien-holders they had no right of possession of the property and no cause of action to eject adverse possessors and, therefore, they should not be penalized for having to foreclose after a default. For this proposition plaintiffs cite our opinion in Berryhill v. Moore, 180 Ariz. 77, 881 P.2d 1182 (App. 1994). Assistance League admits that lien-holders are protected from adverse possession claims under Berryhill, but argues that plaintiffs are now title owners and not lien-holders. Assistance League endorses the theory that since plaintiffs have “voluntarily” given up their protected status under Berry-hill by taking title by trustee sale they are subject to the same rules applicable to regular purchasers. Assistance League argues that the creditors could have chosen to remain protected lienholders or alternatively to sue on the promissory note. The facts of Berryhill revolve around two neighboring pieces of property and a misidentified boundary line. On an adverse possession claim this court treated the property titleholder differently than the property lienholder. After examining at least three potential lines of reasoning, we determined that, under Arizona’s adverse possession statute, lienholders are not subject to adverse possession because they have no pos-sessory interest in the occupied property. We specifically rejected as irreconcilable with the statute the notion that a lienholder must take notice of the rights of a person in possession of the premises at the time the lien is taken. Berryhill, 180 Ariz. at 88, 881 P.2d at 1193. In Berryhill we cited A.R.S. § 12-526(A) and noted that the language of this statute “implies that only a person with a present right to recover land from an adverse possessor is required to begin an action to do so within the ten-year period.” Id. at 88, 881 P.2d at 1193. The policy behind Berryhill protects a lienholder from losing value on a lien where he has no ability to protect the property from adverse possession. We see no valid reason why the law should protect current lienholders but punish them if the lien goes into default. We find the policy behind Berryhill is no less persuasive under the default scenario. Both the plain language of A.R.S. § 12-526 and the policy promoted by Berryhill require that creditors who purchase at a trustee’s sale be treated more like lienholders than typical title owners who are purely discretionary purchasers. We therefore endorse the sound reasoning announced over fifty years ago by a Texas court when analyzing a similar statute and similar facts: The rights, title and interest which [the adverse possessors] acquired by their peaceable and adverse possession of the land for the period provided by the statute were only such rights as may have been possessed by a person who had the right of action for the recovery of the land. What we have said and the expressions of the courts in the cases cited demonstrate, we think, that appellant was not such a person and that the statute relied upon by [adverse possessors] does not include a mortgagee nor a purchaser of the land under a valid foreclosure of a mortgage until this purchase is completé and he acquires a right of action for the recovery of the land. Broad v. Warnecke, 144 S.W.2d 1005, 1008 (Tex.App.1940) (affirmed by 138 Tex. 631, 161 S.W.2d 453 (1942) (emphasis added) (“[b]eing only a mortgagee, J.W. Broad, during his lifetime, had no possessory right to the land until it was purchased by him at the trustee’s sale. Without such right there was no foundation for a suit by him to recover the land”)). Thus, an adverse possessor succeeds only to such rights as the title owner had. Significantly, in this situation this means that an adverse possession is subject to the rights of a lienholder, to the same extent as is the person who gave the lien to secure a debt. The adverse possessor can have no more right to the. property than the defaulting debtor/title owner. The policy announced in Broad v. War-necke is no less compelling when applied in Arizona: Were it otherwise, and especially if the law were such as [the adverse possessors] contend here that it is, investors would hesitate long and seriously before investing in land securities in this State which mature more than ten years after date. The right of action contemplated by the [adverse possession statute] means the right to institute and maintain a suit for the recovery of the land. J.W. Broad had no such right ... prior to the time the land was advertised and sold to him ... [t]he [earlier] note held by him and secured by the deed of trust had not matured. No right of action had accrued thereon and the holder of the indebtedness had no complaint upon which any kind of a suit could have been based. Id. at 1007-08 (emphasis added) (citations omitted). Thus, under the above stated reasoning, the trial court is affirmed. 2. Tacking Assistance League correctly states but misapplies the “tacking” doctrine by arguing that the creditors’ time (during which they were adversely possessed against) should be “tacked” to that of the prior owners. The tacking doctrine is codified at A.R.S. § 12-521(B) and allows: one claiming title by adverse possession to add his period of possession to that of a prior adverse possessor or possessors in order to establish a continuous possession for the statutory period. 3 Am.Jur.2d Adverse Possession § 59; 6 R. Powell’s The Law of Real Property, Par. 1021 (ed.1968). Cheatham v. Vanderwey, 18 Ariz.App. 35, 37, 499 P.2d 986, 988 (App.1972). Assistance League is the adverse possessor. Assistance League, therefore, may be entitled to “tack” its time period to that of prior adverse possessors. Assistance League provides no legal authority to support its assertions that the tacking doctrine applies against title owners and lienholders. We are not aware of any such authority, and reject the assertion. 3. Who Takes Subject to Whom Finally, Assistance League argues that plaintiffs bought at a default proceeding and take the property encumbered by an adverse possession claim which is nearing the statute of limitations. We disagree and remind Assistance League that all equities and policy decisions operate in favor of the title holder. We support the rule that the adverse possessor can gain no more from the title owners than the title owner had himself. See Berryhill, 180 Ariz. at 88, 881 P.2d at 1193 (adverse possession is subject to the lien). See, e.g., Bryan v. Reifschneider, 181 Neb. 787, 150 N.W.2d 900 (1967) (adverse possession of farm road limited to that use); West v. Moore, 193 Tenn. 431, 246 S.W.2d 74, 75 (1952) (“a life estate may be acquired by adverse possession ... the extent of the estate is fixed by the claim of the possessor”); Michigan Cent. R. Co. v. Garfield Petroleum Corp., 292 Mich. 373, 290 N.W. 833 (1940) (adverse possession of railroad’s right of way results in right of way and does not include mineral rights to land); United States v. 2,184.81 Acres, 45 F.Supp. 681 (W.D.Ark.1942) (adverse possessor school district acquired land only for school purposes); 2 C.J.S. Adverse Possession § 249 (1972). Assistance League is in the unfavored position of claiming by adverse possession. As announced above, lienholders and owners who take through default proceedings are afforded greater deference. As in Berryhill, if Assistance League had gained title to the disputed area by adverse possession prior to the trustee’s sale, ownership of the area would be subject to the lien on the property and the future possibility of foreclosure. Assistance League can take no more from the property owners than what the owners themselves had — property subject to a lien and the possibility of foreclosure for default. CONCLUSION For the above stated reasons we affirm the trial court’s ruling in favor of plaintiffs. KLEINSCHMIDT and GRANT, JJ., concur. . The trustee's deed included language which said the conveyance was "subject to the interest of claim in the trust property acquired prior to the recording of the aforementioned Deed of Trust” and was "clear of all liens, claims or interest having priority subordinate to the aforementioned Deed of Trust.” . In a deed of trust such as the one under which the creditors were beneficiaries, the deed of trust conveys a power of sale of the trust property in the event the trustor defaults on the promissory note secured by the property. See In re Bisbee, 157 Ariz. 31, 34, 754 P.2d 1135, 1138 (1988) (in practical effect deed of trust is a mortgage). Pursuant to the power of sale in the deed of trust the creditors here took title. . A bona fide purchaser takes title subject to any adverse possession which commenced before the transfer of title. Howatt v. Green, 139 Mich. 289, 102 N.W. 734 (1905). . We are unconvinced that either of Assistance League's alternatives are viable or practical, but because of our decision here we need not decide whether lienholders would be able to protect themselves by staying lienholders or suing the defaulting title owner. . More specifically, the Beriyhills sought to establish their ownership of a strip of land they had fenced by adverse possession and they named the titleholder (Moore) and the lienholders (Jack-sons) as defendants. On appeal, this court affirmed the trial court's ruling for the Berryhills against Moore under a tacking theory, but held that because the Jacksons as mortgagees could not bring an action to quiet title, a lien claim to the disputed strip of land was not barred and the time limitations of A.R.S. § 12-526 had not begun to run against them.

OPINION FIDEL, Judge. How hidden must a weapon be to be “concealed” for the purposes of Arizona Revised Statutes Annotated (“A.R.S.”) § 13-3102(A)(2) (Supp.1996)? We answer that and other questions in this appeal. HISTORY Police officer Randy S. Cooper arrested Appellant Delon Joseph Adams and two companions suspected of passing a forged check at a Phoenix bank. Searching their ear, Officer Cooper found a Ruger 9 mm semiautomatic weapon wedged between the passenger seat and door. Because Appellant had been seated in the passenger seat, the weapon was within his immediate control. Officer Cooper also found marijuana in Appellant’s pocket. The State charged and tried Appellant on three counts of forgery, in violation of A.R.S. § 13-2002 (1989); one count of fraudulent schemes and artifices, in violation of A.R.S. § 13-2310 (Supp.1996); one count of possession of marijuana, in violation of A.R.S. § 13-3405 (Supp.1996); and one count of misconduct involving weapons, in violation of A.R.S. § 13-3102(A)(2). On the forgery and fraudulent schemes and artifices counts, the State presented evidence that, within one hour on the day in question, Appellant presented forged checks to drive-in tellers at three branches of a bank. At each branch, he showed identification and tendered checks that his accomplice, Dawn Wicketts, had made payable to him. The account holder had not authorized Wicketts to use these checks. At the first two branches, Appellant succeeded in cashing checks for $250 and $300; at the third branch, the teller became suspicious and Appellant and his companions fled, leaving his identification behind. Appellant told Officer Cooper that Wick-etts asked him to cash the checks for her because she lacked identification. He claimed not to know the checks were forged, but admitted they were signed in the account holder’s name, not Wicketts’s. Appellant denied receiving any benefit from the transactions, though Officer Cooper found $250 in Appellant’s wallet. Appellant admitted owning the Ruger semi-automatic weapon, but denied concealing it, asserting rather that it had.fallen from his lap into the space where Officer Cooper found it. A jury acquitted Appellant of two forgery counts concerning checks cashed at the first two branches. The jury convicted Appellant of forgery at the third branch and of fraudulent schemes and artifices, possession of marijuana, and misconduct involving weapons. The trial court sentenced Appellant to varying concurrent prison terms for forgery, fraudulent schemes and artifices, and possession of marijuana, and to a concurrent six-month jail term for misconduct involving weapons. The court also ordered Appellant to pay restitution of $550 for fraudulent schemes and artifices and a $750 fine for possession of marijuana. We address three issues on appeal: (1) Was Appellant’s weapon “concealed”? (2) Did the evidence support conviction for fraudulent schemes and artifices? (3) Did the trial court err in ordering Appellant to pay restitution of $550 when Appellant was acquitted of committing forgery at the branches where $550 was obtained? CONCEALED WEAPON Appellant was convicted of violating A.R.S. § 13-3102(A)(2), which provides in part: A. A person commits misconduct involving weapons by knowingly: 2. Carrying a deadly weapon without a permit pursuant to § 13-3112 concealed within immediate control of any person in or on a means of transportation. The statute does not define “concealed,” nor have our courts done so to date. Officer Cooper found Appellant’s Ruger semi-automatic weapon lodged between the passenger seat and door. Officer Cooper testified that he did not see the firearm until he opened the car door; the only way he could have seen the weapon with the door closed was to look “straight down” after putting his entire head through the window. Taking this testimony as an acknowledgement that the weapon, though obscure, was visible from a certain angle, Appellant argues that the trial court should have directed a verdict that the weapon was not concealed. We disagree. We begin with the standard definitions. According to Webster’s Third New International Dictionary 469 (1966), “conceal” means “to prevent disclosure or recognition of’ or “to place out of sight.” According to State v. Pudman, “The common definition of the word ‘conceal’ is ‘to hide or withdraw from observation; to cover or keep from sight.’ ” 65 Ariz. 197, 211, 177 P.2d 376, 386 (1946) (quoting People v. McGinnis, 55 Cal. App.2d 931, 132 P.2d 30, 32 (1942)). The problem with such definitions is that they just restate the question: Was this weapon concealed, hidden from observation, or placed out of sight when it could have been seen from a certain angle by one who undertook to see it? To answer this question, it helps to consider the purpose of A.R.S. § 13-3102(A). We have held that the statute is intended to “ ‘protect[ ] the public by preventing an individual from having on hand a deadly weapon of which the public is unaware, and which an individual may use in a sudden heat of passion.’” State v. Moerman, 182 Ariz. 255, 261, 895 P.2d 1018, 1024 (App.1994) (quoting Dano v. Collins, 166 Ariz. 322, 324, 802 P.2d 1021, 1023 (App.1990)). For that purpose, this weapon was concealed, as there was nothing about its location that put others on notice of its presence. Other courts have held that a concealed weapon need not be completely hidden or invisible. See, e.g., Ensor v. State, 403 So.2d 349, 354 (Fla.1981); State v. Gwinn, 390 A.2d 479, 482 (Me.1978); State v. Walls, 190 Wis.2d 65, 526 N.W.2d 765, 767-68 (App. 1994). Most courts hold that a weapon is concealed if it is hidden from the “ordinary observation” or the “ordinary sight” of another person. United States v. Flum, 518 F.2d 39, 45 (8th Cir.1975); McKee v. State, 488 P.2d 1039, 1042 (Alaska 1971); Ensor, 403 So.2d at 353-54. In Walls, the Wisconsin Court of Appeals held that a weapon in the defendant’s car was concealed because: (1) it was within the defendant’s reach; (2) the defendant knew it was there; and (3) the weapon was “indiscernible from the ordinary observation of a person located outside and within the immediate vicinity of the vehicle.” 526 N.W.2d at 767. The court added: What is ordinary observation in such cases cannot well be defined so as to meet all the varying conditions under which weapons may be carried ... but it may be said generally that the meaning is that the weapon must be open to the ordinary observation of persons who may come in contact in the usual and ordinary associations of life with one who carries a weap-on____ If parties approaching a [person], carrying a weapon[,] ... or passing [the person] on the streets or highways, or thrown with [the person] in ordinary social contact, can see the weapon without inspection or examination for that purpose, but from ordinary observation, then such weapon is not concealed ... within the meaning of the statute. Id. at 767 n. 3 (quoting Smith v. State, 96 Ala. 66, 11 So. 71 (1892)); see also State v. Bowman, 79 Ohio App.3d 407, 607 N.E.2d 516, 520 (1992); State v. Coker, 15 Ohio App.3d 97, 472 N.E.2d 747, 749 (1984). In Ensor, the Florida Supreme Court considered a partially hidden handgun found by police on a vehicle floorboard at a roadside stop. 403 So.2d 349. The court rejected the assertion that the weapon was subject to “ordinary observation” by one who scanned the floorboard: Ordinary observation by a person other than a police officer does not generally include the floorboard of a vehicle, whether or not the weapon is wholly or partially visible____ [A] weapon’s possible visibility from a point outside the vehicle may not, as a matter of law, preclude the weapon from being a concealed weapon under [the statute]____ In all instances, common sense must prevail. The critical question turns on whether an individual, standing near a person with a firearm ... may by ordinary observation know the questioned object to be a firearm. The ultimate decision must rest upon the trier of fact under the circumstances of each case. Id. at 354-55 (emphasis added); accord McGraw v. State, 404 So.2d 817, 819 (Fla. App.1981); cf. State v. Cavin, 555 S.W.2d 653, 654 (Mo.App.1977) (“[A] weapon is not concealed simply because it is not discernible from a single vantage point if it is clearly discernible from other positions.”); State v. Jordan, 793 S.W.2d 905, 906 (Mo.App.1990). Other courts have focused on the nature and degree of observation, excluding from the scope of “ordinary observation” searches that are “unusually careful, thorough or detailed,” such as those of a trained, alert investigating officer. State v. Pettit, 20 Ohio App.2d 170, 252 N.E.2d 325, 328 (1969); State v. Gregory, 90 Ohio App.3d 124, 628 N.E.2d 86, 90 (1993). We are satisfied after surveying such case law that the standard of “ordinary observation,” when applied with common sense, will serve to determine whether a weapon is concealed. Applying that standard to this case, we find sufficient evidence to support conviction. FRAUDULENT SCHEMES AND ARTIFICES To convict Appellant of fraudulent schemes and artifices under A.R.S. § 13-2310, the jury was required to find that he received a benefit from his fraudulent acts. Subsection 13-2310(A) provides: Any person who, pursuant to a scheme or artifice to defraud, knowingly obtains any benefit by means of false or fraudulent pretenses, representations, promises or material omissions is guilty of a class 2 felony. Appellant emphasizes that, of three forgery charges, he was convicted only of the charge relating to his unsuccessful attempt to cash a check at the third branch. Because he did not receive any benefit from this last attempt, he argues that the jury could not have found the element of benefit necessary to support a fraudulent schemes and artifices conviction. We disagree. Trial testimony showed that Appellant and his accomplices obtained benefits totalling $550 at the first two branches after Appellant endorsed and presented identification to cash forged checks. That Appellant was acquitted of forgery counts relating to these incidents did not preclude the jury from returning a fraudulent schemes and artifices conviction on the same evidence. Verdicts on different counts of an indictment need not be consistent. State v. Zakhar, 105 Ariz. 31, 32, 459 P.2d 83, 84 (1969). Because the evidence sufficed to establish Appellant’s receipt of a benefit, it sufficed to support his conviction on this count. RESTITUTION Appellant also asserts that the trial court abused its discretion in ordering restitution. Restitution is proper only for charges that a defendant is convicted of, admits to, or agrees to pay. State v. Garcia, 176 Ariz. 231, 236, 860 P.2d 498, 503 (App. 1993). Here, the trial court ordered Appellant to pay the bank $550 in restitution. Appellant claims that this order was an error because he was acquitted of the charges relating to the bank’s monetary loss. Here again, we disagree. If we had only the three forgery counts before us, Appellant’s argument might have more weight. See id. As we have stated, however, Appellant was convicted of fraudulent schemes and artifices, of which a necessary element is a benefit received. Further, the evidence established that Appellant had accomplices, and that the bank suffered a $550 economic loss from their scheme. The trial court’s restitution order therefore was reasonably related to both Appellant’s conviction and the bank’s loss. See State v. Young, 173 Ariz. 287, 288, 842 P.2d 1300, 1301 (App.1992). For these reasons, Appellant’s convictions and sentences are affirmed. NOYES, P.J., and RYAN, J., concur.

OPINION JONES, Vice Chief Justice. Creaeh Construction, owned by Richard and Alice Creaeh (the Creaches), contracted with California residents William and Noemi Angulo (the Angulos) to build a four-plex on property the Angulos owned in Prescott Valley, Arizona. On completion of the work, the Angulos refused to pay a portion of the agreed price, and the Creaches brought this action in the Yavapai County Superior Court to enforce the contract. The summons and complaint were served personally on the An-gulos in California under Arizona Rule of Civil Procedure 4.2(b) providing for direct service outside the state. Affidavits by the California process server showing service on the Angulos at their California residence were filed with the court in Yavapai County. The Creaches did not file an affidavit showing circumstances warranting utilization of out-of-state service, although Rule 4.2(b) requires such affidavit before a default may be entered. The Angulos failed to answer or otherwise plead to the complaint, whereupon the Creaches applied for entry of default and mailed a copy of the application to the Angu-los and their attorney. Again, the Angulos made no response, and the trial court entered a default judgment against them. Only after the Angulos filed a notice of appeal did the Creaches file the required Rule 4.2(b) affidavit. The court of appeals affirmed the default judgment, finding that “the Rule 4.2(b) affidavit of circumstances requirement is a technicality and its violation in this case was harmless error.” Creach v. Angulo, 186 Ariz. 548, 552, 925 P.2d 689, 693 (App.1996). The court expressly rejected the Angulos’ argument that failure to file an affidavit of circumstances constitutes reversible error. Although the argument was based on this court’s opinion in Cockerham v. Zikratch, 127 Ariz. 230, 619 P.2d 739 (1980), the court of appeals found that our reference to “reversible error” in Cockerham was dictum and thus should not be treated as binding precedent. Creach, 186 Ariz. at 552, 925 P.2d at 693. We agree with the court of appeals and issue this opinion because the case raises an important matter of procedure involving out-of-state personal service and because we distinguish the instant case from our recent opinion in Postal Instant Press v. Corral Restaurants, Inc., 186 Ariz. 535, 925 P.2d 260 (1996), which addressed the related requirement under Rule 4.1(c)(2) that a party served by first-class mail within the state must sign and return a formal oath or affirmation acknowledging such service. We have jurisdiction pursuant to Arizona Constitution article VI, section 5(3), and Rule 23 of the Arizona Rules of Civil Appellate Procedure. DISCUSSION A. Cockerham Dictum The court of appeals determined that the term “reversible error” as used in Cocker-ham was dictum and not binding legal precedent. We said: [T]he failure to file the affidavit of [out-of-state] service required by Rule 4(e)(2)(b), although reversible error, did not render the default judgment void for lack of personal jurisdiction where the facts to be contained in that affidavit appear in the verified complaint and affidavits of the process server. Cockerham, 127 Ariz. at 234, 619 P.2d at 743 (emphasis added). The court of appeals concluded: [T]he issue before the Cockerham court was whether the technical violation prevented establishment of personal jurisdiction, not whether it would otherwise be reversible error____ It is readily apparent that the Cockerham court’s statement regarding reversible error was hypothetical and not necessary to its holding. Creach, 186 Ariz. at 551-52, 925 P.2d at 692-93. The Cockerham defendants, as here, were personally served at their California residence and failed to file an answer. The Arizona plaintiff obtained a default judgment. When the plaintiff sought to enforce the judgment by execution sale, defendants obtained a temporary restraining order enjoining the sale, and the trial court vacated the default judgment. On appeal, this court addressed the argument that the default was void and subject to vacation under Arizona Rule of Civil Procedure 60(c)(4) because the trial court lacked jurisdiction over the defendants due to plaintiffs failure to file the affidavit showing circumstances warranting service outside the state. We concluded that information contained in the verified complaint and the affidavits of service by the process server furnished sufficient facts to warrant the use of out-of-state service and to establish personal jurisdiction. The absence of an affidavit of circumstances in Cockerham thus did not deprive the court of personal jurisdiction over the defendants, and the default judgment was not void. Our conclusion that the Cockerham judgment was valid did not necessitate reference to “reversible error” in connection with the missing affidavit. To have found mere “error” would have been sufficient. The court of appeals in the instant case correctly determined the reference was dictum, and perhaps misleading. Clearly, it is error for a court to justify a litigant’s failure to file an affidavit required by a rule of civil procedure. The question is not whether error occurred, but whether it is harmless, that is, whether it is of such technical, non-prejudicial character that neither party may raise a legitimate or meritorious basis of complaint. Reversible error is, “[i]n appellate practice, such an error as warrants the appellate court in reversing the judgment before it; substantial error, that which reasonably might have prejudiced the party complaining.” Black’s Law Dictionary 543 (6th ed.1990); see State v. Brady, 105 Ariz. 190, 196, 461 P.2d 488, 494 (1969) (“This Court has held many times that in order to justify a reversal an error must be prejudicial under the facts of the case.”). We reject the notion that the term “reversible error” in Cockerham suggests a rule that must govern every case involving a missing 4.2(b) affidavit of circumstances. The court of appeals correctly stated: To justify the reversal of a case, there must not only be error, but the error must have been prejudicial to the substantial rights of the party. State v. Whitman, 91 Ariz. 120, 127, 370 P.2d 273, 278 (1962); see also Ariz. Const, art. 6, § 27 (prohibiting reversal of a cause for technical error in pleading or proceedings). Furthermore, prejudice is not presumed but must appear from the record. Whitman, 91 Ariz. at 127, 370 P.2d at 278. Otherwise, the error is deemed harmless. Id. Rule 61 of the Arizona Rules of Civil Procedure defines harmless error as follows: “No error or defect ... in anything done or omitted by the court or by any of the parties is ground for ... vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.” Creach, 186 Ariz. at 550, 925 P.2d at 691. Accordingly, whether failure to file the Rule 4.2(b) affidavit is reversible depends on the specific circumstances of each case. B. Harmless Error The court of appeals found that violation of the affidavit requirement did not prejudice any substantial right of the Angulos and that the entry of default judgment was not inconsistent with substantial justice. 186 Ariz. at 552, 925 P.2d at 693. To reach this conclusion, the court analyzed the purpose of the requirement: [W]e believe the affidavit was intended to provide assurance to the trial court that its assertion of personal jurisdiction was constitutionally permissible. Such assurance was especially important in the default judgment context where the defendant has not answered the complaint and the record may not contain information necessary to determining the appropriateness of long arm jurisdiction. Thus, the affidavit requirement insures that the trial court receives this information before entering a default judgment. Id. at 550, 925 P.2d at 691. The court concluded that the affidavit requirement did not confer a substantial right on an out-of-state defendant and that violation of this requirement did not result in prejudice: “We find that the Rule 4.2(b) affidavit of circumstances requirement is a technicality and its violation in this case was harmless error.” Id. at 552, 925 P.2d at 693 (emphasis added). We interpret the court of appeals’ opinion to mean that omission of the affidavit was harmless “in this case,” where its purpose was to inform the court, and where the court, having received the complaint and the process server’s affidavits, possessed documented information sufficient to confirm personal jurisdiction over the defendants. We recently held in Postal that omission of the defendant’s affidavit acknowledging personal service by mail as required by Rule 4.1(c)(2) was not a mere technicality and that such omission deprived the court of authority to enter default judgment under A.R.S. § 12-1598.13(H). 186 Ariz. at 538, 925 P.2d at 263. Postal is distinguishable because there, plaintiffs sent the summons and complaint to defendants by certified mail but, contrary to the rule, neglected to furnish an acknowledgment of receipt to be executed under oath or affirmation by the party served. A return postal receipt was signed but not by a named defendant in the litigation. Id. at 537, 925 P.2d at 262. Moreover, because the Postal plaintiffs chose alternative service by mail instead of direct service, the court file contained no affidavit by a process server. We held that service was not complete because the trial court had no factual or documented basis in the record by which to establish completed service on the defendants. Id. at 538, 925 P.2d at 263. The file was devoid of such evidence, and the defendants were thereby substantially prejudiced by the omission. In contrast to Postal, affidavits in the instant case were executed and filed by the process server, providing a record in the trial court that service of the summons and complaint on the named defendants had been obtained. Moreover, here, as in Cockerham, the complaint and the affidavits of the pro- cess server contained all information necessary to demonstrate the reasons for long-arm service, and all such documents had been filed with the court prior to entry of the default judgment. The Angulos’ only claim of prejudice is that “Arizona jurisdiction has been extended over them without the Arizona trial court having been fully informed of the circumstances warranting the use of out-of-state service and compliance with due process.” This claim is without merit. The complaint and affidavits of the process server accurately informed the trial court that the Angulos were California residents and that the subject matter of the dispute was a construction contract involving Arizona property. The Angulos do not claim that the information before the trial court was inaccurate, nor do they claim that additional information was necessary to establish personal jurisdiction over out-of-state defendants. They have shown no prejudice and merely demand compliance with a technical rule. DISPOSITION The Creaches’ failure to file the affidavit of circumstances required by Arizona Rule of Civil Procedure 4.2(b) was harmless error, not reversible error, and the Angulos’ rights were not prejudiced. We therefore affirm the default judgment entered by the trial court and approve the decision of the court of appeals. Respondents’ request for attorneys’ fees is denied. ZLAKET, C.J., and FELDMAN, MOELLER and MARTONE, JJ., concur. . At the time Cockerham was decided, the affidavit of circumstances was required by Arizona Rule of Civil Procedure 4(e)(2). The pertinent provisions of that rule are currently incorporated in Rule 4.2(b). . The court notes that Rule 4.1 was amended, effective December 1, 1996, and no longer requires an acknowledgment of service signed by the party served. The new rule, among other things, encourages parties to avoid unnecessary costs by providing that plaintiffs may, in writing, notify and request defendants to waive service, and imposes the cost of personal service on those who fail to waive without good cause.

OPINION TOCI, Judge. The central issue in this case is whether the electors of the City of Peoria (“the City”) can by initiative amend the charter to require the City to employ a minimum of 1.5 full-time police officers per one thousand residents. The City contends that the challenged initiative is a budgetary matter and that, by analogy to the Arizona cases precluding zoning by initiative, state regulation of the budgeting process preempts an initiative on matters affecting the budget. We conclude that the state has not reserved to itself in municipal budgeting the same degree of authority it reserved over zoning matters and that the initiative is not therefore preempted by state budget law. We affirm the decision of the trial court ordering that the initiative be placed on the ballot. I. FACTUAL AND PROCEDURAL BACKGROUND The Peoria City Clerk issued an initiative petition to Edina L. Robertson, a registered voter and resident of the City of Peoria. Robertson secured more than the necessary signatures required to place the measure on the ballot. Nevertheless, based on advice of the city attorney, the city clerk refused to accept the petitions. The city attorney had determined that the initiative was “not a valid exercise of the legislative power and [was] not subject to certification and placement upon the ballot for submission to the qualified electors” in the March 10, 1997 election. Robertson filed a special action in superior court challenging the city clerk’s refusal. The court acknowledged that the parties had stipulated that “the initiative has been properly brought to the City for placement on the ballot” and granted Robertson’s motion for summary judgment. In ruling on the motion, the comí; did not determine the constitutionality or validity of the initiative nor evaluate its wisdom but it found that “the initiative is a proper subject matter for the initiative process.” The City appealed. We agree with the trial court and therefore affirm. II. DISCUSSION A. Court’s Role in Reviewing an Initiative Our constitution reserves to the people the power to legislate through the initiative and referendum procedures “as to all local, city ... matters on which such incorporated cities ... are or shall be empowered by general laws to legislate. Such ... cities ... may prescribe the manner of exercising said powers within the restrictions of general laws.” Ariz. Const, art. 4, pt. 1, § 1(8). See also Tilson v. Mofford, 153 Ariz. 468, 470, 737 P.2d 1367, 1369 (1987). The power of the people to legislate, however, is no greater than that of the municipal body itself. Eugene McQuillen, The Law of Municipal Corporations, § 16.52, at 284 (3d ed. 1996). Under the separation of powers doctrine, the courts’ role is to decide “what the law is and what the constitution contains, but not what it should contain.” Tilson, 153 Ariz. at 470, 737 P.2d at 1369. Unless a measure is clearly .invalid on its face, we will not pass on its validity before the electorate votes on it. Id. We have held, for example, that “the legality of the substance of an initiative cannot be reviewed until [it] is adopted by the electorate and is later at issue in a specific case.” Id. at 471, 737 P.2d at 1370. See also Fairness & Accountability in Ins. Reform v. Greene, 180 Ariz. 582, 587, 886 P.2d 1338, 1343 (1994) (a measure’s text is part of legislative process and not subject to review before adoption); Kromko v. Superior Court, 168 Ariz. 51, 57, 811 P.2d 12, 18 (1991) (court’s power to halt placing initiative on auto insurance reform on ballot is limited); Williams v. Parrack, 83 Ariz. 227, 231, 319 P.2d 989, 991 (1957) (court will enjoin neither city council nor electorate from adopting ordinance if it is legislative and within scope of municipal power). The courts will intervene, however, to ensure that a petition is not defective in form, bears the required number of signatures, and does not violate the prescribed procedure. Id. A petition may be defective inform if it attempts to legislate on a matter not subject to the people’s legislative power. See Saggio v. Connelly, 147 Ariz. 240, 241, 709 P.2d 874, 875 (1985) (petition is defective in form if it is not “legislation”). B. Is the Initiative “Legislation”? Our constitution confers the power of the initiative to incorporated cities on matters on which such cities are “empowered by general laws to legislate.” Ariz. Const, art. 4, pt. 1, § 1(8). The City urges us to review this initiative to determine if it is a matter on which the City is empowered to legislate. We first turn to whether this is “legislation” or an attempt to enact merely an administrative measure. In Saggio, our supreme court affirmed denial of a writ of mandamus to compel placing an initiative on the ballot. 147 Ariz. at 240, 242, 709 P.2d at 874, 876. The initiative sought an election on whether to dissolve the city government. Id. at 240, 709 P.2d at 874. The trial court denied the writ because the city lacked power “to legislate its own disin-corporation”; only the state held that power. Id. at 241, 709 P.2d at 875. The supreme court agreed and further found that the proposal essentially requested a public opinion poll but did not enact anything. Id. Thus, “[although the constitutionality of a proposed initiative will not be considered prior to its adoption, we will consider whether an initiative petition is defective in form. By review of the form ... we mean an examination of it to determine whether it is, in fact, legislation.” Id. (citation omitted). Legislation “is a definite, specific act or resolution,” and “must enact something.” Id. The instant initiative will amend the charter to require hiring of a specific ratio of police officers to match Peoria’s population; it also bars the City from lowering “hiring standards or qualifications” or reducing wages or benefits of police officers. Therefore, because it will enact specific rules or regulations, it qualifies as “legislation.” See Wennerstrom v. City of Mesa, 169 Ariz. 485, 489-90, 821 P.2d 146, 150-51 (1991) (setting policy, enacting a law or permanent rule, or declaring a public purpose and the means of attainment are “legislative” acts); Fuldauer v. City of Cleveland, 32 Ohio St.2d 114, 290 N.E.2d 546, 549 (1972) (voters’ adoption of city charter amendment setting salaries of firefighters and police officers was exercise of legislative power); City of Las Vegas v. Ackerman, 85 Nev. 493, 457 P.2d 525, 528 (1969) (initiative increasing firefighters’ salaries a legislative act); State ex rel. Payne v. City of Spokane, 17 Wash.2d 22, 134 P.2d 950, 951 (1943) (initiative fixing firefighters’ salaries is legislative). Contra In re Supreme Court Adjudication, 597 P.2d 1208, 1209-11 (Okla.1979) (initiative setting minimum number of police and their pay through tax increase is administrative, not legislative). But, even if this is “legislation,” the City contends that it is a subject matter on which the voters may not legislate. It cites a number of cases, including Hancock v. McCarroll, 188 Ariz. 492, 937 P.2d 682 (App. 1996), to argue that the court may predetermine whether the initiative concerns a proper subject matter. In Hancock, a citizen sought by initiative to repeal a county resolution creating a stadium district and the tax to build the stadium. Id. We affirmed the clerk’s denial of an initiative petition because the statute authorizing the county to form a stadium district did not grant the initiative power to the district’s electors. Id. at 495 - 96, 937 P.2d at 685-87. Thus, no elector could compel the district to accept the initiative, and even the county had no express legislative power to repeal the resolution creating the district. Id. at 497 - 98, 937 P.2d at 687-89. Because Hancock found no power of initiative existed, it does not govern this case. We acknowledge, however, that in some instances, our courts have determined in advance of an election that the subject matter is not one on which a city or its voters may legislate. For example, in Transamerica Title Ins. Co. v. Tucson, 157 Ariz. 346, 347, 757 P.2d 1055,1056 (1988), an initiative sought to amend the city charter to require voter approval of zoning changes in land around open space preserves. Owners of affected property claimed that the initiative illegally attempted to zone their land. Id. The supreme court upheld an injunction to halt the initiative; it reasoned that a city has no inherent zoning power but has only that power delegated to it by the state and that state law dictates the procedure for adopting zoning measures. Id. at 350, 757 P.2d at 1059. The initiative process did not comply with the procedural protections embodied in the statutes and thus could not be used to enact zoning. Id. The Transamerica court relied on City of Scottsdale v. Superior Court, 103 Ariz. 204, 207-08, 439 P.2d 290, 293-94 (1968), in which the court held that due process and the express statutory delegation of zoning power to the city council prohibited amendment of a comprehensive zoning plan by initiative. The court agreed with a California court’s holding that when a statute confers the zoning power on the city council and also prescribes the method for adopting zoning laws, “ ‘the method of enactment is the measure of the power to enact.’ ” Id. at 208, 439 P.2d at 294 (quoting Laguna Beach Taxpayers’ Ass’n v. City Council, 187 Cal.App.2d 412, 9 Cal.Rptr. 775 (1960)). Because the initiative did not conform to the methods imposed by the zoning laws, the electors could not adopt zoning laws by that means. Id. Similarly, in Cota-Robles v. Mayor & Council of Tucson, 163 Ariz. 143, 144, 786 P.2d 994, 995 (App.1989), the court affirmed dismissal of a complaint to compel the city to hold an election on a proposed highway’s alignment. State law vests power over state highways exclusively in the state department of transportation, and highway placement is a matter of statewide concern. Id. at 146, 786 P.2d at 997. The court held that state law preempted the field, and the city’s voters could not legislate on the matter. Id. Scottsdale, Transamerica, and Cota-Ro-bles all are faithful to art. 4, pt. 1, § 1(8) of the Arizona Constitution, which reserves the power of initiative to the people as to “all local, city ... matters on which ... cities are ... empowered” by the state to legislate. Reduced to their simplest form, these cases stand for the proposition that because cities do not have the power to legislate in the field of zoning and highway alignment except as allowed by state law, the electorate may not circumvent state law through the initiative process. We now turn to the City’s assertion that, just as the zoning process is protected from the people’s exercise of the initiative power, so is the City’s budgeting process. The City argues here that by specifying the number of full-time commissioned police officers that must be employed, the challenged initiative usurps the city council’s authority and obligations in budgeting matters and circumvents the hearing process preceding budget adoption. By analogy to the zoning statutes and eases, the City asserts that statutory regulation of the budget process preempts an initiative on matters affecting the budget. We conclude that the City’s analogy fails for several reasons. First, the legislature has not totally occupied the field of municipal fiscal operations as it has the field of municipal zoning. The authority for city zoning springs from direct delegation by the state. See Ariz.Rev. Stat. Ann. (“A.R.S.”) § 9-462.01. The state legislation prescribes the specific manner in which a city may regulate the use of real property. See A.R.S. § 9-462.01 et seq. A city has no power to zone except as delegated by the legislature. Scottsdale, 103 Ariz. at 207, 439 P.2d at 293. In contrast, although the City is subject to the state budget laws, the power of a charter city such as Peoria to conduct its operations is not derived from the budget laws, but from the Constitution. See City of Tucson v. Tucson Sunshine Climate Club, 64 Ariz. 1, 4, 164 P.2d 598, 599 (1945). Thus, unlike the state zoning statutes, the state budgeting statutes contain no indication of a legislative intent to completely occupy every aspect of city fiscal operations. For example, the state budgeting statutes do not specify what matters can be placed in a budget or how much can be spent on any given item. Those decisions are left to the discretion of the city council. And, although a city must publish estimates and notice of a public budget hearing, at which any taxpayer may appear and be heard, the laws do not require notice and a hearing every time a city expends money. In contrast, zoning laws properly require notice and a hearing on every zoning ordinance or amendment because of the impact zoning has on individual property interests. A.R.S. §§ 9 — 462.03, 9-462.04. Therefore, we cannot agree that the state has reserved to itself in municipal budget matters the degree of authority it reserved over zoning. Furthermore, in contrast to the zoning cases, which struck down initiative measures that conflicted with the state zoning law, we find nothing in the instant initiative that circumvents the state budget laws. If adopted, the initiative may “automate” the size and expense of the City’s police force, but we can find no resulting budget law violation. No law prescribes the items on which a city may spend its money or, more specifically, prescribes the way in which the City must determine the number, salaries, or qualifications of its police officers. The City’s budget will still be subject to the normal procedural requirements set forth in A.R.S. section 42-802. Thus, the initiative does not “usurp” power that inherently or exclusively resides in the state. Further, whether the citizens adopt the measure, or whether the city council itself were to adopt an ordinance to the same effect, mere “impact” on the city budget is not sufficient to invalidate the measure. No evidence in this record suggests that the measure will cause the City to exceed statutory or constitutional budget limits. If the budget does exceed the limitation established by law, the council can reduce other expenditures or resolve the competing demands on its revenues as best it can. See Fuldauer, 290 N.E.2d at 551 (charter amendment could set spending for police as top budget priority); City of Spokane, 134 P.2d at 952 (city council must decide how to pay for increased firefighter salaries if proposed initiative passed). The City additionally argues that the initiative will create a “debt,” but that if it does so, the initiative is preempted by state laws regulating the City’s indebtedness. Even if we agreed with the first premise, nothing in the record shows that this measure will cause the City to exceed its debt limits. If and when the measure passes, the City then must determine how to pay for any additional expense. That this item may be a “locally enacted, perpetual unfunded obligation” does not distinguish it from any number of other local, unfunded obligations that arise from the City’s continuing duty to provide services to its citizens. Having concluded that this initiative proposes “legislation” appropriate to decision by the reserved power of the citizens and that the proposal does not transgress the state-mandated procedures governing the City’s budget process or debt limits, we hold that it must be subjected to an election. III. CONCLUSION We affirm the trial court’s order directing the City to accept the initiative petitions. Additionally, we grant Robertson’s request for an award of her attorney’s fees under A.R.S. sections 12-2030(A),(B) (Supp.1996). The statute provides that the court “shall award fees and other expenses to any party ... which prevails by an adjudication on the merits in a civil action” brought to compel an officer of a political subdivision to perform a legal duty. A.R.S. § 12-2030(A). We further award Robertson her costs under A.R.S. section 12-341 (1992). Robertson is directed to comply with Rule 21, Arizona Rules of Civil Appellate Procedure (1997). GERBER, P.J., and SULT, J., concur. . Peoria's charter reserves to the electors the powers of the initiative and referendum but does not prescribe any different manner of exercising those powers than do the general laws. . We note that referendum cases such as Cota-Robles are subject to a different standard of review than initiative cases. See Wennerstrom, 169 Ariz. at 488, 821 P.2d at 149. Notwithstanding, Cota-Robles is apposite on the issue of preemption. . A.R.S. section 42-302(F). . A.R.S. section 42-303(A).

OPINION VOSS, Judge. Appellant Jennifer B., the maternal aunt of the dependent child Jonathan S., appeals from the juvenile court’s order revoking her permanent guardianship of the child. This appeal involves issues of first impression concerning the relatively new statutory scheme for permanent guardianship of a dependent child pursuant to Ariz.Rev.Stat. (A.R.S.) sections 8-525 to -525.02. PROCEDURAL BACKGROUND On April 26, 1994, by stipulation of all parties, the child was found dependent pursuant to A.R.S'. § 8-201(11), was made a ward of the court, was committed to the care, custody, and control of the Arizona Department of Economic Security (ADES), and was placed in the physical custody of his maternal aunt, Jennifer B. (aunt). The child had been living with his aunt since July 1993, with the consent of his mother. On February 8, 1995, the aunt petitioned for permanent guardianship of the child pursuant to A.R.S. § 8-525.01. Upon the stipulation of the parties without an evidentiary hearing, the court entered an order of permanent guardianship, finding that the mother’s current living situation made it doubtful that she would regain custody of the child in the near future and that the aunt was willing to both accept the responsibilities of permanent guardian and allow the mother reasonable visitation with the child. The order provided for a report and review in one year, and, in the interim, provided that “Child Protective Services shall continue to monitor [the child and the mother] and shall provide such services as [the mother] may reasonably request or as [the child] may require.” On February 6,1996, ADES and the mother filed a petition to revoke the guardianship, alleging as a significant change in circumstances that the guardian was unable to properly care for the child. The child had been removed from the custody of his aunt on January 2, 1996, after the caseworker learned of allegations that the child was being physically and emotionally abused in the aunt’s home. The child was placed in a temporary shelter and then subsequently in a foster home pending the hearing on the petition, and the court ordered counseling for the child, with no contact allowed by his aunt. After a three-day hearing, the court entered its order revoking the guardianship, concluding that “there has been a change of circumstances proven by clear and convincing evidence and the revocation is in the child’s best interest.” The court also concluded that “there is clear and convincing evidence that the permanent guardian is not capable of caring for the minor child and is not the appropriate caretaker under the circumstances.” The court found the child remained dependent, within the custody of ADES in foster care. The aunt timely appealed from the order revoking her permanent guardianship. DISCUSSION On appeal, the aunt raises the following issues: 1. Did the juvenile court err in finding clear and convincing evidence that the permanent guardianship should be terminated pursuant to A.R.S. § 8-525.02? 2. Did the juvenile court err in concluding the child should not be returned to the aunt’s home? 3. Did the juvenile court err in failing to find that ADES had a responsibility to provide services to maintain the child’s placement in the permanent guardianship prior to removal? Standard of Review We will affirm a juvenile court’s order based on findings of clear and convincing evidence unless no reasonable evidence supports those findings. See In Matter of Pima County Juv. Sev. Action No. S-1134-32, 178 Ariz. 288, 292, 872 P.2d 1240, 1244 (App.1993)(standard of review on appeal from severance order based on clear and convincing evidence). We will not reverse the juvenile court’s order unless it is clearly erroneous. In Matter of Pima County Sev. Action No. S-2397, 161 Ariz. 574, 577, 780 P.2d 407,410 (App.1989)(same). Sufficiency of Evidence for Revocation of Guardianship The aunt contends on appeal that the juvenile court erred in finding clear and convincing evidence to support revocation of the permanent guardianship. In this case, revocation was based on the following statutory provisions: A The child, a parent of the child or any party to the dependency proceeding may file a petition for the revocation of an order granting permanent guardianship if there is a significant change in circumstances, including: 2. The child’s permanent guardian is unable to properly care for the child. C. The court may revoke the order granting permanent guardianship if the party petitioning for revocation proves a change of circumstances by clear and convincing evidence and the revocation is in the child’s best interest. A.R.S. § 8-525.02. Prior to 1994, juvenile guardianship proceedings were governed by provisions of the probate code. See A.R.S. §§ 14-5201 to - 5212. Under the general provisions of the probate code, a trial court had broad discretion to appoint or remove a guardian based solely on a consideration of the best interests of the ward. See, e.g., In re Guardianship of Kelly, 184 Ariz. 514, 518, 910 P.2d 665, 669 (App.1996)(appointment); A.R.S. § 14-5212(A)(removal). In 1994, the legislature enacted the provisions at issue in this case, which now enable the juvenile court to appoint a permanent guardian for a child who has been declared dependent. See Ariz. Sess. Laws 1994, Ch. 335, § 3. The legislative history of this enactment indicates that its purpose was to provide “permanency in the custodial relationship” of “older children who are not suitable candidates for adoption,” “in a dependency proceeding in those instances where the Department of Economic Security (DES) has been unsuccessful in reuniting the family,” and where parental rights are not severed, but, rather, “it is hoped there will be a continuing relation between the parent and the child.” Ariz. House of Rep., H.B.2062, Minutes of the Judiciary Committee, Feb. 3, 1994, at 2. The language of the new juvenile guardianship statute was derived from a nearly identical New Mexico statutory scheme. See Ariz. Senate, H.B.2062, Minutes of the Committee on Judiciary, March 8, 1994, at 4; see N.M.S.A. § 32A-4-31 to -32. Both the New Mexico and Arizona statutory schemes for permanent guardianship of a dependent or neglected child were adopted to prevent the conflicts that often arose between probate and juvenile laws regarding guardianship of these children. See Arizona Dept of Econ. Sec. v. Superior Court, 186 Ariz. 405, 407, 923 P.2d 871, 873 (App.1996); In re Guardianship Petition of Lupe C., 112 N.M. 116, 812 P.2d 365, 370-71 (App.1991). These more stringent guardianship statutes thus required, for removal of a guardian, proof by clear and convincing evidence of a statutory ground, such as the guardian’s inability to properly care for the child, and a finding that the child’s best interests would be served by revocation of the guardianship. A.R.S. § 8-525.02; N.M.S.A. § 32A-4-32. The trial court’s discretion therefore is less broad under the juvenile permanent guardianship statutes than it is under the probate code provisions regarding other guardianships. The aunt argues that these more stringent statutory requirements for revocation of the permanent guardianship make it more akin to a termination of parental rights than to a change of custody in a dependency proceeding. For example, she notes that revocation of the guardianship requires proof by clear and convincing evidence, the same burden as for a severance of parental rights. See generally A.R.S. § 8-533(B)(statutory grounds for termination of parental rights); In Matter of Maricopa County, Juv. Action No. JA 33794, 171 Ariz. 90, 828 P.2d 1231 (App. 1991)(grounds for severance must be proven by clear and convincing evidence). However, this argument overlooks the fundamental constitutional rights afforded parents to the care, custody, and control of their children. See In Matter of Pima County Juv. Sev. Action No. S-120171, 183 Ariz. 546, 905 P.2d 555 (App.1995). It also overlooks the “hybrid” nature of the statutory permanent guardianship. While the permanent guardian is provided with most of “the powers and responsibilities of a parent who has not been deprived of custody,” A.R.S. § 14-5209, the child remains a ward of the court pursuant to the dependency, and the court has continuing jurisdiction to review and enforce the guardianship order, A.R.S. § 8-525.01(1). Indeed the juvenile court even commented on the unique nature of this statutory relationship: I don’t know if I view a permanent guardianship in the same posture as a parent. The permanent guardian in this case was still under the court’s supervision____ It may be neither fish nor fowl____ In this case, the statutory ground alleged as the basis for revocation of the guardianship was that substantially changed circumstances existed in that the aunt was “unable to properly care for the child.” See A.R.S. § 8-525.02(A)(2). This ground is very similar to one of the statutory definitions of a “dependent” child: “Dependent child” means a child who is adjudicated to be: (a) In need of proper and effective parental care and control and has no parent or guardian, or one who has no parent or guardian willing to exercise or capable of exercising such care and control. A.R.S. § 8-201(11). Arizona courts have found this ground is met in situations where children are afraid of their parents, where return to the home might subject them to violence, or where evidence of abuse existed. See, e.g., In Matter of Santa Cruz County Juv. Dep. Action Nos. JD-89-006 and JD-89-007, 167 Ariz. 98, 804 P.2d 827 (App.1990); In Matter of Pima County Juv. Dep. Action No. 118537, 185 Ariz. 77, 912 P.2d 1306 (App. 1994). The juvenile court found clear and convincing evidence of the guardian’s inability to properly care for the child. Two psychologists testified that the child reported corporal punishment and expressed fear of the aunt and her husband. The ADES caseworker reported her observations of welts and scratches on the child’s body, admittedly inflicted by the aunt. The child reported to the caseworker several incidents of abuse in the aunt’s home. The child had continually stated for more than six months that he was afraid to return to the aunt’s home, and preferred to stay in his foster care placement. The mother reported continual incidents of name calling and berating of the child while he was in the aunt’s home. The child had been suspended for taking knives to school while in the aunt’s care, had reportedly stolen money, and had acted out sexually when first placed into foster care. Based on this record and our standard of review, we cannot conclude that the juvenile court erred in finding clear and convincing evidence that the aunt was no longer able to properly care for the child. Regarding the child’s best interests in revocation of the guardianship, one psychological expert testified that the aunt was incapable of showing affection for the child, would continue to use corporal punishment, and still caused the child fear. He opined that, because the child was showing less aggression in his foster placement, it would be “better for him to stay there in foster care” than to return to the aunt. He predicted that a return to the aunt’s custody would be detrimental to the child because he would develop a “very negative” view of “people in authority,” which would create “a real management problem throughout his life ... into adulthood.” He could think of no benefit to the child from a return to the aunt. The second psychologist also opined that a return to the aunt’s custody was “not advisable” because of the child’s fear of being hit again. The caseworker opined that “the therapeutic needs of the child and the protection needs of the child appear to supersede the need to be with a family member or return to a guardian,” and the current plan was to retain the child in foster care until his mother pursued the recommended counseling and parenting classes. The aunt presented no testimony, expert or otherwise, to establish that continuation of the guardianship would benefit the child. A finding that the best interests of the child will be served by removal from a custodial relationship may be established by either showing an affirmative benefit to the child by removal or a detriment to the child by continuing in the relationship. In Matter of Maricopa County Juv. Action No. JS-500274, 167 Ariz. 1, 6-7, 804 P.2d 730, 735-36 (1990)(best interests of the child in severance proceedings). Given the above evidence, we find the juvenile court’s conclusion that the best interests of the child would be served by revocation of the guardianship is supported by the record. Child’s Removal from Aunt’s Home The aunt also argues on appeal that the juvenile court erred in concluding that the child could not be returned to her custody. This argument merely restates the aunt’s contention, addressed above, that insufficient evidence was introduced to justify revocation of the guardianship. For the same reasons that the court found it not in the child’s best interests to continue the guardianship, the court was justified in finding that the child should not be returned to the aunt’s custody. ADES Responsibility to Maintain Permanent Guardianship Finally, the aunt argues that the juvenile court should have considered the failure of ADES to provide the aunt with services to preserve the child’s guardianship placement when it first became aware of problems in the aunt’s home. For this proposition, the aunt cites to A.R.S. § 8-515(H)(now renumbered and codified at A.R.S. § 8-515(K)), which provides: In reviewing the foster care status of the child, the court shall, insofar as possible, seek to reunite the family. If the court is unable to do this it shall arrange for the permanent placement of the child through adoption or long-term family foster care. If that is not possible, the court shall seek to provide group foster care or other appropriate care that is in the child’s best interest. A.R.S. § 8-515(K). First, as ADES correctly points out, this statute applies to children in foster care, not permanent guardianship status. Second, even if it were to apply to the aunt’s status in this case as “family,” we would find no abuse of discretion on this record. The guardianship revocation statute does not require a finding that ADES provided adequate services to preserve the placement. Compare A.R.S. § 8-525.02 with A.R.S. § 8-533(B)(7)(termination of parental rights on grounds of out-of-home placement when “the agency responsible for the care of the child has .made a diligent effort to provide appropriate remedial services ... ”). The court found, at the time the guardianship was ordered, that the child did not require current services from ADES, but provided for future services if necessary. The aunt did not request any such services, although she was authorized to do so as a guardian pursuant to A.R.S. § 14-5209(3). Finally, the aunt has not established what services ADES could have provided to effect a different outcome in this case. The aunt testified that she sought private counseling and attended parenting classes through Jewish Family and Children’s Services, without the assistance of ADES, and was unable to correct her problems with the child’s discipline despite those services. Under these circumstances, we find no abuse of discretion in the juvenile court’s refusal to fault ADES for the failure of the permanent guardianship. CONCLUSION For the foregoing reasons, we affirm the juvenile court’s order revoking the permanent guardianship. RYAN, P.J., and GARBARINO, J., concur.

TOCI, Judge. Leon Delgarito (“defendant”) appeals from the judgment of the trial court designating as a felony the undesignated class 6 offense to which he had pled guilty a year earlier. He asserts that the trial court erred in designating the offense without first providing him both notice and a hearing. Although the state concedes that defendant was entitled to notice and a hearing, it disputes defendant’s claim that he is entitled to raise this issue on direct appeal. The state argues that because defendant had pled guilty, his only avenue of relief is a Rule 32 petition for postconviction relief. We conclude that defendant is entitled to a direct appeal based on Ariz.Rev.Stat. Ann. (“A.R.S.”) section 13-4033(A)(2) (Supp.1996), which provides that a defendant may appeal “from an order made after judgment affecting [his] substantial rights.” A felony designation is such an order, and defendant is entitled to appeal the issue of whether the trial court’s designation order, made without either notice or a hearing, violated his right to due process. This issue is not one that effectively challenges the plea agreement or sentence and thus is not an appeal barred by A.R.S. section 13-4033(B) (Supp.1996). Accordingly, we reverse the order and remand for a hearing. I. FACTUAL AND PROCEDURAL BACKGROUND Defendant was charged with sexual conduct with a minor, a class 2 felony and dangerous crime against a child. He pled guilty to aggravated assault, a class 6 undes-ignated offense, and to contributing to the delinquency of a minor, a class 1 misdemean- or. The court explained, and the plea agreement provided, that by pleading guilty, defendant relinquished his right to a direct appeal and that his only review was by a petition for postconviction relief pursuant to Rule 32, Arizona Rules of Criminal Procedure. The court found defendant guilty of both offenses. It suspended sentence and placed defendant on probation for one year; it also ordered him to pay a $40 monthly probation service fee, a $12 time payment fee, and $300 for the cost of defense. One year later, the probationary term had expired. The court, without notice or a hearing, crossed out the original designation of the aggravated assault on the order and entered “felony” in its place. It entered an order terminating probation and entered judgment in the amount of $262 against defendant for the unpaid balance of the cost of his prosecution. Defendant filed a timely notice of appeal. By order, this court dismissed the appeal for lack of jurisdiction. The order stated that defendant must file a petition for postconviction relief to have his conviction or sentence reviewed and that the notice of appeal failed to comply with Rule 31.2(d), Arizona Rules of Criminal Procedure. After defendant filed a motion for reconsideration, we reinstated the appeal. II. DISCUSSION In order to “unclog an appellate system burdened with guilty plea and probation violation admission appeals and divert such cases to the Rule 32 process,” State v. Baca, 187 Ariz. 61, 65, 926 P.2d 528, 532 (App.1996), the legislature enacted A.R.S. section 13-4033(B). It provides: “In noncapital cases a defendant may not appeal from a judgment or sentence that is entered pursuant to a plea agreement or an admission to a probation violation.” A.R.S. § 13-4033(B). Our supreme court also amended Rule 17.1(e), Arizona Rules of Criminal Procedure. Rule 17.1(e) states: By pleading guilty or no contest in a non-capital ease, a defendant waives the right to have the appellate courts review the proceedings by way of direct appeal, and may seek review only by filing a petition for postconviction relief pursuant to Rule 32, and, if denied, a petition for review. Defendant concedes that the above Rule and statute deprive him of the right to directly appeal the original plea. He contends, however, that A.R.S. section 13-4033(A)(2) nevertheless gives him a right to directly appeal the order designating the aggravated assault a felony. The latter statute provides that a defendant may appeal from “[a]n order denying a motion for a new trial or from an order made after judgment affecting the substantial rights of the party.” (Emphasis added). Defendant argues that the designation order is an order made after judgment and one that affects his “substantial rights.” We agree. Once the court designates an offense a felony, it may be used to enhance punishment for a subsequent felony offense. A.R.S. § 13-604 (Supp.1996). Conviction of a felony deprives a defendant of the right to vote, hold office, serve as a juror, or possess a firearm. A.R.S. § 13-904 (Supp.1996). It also may have extrajudicial impact on employment prospects or educational opportunities. Clearly, a felony designation imposes significant consequences and thus affects a defendant’s substantial rights. Before the trial court can designate an open-ended offense a felony, a defendant must be afforded a due process right to notice and a hearing. See State v. Pinto, 179 Ariz. 593, 597, 880 P.2d 1139, 1143 (App.1994) (designating an undesignated offense implicates due process and requires notice and opportunity to be heard); State v. Benson, 176 Ariz. 281, 283, 860 P.2d 1334, 1336 (App.1993) (designating an undesignated offense in defendant’s absence violated due process; defendant was entitled to actual notice of hearing and opportunity to be heard). The question remains whether defendant may assert the due process violation in a direct appeal or is restricted to posteonvietion relief in the trial court. In State v. Jimenez, 188 Ariz. 342, 344, 935 P.2d 920, 922 (App. 1996), we assumed that a right of appeal exists if the trial court alters the judgment or a defendant’s sentence. But in Jimenez, the defendant had pled guilty, was placed on probation, and then appealed from the trial court’s denial of a motion to modify probation. Id. at 343, 935 P.2d at 921. The defendant claimed that denial of his motion affected his substantial rights within the meaning of A.R.S. section 13-4033(A)(2) and entitled him to a direct appeal. Id. In Jimenez, we found that the trial court had imposed the probation conditions at sentencing pursuant to the plea agreement, id. at 343, 935 P.2d at 921, and that A.R.S. section 13-4033(B) precluded a direct appeal. Id. at 344, 935 P.2d at 922. A pleading defendant may not circumvent the statute or Rule 32 simply by filing a post-judgment motion to raise sentencing issues. Id. at 343, 935 P.2d at 921. Because the challenged order did not modify or change the defendant’s original sentence, the trial court’s denial of the motion did not affect his substantial rights. Id. at 344, 935 P.2d at 922. Thus, a pleading defendant may directly appeal the trial court’s ruling on a post-judgment motion if the issues raised are not those that would normally arise in an appeal from the original judgment and sentence. Id. (citing Arvizu v. Fernandez, 183 Ariz. 224, 226-27, 902 P.2d 830, 832-33 (App.1995)). Similarly, in Baca, the defendant had admitted a probation violation pursuant to an agreement with the state. 187 Ariz. at 62, 926 P.2d at 529. The trial court advised defendant that Rule 32 was “his only means for review of his admission and any disposition imposed thereon.” Id. At the disposition hearing, the court revoked the defendant’s probation and sentenced him to prison. Id. He moved to modify his sentence, and when the trial court denied his motion, he appealed. Id. Although the defendant argued that he appealed only from the order denying his motion, we found that he was actually appealing from the sentence imposed. Id. at 63-65, 926 P.2d at 530-32. To hold that he was not precluded from a direct appeal would have encouraged other defendants to wait until sentencing, file a motion to modify the sentences, and then appeal the denial of that motion. Id. at 65-66, 926 P.2d at 532-33. We dismissed the appeal under A.R.S. section 13-4033(B). Id. Significantly, unlike the defendants in Jimenez and Baca, defendant here is not attempting to circumvent Rule 32 by “pausing long enough after sentencing” to file a motion, appeal from that motion, and thereby appeal from the original judgment and sentence. See id.; Jimenez, 188 Ariz. at 344, 935 P.2d at 922. He did not seek review of the plea agreement or conditions of proba- tíon; rather, he raised the issue of whether the trial court deprived him of due process by failing to notify him and hold a hearing in advance of the felony designation. Because the designation had not occurred, that issue could not have been raised in connection with the original judgment of guilt and imposition of probation. See Jimenez, 188 Ariz. at 344, 935 P.2d at 922 (appealable post-judgment orders raise issues different from those arising from the underlying judgment). Finally, our conclusion is influenced by the fact that defendant has no other means of appellate review. We note that the Arizona Constitution requires, and our supreme court has held, that a defendant is guaranteed some form of appellate relief. Ariz. Const, art. 2, § 24; Wilson v. Ellis, 176 Ariz. 121, 123, 859 P.2d 744, 746 (1993). We have carefully examined Rule 32 and cannot find any language that authorizes a criminal defendant to utilize Rule 32 for the purpose of reviewing the trial court’s denial of a felony designation hearing. Thus, to deny defendant a direct appeal under A.R.S. section 13-4033(A)(2) would violate the constitution. III. CONCLUSION For the foregoing reasons, we reverse the judgment designating the aggravated assault offense a felony and remand to the trial court for a felony designation hearing. GRANT, P.J., and RYAN, J., concur.

OPINION LANKFORD, Judge. The question presented by an application for costs is whether partially successful appellants are entitled to an award of costs on appeal. In this case, the extent of appellants’ success on appeal was as follows. Appellants, as plaintiffs, filed a complaint which asserted eight claims. Some — but not all — of these claims arose out of the same transaction or occurrence. The trial court dismissed all of the claims. On appeal, we reversed the dismissal of two of the claims and affirmed the remainder. In sum, appellants clearly improved their position on appeal: They are now entitled to proceed on two claims. However, they failed to win reversal of the dismissal of the rest of their claims. The principal issue is whether appellants are “successful parties” on appeal. Arizona Revised Statutes (“A.R.S.”) Section 12-341 requires an award of costs to the “successful party.” Appellees contend that costs should not be awarded because appellants failed to obtain reversal on most of their claims. Alternatively, appellees say that costs should be apportioned between the appellants’ successful and unsuccessful claims. We first consider whether a partially successful appellant is a “successful party” eligible for an award of costs. Although a prior decision denied costs in a similar situation, the opinion neither offered reasons for that result nor discussed the controlling statute. In Concannon v. Yewell, 16 Ariz.App. 320, 493 P.2d 122 (1972), we ordered each party to bear its own attorneys’ fees and costs in an appeal in which plaintiff prevailed on less than all of the arguments made. The cases cited in Concannon are equally lacking in analysis. Moreover, Concannon conflicts with other Arizona cases. These cases have held that a plaintiff is entitled to recover costs incurred in the trial proceedings even when her recovery is less than that sought. E.g., Barth v. A & B. Schuster Co., 25 Ariz. 546, 220 P. 391 (1923). In Drozda v. McComas, 181 Ariz. 82, 887 P.2d 612 (App.1994), we held that plaintiff was entitled to recover costs incurred prior to an offer of judgment even though the judgment was less than the offer. In Ayala v. Olaiz, 161 Ariz. 129,131, 776 P.2d 807, 809 (App.1989), we held that a plaintiff was a successful party even though the jury determined that she was 65 percent at fault. “The general rule is that a party who recovers judgment for only a part of a demand or claim is entitled to all taxable costs in the absence of a statute or rule providing for apportionment or some other rule.” Id. “The fact that a party did not recover the full measure of relief requested does not mean that he is not the successful party.” Id. (quoting Ocean West Contractors, Inc. v. Halec Construction Co., 123 Ariz. 470, 473, 600 P.2d 1102,1105 (1979)). We hold that a party who succeeds on less than all claims is sufficiently successful to recover costs under the statute. We recognize that the problem differs in multiparty litigation and in cases involving counterclaims. See, e.g., Trollope v. Koerner, 21 Ariz.App. 43, 515 P.2d 340 (1973) (successful party is the net winner in cases involving claims and setoffs or counterclaims); Pioneer Roofing Co. v. Mardian Constr. Co., 152 Ariz. 455, 467, 733 P.2d 652, 664 (App.1986) (trial court has discretion to determine successful party in multiparty case). Nor is this a case implicating A.R.S. section 12-342, which applies when the appellant’s position is worsened after appeal. We do not purport to alter the rule in those situations. Finally, we recognize that plaintiffs have not yet prevailed on the merits of their claims. However, the settled rule is that “ ‘successful party’ on appeal is not limited to those who have a favorable final judgment at the conclusion of the process. It may include those who achieve reversal of an unfavorable interim order if that order is central to the ease and if the appeal process finally determines an issue of law sufficiently significant that the appeal may be considered as a separate unit.” Wagenseller v. Scottsdale Mem. Hosp., 147 Ariz. 370, 393-94, 710 P.2d 1025, 1048-49 (1985). Although Wagenseller applies an attorneys’ fees statute, section 12-341.01, the desirable uniformity of interpretation of “successful party” as used in that statute and in the costs statute leads us to the same result here. We now consider the apportionment argument. Section 12-341 directs that “all costs expended or incurred” be awarded to the successful party. (Emphasis added). There are no cases which allow apportionment. The rule in awarding costs incurred in the trial court is that, in the absence of a statute or rule authorizing apportionment, the party who obtains partial success is entitled to recover all taxable costs. Ayala, 161 Ariz. at 132, 776 P.2d at 810. Costs on appeal are awarded by authority of the same statute as costs incurred in the trial court, and we see no reason to depart from the established application of the statute in trial court proceedings. We recognize that attorneys’ fees can be apportioned between successful and unsuccessful efforts. Schweiger v. China Doll Restaurant, Inc., 138 Ariz. 183,189, 673 P.2d 927, 933 (App.1983); see also Trus Joist Corp. v. Safeco Ins. Co., 153 Ariz. 95,110, 735 P.2d 125,140 (App.1986). However, this rule does not apply to costs. Attorneys’ fees are commonly awarded under A.R.S. section 12-341.01(A), which allows the trial court to determine a “reasonable” amount of fees. This calculation may consider the portion of fees that contributed to the prevailing party’s success. Moreover, the fee award under section 12-341.01 is discretionary. In contrast, the recovery of costs is mandatory and includes all specified items. Roddy v. County of Maricopa, 184 Ariz. 625, 627, 911 P.2d 631, 633 (App.1996). The authority to apportion fees does not extend to costs. For these reasons, we award costs to the appellants. GERBER, P.J., and SULT, J., concur. . Relying on Wagenseller, supra, Huey v. Honeywell, 82 F.3d 327, 334 (9th Cir.1996), held that partial success warrants denial of both parties’ requests for attorneys’ fees and costs. This is a misinterpretation of Wagenseller and of Arizona law.

OPINION DRUKE, Chief Judge. The Pima County Attorney dismissed Patricia Mathis from her job as an advocate in its Victim Witness Program by letter dated May 19, 1993. Mathis appealed her dismissal to the Pima County Employee Merit System Commission. After several hearings, the Merit Commission revoked the dismissal and ordered Mathis reinstated with back pay. The county attorney sought review in the superior court, which affirmed the Merit Commission after reviewing the hearing transcripts. The county attorney appeals to this court, claiming that because Mathis admitted many of the charges against her, the Merit Commission abused its discretion in revoking her dismissal. We agree and remand to the Merit Commission for further proceedings consistent with this opinion. The County Employee Merit System authorizes the “appointing authority” of a county to dismiss, suspend, or reduce in rank or compensation a classified civil service employee “by written order, stating specifically the reasons for the action.” A.R.S. § 11-356(A). Because the Merit Commission acts as a quasi-judicial body, Woerth v. City of Flagstaff 167 Ariz. 412, 808 P.2d 297 (App. 1991), it determines the credibility of witnesses, Lathrop v. Arizona Bd. of Chiropractic Examiners, 182 Ariz. 172, 894 P.2d 715 (App.1995), reconciles conflicting evidence, DeGroot v. Arizona Racing Comm’n, 141 Ariz. 331, 686 P.2d 1301 (App.1984), and weighs the sufficiency of the evidence presented. Zavala v. Arizona State Personnel Bd., 159 Ariz. 256, 766 P.2d 608 (App.1989). The Merit Commission may then “affirm, modify or revoke” the appointing authority’s order. § 11-356(C). To affirm or revoke the order, the Merit Commission determines whether the action taken by the appointing authority was arbitrary or taken without reasonable cause. Pima County v. Pima County Merit Sys. Comm’n, 186 Ariz. 379, 923 P.2d 845 (App. 1996); Maricopa County v. Gottsponer, 150 Ariz. 367, 723 P.2d 716 (App.1986). Arbitrary action “means unreasoning action, without consideration and in disregard of the facts and circumstances.” Tucson Pub. Sch. Dist. No. 1 of Pima County v. Green, 17 Ariz.App. 91, 94, 495 P.2d 861, 864 (1972). If the Merit Commission determines the evidence does not support the charge giving rise to the action taken, it must revoke the order because the action taken was arbitrary or taken without reasonable cause. On the other hand, if the Merit Commission determines the evidence supports the charge, thus war ranting some action by the appointing authority that is not otherwise prohibited, the Merit Commission may modify the order only if it further determines that the action taken is “ ‘so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness.’ ” Petras v. Arizona State Liquor Bd., 129 Ariz. 449, 452, 631 P.2d 1107, 1110 (App.1981), quoting 17 Cameron St. Restaurant Corp. v. New York State Liquor Auth., 48 N.Y.2d 509, 423 N.Y.S.2d 876, 877-78, 399 N.E.2d 907, 909 (1979). See also Pima County Merit Sys. Comm’n; Gottsponer. Absent such further determination, the Merit Commission must affirm the action taken. Id. A party dissatisfied with the Merit Commission’s decision may seek review by the superior court pursuant to the Administrative Review Act. §§ 12-901 to 12-914. Upon review, the superior court determines whether the Merit Commission acted illegally, arbitrarily, or capriciously, or whether it abused its discretion. Gottsponer. Absent a trial de novo, the superior court does not weigh the evidence, but only determines whether substantial evidence supports the Merit Commission’s findings. Williams v. Pima County, 164 Ariz. 170, 791 P.2d 1053 (App.1989); City of Tucson v. Mills, 114 Ariz. 107, 559 P.2d 663 (App.1976). The superior court does not decide whether the record supports the appointing authority’s version of the facts, but whether it supports the Merit Commission’s factual findings. Carondelet Health Servs. v. AHCCCS, 182 Ariz. 502, 897 P.2d 1388 (App.1995). These same standards of review apply on appeal from the superior court to this court. Havasu Heights Ranch and Dev. Corp. v. Desert Valley Wood Prods., Inc., 167 Ariz. 383, 807 P.2d 1119 (App.1990). Whether substantial evidence supports the Merit Commission’s findings is a question of law determined independently by this court. Berenter v. Gallinger, 173 Ariz. 75, 839 P.2d 1120 (App. 1992). In revoking Mathis’s dismissal, the Merit Commission made specific findings regarding the six charges against her and a general finding that the county attorney had “failed to prove by a preponderance of the evidence that the charges were justified.” The county attorney contends the Merit Commission abused its discretion in so finding because Mathis admitted many of the facts alleged in support of the charges. We review the evidence to determine if it supports the county attorney’s contention. If it does, the Merit Commission could not revoke Mathis’s dismissal, but could only either affirm it or, if it shocked one’s sense of fairness, modify it. Pima County Merit Sys. Comm’n; Gott-sponer. NEGLECT OF DUTY The county attorney first charged Mathis with neglect of duty, meaning she gave her duties “little attention or respect.” Merriam-Webster’s Collegiate Dictionary 777 (10th ed. 1995). The charge arose from Mathis’s assignment to the juvenile court by the Victim Witness Program Director, Viki Sharp. Mathis was to assist advocate Evelyn Hacelett two days each week, from 8:30 a.m. to 11:30 a.m. The county attorney alleged in its letter of dismissal to Mathis: You did not perform the tasks required of you at Juvenile Court. You were requested to make contact with victims, even if you were unclear about specific answers. You did not accomplish this, you left early and one day that [Hacelett] was on vacation, you did not report to Juvenile. The Merit Commission found that “Ms. Mathis attempted to perform the duties assigned to her at Juvenile Court. However, because she was unfamiliar with the computer system and had not received adequate training, Ms. Mathis was not qualified to perform the assigned tasks.” While this finding, which the evidence supports, generally addresses the allegation that Mathis “did not perform the tasks required of’ her, it does not address the remaining three allegations. The second allegation asserts that Mathis failed to “make contact with victims, even if you were unclear about specific answers.” Sharp testified that after she had assigned Mathis to juvenile court, Mathis came to her and said “she felt that she did not have enough training at juvenile court to do the job appropriately.” Sharp said she instructed Mathis that even if she did not know specific answers or she was having some problem with the computer, that I wanted her to make contact with the victims to take the calls or to respond to those and at least find out what the victims’ questions or concerns were so she could forward to [Hacelett] or could find out later what the correct responses were. At the hearing, Mathis testified she told Ha-eelett, “you know, I refuse to [re-vietimize] victims by getting on the phone and telling them just anything. I won’t do that. If there’s something I can tell them, I will tell them; if I don’t know, I’m not going to do it.” Mathis thus admitted she did not follow Sharp’s instructions, but felt her behavior was justified. Mathis also admitted the third allegation that she left juvenile court early, but again justified her action by explaining that she “had to be back at the main office ... at 12:00. So I had to leave [the juvenile court], I had to eat____” Finally, Mathis did not refute the fourth allegation that she failed to report to juvenile court “one day that [Hacelett] was on vacation.” The undisputed evidence thus established that Mathis neglected three of her duties at the juvenile court. DISHONESTY The county attorney next contends that Mathis admitted the charge of dishonesty, which means “a willful perversion of truth in order to deceive, cheat, or defraud.” Merriam-Webster’s Collegiate Dictionary 333. In support of the charge, the dismissal letter set forth the following allegations against Mathis: On March 27, 1993, you rode the crisis unit when you were not assigned. You did not notify the volunteer coordinator or acting program supervisor. The paperwork from the evening did not reflect your name, but the name of the volunteer originally scheduled to ride the unit. When questioned the following Monday by the volunteer coordinator, you requested that he not tell anyone and you would take care of it. These records are legal documents and your actions were clearly dishonest. The Merit Commission found that “Ms. Mathis rode the crisis unit on March 27,1993 without being scheduled, but she had not falsified nor been dishonest about the error on the activity log.” The county attorney concedes Mathis did not falsify the activity log; it was falsified without Mathis’s knowledge by the volunteer with whom Mathis had ridden that evening. The county attorney nonetheless argues that the following testimony by Mathis amounts to an admission that she attempted to cover up the falsified log: I didn’t see the [log. "When the volunteer coordinator] came up ... and showed me the [schedule of who was to ride] and said that [J.S.] was supposed to ride that night and she didn’t. I said that’s right. So he said, did you? I said, yes, but don’t tell anybody. He said why? I said, well, just don’t tell anybody. Mathis later testified that she did not want to explain to the volunteer coordinator why she had ridden instead of J.S. because she “wanted to be the one to tell [her supervisor].” Mathis also stated that she was not trying to get the volunteer coordinator to “do something dishonest or assist [her] in covering up anything.” As noted previously, it was for the Merit Commission to determine credibility and it chose to believe Mathis. "Where the record supports two inconsistent factual conclusions, then substantial evidence supports the conclusion the Merit Commission elects to adopt. Webster v. State Bd. of Regents, 123 Ariz. 363, 599 P.2d 816 (App.1979). The county attorney thus failed to establish the dishonesty charge. WILFUL DISOBEDIENCE The county attorney also charged Mathis with wilful disobedience, a “refusal ... to obey.” Merriamr-Webster’s Collegiate Dictionary 334. The dismissal letter alleged that Mathis was told by “the acting program supervisor Marty Olson ... that you were not to attend the disaster drill at [DavisMonthan Air Force Base], When [Olson] left the office, you then approached Kathy Heitzmann in an effort to leave the office and attend the disaster drill.” The Merit Commission found that Mathis was not “disobedient with respect to the ... disaster drill,” specifically finding that she “did not attend the drill.” Although the county attorney concedes on appeal that Mathis did not attend the disaster drill, it argues that Mathis was wilfully disobedient because she “badgered” Olson “to get her to change her decision,” and when that failed, she approached Heitzmann “to get permission to attend.” Mathis gave a different version of what happened. [When I asked Olson if I could go, s]he said, did [Sharp] say you couldn’t go? I said no. I said, what [Sharp] said was that it was her inclination that I should not go. So she said, well, I don’t know, go ask Heitzman[n]. I went and asked Heitz-man[n] and she said to me, what did [Olson] say? I said, [Olson] said come and ask you. So [Olson] and Heitzman[n] got together and then Heitzman[n] said, the reason we don’t want you to go is in case a crisis call comes up. I said, but I’ve got two people to replace me. She said, no, you need to stay here in case a crisis call comes up. If believed, this testimony established that Mathis obeyed rather than disobeyed her superiors. The Merit Commission’s finding shows it believed Mathis; again, it was for the Merit Commission to decide whether Mathis was credible. DISCOURTEOUS TREATMENT OF THE PUBLIC The county attorney further charged Mathis with discourteous treatment of the public. The county attorney alleged in the dismissal letter that while Mathis was “attending a hearing at Juvenile Court, you turned to a victim and remarked that the juvenile defendant in the case was ‘a little bitch.’ ” Various witnesses testified that the Victim Witness Program had a policy prohibiting the use of profanity in public. Mathis admitted and the Merit Commission found that she had made the statement “in the presence of an adult victim and a peer worker [Hacelett].” The Merit Commission nevertheless determined that the charge had not been established because it additionally found that no evidence was presented “suggesting others had heard or complained about” the statement and that the victim, a corrections officer, “did not appear to have been adversely affected” by it. While the record supports these additional findings, they cannot excuse or justify the statement. Mathis herself acknowledged that while Victim Witness advocates occasionally made derogatory statements among themselves about defendants during court proceedings, such a statement would be improper if, as here, “it’s audible to other people in the courtroom.” Because Mathis admittedly violated the policy prohibiting profanity in public, she was necessarily discourteous to the public and the Merit Commission erred in finding otherwise. “[A] finding of misconduct may be based upon the violation of some implicit standard of good behavior imposed upon the one who maintains a special position in the public eye.” Mills, 114 Ariz. at 111, 559 P.2d at 667. That the victim may not have been affected or offended by Mathis’s statement would be relevant only in determining the fairness of the sanction imposed. MISUSE OF COUNTY PROPERTY The county attorney additionally charged Mathis with misuse of county property, alleging the following in the dismissal letter: On March 12, 1993, a crisis car was found with very little gasoline and police radios unsecured in the vehicle. Routine maintenance was also neglected on vehicles. There were also reports of driving the vehicle in excess of 70 miles an hour to respond to calls, which is clearly against policy. The Merit Commission found that the [testimony did not substantiate the claim that Ms. Mathis drove in a reckless manner. Ms. Mathis passed other vehicles when she drove, but it was not determined that she drove the vehicle in excess of 70 miles per hour to respond to calls. Evidence did not include any speeding tickets that Ms. Mathis might have obtained. The evidence, although conflicting, supports these findings. But the findings do not address the first allegation that “[o]n March 12, 1993, a crisis car was found with very little gasoline and the police radio unsecured in the vehicle.” As to this allegation, Mathis agreed it was her job to insure that the vehicles were “gassed up” at the end of each shift and that the radios and pagers had been secured. She testified that on March 12, 1993, she “had had back-to-back crisis calls” and “hadn’t had time to eat.” She said she parked the vehicle in the garage and locked it with the radio inside, intending to return after dinner to gas the vehicle; that when she returned, she found the garage locked; that she went home, intending to return to the garage early the next morning to gas the vehicle; that she was unable to do so because she went into anaphylactic shock that evening from the food she had eaten and was hospitalized; and that she called the office after she was released from the hospital and “left a message on the [answering] machine explaining what had happened.” Contrary to the county attorney’s argument, this does not establish misuse of county property. Misuse means “to use incorrectly,” abuse or mistreat. Merriam-Webster’s Collegiate Dictionary 745. While Mathis may have been neglectful with respect to county property, she did not incorrectly use, abuse, or mistreat either the vehicle or the radio. MISCELLANEOUS CHARGES Finally, the county attorney charged that Mathis 1) used abusive, profane, or obscene language; 2) failed to establish and maintain effective relationships with others by “making threats and vicious statements regarding co-workers” and being “unprofessional and rude” to program volunteers; and 3) based on complaints from “law enforcement officers and University Medical Center personnel,” failed to treat the general public in a courteous manner. As to the first two charges, the Merit Commission found that Sharp created a relaxed atmosphere at work, which allowed employees to relieve stress and “voice their feelings,” that Mathis and other staff members “commonly used profanity,” and that such language “was acceptable in the work place because it provided a release mechanism for staff members.” The evidence supports these findings. Sharp encouraged her staff to express their feelings and permitted profanity except, as noted above, when members of the public were present. The Merit Commission made no specific finding as to the third charge and therefore its general finding applies, which was that the county attorney failed to prove the charge “by a preponderance of the evidence.” While the Merit Commission heard evidence of complaints from certain law enforcement officers and University Medical Center personnel, it also heard evidence that the complaints were either unfounded or not specifically directed at Mathis but at the whole Victim Witness Program. The Merit Commission weighed this evidence, a matter solely within its province, and found it insufficient to support the third charge. CONCLUSION We conclude from our review of the record that the evidence established the charges of neglect of duty and discourteous treatment of the public. Because these charges warranted taking action, the county attorney did not act arbitrarily or without reasonable cause, and the Merit Commission erred in revoking the action taken. It could only affirm the action or modify it. Pima County Merit Sys. Comm’n; Gottsponer. Accordingly, we remand the matter to the Merit Commission to decide whether to affirm the dismissal or modify it with a less severe sanction. To modify the dismissal, the Merit Commission must determine whether the action taken, in light of all the circumstances, is so disproportionate to the charges that it shocks one’s sense of fairness. Gottsponer. While we recognized the subjectivity of this test in Pima County Merit Sys. Comm’n, the Merit Commission may, on remand, consider the factors set forth there as well as others it deems relevant to this case. Reversed and remanded for further proceedings consistent with this opinion. ESPINOSA, J„ and JAMES D. HATHAWAY, Judge (Retired), concur.

OPINION THOMPSON, Presiding Judge. Shephard Lane (Lane) appeals from the trial court’s grant of summary judgment in favor of Terry Pillinger (Pillinger). Lane filed an action for wrongful institution of civil proceedings against Pillinger for a lawsuit Pillinger filed on behalf of a former client. The trial court concluded that Lane failed to show the previous action terminated in his favor and granted Pillinger’s motion for summary judgment. We affirm. FACTUAL AND PROCEDURAL BACKGROUND Pillinger is an attorney practicing in Arizona. In 1990, Pillinger represented Gregory Rasko (Rasko) in an underinsured motorist claim against Prestige Casualty Company (Prestige). Prestige ultimately paid Rasko the underinsured policy limits of $15,000 in June of 1992. In November 1992 Rasko, represented by Pillinger, filed a bad-faith action against Prestige (Rasko v. Prestige) for its handling of his underinsured motorist claim. During the pendency of Rasko v. Prestige, Rasko filed a second action, again through Pillinger, against several Prestige officers, directors, and shareholders — including Lane — for breach of contract, fraud, and bad-faith (Ras-ko v. Lane ). Pillinger voluntarily dismissed Rasko v. Lane approximately four months after filing the complaint. Pillinger’s supporting affidavit states that the suit was dismissed after he concluded that prosecuting the case would be extremely difficult, time consuming and expensive, and any damages would be difficult to collect given that the defendants were numerous and dispersed across the country. Lane was never served with the complaint. Lane’s claim for wrongful civil proceedings arises out of Rasko v. Lane. Pillinger filed a motion for summary judgment arguing that, based on the undisputed facts, Lane could not establish that the voluntary dismissal of Rasko v. Lane was a termination in Lane’s favor or that Lane had sustained any damages. The trial court granted the motion, finding that “reasonable minds could not differ on the fact that the dismissal of the action on which plaintiff bases his malicious prosecution claim did not ‘reflect on the merits of the action.’” Lane timely appealed. We have jurisdiction over this matter pursuant to Ariz.Rev.Stat. Ann. (A.R.S.) § 12-2101(B). DISCUSSION A plaintiff in an action for wrongful civil proceedings must prove the following five elements: (1) that a prior action terminated in favor of the plaintiff, (2) that the defendant initiated the prior action, (3) with malice, (4) without probable cause, and (5) that damages were sustained. Frey v. Stoneman, 150 Ariz. 106, 109, 722 P.2d 274, 277 (1986); Smith v. Lucia, 173 Ariz. 290, 842 P.2d 1303 (App.1992). Pillinger’s motion below attacked the sufficiency of Lane’s evidence as to two elements: proof of damages and favorable termination. The trial court granted the summary judgment on the favorable termination element without addressing damages. Because it is dispositive, we also limit our review to the favorable termination element. Favorable Termination A judgment on the merits for the defendant after a trial is always a favorable termination. Frey, 150 Ariz. at 110, 722 P.2d at 278; Restatement (Second) of Torts section 674 comment j (Restatement § 674 cmt. j). However, here we have no trial — only a voluntary dismissal by Pillinger. While a plaintiffs dismissal of a civil action may under some circumstances be considered a termination of the action in favor of a defendant, not all voluntary dismissals constitute favorable termination. See Frey, 150. Ariz. at 110, 722 P.2d at 278; Restatement § 674 cmt. j. “When a termination or dismissal indicates in some fashion that the accused is innocent of wrongdoing, it is a favorable termination. However, if it is merely a procedural or technical dismissal it is not favorable.” Frey, 150 Ariz. at 110, 722 P.2d at 278; see also W. Prosser & W. Keeton, Law of Torts § 119 at 874 (termination to be favorable must reflect on merits and not be merely a procedural victory). The Arizona Supreme Court in Frey stated: [Wjhere there has been no adjudication on the merits the existence of a “fayorable termination” of the prior proceeding generally must be found in the substance rather than the form of prior events and often involves questions of fact____ If the action was dismissed because of voluntary withdrawal or abandonment by the plaintiff, the finder of fact may well determine that this was, in effect, a confession that the case was without merit. Restatement § 673 comment e. However, there may be many reasons, other than a lack of merit, for such withdrawal or abandonment. For instance, the plaintiff might have had insufficient funds to pursue the action or could have decided that a possible recovery was not worth the cost, pecuniary or emotional, of litigating____ Id. at 111, 722 P.2d at 279 (footnote omitted). Further, Restatement § 674 cmt. j makes it clear that a withdrawal is favorable “in fact only when shown to be so by the surrounding circumstances.” Id. at 111 n. 7, 722 P.2d at 279 n. 7. The court in Frey relied on “well-reasoned” California cases embodying that state’s “well-developed jurisprudence in this area....” Id. at 110, 722 P.2d at 278. Among these is Minasian v. Sapse, 80 Cal. App.3d 823,145 Cal.Rptr. 829 (1978). Minasian indicates that for a voluntary dismissal to constitute a “favorable termination,” it must reflect the opinion of the dismissing party that the action was meritless. 145 Cal.Rptr. at 832. Favorable Termination is a Question of Law The case below was voluntarily dismissed shortly after being filed. Pillinger submitted an affidavit explaining his reasons for voluntarily dismissing Rasko v. Lane. The factors cited by Pillinger parallel the common reasons listed by the Arizona Supreme Court in Frey as reasons, distinct from merit, why dismissals may be sought by plaintiffs. Lane presents no direct evidence to contradict Pillinger’s affidavit. Lane merely enumerates several purported facts which he asserts raises the level of factual ambiguity to the point where summary judgment was inappropriate and a jury trial required. Given these facts, Lane believes that a jury could infer a termination in his favor. Lane’s facts are: (1) Rasko’s own expert on bad-faith claims opined that there was no factual basis for a fraud claim; (2) Lane had only began to work for Prestige in December 1992 — after Prestige had already paid Ras-ko’s underinsured motorist claim; (3) Pil-linger under oath at his deposition stated that he had made a thorough investigation before filing the Rasko v. Prestige bad-faith claim; and (4) Pillinger’s correspondence included subtle threats suggesting that Ras- ko v. Lane had been filed to gain leverage in the Rasko v. Prestige bad-faith litigation. Lane urges that these “facts” support the inference that Pillinger voluntarily withdrew Rasko v. Lane because Pillinger knew it was meritless. Lane argues that “[t]he very fact that evidence shows the case against Mr. Lane to be totally groundless in and of itself could well cause a jury to not accept the subjective assertions of Mr. Pillinger contained in his Affidavit supporting Motion for Summary Judgment.” Lane’s facts neither establish that Pillinger dismissed the action because Lane was “innocent of wrongdoing” nor create sufficient ambiguity to require a jury to determine the circumstances surrounding the dismissal. See Frey, 150 Ariz. at 110-11, 722 P.2d at 278-79. Indeed, these facts utterly fail to advance Lane’s proposition that the “real reason” Pil-linger chose to dismiss the lawsuit was because it had no merit. The opinions of Pil-linger’s expert as to the viability of claims against Rouse and Kennedy say nothing about Pillinger’s beliefs as to the claim against Lane. That Lane was not working for Prestige when it purportedly conducted itself in bad-faith toward Pillinger’s client cannot have affected Pillinger’s evaluation of the merits of the action if Pillinger did not know this, and there is no evidence that he did. And if Pillinger filed the claim against Lane in aid of the suit against Prestige, and even if such a purpose were improper and thus indicative of malice, this leveraging motive cannot establish that the claim was dismissed because Pillinger concluded it lacked merit. Good cases and bad cases can provide leverage on the person against whom they are brought. This record is devoid of any evidence which could prove that Pillinger brought this claim knowing that it lacked merit and then dismissed it when it had served his collateral purposes. The record similarly fails to establish that Pillinger dismissed the claim against Lane after experiencing an epiphany as to its groundlessness. If all of Lane’s facts were true, and Pillinger hoped by filing against Lane to get a settlement from Prestige, and Lane was not employed by Prestige when it was purported to have conducted itself tortiously against Rasko, and Pillinger’s expert thought there was no case against either Rouse or Kennedy, these facts still cannot avail Lane in his attempt to show a favorable termination. Unless Pillinger knew that Lane did not work for Prestige when it was supposedly doing Rasko wrong, then these facts do not help show awareness by Pillinger of a lack of merit in Rasko v. Lane, and therefore cannot show the “real reason” Pillinger dismissed it. “The ultimate legal decision with respect to what constitutes a favorable termination rests with the judge.” Frey, 150 Ariz. at 111, 722 P.2d at 279. Only “when the circumstances surrounding the termination of the prior proceedings are ambiguous” is the assistance of a factfinder necessary. Id. This case does not present the same maelstrom of controverting facts that the physician-plaintiffs in Frey adduced in opposing summary judgment on their claim of wrongful institution of civil proceedings. Those facts clearly illustrate that the underlying medical malpractice action in Frey was dismissed specifically to avoid summary judgment on the merits. Indeed, in Frey the underlying action had been dismissed by the plaintiff while summary judgment was pending and after the doctors had indicated that they insisted on a decision on the merits in the case. 150 Ariz. at 108, 722 P.2d at 276. Summary judgment was entered a few days after the dismissal in Frey. Id. Like the trial court below, we find here no like ambiguity as to the circumstances of the dismissal in Rasko v. Lane. Summary judgment is appropriate when there is no substantial evidence to support an alleged factual dispute, either because the tendered evidence is too incredible to be accepted by reasonable minds, or because, even conceding its truth, it leads to an inevitable legal conclusion against its proponent. The inquiry in summary judgment eases, as in directed verdict cases, is whether reasonable jurors applying the law to the facts could reach but one conclusion. Hill-Shafer Partnership v. Chilson Family Trust, 165 Ariz. 469, 472, 799 P.2d 810, 813 (1990). The party opposing summary judgment is given the benefit of inferences that may be reasonably drawn from the evidence. See id. On this record, no jury could have reasonably found the circumstances of this dismissal to be such as to lead to a legal conclusion that the dismissal was a “favorable termination” reflecting that Lane was innocent of wrongdoing. We agree with the trial court that Lane did not obtain a “favorable termination” in the lawsuit brought against him by Pillinger for Rasko. CONCLUSION Accordingly, the summary judgment below is affirmed. LANKFORD and GARBARINO, JJ., concur. . "Wrongful institution of civil proceedings” is the correct legal term where the underlying matter was a civil action. Smith v. Lucia, 173 Ariz. 290, 291, 842 P.2d 1303, 1304 (App.1992). Although occasionally used interchangeably, the term "malicious prosecution” is technically correct where the underlying action was a criminal one. See, e.g., Frey v. Stoneman, 150 Ariz. 106, 722 P.2d 274 (1986). . We refer to the complaint underlying this action for wrongful civil proceedings as Rasko v. Lane; below this complaint was entitled Rasko v. Rouse, et al, CV-93-11725. . Rule 41(a)(1), Arizona Rules of Civil Procedure, allows voluntary dismissal "by the plaintiff without order of court by filing a notice of dismissal at any time before service by the adverse party of an answer....” Such dismissal is considered "without prejudice.” . "On appeal from a summary judgment we determine de novo whether there are any genuine issues of material fact and whether the trial court erred in its application of the law.” Gonzalez v. Satrustegui, 178 Ariz. 92, 97, 870 P.2d 1188, 1193 (App.1993). We view the evidence in the light most favorable to the party opposing the motion. Id. . Pillinger had concluded that despite his belief in the merits of the action, "because the defendants were numerous and scattered across the country, [Rasko v. Lane ] would be an extremely difficult, time consuming and expensive case to prosecute to conclusion” and any damages would be difficult to collect. . The portion of the deposition transcript relied on by Lane refers to statements by the expert, Mr. Hutson, about two Prestige employees: Ms. Kennedy and Mr. Rouse. Kennedy and Rouse were named in the Rasko v. Lane suit along with approximately fifty other defendants; neither Kennedy nor Rouse is claiming malicious prosecution here. Our review of the deposition excerpts of Mr. Hutson indicates merely that based on the information available to him at that point he had not seen behavior indicating fraud by either Kennedy or Rouse. Apparently, no statements were made regarding Lane or the other defendants. . Although the underinsured motorist claim had already been paid, as Lane states, by the time he came to work for Prestige, the Rasko v. Prestige action alleging bad-faith in its practices was still ongoing. We need not address here whether Lane’s involvement during the bad-faith litigation alone could provide a sufficient basis for his inclusion as a defendant. We also do not address Lane’s argument that Rasko v. Lane was dismissed right after Rasko v. Prestige settled, assertedly thus proving that the action against Lane and the other individuals was only filed to pressure Prestige into settlement. Lane’s attorneys claimed in this appeal that "after the Rasko vs. Prestige litigation was settled, Mr. Pillinger entered a voluntary dismissal against Mr. Lane and all the other defendants,” and asserted in the trial court that "the lawsuit was essentially dismissed after Mr. Pil-linger could only coerce $40,000 out of Prestige at a settlement conference.” However, Lane has included nothing in the record on appeal to support these allegations. The record before us reveals neither the timing nor the substance of any settlement as to Rasko v. Prestige. Further, the dollar amount of any settlement in Rasko v. Prestige would shed little or no light on the question before us, that is, whether Pillinger’s dismissal of Rasko v. Lane shows that the claims against Lane were meritless. . Finding no evidence in the record to support the contention that Pillinger had actual knowledge that Lane was not yet employed by Prestige at the time the company allegedly acted tortiously as to Rasko, we do not infer it. In fact, Lane's accusation against Pillinger, repeated throughout Lane’s deposition, is that Pillinger failed to review the materials that would have revealed that Lane was not employed by Prestige while Ras-ko’s UIM claim was pending. Further, while Lane claims in this appeal that Pillinger reported having thoroughly investigated Lane before suing him, there is nothing at all in the record before us reflecting what Pillinger knew about Lane. . Pillinger’s letters did include language indicating an attempt at "leveraging.” We assume, without deciding, that an attorney’s leveraging one claim against another is not improper, absent perhaps the situation outlined by Restatement § 674 cmt. d (an attorney who files an action without probable cause and for the improper purpose of exerting leverage as to another claim of his own is subject to liability; an attorney is not liable if he acts for the proper purpose of aiding his client in a proper adjudication of the client's claim). . The Frey court outlined the factual disputes thusly: In the case at bench, there are many genuine issues of material fact concerning the dismissal. The doctors argue that they fully intended to obtain a decision on the merits and that Stoneman dismissed the lawsuit because he knew he could not prove the doctors’ negligence. Stoneman denies this. The parties also dispute the intent of the trial court. There is further disagreement as to why no costs were awarded on dismissal. Two [separate] judgments were signed. The sequence of events and correspondence between the parties’ attorneys is ambiguous as to what was intended or what actually occurred. Stone-man claims there was an offer of compromise or an inducement, such as foregoing costs, which might be a form of settlement mitigating against a finding of favorable termination ... Stoneman claims also that the dismissal was the result of an agreement. On these confus ing facts the conflicting allegations raise questions which must be resolved by the jury.

VOSS, Judge. Appellant R.E. Monks Construction Company (Monks) appeals from the trial court’s entry of judgment in favor of Appellee Aetna Casualty & Surety Company (Aetna) on the ground that Monks did not timely file suit on the statutory payment bond Aetna issued as surety for JWJ Contracting Company (JWJ). We affirm. FACTS AND PROCEDURAL HISTORY The parties stipulated to the following facts. On October 23, 1991, JWJ entered into a prime contract with the Arizona Department of Transportation (ADOT) for a road construction project on State Route 87. Because this was a public construction project, JWJ was required to obtain a payment bond. Arizona Revised Statutes Annotated section (A.R.S. § ) 34r-222. Aetna issued the statutory payment bond with JWJ as principal and Aetna as surety. On October 31, 1991, JWJ and Monks entered into a subcontract agreement for work on the project. Monks moved its equipment onto the project site in November of 1991, and began work in January of 1992. The project was deemed substantially complete after May 1993, but was never finally accepted by ADOT’s engineer. After May 1993, JWJ removed its field office trailer from the project site and JWJ, ADOT, and Monks met at off-site locations. The last date Monks was physically on thé project site was July 31, 1993. As late as February 9, 1994, however, Monks engaged in project close-out, project administration, and final negotiations regarding the extra work it performed prior to July 31,1993. JWJ failed to pay several of Monks’s invoices and filed for federal bankruptcy protection on July 1, 1994. Monks filed suit on the payment bond on August 3, 1994. The matter went to mandatory arbitration and the arbitrator found for Monks. Aetna appealed the arbitrator’s decision. The parties filed cross-motions for summary judgment, which the trial judge denied. The parties then submitted the ease to the trial judge on stipulated statements of fact. The trial judge found that Monks’s complaint was untimely filed, and entered judgment in favor of Aetna. Monks timely appealed. DISCUSSION Because the parties have stipulated to the facts, the only issue before this court is the interpretation of the limitations statute contained in A.R.S. § 34-223(B). Statutory interpretation is an issue of law that we review de novo. Wa/reing v. Falk, 182 Ariz. 495, 497, 897 P.2d 1381, 1383 (App.1995). This suit was brought pursuant to the provisions of Arizona’s “Little Miller Act,” which governs bonding for public construction projects. A.R.S. §§ 34-221 to 34-226. This act imposes the following time limitation for suits on the general contractor’s payment bond: Every suit instituted under this section shall be brought in the name of the claimant, but no such suit shall be commenced after the expiration of one year from the date on which the last of the labor was performed or materials were supplied by the person bringing this suit. A.R.S. § 34-223(B). It is uncontested that the last date Monks’s employees were physically on the construction site and, therefore, the last possible date Monks did any actual road construction, was July 31, 1993. At issue is whether other administrative tasks performed after that date constitute “labor” under the statute. Specifically, Monks argues that Aetna’s stipulations that within one year of Monks’s filing suit Monks engaged in project closeout, project administration, and final negotiations regarding extra work, and that these tasks were in direct completion of the prime contract between JWJ and ADOT and were not performed to correct defects or make repairs, require a finding that Monks’s suit was timely filed. Aetna responds that Monks’s stipulation that none of these tasks involved physical labor at the project site requires this court to uphold the trial court’s determination that Monks’s suit was untimely. We recognize that the Little Miller Act is a remedial statute that must be liberally construed to protect subcontractors providing labor and materials for a public construction project. Western Asbestos Co. v. TGK Constr. Co., Inc., 121 Ariz. 388, 391, 590 P.2d 927, 930 (1979); Coast to Coast Mfg. v. Carnes Constr., Inc., 145 Ariz. 112, 113, 700 P.2d 499, 500 (App.1985). Such a construction must not, however, simply disregard limitations the legislature imposed, but give effect to the purpose of the limitations. Coast, 145 Ariz. at 113, 700 P.2d at 500. This court has previously held that the limitations period under A.R.S. § 34-223 does not begin to run until completion of all work performed in direct furtherance of the construction contract. Honeywell, Inc. v. Arnold Constr. Co., Inc., 134 Ariz. 153, 156-57, 654 P.2d 301, 304-05 (App.1982). In Honeywell, we distinguished work performed in direct completion of the contract, which extends the limitations period, from remedial, repair, and warranty work, which does not extend the limitations period. Id. at 156-58, 654 P.2d at 304-06. Accord, United States ex rel Austin v. Western Elec. Co., 337 F.2d 568, 572-73 (9th Cir.1964). Under the test as stated in Honeywell the parties’ stipulations appear to require a finding that Monks timely filed suit because the parties agreed that within one year of filing suit Monks did work in direct completion of the contract and this work did not constitute remedial or repair work. At issue in Honeywell however, was physical labor performed either at the job site or on materials incorporated into the building under construction. Honeywell 134 Ariz. at 157, 654 P.2d at 305. We did not address whether the limitations period begins to run from the subcontractor’s completion of physical labor at the job site, or whether administrative work required by the contract is also considered “labor” for purposes of extending the limitations period under the statute. We resolve that issue in this case. We have found no case law in Arizona directly on point. We, therefore, look to cases interpreting the federal Miller Act on which the Arizona statute is based. Honeywell 134 Ariz. at 156, 654 P.2d at 304; Gen. Acrylics v. U.S. Fidelity & Guar., 128 Ariz. 50, 52-54, 623 P.2d 839, 841 — 43 (App.1980). Based on federal law, we hold that “labor” refers to physical labor or construction work, not to administrative work. It appears that the Fifth Circuit would reject a claim that off-site administrative tasks extend the limitations period. In a footnote to a decision construing the term “labor” in the Miller Act, the court noted that certain administrative tasks, such as obtaining lien releases or waivers, paying taxes, and defending claims, would not extend the limitations period. Gen. Ins. Co. of America v. United States ex rel. Audley Moore & Son, 406 F.2d 442, opinion on denial of rehearing, 409 F.2d 1326, 1327 n. 1 (5th Cir.1969). The court found that the limitations period began to run on the last date of on-site construction activity. Id. at 443, opinion an denial of rehearing, 409 F.2d at 1327. In addition, the Eighth Circuit has held that the Miller Act applies only to on-site supervisory work involving physical labor and indicated that the term “labor” applies only to on-site physical labor and not to general administrative tasks. United States ex rel. Olson v. W.H. Cates Constr. Co., Inc., 972 F.2d 987, 990-91 (8th Cir.1992). But cf. Johnson Serv. Co. v. Transamerica Ins. Co., 485 F.2d 164, 174 (5th Cir.1973) (under Texas law, “labor” is broadly construed). The legislative history of the Miller Act further supports the interpretation that the time limit for suit on the payment bond begins to run from a subcontractor’s completion of construction activity. Prior to a 1959 amendment, the federal act provided that a suit on the payment bond must be brought within one year of “final settlement” of the contract. 40 U.S.C. § 270b(b) (1958); see Gen. Insurance, 406 F.2d at 444 n. 4. This statute was amended to change the time for bringing suit to within one year from the “day on which the last of the labor was performed or material was supplied.” Act of Aug. 4, 1959, Pub.L. No. 86-135, 73 stat. 279 (codified as amended 40 U.S.C. § 270b(b)). One of the purposes of the 1959 amendment was to “set a specific, easily ascertainable date” from which to calculate the limitations period. Gen. Ins., 406 F.2d at 444; see also Travis Equip. Co. v. D & L Constr. Co. & Assoc., 224 F.Supp. 410 (W.D.Mo.1963) (discussing 1959 amendment). The Arizona legislature adopted the language of the 1959 amendment when it adopted the Little Miller Act. See William Haug, Arizona’s Little Miller Act, 5 Ariz. Bar J. No. 2 at 13-16 (Sept. 1969). Although federal cases interpreting the 1959 amendment show this purpose has not been entirely realized, limiting “labor” to construction work done in furtherance of the contract provides a much more easily ascertainable date than the less defined administrative tasks of “final reconciliation of force accounts, Project close-out, administration and negotiation of final amounts owed” claimed to extend the accrual date of the limitations period in this case. To further the legislative purpose of having a specific, easily ascertainable date on which a suit on a Little Miller Act payment bond accrues, we hold that the term “labor” in A.R.S. § 34-223(B) means physical labor and construction work done in furtherance of the contract, not administrative tasks. Moreover, Monks’s work was neither on-site nor off-site work of the nature to be incorporated on-site that we have contemplated to extend the accrual date. Although not turning on the on-site/off-site distinction, this court in Honeywell recognized that construction work need not necessarily occur on-site to toll the limitations period. 134 Ariz. at 157, 654 P.2d at 305. However, such off-site work must be performed in furtherance of the original contract, be non-remedial, and be incorporated at the on-site construction project. Monks’s administrative tasks do not fall within this type of off-site work, and thus, do not extend the accrual date. Monks raises several additional issues for the first time on appeal. We agree with Aetna that Monks has waived these issues by failing to raise them in the trial court. Premier Fin. Servs. v. Citibank, 185 Ariz. 80, 86, 912 P.2d 1309, 1315 (App.1995); Campbell v. Warren, 151 Ariz. 207, 208, 726 P.2d 623, 624 (App.1986). We exercise our discretion, however, to address Monks’s argument that the limitations period cannot begin to run until JWJ defaulted in its payment to Monks. Jimenez v. Sears, Roebuck and Co., 183 Ariz. 399, 406-07 n. 9, 904 P.2d 861, 868-69 n. 9 (1995). Monks argues that a surety’s obligation to pay does not arise until the principal defaults, and, therefore, any suit against the surety before the principal defaults is premature. We agree that generally a suit under a surety bond does not arise until the principal breaches the underlying contract. E.L. Farmer Constr. v. Hartford Accident & Indem. Co., 114 Ariz. 210, 211, 560 P.2d 65, 66 (App.1977); C.M. Eichenlaub Co., Inc. v. Fidelity & Deposit Co., 293 Pa.Super. 11, 437 A.2d 965, 966-67 (1981). This rule does not apply, however, to suits on a payment bond under the Little Miller Act, where the surety bond provides an additional remedy for unpaid subcontractors on public projects similar to a mechanic’s lien available as a remedy on private contracts. Trio Forest Prods., Inc. v. FNF Constr., Inc., 182 Ariz. 1, 2, 893 P.2d 1, 2 (App.1994). On public projects, where no lien rights are available against public property, the payment bond provides a substitute for lien rights against the improved property and the surety is not simply a substitute for the defaulting principal. Id.; Gen. Acurylics, 128 Ariz. at 54, 623 P.2d at 843. An unpaid subcontractor has a separate cause of action as a general creditor of the defaulting principal. Gen. Acrylics, 128 Ariz. at 56, 623 P.2d at 845. To recover against the payment bond, a claimant must comply with statutory procedures. See Travis Equip. Co. v. D & L Constr. Co. & Assoc., 224 F.Supp. 410, 415 (W.D.Mo.l963)(must comply with statutory limitations to recover on bond); Brown Wholesale Elec. v. Merchants Mut. Bonding Co., 148 Ariz. 90, 95, 713 P.2d 291, 296 (App.l984)(liabilities of surety on statutory bond measured by statute); Gen. Acrylics, 128 Ariz. at 55, 623 P.2d at 844 (untimely claimants on payment bond are general creditors of the contractor). The applicable statute provides that a claimant who has not been paid in full “before the expiration of a period of ninety days after the day on which the last of the labor was done or performed by the claimant or material was furnished or supplied by the claimant” has a right to sue on the payment bond for the unpaid balance. A.R.S. § 34-223(A). There is no statutory requirement that the principal be in default, only that the claimant has not been paid within ninety days after performing the labor or supplying the material. CONCLUSION A claimant under a payment bond for a public construction project is required to file suit within one year of the last date the claimant performed labor or construction work in furtherance of the public construction project. Further, we hold today that administrative tasks do not constitute either “labor” pursuant to A.R.S. § 34-223(B) nor off-site work in furtherance of the original contract. Because Monks had not performed physical labor for over one year and because administrative tasks are not the type of off-site work that toll the accrual date, the trial court correctly dismissed the action as untimely. Accordingly, we affirm. WEISBERG, P.J., and KLEINSCHMIDT, J., concur. . In Honeywell, we adopted the Fifth Circuit’s distinction between essential and remedial work, and specifically approved the Fifth Circuit’s language stating that not all work done in completion of the contract constitutes "labor” under the limitations statute. Honeywell, 134 Ariz. at 156, 654 P.2d at 304, citing General Ins., 406 F.2d at 442, 409 F.2d at 1327. This approval, however, does not indicate our adoption of a “substantial completion” approach to tolling the limitations period, which arguably the Fifth Circuit follows in Miller Act cases. United States ex rel. T.L. Wallace Constr. Inc. v. Fireman’s Fund Ins. Co., 790 F.Supp. 680, 683-84 (S.D.Miss.1992); see also United States ex rel. Luis A. Cabrera, S.E. v. Sun Eng'g Enter., Inc., 817 F.Supp. 1009, 1014 (D.P.R.1993)(discussing federal court approaches to interpreting the limitations statute). In fact, we rejected that approach in Honeywell, 134 Ariz. at 156, 654 P.2d at 304. Because it is unclear whether the Fifth Circuit's rejection of administrative tasks as tolling the limitations period was based on the determination such tasks were insubstantial, we hesitate to simply adopt the Fifth Circuit’s approach. . It is uncontested that JWJ did not default on payments owed to Monks until some time less than one year before Monks filed suit against Aetna.

OPINION FIDEL, Presiding Judge. Video Stop, Inc., the successor to the business of another, appeals from a decision of the Arizona Department of Economic Security (“DES”) Unemployment Insurance Appeals Board imposing liability for unpaid principal, penalties, and interest on unemployment taxes that its predecessor owed. We hold that the appeals board erred when it found that DES had made a timely determination of contributions, interest, and penalties that were due. Our holding rests on the distinction between two letters that DES sent to Video Stop. The first, dated November 19, 1987, and titled “Determination of Unemployment Insurance Liability” (“the 1987 letter”), informed Video Stop that it was found to be a successor to its predecessor’s business and would be liable for any unpaid amount that its predecessor owed. The second, dated March 7, 1994 (“the 1994 letter”), informed Video Stop that it was liable for $1,826.90 in principal, penalties, and interest on unemployment taxes owed by its predecessor. We conclude that the obligation was not determined to be due within the meaning of Arizona Revised Statutes Annotated (“A.R.S.”) § 28-743(B) until DES issued the 1994 letter, and the 1994 determination did not fall within the three-year time limit of A.R.S. § 23-743(A). I. Appellant Video Stop acquired assets from Sound Barrier Records & Tapes on August 18, 1987, including the lease, leasehold improvements, and the business name. Video Stop submitted a “Status Report — to Determine Unemployment Insurance Coverage” on July 31, 1987. DES replied with the 1987 letter, which found Video Stop to be the successor to Sound Barrier Records & Tapes, and stated that Video Stop “[would] be held liable to [DES] for any unpaid contributions, penalties and interest due from [its] predecessor in accordance with ARS § 23-733(D).” The 1987 letter stated further, “[i]f such unpaid amounts are presently recorded with [DES], or must be estimated, a statement showing these amounts will be mailed to you.” Video Stop claims that it never received this letter. DES next wrote to Video Stop more than six years later on March 7, 1994. The 1994 letter stated: We recently informed you in a Determination of Unemployment Insurance Liability that as a successor to a liable employer you could be liable for payment of any taxes, interest and penalties unpaid by your predecessor, as provided for in ARS § 23-733. An accompanying “Notice of Failure to Pay Amounts Due” demanded $1,826.90, including $797.27 in principal, $819.63 in interest, and a $210.00 penalty. On March 9, 1994, Video Stop filed an objection to the finding that it was the successor to the previous business. DES treated the objection as a request for reconsideration, and affirmed its decision. On April 26, 1994, Video Stop requested a hearing before DES’s appeals board, protesting both the finding that it was the successor to the previous business and the timeliness of the notice of the amount due. The appeals board affirmed the decision without a hearing. The appeals board then reaffirmed the decision upon review, stating that the statute places no limits on collecting contributions, penalties, or interest “if the Department has made the determination within the statutory period.” A timely appeal by Video Stop invokes our jurisdiction under A.R.S. § 41-1993. II. Before discussing the inadequacy of the 1987 letter as a determination of contributions, penalties, and interest due, we consider a preliminary issue that the appeals board found dispositive. The appeals board, treating the 1987 letter as the critical document to be appealed, found Video Stop’s appeal untimely on the ground that Video Stop had not filed it within fifteen days of service. We reject this conclusion because it was unsupported by any evidence that DES complied with its statutory obligation to serve such documents by certified mail. A.R.S. § 23-724(A) provides that a liability determination shall become final with respect to the employing unit fifteen days after written notice is served ... by certified mail addressed to the last known address of the employing unit, unless within such time the employing unit files a written request for reconsideration. Arizona Administrative Code Rule 6-3-1404(C), states that a determination of liability is served “on the date it is mailed to addressee’s last known address if not served in person.” The appeals board made the following finding of fact: On November 19, 1987, the Department issued to the Employer a Determination of Unemployment Insurance Liability that held the Employer a successor to a liable employer. The Determination was mailed to 3673 N. Campbell, Tucson, Arizona, by certified mail, receipt No. P 627 473 955, on November 19, 1987. The certified mail was not returned to the Department. The record contains no evidence to support this finding. The only indication that the 1987 letter was sent to Video Stop by certified mail is a certified receipt number typed on a line at the bottom of the form letter. The record contains neither a certified receipt nor an affidavit to support DES’s contention that the determination was sent by certified mail. Nor did the appeals board conduct a hearing at which DES could have offered testimonial evidence to establish that the determination was sent by certified mail. Absent evidence to support it, the finding of the appeals board was erroneous. Even if DES could establish certified mailing, however, the consequence would be minor in this case. Video Stop would be bound by the determination of its status as successor to Sound Barrier Records & Tapes. But it would retain the ability to contest the timeliness and amount of any specific assessment that DES sought to levy upon it as successor. See Arizona Dep’t of Economic Sec. v. Skillin, 149 Ariz. 521, 523, 720 P.2d 122, 124 (App.1986). An employer who fails to request review of a status determination is precluded from attacking successor liability, but not precluded from attacking the assessment as improper. The principal subject of this appeal is Video Stop’s attack on the 1994 assessment. To that subject we now turn. III. Video Stop claims that DES’s request for payment was untimely. See A.R.S. § 23-743(A). We agree that A.R.S. § 23-743(A) prevented DES from seeking payment more than six years after the contributions became delinquent. We will affirm an appeals board’s decision that “is supported by any reasonable interpretation of the record.” Bowman v. Arizona Dep’t of Economic Sec., 182 Ariz. 543, 545, 898 P.2d 492, 494 (App.1995). But “[w]e are free to draw our own legal conclusions in determining if the appeals board properly interpreted the law.” Avila v. Arizona Dep’t of Economic Sec., 160 Ariz. 246, 248, 772 P.2d 600, 602 (App.1989). The appeals board found that there was no statutory limit on DES’s ability to collect past due contributions, penalties, and interest once DES sent the 1987 letter. A.R.S. § 23-743 provides in part: A. Except for the provisions of subsection C, additional contributions, payments in lieu of contributions, interest or penalties shall not be determined by the department to be due after three years from the date the contributions, payments in lieu of contributions, interest or penalties became delinquent. B. If additional contributions, interest or penalties have been determined to be due pursuant to this chapter and rules prescribed by the department within the statutory time limits, there is no time limit for collecting contributions, payments in lieu of contributions, interest or penalties. The 1987 letter contained the following language: [Y]ou will be held ... hable to this Department for any unpaid contributions, penalties and interest due from your predecessor in accordance with ARS § 23-733(D). If such unpaid amounts are presently re corded with the Department, or must be estimated, a statement showing these amounts will be mailed to you. The appeals board found that the 1987 letter had “determined [additional amounts] to be due” for purposes of A.R.S. § 23-743(B). It therefore concluded that there was no time limit for collecting additional obligations. The appeals board also found “no accident or surprise in the proceedings which could not have been prevented by ordinary diligence.” We cannot agree with the conclusion that DES complied with A.R.S. § 23-743(A) merely by sending a form letter that conditionally imposed liability on Video Stop. Contributions, penalties, and interest cannot be “determined by the department to be due” until DES has determined that the successor employer is actually — not possibly— liable for a specific amount. See A.R.S. § 23-743(A). Although the 1987 letter stated that Video Stop would be liable for “any unpaid contributions, penalties and interest due from [its] predecessor,” it did not inform Video Stop whether in fact any such payments were due. Given the conditional language of the 1987 letter, its failure to specify any payment to be made, and its indication that a statement would follow if there were unpaid amounts to be paid, the 1987 letter lacked the specificity to qualify as a determination that contributions, penalties, or interest were due. DES argues that Video Stop had the burden under A.R.S. § 23-733(E) to request a statement specifying any amounts due. Section 23-733(E) indeed obliges DES, “[o]n written request, ... [to] furnish the successor with a written statement of the amount of contributions, interest and penalties due or accrued and unpaid by the predecessor employer as of the date of ... acquisition.” And a successor might well be prudent to request such a statement in the course of acquiring a business in order to appreciate an area of debt that the acquisition might entail. We disagree, however, that section 23-733(E) relieves DES of the obligation to give timely notice of amounts due in order to initiate collection from a successor. Further, the 1987 letter was not phrased to put a successor on notice that it should request a statement under section 23-733(E). Rather, it was phrased to lead a reasonable recipient to expect DES to mail a prompt follow-up statement setting forth the amount of any outstanding obligation if DES ultimately concluded that some amount were due. In summary, we hold that A.R.S. § 23-743(A) requires DES to determine the amount due from an employer within “three years from the date the contributions, payments in lieu of contributions, interest or penalties became delinquent” and that A.R.S. § 23-743(B) applies only after DES has issued a collection notice and a statement of unpaid predecessor taxes within the three-year statutory period. Because DES failed to act within that period, it cannot now collect past due amounts from Video Stop. For the foregoing reasons, the decision of the DES appeals board is reversed. LANKFORD and SULT, JJ., concur.

HOWARD, Chief Judge. The action below was for specific performance of a land contract and for damages. The case was tried to an advisory jury which answered specific interrogatories submitted to it. The trial court awarded appellee specific performance and damages. Appellants contend that specific performance was not available to appellee because (1) a co-tenant cannot sell his undivided share of the common property without the consent of the other co-tenants; (2) the land was purchased for speculative purposes; (3) there was a material mistake; (4) the sale would be oppressive and unconscionable to the non-consenting co-tenants and (5) all the elements of the contract were not proved by clear and convincing evidence. We affirm. We consider the facts in the light most favorable to appellee. Vivian Arnold Realty Co. v. McCormick, 19 Ariz.App. 289, 506 P.2d 1074 (1973). Appellants owned an undivided one-half interest in approximately 47 acres of unimproved land located in Pima County. The other undivided one-half interest was owned by appellant Glenn Clelland’s brother, Russell, and his widowed mother, Emma. Glenn wanted to offer the land for sale and Emma agreed to sell if the price was $200,000. Glenn gave Kelly Realty (Kelly) an exclusive listing for $200,000. Kelly did not require Emma to sign the listing agreement because of her age, health, and the family relationship involved. Appellee, a real estate salesman, learned of the listing and offered to purchase the property for $150,000. The offer was relayed to Glenn who made a written counteroffer for $160,000. Appellee accepted the counteroffer, and was thereafter told for the first time by Kelly, that Emma and Russell were also co-owners but there would be no problem in getting their signatures. When Emma and Russell refused to sign the counteroffer, Lane insisted that appellants still sell him their undivided one-half interest. When they refused, this lawsuit ensued. CO-TENANT’S RIGHT TO SELL Contrary to appellants’ assertion, the law in Arizona is clear that the estate of a co-tenant is separate in character and may be alienated without the consent of the other co-tenants. Haynie v. Taylor, 69 Ariz. 339, 213 P.2d 684 (1950); see also, 86 C.J.S., Tenancy In Common § 120 (1954). EFFECT OF BUYER’S INTENT TO RESELL Some courts have denied specific performance in cases where the purchaser does not personally want the land but only intends to resell it, since in such a case, damages would be theoretically adequate and there would be no need for the intervention of equity. See Hazelton v. Miller, 25 App.D.C. 337 (1905). There was no evidence in this case that Mr. Lane had purchased the property only for the purpose of reselling it to others. However, even if there were such evidence, we would not follow such a rule. As is pointed out in Dobbs, Handbook on the Law of Remedies, § 12.10 at 848, most courts would not agree with this approach and it is probably subject to the criticism that it takes the adequacy argument too seriously. As stated by Dobbs, “It would certainly not be desirable to investigate the purchaser’s intended use of the property in every case, nor to refuse specific performance to persons who were in the business of buying and selling land.” The court in Loveless v. Diehl, 235 Ark. 805, 364 S.W.2d 317 (1963), held that to refuse specific performance because the purchaser had contracted for resale would diminish the transferability of property and that what the purchaser did with the property was of no concern to the vendor. See also McCullough v. Newton, 348 S.W.2d 138 (Mo.1961); and Radiant Realty Co. v. Sheinbaum, 9 Misc.2d 1009, 171 N.Y.S.2d 252 (1958). MISTAKE OF LAW Appellants testified that they thought the signatures of the other co-tenants were required before the counteroffer was valid and therefore the trial court erred in decreeing specific performance in the face of this mistake. We do not agree. The mistake was a unilateral mistake of law. Equity will not correct a mistake of law as to the legal effects of an agreement unconnected with a mistake of fact, or fraud, or imposition, or undue advantage. Steinfeld v. Zeckendorf, 10 Ariz. 221, 86 Pac. 7 (1906), rev’d 11 Ariz. 192, 89 Pac. 496 (1907). A mistake of fact is defined as a mistake not caused by the neglect of any legal duty on the part of the person making the mistake, but consisting in his ignorance of some fact, past or present, material to the transaction, or in his belief in the existence of some fact, material to the transaction, which does not exist. Steinfeld v. Zeckendorf, supra. Appellant’s mistaken belief that they could get the other co-tenants to sign the counteroffer is not a mistake of fact. Future expectancies are not facts. Dobbs, Handbook on the Law of Remedies, § 11.2 at 718 and see also Vorchetto v. Sappenfield, 223 Mo.App. 460, 14 S.W.2d 685 (1929). Since there was not a mistake of fact, and there was no fraud, imposition, or undue advantage, the trial court did not abuse its discretion in granting specific performance. SPECIFIC PERFORMANCE AND STANDARD OF PROOF The agreement signed by the parties gave appellee five days from the date of the delivery of the title report to him to approve it and deliver written approval to appellants. If appellee did not approve the title report within a specified time or did not deliver it to appellants within the said time, the agreement became null and void. At the trial the jury was asked to specifically find whether appellee delivered his acceptance within the five-day period. They found, by a preponderance of the evidence, that he did. In order that specific performance of a contract may be decreed, the evidence of the making of the contract and its terms must be clear and convincing. Borden v. Case, 270 Ala. 293, 118 So.2d 751 (1960); 71 Am.Jur.2d Specific Performance § 208. Appellants contend that specific performance should not be decreed since the jury made its finding by a preponderance of the evidence instead of clear and convincing evidence. We do not agree. The issue submitted to the jury concerned neither the making of the contract nor its terms. A preponderance of the evidence sufficed. OPPRESSIVE OR UNCONSCIONABLE CONSEQUENCES Specific performance will not be granted if, under the circumstances of the case, the results will be harsh, inequitable or oppressive. Suchan v. Rutherford, 90 Idaho 288, 410 P.2d 434 (1966); 71 Am. Jur.2d Specific Performance § 72. Appellants did not show that they would be thusly affected by the decree. However, the court may also withhold specific performance when it appears that the decree would operate oppressively or unjustly to innocent third persons. Owens v. McNally, 113 Cal. 444, 45 Pac. 710 (1896); 71 Am.Jur.2d Specific Performance § 76. We cannot see how the decree would be harsh or oppressive to the non-consenting co-tenants. The land here was unimproved realty and the co-tenants should have known their method of ownership gave any of them a right to sell his or her undivided interest at any time without the consent of the others. Affirmed. HATHAWAY and BIRDSALL, JJ., concur.

OPINION WREN, Chief Judge. This is an appeal by the Board of Education of Dysart Unified School District of Maricopa County from a judgment setting aside the Board’s dismissal of the appellee, Doris Fulton, as a teacher, and ordering that she be reinstated with payment of back salary and attorney’s fees. We reverse. FACTUAL BACKGROUND Mrs. Fulton had been a continuing teacher in the Dysart School District for seventeen years prior to her dismissal. Her last assignment was in the common (elementary) school at El Mirage, Arizona, where, on the afternoon of September 12, 1979, she was acting as a playground supervisor when the events culminating in her dismissal commenced. Two students were playing with a sponge football which fell into a pool of irrigation water near Mrs. Fulton. When she directed them to return to a proper playground area, one of them, Albert, became angry and allegedly spoke to her in an abusive manner. Mrs. Fulton slapped him in the face with the palm of her hand and took him to her classroom. Following a brief discussion between Albert and Mrs. Fulton, Albert ran to the office of the school secretary to inform her of the incident. The secretary requested that Mrs. Fulton discuss the matter after school with Louis Meyer, the school principal. Prior to reporting to Mr. Meyer, however, Mrs. Fulton talked with Lola Keller, the classroom teacher representative. Mrs. Keller advised Mrs. Fulton to obtain a lawyer before talking about the matter in detail or submitting a written report. When Mrs. Fulton met with Mr. Meyer at the end of the day, she would not relate what had happened. Nor did she offer an explanation for her silence, although Mr. Meyer stressed the seriousness of the situation to her, and explained his need to know what had transpired so that he could communicate with the student’s parents in an informed manner. He further told Mrs. Fulton that Albert’s parents had informed him they might institute a lawsuit against her. In response to Mrs. Fulton’s inquiry as to whether she should obtain a lawyer, Mr. Meyer advised that she should, in order to determine what her rights were in the matter. Upon conclusion of their discussion, Mr. Meyer instructed Mrs. Fulton to submit a written report of what happened by 8:00 a.m. the following day. No report was submitted to Mr. Meyer on the morning of September 13, 1979 as he had requested. A further request that one be submitted by the end of the day also proved fruitless. Mr. Meyer then asked Mrs. Fulton to meet with him the following day at 4:00 p.m. When she did not do so, he contacted the district office. On September 14, 1979, Mrs. Fulton engaged an attorney by telephone. The attorney later testified that he advised her not to discuss the matter with the administration until he could meet with her. On the morning of September 17, 1979, a conference was held at the El Mirage School, with Mr. Smith, the district superin tendent, Mr. Meyer and Mrs. Fulton. At this conference Mr. Smith asked Mrs. Fulton to submit a written report by 4:00 p.m. that day. Again, no report from Mrs. Fulton was forthcoming. On September 18,1979, the principal personally delivered a letter to Mrs. Fulton, which set 1:00 p.m. that day as the deadline for a written report. This deadline also passed without a response. She did, however, meet with her attorney on September 18 and he forwarded a letter to the district superintendent, requesting that a meeting be arranged between the school administration, Mrs. Fulton and himself. On September 21, 1979, another letter was sent to Mrs. Fulton advising her of a scheduled Board of Education meeting on September 24, 1979 and informing her that she would be one of the topics of discussion at the meeting. Mrs. Fulton testified she did not receive this letter. At the scheduled time, the board met and voted four to one to dismiss Mrs. Fulton at the end of thirty (30) days. That same day, prior to the meeting, Mrs. Fulton’s attorney, Mr. Ross, had contacted Mr. Smith with another request that the parties get together. Mr. Ross stated that he was not informed by Mr. Smith of the impending School Board meeting. Nor did Mr. Smith report to the Board that the attorney had called him on Mrs. Fulton’s behalf. A notice of dismissal was forwarded to Mrs. Fulton on September 26, 1979. The notice stated that her dismissal was based on the following charges: 1. Insubordination: failure to respond to requests of administration to make a statement concerning an incident with a student. 2. Unprofessional conduct to whit [sic]: striking a student on September 12, 1979. 3. Violating District policy # JGA: corporal punishment. The notice also informed Mrs. Fulton of her right to request a hearing within 30 days. A hearing was formally requested by her attorney and a commission was convened pursuant to former A.R.S. § 15-262. Hearings were subsequently held on December 5, and December 13, 1979. Following these hearings the commission entered written findings of fact, issues and recommendations which were submitted to the school board. In its findings the commission determined that the charges made against Mrs. Fulton were true, but found insufficient cause to warrant a dismissal and recommended that her teaching position be reinstated. This recommendation was rejected by the Board of Education. On January 25, 1980 it again voted four to one, to dismiss the appellee from her teaching position. Mrs. Fulton appealed the decision of the Board to the superior court, pursuant to former A.R.S. § 15-264. The superior court found that the Board action was arbitrary and capricious and constituted an abuse of discretion. It ordered that Mrs. Fulton be reinstated and that the Board pay her back salary due under her 1979-1980 contract, a 1980-1981 salary and $2,000 for attorney’s fees. The Board appealed. On appeal the Board contends its decision to dismiss Mrs. Fulton was based on “good cause” and therefore was not arbitrary, capricious or an abuse of discretion. It is claimed that the superior court judge exceeded his authority and abused his discretion by substituting his judgment for that of the Board, where there was substantial evidence to support the Board’s decision. Mrs. Fulton, in addition to refuting the above contentions, claims the Board’s failure to review the transcript of the commission hearing prior to making its decision violated her due process rights. The Board argues that due process does not necessitate a full review of the evidence prior to making its decision. PROCEDURE FOR DISMISSAL OF A CONTINUING TEACHER Pursuant to A.R.S. § 15-541(A), at the request of a continuing teacher who has been dismissed, a neutral fact-finding commission must be convened to conduct a hearing, review the evidence leading to the teacher’s dismissal and make findings of fact, in accordance with the provisions of A.R.S. § 41-785. The commission findings “shall be made by a written summary containing the findings of fact, determination of issues and a recommendation either that the teacher should be dismissed or that the teacher should not be dismissed.” A.R.S. § 15-541(D). A.R.S. § 15-541(E) charges that: The findings of the commission shall be reviewed by the governing board which shall render and as appropriate, implement its decision. It is thus clear from the language of A.R.S. § 15-541 that the fact finding duties of the commission are distinguished from the deci-sional duties of the Board. In Blair v. Lovett, 196 Colo. 118, 582 P.2d 668 (1978), the Colorado Supreme Court discussed at length the statutory scheme of the Colorado Teacher Employment, Dismissal and Tenure Act, which we find to be very similar to the Arizona Teacher Tenure Act. In Blair, the court stated: One purpose of assigning these duties to a hearing panel, of course, is to free the board of education from time-consuming evidence-gathering functions which can be performed adequately by a subordinate body. In addition, .. . the 1967 act is designed to provide substantial protection for the academic freedom of teachers who have achieved tenured status. A primary facet of the protection is the availability, at the teacher’s request, of an evidentiary hearing panel chosen in a manner designed to ensure its neutrality. Id. at 671. Blair went on to hold that the panel’s findings of “basic” or evidentiary facts, “if supported by competent evidence, are binding on the board of education” and that “the board may not disregard those findings or substitute its own findings.” Id. As with the Colorado statutory scheme, the Arizona statutes do not authorize the school board to conduct a second full review of the evidence or to adopt new findings of fact. If the findings of fact are insufficient to enable the board to make a decision the proper remedy is to remand the case to the commission for more specific findings. Knollmiller v. Welch, 128 Ariz. 34, 37, 623 P.2d 823, 826 (1981). In contrast to the board’s inability to make factual determinations, it is vested with the exclusive power to terminate a continuing teacher’s employment. A.R.S. § 15-541. Therefore, the commission’s recommendation that the teacher should be dismissed or that the teacher should not be dismissed is not binding on the board. SCOPE OF REVIEW In keeping with the legislative scheme of vesting ultimate decision making power in the school board, the board’s decision is subject to limited review on appeal to the superior court by the continuing teacher. In 1974, A.R.S. § 15-264 was enacted which provides in part: The decision of the governing board may, on appeal of a continuing teacher, be reviewed by a court of competent jurisdiction in the same manner as the decision made in accordance with the provisions of § 41-785. A.R.S. § 41-785 concerns the function of the Personnel Board with regard to public employees who have been dismissed, suspended or demoted after completing probationary periods of service. This statute limits the grounds which the dismissed employee may urge on appeal. A.R.S. § 41— 785(D). Additionally, A.R.S. § 41-785(F) provides in part that: “The court shall review the hearing on the basis of the transcript and exhibits,” with certain exceptions not pertinent here. The adoption, in A.R.S. § 15-543 of the limited scope of review prescribed by A.R.S. § 41-785, represents a departure from the prior law which had permitted the superior court to hear and determine matters de novo. A.R.S. § 15-255 (1949) (repealed 1974). Based upon this change in the law, this court has delineated the limited scope of review in Board of Education of Tempe Union High School v. Lammle, 122 Ariz. 522, 526, 596 P.2d 48, 52 (App.1979), as follows: [T]he judicial review of a dismissal of a continuing teacher is governed by the same rules which govern judicial review where the review in the superior court is limited to review of a record produced before an administrative agency... . We therefore hold in the context of an appeal by a continuing teacher who has been dismissed following a hearing and a determination by the governing board that good cause for the dismissal exists, the superior court may not substitute its determination of good cause for that of the board and is limited to a determination of whether reasonable evidence supports the board’s finding, and if so, whether the determination that good cause exists is arbitrary, capricious or an abuse of discretion. GOOD CAUSE FOR DISMISSAL In Lammle, supra, good cause was defined as “a cause which bears a reasonable relationship to a teacher’s unfitness to discharge the duties assigned or is in a reasonable sense detrimental to the students being taught.” Id. It was determined by formal findings of the commission, that Mrs. Fulton had slapped Albert and that slapping a student is generally considered unprofessional. Secondly, the commission determined that Mrs. Fulton struck him in violation of the District’s corporal punishment policy. Two of the commissioners felt the “insubordination” charge was sustained. However, Mrs. Fulton’s attempts to communicate with the school authorities through her attorney were viewed as a sufficient attempt to reply to the administration’s requests, thus making dismissal on the basis of the insubordination charge unwarranted. A third commissioner stated that the appellee was, in his opinion, not insubordinate. The recommendation of the commission was as follows: Without prior history of a similar action, the two charges, unprofessional conduct and violation of district policy, which were validated were not enough grounds for dismissal. The third charge, insubordination, which is an act serious enough for dis missal without prior history, was sufficiently compromised by circumstances, and the Commission, by a 3-0 vote, recommends to the Dysart Unified Board of Education reinstatement of Mrs. Doris Fulton’s teaching position. This vote was taken on December 20, 1979. On January 25,1980, the Board of Education rejected the commission’s recommendations and voted to dismiss the appellee for unprofessional conduct, violation of corporal punishment policy and insubordination. The Board did not disagree with the findings of fact of the commission. The Board did, however, disagree with the commission’s determination that the charges were not good cause for dismissal. It obviously concluded that Mrs. Fulton’s conduct was detrimental to the welfare of the students being taught at Dysart School District and that her failure to report to the principal and the superintendent upon request established an unfitness to discharge her duties as an employee of the Dysart School District. Lammle, supra. In the present case, the appellee, Mrs. Fulton, was a tenured teacher in the Dysart School District with an employment record unmarred by charges of unprofessional conduct or insubordination prior to the incident which precipitated her dismissal. On the day of the incident the appellee was required to deal with a student who was in an area he was not supposed to be and had become profane when requested to remove himself to a proper area. While the manner in which appellee chose to deal with the student, i.e., slapping him, may have violated school policies, we expressly do not pass on the question whether this isolated instance of “unprofessional conduct” in the course of Mrs. Fulton’s 17 year career with Dysart Schools was sufficient grounds for her dismissal. However, the circumstances following the incident, Mrs. Fulton’s failure to discuss or submit written reports to the administration, led to the additional charge of insubordination. The appellee testified that her failure to discuss with or submit written reports to the administration was based on advice from an education association representative as well as her legal counsel. It is uncontroverted that she had reason to carefully safeguard her interests, as the principal had warned her that the student’s parents were threatening to sue her, that she might lose her job and that the matter would be taken to the superintendent and possibly the school board. Nevertheless, the appellee’s actions, as determined by the Board, amounted to a willful disregard of her employer’s request that she communicate about the incident. Insubordination has been defined by the Arizona Supreme Court as importing “a wilful disregard of express or implied directions of the employer and a refusal to obey reasonable orders.” School District No. 8, Pinal County v. Superior Court, 102 Ariz. 478, 480, 433 P.2d 28, 30 (1967). While the commission found that her insubordinate conduct was sufficiently mitigated by the circumstances to advise her reinstatement, the Board of Education was of the opposite view. It was within the Board’s province to make this decision. Judicial intervention with a school board’s decision is, in this regard, called for only where the board has taken an unreasoned action, without consideration and in disregard for facts and circumstances. Tucson Public Schools, District No. 1 of Pima Co. v. Green, 17 Ariz.App. 91, 94, 495 P.2d 861, 864 (1972). “Where there is room for two opinions, the action is not arbitrary or capricious if exercised honestly and upon due consideration, even though it may be believed that an erroneous conclusion has been reached.” Id., see also, Kelly v. Martin, 16 Ariz.App. 7, 490 P.2d 836 (1971). The court should not sit as a “super school board” and impose its decision on the board. Burnkrant v. Saggau, 12 Ariz.App. 310, 470 P.2d 115 (1970). The reversal of the School Board’s order constituted a substitution of the trial court’s judgment for that of the Board’s in a manner entrusted exclusively to the School Board’s discretion and reasonably based on the evidentiary findings of the hearing commission. We find no evidence that the Dysart School Board acted in an arbitrary and capricious manner and that “good cause” in fact existed upon which to base Mrs. Fulton’s dismissal. FAILURE TO REVIEW HEARING TRANSCRIPT AS VIOLATIVE OF DUE PROCESS In reliance on a recent Court of Appeals decision entitled Knollmiller v. Welch, et al., 128 Ariz. 34, 623 P.2d 823 (App.1981), the superior court made the following finding by minute entry: The board’s action in reversing the findings of the Commission without reviewing the record, which consists not only of ultimate findings but also of the evidence presented on that record, was arbitrary, capricious, and an abuse of discretion. Its decision reached absent such review, was unsupported by substantial evidence on the record. In Knollmiller, supra, the school board had reached a conclusion to dismiss a tenured teacher without reviewing the transcript of the commission hearing and had based its decision, in part, on information presented to it outside the record of the commission. This was determined to be arbitrary and wrongful, for the board is required to rely on the findings of the commission in making its decision. A.R.S. § 15-541. While the import of the court’s observation in Knollmiller, that “[t]he board had no transcript before it,” was unclear, the trial court has interpreted Knollmiller to require the board to review the transcript. We cannot agree with this interpretation. In view of our previous determination that “fact finding” is exclusively within the province of the commission, the board could not have reviewed the transcript and made new or additional findings of fact upon which to base its decision. Moreover, in the present case, the findings of fact were detailed and there was no reason to remand the case to the commission. The Board properly relied on the findings of fact made by the commission in making its decision. The appellee additionally contends that the Board’s decision without personally reviewing the testimony heard by the commission violated Mrs. Fulton’s due process rights under the Arizona and the United States Constitutions. We disagree. The guarantees of due process call for a “hearing appropriate to the nature of the case.” Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). The ultimate fact finder in administrative proceedings is often a commission or board which has not heard witnesses testify. U.S. v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 2414, 65 L.Ed.2d 424 (1980). This practice has been found to comport with due process standards. See, e.g., id at 2415 and citations therein. Chief Justice Hughes’ pronouncement in Morgan v. U.S., 298 U.S. 468, 481, 56 S.Ct. 906, 912, 80 L.Ed. 1288 (1936), that “the one who decides must hear,” was followed by the explanation: This necessary rule does not preclude practicable administrative procedure in obtaining the aid of assistants in the department. Assistants may prosecute inquiries. Evidence may be taken by an examiner. Evidence thus taken may be sifted and analyzed by competent subordinates. Argument may be oral or written. The requirements are not technical. But there must be a hearing in a substantial sense. And to give the substance of a hearing, which is for the purpose of making determinations upon evidence, the officer who makes the determinations must consider and appraise the evidence which justifies them. Id. Nothing in this suggests that the ultimate determinations in a case must be made by the body which has heard the evidence. Utica Mutual Insurance Company v. Vincent, 375 F.2d 129, 132 (2nd Cir. 1967). We therefore hold that the procedures set forth in A.R.S. § 15-541 fully comport with the requirements of procedural due process. The judgment of the trial court is reversed and the School Board’s order of dismissal is reinstated. JACOBSON, P. J., and RICHARD K. MANGUM, J., concur. NOTE: The Honorable RICHARD K. MANGUM, Coconino County Superior Court Judge, was authorized to participate by the Chief Justice of the Arizona Supreme Court pursuant to Arizona Const, art. VI, § 3. . A.R.S. § 15-501(A)(2) “ ‘Continuing teacher’ means a certificated teacher who is employed under contract in a school district as a full-time classroom teacher, a full-time classroom teacher employed under contract in an accommodation school, a school principal devoting not less than fifty percent of his time to classroom teaching or a supervisor of school children’s activities, and whose contract has been renewed for his fourth consecutive year of such employment in the district.” . The appellee makes much of these facts. However, we do not consider them to be relevant to our inquiry. The Arizona statutes concerning certification and employment of teachers do not require that continuing teachers be notified of Board of Education meetings wherein their employment status is to be considered. A.R.S. § 15-531, et seq. Once a continuing teacher has been informed of the board’s intention to dismiss him at the expiration of thirty days from the date of service of notice, the proper procedure Is for the teacher to file a written request for a hearing. A.R.S. § 15-539(A), (D). Filing the request suspends the dismissal procedure pending completion of the hearing. A.R.S. § 15-539(D). . A.R.S. § 15-262 was renumbered A.R.S. § 15-541 (supp.1981). See text, note 5 infra. . Renumbered A.R.S. § 15-543 (supp.1981). . The method of selection provided in A.R.S. § 15-541, is also designed to ensure the commission’s neutrality: “B. Upon request for a hearing, a commission shall be authorized and members appointed thereto by the governing board to conduct the hearing provided for in subsection A of this section. Appointment of commission members shall be made pursuant to the selection provided for in subsection C of this section. “C. One member of the commission shall be selected by the teacher, and one member shall be selected by the governing board. The third member shall be selected by these other two members and shall be chairman and a voting member of the commission. If either the governing board or the teacher for any reason fails to select a commission member within seven days of the filing of the request for a hearing, such failure shall constitute a waiver of the right to selection, and the county school superintendent shall immediately make a selection for the defaulting party. If the members selected by the governing board and teacher, or county school superintendent in the event of default of one or both of the parties, cannot agree within ten days of their appointment on the selection of a third member, the third member of the commission shall be selected by the state personnel commission.” . Renumbered A.R.S. § 15 -543 (1981).

OPINION BIRDSALL, Judge. This appeal is from an order quieting title to 160 acres in the plaintiff-appellee, Mounce, and finding that the defendants-appellants, Coleman, have no right, title, interest or estate in the land. Because an understanding of the conveyances involved is essential to our discussion of this controversy, we will describe them first. 1) On December 13, 1945, Percy C. Harris, et ux, by warranty deed, conveyed to P. H. Coleman all that certain premises described as: “twenty (20) acres out of the southwest quarter of section 7 in Township one north of Range sixteen east of the Gila and Salt River Meridian, Arizona, containing one hundred sixty acres (160).” (emphasis supplied) 2) On February 15, 1962, P. H. Coleman and wife, quit claimed this 20 acres, by the same description, to the appellants. 3) On June 15, 1965, Harris, by warranty deed, conveyed to Louis Mounce and Geneva Mounce (appellee), husband and wife: “All of my undivided right, title and interest in and to the West half of the Southeast Quarter of Section Seven (7) and the West half of the Northeast quarter of Section Eighteen (18) in Township One North of Range Sixteen East of the Gila and Salt River Meridian, Arizona, containing one hundred sixty acres. EXCEPTING THEREFROM twenty (20) acres which was conveyed by Deed to P. D. (sic) Coleman on the 13th day of December, 1945, which Deed is of record in the office of the County Recorder of Gila County, Arizona in Book 61 at Pages 291 and 292.” (emphasis supplied) (A subsequent executor’s deed conveyed any interest of Mrs. Harris.) The appellee and her husband also owned the west half of the west half of Section 7 but that land was not acquired from Harris. Harris never owned the southwest quarter of Section 7. The appellants contend that their twenty acres was in the southwest quarter of the southeast quarter of Section 7. Their arguments on appeal are: 1) The appellee failed to prove her own title to the land. 2) The evidence established the appellants’ title by adverse possession. 3) The ambiguous 1945 deed should have been construed to give the appellants title to twenty acres in the west half of the southeast quarter of Section 7. The appellants filed a counterclaim in the trial court. The complaint and counterclaim were tried together. In their counterclaim the appellants prayed, in the alternative, if the court was unable to determine the precise legal description of the twenty acres, that it be adjudged that they own an undivided one-half interest in the southwest quarter of the southeast quarter and that the parties be ordered to proceed by partition (A.R.S. § 12-1211, et seq.). The undisputed evidence established that the common grantor, Harris, intended to convey by deed # 1 twenty acres in the west half of the southeast quarter. The land is in the country about six miles north of Globe and was used continuously throughout this period of time by the appel-lee and her husband for grazing cattle. None of the parties lived on the land. It was fenced together with other land owned by the appellee and contiguous leased federal land. There was a locked gate and Mr. Mounce had the key. Whenever members of the Coleman family requested, he gave them the key so they could go “look at” their land. Before Mr. Mounce died in 1979, he was working with the appellants to try to secure a survey and description of their twenty acres. Until the commencement of this litigation after Mr. Mounce’s death, no one questioned that the appellants owned twenty acres somewhere in, at least, the west half of the southeast quarter. Roseanna Coleman testified that her mother-in-law, who died before the trial, had told her that her father-in-law and the grantor, Harris, had attempted to place piles of rock to establish monuments marking the corners of the twenty acres — significantly, on land in the southeast quarter— and that her mother had walked to these rock piles in her presence. This evidence continues with the testimony of the appellant, Robert Coleman, that in 1965, about the time of purchase, he was present when his father and Harris talked about going out and stacking up the rocks. Mrs. Mounce testified that when they purchased from Harris he told her husband, upon inquiry, that the twenty acres was “down there” — throwing his arm out— which she understood to mean in the flat area, the mesa. They were then at the Harris home, which was located on the property. Roseanna also testified that in early 1966 she was with Mrs. Coleman when they first found a locked gate. Her mother-in-law was upset. They found Mr. Mounce, who told her he was not trying to keep her off the property — that he would never do that. He gave them a key and suggested they make a copy — that they could have the key anytime they wanted it. Later in 1966, according to her testimony, Mrs. Coleman got the key again, as they had done many times, so Mrs. Coleman could take her twin sister out to “show her the land she had purchased with her inheritance.” Despite all of the foregoing, no evidence provided any description of the twenty acres. The appellants argue that the appellee failed to prove her own title because no evidence shows who acquired title to the community one-half interest of Mr. Mounce. In a quiet title action the plaintiff must ordinarily prove his own title and cannot rely on defects in the defendant’s title. Saxman v. Christmann, 52 Ariz. 149, 79 P.2d 520 (1938); Allison v. State, 101 Ariz. 418, 420 P.2d 289 (1966). An exception to this rule arises, however, when the plaintiff is the owner of an undivided interest in the whole as a tenant in common and the action is not against a co-tenant. A co-tenant may bring the action without joining the co-tenants. Velasco v. Mallory, 5 Ariz.App. 406, 427 P.2d 540 (1967); See Also 74 C.J.S. Quieting Title, § 17. The appellee could quiet title as against the appellants without proving the devolution of her deceased husband’s one-half interest in the property. In this case, however, because of the relief which we find the appellants are entitled to on their counterclaim, this creates a problem which we will address later. The next contention we consider is the claim of title by adverse possession. Neither party can rely on adverse possession since there is no evidence that any possession has been hostile for ten years. See A.R.S. § 12-526; Gusheroski v. Lewis, 64 Ariz. 192, 167 P.2d 390 (1946). Not until after the death of Mr. Mounce, when the appellee changed the lock so that the appellants could not enter if they had a key to the former lock, has there been any use hostile to the interest of the appellants. The use for grazing cattle was permissive. See La Rue v. Kosich, 66 Ariz. 299, 187 P.2d 642 (1947); Brown v. Ware, 129 Ariz. 249, 630 P.2d 545 (1981). Finally, we must determine if the trial court correctly concluded that the first deed conveyed no title to the twenty acres. The resolution of this difficult question has caused us to resort to many cases decided in earlier times when the land descriptions appearing in conveyances, although not as well defined as in this modern era of title companies, were surely more colorful. For example, “one acre of land for house setting,” Turner v. Hunt, 131 Tex. 492, 116 S.W.2d 688, 117 A.L.R. 1066 (1938), and “a certain portion of land lying and being in the county of Nash, adjoining the lands formerly belonging to Elias Barrett and others, on both sides of the road leading to Nashville .... ” Smith v. Proctor, 139 N.C. 314, 51 S.E. 889 (1905), and “... a piece of land fronting on said river in the immediate vicinity of the east end of said dam, twelve rods in length on the bank of said river .... ” Smith v. Furbish, 68 N.H. 123, 44 A. 398 (1894). From the analysis of the many cases reviewed in the annotation at 117 A.L.R. 1071 (1938) entitled “Validity and effect of deed which purports to convey specified acreage or quantity of land out of a larger tract, with or without a right of selection expressed,” one can find a desired result for almost any fact situation. The one rule that holds true as to any conveyance is that “a deed should be held to pass some interest if such effect may be given to it consistently with the law and the terms of the instrument,” 117 A.L.R. 1072; 23 Am.Jur.2d Deeds § 224. The Harris-Coleman warranty deed conveyed a designated quantity of land (twenty acres) of a larger tract (160 acres) without any attempt, in the instrument itself, to locate and describe a particular parcel as that conveyed. According to what the Oregon Supreme Court in Seguin v. Maloney, 198 Or. 272, 253 P.2d 252, 35 A.L.R.2d 1412 (1953) describes as the more modern rule, such a conveyance operates to give the grantee an undivided interest in the land as a tenant in common. The court further held that the extent of the undivided interest is measured by the proportion which the number of acres conveyed bears to the whole number of acres in the tract. The deed in the instant case presents additional problems which do not easily fit within the rule. The reference to the southwest quarter of section 7 in the Harris-Coleman deed was obviously a mistake. The appellee does not seriously question that conclusion. Nevertheless the deed does describe 160 acres. Twenty acres out of 160 would be a fractional Vs of the whole, whereas 20 acres out of 80, if it is determined that the deed was intended to describe only the land owned by Harris in section 7, the west half of the southeast quarter, would be one-quarter of the whole. We believe, in order to give effect to the deed, and further construing it, as we must, in favor of the grantee, 23 Am.Jur.2d Deeds § 165, that we must infer that Harris intended that the twenty acres be “out of” the west half of the southeast quarter of section 7. But the appellee argues the deed was intended to convey a specific tract of land, and since that land was not sufficiently described and cannot be located, the deed cannot be construed to create an undivided interest, but must be declared void. We do not agree. According to Seguin, that is the rule in times past. Even if it is considered to be the rule, we find that the language in the deed itself does not indicate an intent to convey a particular tract. Rather the evidence shows that after the conveyance the parties attempted to fix the area conveyed. This was never accomplished. Thus we return to square one. We hold that the trial court erred in finding the deed totally ineffective. The deed should have been given effect as a conveyance of an undivided one-quarter interest in the west half of the southeast quarter of section 7. The appellants are entitled to the alternative relief which they sought, partition. As we have noted, the appellee failed to prove the devolution of the interest of her deceased husband. She may be the owner of that interest, but for all the record shows, it may be owned by strangers to this action. If other persons acquired that interest, they are not before the court and neither the trial court nor this court can by any ruling affect their title. As to the appellants’ counterclaim they may be indispensable parties. See Rule 19, Rules of Civil Procedure, 16 A.R.S. For this reason our holding that the appellants own an undivided interest in the land affects only such interest as the appellee owns. Reversed and remanded for further proceedings consistent herewith. HOWARD, C. J., and HATHAWAY, J„ concur. . The township and range are omitted in subsequent descriptions in this opinion, since they remain the same. . At the time of trial the property was all virtually unimproved. . Since oil was first produced on this land about the time of the conveyance and the party Hunt is H. L. Hunt, that litigation, although involving only one acre, may have been of significant economic importance.

OPINION HAIRE, Judge. This review involves decisions and awards entered by the respondent Commission relating to two different industrial injuries involving the claimant’s right knee. The first injury occurred in August 1974. After intermediate closings and reopenings not pertinent to the issues in this review, the claim relating to that injury was closed in April 1979 with a scheduled 55 percent permanent partial impairment of the right leg. Claimant re-injured his right knee on September 4, 1979, when he slipped on an oil spill and twisted his knee. At that time he had been working continuously for nine months to a year without any substantial knee problems. At the time each injury occurred, claimant was working for the same employer. However, different workmen’s compensation insurance carriers were involved. Travelers Insurance Company was providing coverage at the time of the 1974 injury, and the State Compensation Fund was providing coverage at the time of the 1979 injury. After the 1979 injury, claimant filed a claim relating to the new injury and also petitioned to reopen the 1974 injury. Travelers denied the petition to reopen. The State Compensation Fund initially accepted the new injury claim, and then later issued a notice of claim status finding claimant’s condition stationary and closing the new claim with a permanent impairment no greater than the 40 percent previously awarded. Claimant requested hearings on Travelers’ denial of the reopening and on the State Compensation Fund’s notice of claim status closing the new injury claim. These hearings were consolidated, and eventually the administrative law judge issued his decisions granting reopening as to the claim relating to the 1974 injury, and finding that claimant’s condition was not yet stationary and granting continuing benefits as to the claim relating to the 1979 injury. Travelers has sought review in this court of the administrative law judge’s decision granting reopening. Although Travelers has made the State Compensation Fund a party to the proceedings before this court, the State Compensation Fund has not contested the correctness of the administrative law judge’s decision finding that the new injury claim was not stationary, nor does it seek any relief from that decision. Travelers has raised two issues on review. First Travelers contends that there was no evidence before the administrative law judge of any new, additional or previously undiscovered condition or disability causally related to the first injury, and that therefore the reopening of the 1974 claim was in error. Second, and somewhat related to the first issue, Travelers urges that the evidence merely shows that the second injury operated to aggravate the preexisting condition created by the first injury, and that under well-settled Arizona case law the employer and carrier as of the time of the second injury must assume sole responsibility for any resulting workmen’s compensation liability. We find merit in Travelers’ contentions and therefore conclude that the award granting reopening must be set aside. The administrative law judge’s findings do not discuss or even mention the various medical witnesses and the specifics of their testimony. Rather, insofar as relates to the reopening of the Travelers’ claim, he found as follows: “5. The evidence has been evaluated and is sufficient to establish that the applicant has sustained new, additional or previously undiscovered disability or condition causally related to his industrial injury of August 9, 1974, and its seque-lae.” Additionally, in his decision relating to the new injury claim, the following is found: “13. ... and applicant has sustained his burden of proof to show that he is still in need of continuing active medical treatment as a result of his industrial injury of [September 4, 1979], and as a result of his industrial injury of August 9, 1974. The medical testimony indicates that the treatment necessary is for both injuries and it is very difficult to separate the two;” In its opening brief Travelers discusses in detail the testimony of the four medical witnesses to demonstrate to this court that there is no medical evidence to support the administrative law judge’s reopening of the 1974 claim. In response, the claimant relies exclusively on the testimony of Dr. William C. Brainard. The essence of Dr. Brainard’s testimony on the issue before this court is best summarized in his response to a question as to whether claimant’s recent treatment was made necessary by the second injury or the first injury: “THE WITNESS: My impression is that the treatment that he is getting now is related in part to both injuries, and that the initial injury probably set the stage for his degenerative changes in the knee joint, and that the reinjury he had subsequently was an additional insult which has forced the symptoms on at this time.” Along this same line, he further testified that in his opinion both injuries had contributed to the symptomatology that necessitated the course of treatment presently being administered. Conspicuously absent from the record is any reference to any new, additional or previously undiscovered condition causally related to the 1974 injury. Bearing in mind that the 1974 knee injury had been closed with a 55 percent permanent physical impairment, and that the new claim was an injury to that same knee, it is not at all surprising that the medical witness was of the opinion that both injuries contributed to the symptomatology and claimant’s need for continuing benefits. However, that need for medical benefits cannot justify reopening of the 1974 claim without a concomitant showing of a new, additional or previously undiscovered condition causally related to the 1974 injury. Obviously, Dr. Brainard’s testimony was to the effect that the first injury had created a condition which was then acted upon by the second injury to result in claimant’s current disability. However, when two industrial claims are involved, such testimony is not sufficient to impose liability on the first injury carrier. Rather, in such circumstances, our courts have refused to apply the doctrine of consequential damages so as to hold the first carrier liable, and instead have imposed liability on the second carrier. See Morrison-Knudsen Company, Inc. v. Industrial Commission, 115 Ariz. 492, 566 P.2d 293 (1977); Lumbermen's Mutual Casualty Co. v. Industrial Commission, 118 Ariz. 92, 574 P.2d 1311 (App. 1977). As stated in Morrison-Knudsen: “Although the second injury would have been less severe in the absence of the prior injury, the second employer is held to be solely responsible.” 115 Ariz. at 495, 566 P.2d at 296. This is merely a specialized application of the principle that an employer takes an employee as he finds him, and if an injury operates upon an existing condition or disability and produces a further injurious result, then that result is held to have been caused by the injury. See, e.g., Tatman v. Provincial Homes, 94 Ariz. 165, 382 P.2d 573 (1963); Murray v. Industrial Commission, 87 Ariz. 190, 349 P.2d 627 (1960). For the foregoing reasons we find that the evidence is not sufficient to support the decision and award entered by the administrative law judge granting reopening of the 1974 claim. The record, however, does support the administrative law judge’s decision and award relating to the 1979 injury, finding that claimant’s condition was not yet stationary and granting continuing benefits pertaining to that injury. A.R.S. § 23-951(D) limits the power of this court in workmen’s compensation reviews to “either affirming or setting aside the award, order or decision.” In applying that statute to the record presented in this review, we note that, although set forth in the same document, the decision and award relating to the 1979 claim involving the State Compensation Fund is completely severable from the decision relating to the 1974 claim. In his disposition of the matters, the administrative law judge has set forth separate captions and separate findings relating to each of the claims. Likewise, in the award portion of the disposition, separate and distinct awards are made as to each claim. Additionally, no arguments have been presented to this court indicating such an interrelationship between these claims as would make it necessary or even desirable that they be reconsidered jointly. In view of these facts and the procedural posture presented to this court, it is our opinion that A.R.S. § 23-951(D) does not require that the disposition made by the administrative law judge be affirmed or set aside in its entirety. Accordingly, the decision and award granting reopening of the 1974 claim (Carrier Claim No. 127 CB A98 5859) is set aside. Since the record supports the award relating to the 1979 claim, and no issues have been raised by the State Compensation Fund concerning it, the decision and award relating to that claim (Carrier Claim No. 79-35947) is affirmed. EUBANK and CONTRERAS, JJ., concur.

PER CURIAM. Absentee voting for the general election having commenced in Pima County, the issues of this appeal have been mooted and the appeal should be dismissed. Rapier v. Superior Court of Greenlee County, 97 Ariz. 153, 398 P.2d 112 (1964). Appeal dismissed. HOLOHAN, C.J., GORDON, V.C.J., and HAYS, CAMERON and FELDMAN, JJ., concur.

FELDMAN, Justice. Defendant, Scott Jay Williams, was convicted of first degree murder in violation of A.R.S. § 13-1105(A)(1). He was sentenced to life imprisonment without possibility of parole until 25 years have been served. He appeals from the judgment of conviction and the State cross-appeals. We have jurisdiction pursuant to A.R.S. §§ 13-4031 and 13-4035. Affirmed. FACTS On the morning of November 29, 1978, the body of Penny Williams, defendant’s ex-wife, was found in the front seat of her automobile near Pantano Wash in Tucson, Arizona. The words, “The Bitch,” were printed in dust on the side of the car. Examination of the body at the scene revealed several superficial stab wounds to the left side of the neck, a laceration to the fore head and a large bruise to the base of the skull. In addition, the autopsy revealed a stab wound to the left temple, which had been concealed at the scene by the victim’s blood-matted hair. Because this wound was both unique and hidden from view at the scene, the authorities withheld information concerning its location and existence from the press. On December 17, 1978, the defendant’s girlfriend, Rita Sipler, contacted the police department and informed them that Scott Williams had confessed to her that he had murdered his former wife. She told the police the story that the defendant had related to her, including the location of the wound in the left temple. Sipler was questioned by the police and recordings of her statements were made. Based on this information, the defendant was arrested. During questioning, a tape recording in which Rita Sipler related the defendant’s confession was played to defendant. The defendant admitted making the statement to Ms. Sipler, but denied that it was true. When asked how he knew of the temple wound, defendant indicated he had read about it in the newspapers. Informed that this was not possible, defendant stated that one of the investigating officers had told him of the wound. At the preliminary hearing on January 30, 1979, Ms. Sipler testified in accordance with her prior statements to the police, and was cross-examined. As a result of this testimony, the defendant was held to answer before the superior court. Subsequently, Ms. Sipler admitted that part of her testimony at the January 30 hearing was perjured, and the first degree murder information against defendant was dismissed without prejudice. The “perjured” testimony related principally to Ms. Sipler’s personal knowledge of the disposition of the physical evidence, including the knife, brass knuckles, clothing and sneakers, but not to the detailed confession which defendant had given her and to which she had testified at the preliminary hearing. In early October 1979, a second preliminary hearing was held and Rita Sipler again testified and was cross-examined. Although she answered a question propounded by defense counsel by stating that she believed defendant’s description of the murder was a fabrication, Sipler reiterated defendant’s admission of the murder to her. Defendant once again was held to answer. The State based its case against the defendant mainly on the information supplied to it by Rita Sipler. She was, therefore, slated to be the State’s chief witness against defendant at his trial. Before the trial commenced, however, Ms. Sipler and the defendant were married. Subsequently, when the case was called to trial, the defendant asserted the anti-marital fact privilege under A.R.S. § 13^4062(1), thereby preventing Ms. Sipler from taking the stand. Unable to call Ms. Sipler, herself, to testify, the State introduced into evidence the testimony she had given at the preliminary hearings, plus the tapes of the statements she had made to the police, a diagram based on those statements, and excerpts from her personal diary. The defendant took the stand and testified on his own behalf. He admitted having made the “confession” which Ms. Sipler had related to the police, but stated that it had been a story which he had made up in order to “turn Rita on” and make her love him more. In order to corroborate this contention, the defense offered in evidence the portions of Ms. Sipler’s preliminary hearing testimony in which she had been allowed to give her opinion of the veracity of the defendant’s confession. The prosecution objected to the admission of those portions of the preliminary hearing transcript on the ground of irrelevancy. The court overruled the objections, and Ms. Sipler’s opinion that the confession had not been true was allowed in evidence. HEARSAY On appeal, the defendant first argues that the tape-recorded statements, the diagram and the excerpts from the diary constituted hearsay and were therefore, inadmissible. A. Tapes Three tape-recorded conversations Rita Sipler had with police officers were introduced into evidence. Two of the conversations occurred on December 17, 1978, while the third conversation took place on January 5, 1979. The State first contends that the defendant has waived any error with respect to the second tape of December 17, 1978, and the tape of January 5, 1979, because defendant introduced these tapes into evidence at trial. We disagree. Prior to trial, defendant made a motion in limine to preclude the State from introducing any evidence of Rita Sipler’s tape recorded statements to police on the grounds that such statements were inadmissible hearsay. This motion was denied. This court has stated: Generally a motion in limine, made prior to trial, is sufficient to preserve the question of admissibility on appeal.... We agree with the Ninth Circuit that a party should not necessarily lose his right to appeal a ruling because he alters his strategy in response to a trial court’s finding against him. We hold that the defendant may raise on appeal the ruling of the trial judge denying defendant’s motion to exclude evidence .... State v. Ellerson, 125 Ariz. 249, 251, 609 P.2d 64, 66 (1980) (citations omitted). In the present case, defendant altered his strategy by introducing the tape of January 5,1979 in response to the trial court’s ruling that the statements made by Rita Sipler to police officers were admissible. We therefore hold that defendant’s general hearsay objection to all three tapes was adequately preserved for appeal. The tapes contained statements made by Ms. Sipler. These statements were not made in court and were offered to prove the truth of the matter asserted, i.e., that the defendant had told Ms. Sipler that he committed the murder and had provided her with a detailed description of how the murder was accomplished. As such, the contents of the tapes are clearly hearsay. See Rule 801(c), Arizona Rules of Evidence, 17A A.R.S. (hereinafter cited as “Evidence Rule _”). Therefore, these statements were not admissible and it was error to admit them over objection. See Evidence Rule 802. B. Diagram Ken Janes, an investigator for the Pima County Attorney’s Office, testified to a conversation he had with Rita Sipler on May 29,1979. Janes recounted this conversation to the jury and drew a diagram that was admitted into evidence over objection: Q. [Y]ou indicated that there was a mannequin in the office where you talked to [Sipler]? A. Yes, sir. Q. ... do some kind of drawing as to the mannequin’s head and upper body as best you can.... A. Yes, sir. Q. All right. And could you indicate [on the mannequin] where Rita showed you that Scott demonstrated [stabbing Penny]? A. [Rita] used her right hand and tapped three times in this area. Q. Could you put some marks on there? A. [She] [s]aid he had stabbed [Penny] on the right side of the neck and then placed the knife in her left temple and indicated in this manner [pointing to mannequin]. * * * * * * Q. Did [Rita] indicate to you that Scott demonstrated this? A. Yes, sir, she did. (Emphasis added.) The state contends that the diagram was non-hearsay in that it was a statement “made by the declarant,” Janes, “while testifying at the trial.” Evidence Rule 801(c). We disagree. Janes’ demonstration on the diagram of Sipler’s out-of-court gesture indicating the points at which the defendant had admitted striking Penny with the knife was simply a repetition of Sipler’s “non-verbal conduct ... intended by [her] as an assertion” of what defendant had told her. Evidence Rule 801(A)(2). That gesture was, therefore, a “statement.” Thus, evidence of Ms. Sipler’s non-verbal conduct which was admitted to prove the truth of the matter asserted was inadmissible hearsay and Janes’ repetition of it in court did not transform it into non-hearsay. Having concluded that the tapes and the diagram contained inadmissible hearsay statements, we must next determine whether their admission into evidence constituted harmless error. The test for determining harmless error is “whether there was reasonable probability ... that a verdict might have been different had the error not been committed.” State v. McVay, 127 Ariz. 450, 453, 622 P.2d 9, 12 (1980) (quoting State v. Brady, 105 Ariz. 190, 196, 461 P.2d 488, 494 (1969)). To put it differently, is there any reasonable doubt that the jury would have found the defendant guilty in the absence of this inadmissible hearsay? In this case, we believe that the jury would have found the defendant guilty even if the inadmissible evidence had not been admitted. First, all of the information conveyed by the statements in the tapes and by the diagram was admitted into evidence by other means. At trial, the State properly introduced into evidence the following excerpts from Ms. Sipler’s preliminary hearing testimony: Question: At a later time did you have another conversation concerning the death of Penny Williams? Answer: Yes. Question: When did that take place? Answer: Between a week and two weeks after she was murdered. Question: Where did that conversation take place? Answer: At his house. Question: And who was present? Answer: Myself and Scott. Question: Did he discuss with you that Penny Williams had come over on the night of the 28th? Answer: Yes, he did. Question: What did he tell you at that time? Answer: He told me that they had some conversation over a television set. Question: And what else did he tell you? Answer: Well, he asked me if — well, why — well, I kept asking him, you know, if he killed her and things like that; and he replied, do I look like a murderer? Then he asked me, would you love me more if I told you I did it or would you love me less? Question: And what did you tell him? Answer: I told him, about the same. Question: And what did he tell you? Answer: Then he said that — that he did kill her. Question: Did he explain what happened that particular evening of the death? Answer: He said that they got in the car and went up 22nd Street to Pantano Wash, and that they parked along some road to the right off 22nd. He got out of the car, and she slid over to the driver’s seat. And he hit her in the head. Question: Did he indicate to you if he had anything with him that night? Answer: Yes. Question: What did he have? Answer: A knife; brass knuckles and a glove or two. Question: And you testified that she slid over to the driver’s side and he told you he hit her. What did he tell you that he did then? Answer: That he was there with the knife and that he reached in with a knife, and he cut her neck. Question: Did he indicate how many times he stabbed her? Answer: Three or four. Question: And then what did he indicate he did? Answer: He stabbed her in the left side of her head. Question: Did he indicate the left temple? Answer: Yes. Question: Then what did he say he did? Answer: He wiped off his knife and jogged home.... (Emphasis added.) Thus, the information conveyed in Rita’s taped statements and Janes’ diagram illustrating Rita’s gesture was cumulative to Rita’s testimony at the trial. We have held that erroneous admission of evidence which was entirely cumulative constituted harmless error. See State v. Wilson, 113 Ariz. 363, 366, 555 P.2d 321, 324 (1976). See also State v. Jones, 123 Ariz. 373, 378, 599 P.2d 826, 837 (App.1979); State v. Hughes, 120 Ariz. 120, 128, 584 P.2d 584, 592 (App.1978). Compare State v. Ray, 123 Ariz. 171, 173, 598 P.2d 990, 992 (1979) (holding inadmissible hearsay had resulted in prejudice because of the lack of any other evidence establishing the contents of the hearsay statements). In addition, and perhaps more important to our finding of harmless error, is the fact that the contents of the hearsay evidence were not really in dispute. At the trial, the defendant, himself, admitted telling Rita he had murdered his ex-wife and admitted having given her a description of the murder substantially similar to that to which she had testified at the preliminary hearing, except that he contended that he had not told Ms. Sipler that he had stabbed the victim in the temple but had merely admitted to stabbing the victim in “the side of the head.” However, the photographs in evidence show conclusively that the only stab wound to the “side of the head” was the stab wound in the left temple. Thus, it can fairly be said that the defendant did not in any significant manner contest Sipler’s version of the conversation. Since the defendant, himself, had testified to substantially the same information as that contained in the hearsay statements, the issue which the statements tended to prove — that defendant had confessed and given a detailed description of the crime — was uncontested and the error was harmless. See State v. Coey, 82 Ariz. 133, 141-42, 309 P.2d 260, 265-66 (1957). C. Diary — Part I At trial, the State admitted various excerpts from Rita Sipler’s diary. The defendant objects to admission of this evidence on hearsay grounds. The first statements to which the defendant objects are: He confessed ... Scott killed Penny & has worse temper than I imagined ... I’ve been playing it as cool as possible. I have to know why and how. He said he’s had it w/her. He pulled her car up to his house so no one would see them leaving together. The story about the t.v. was fake. He drove to Pantano Wash & had his gloves on. He stopped car & got out. She slid into driver’s seat & he took out his knuckles, knife, & put them on roof of car so she couldn’t see what was happening. He punched her in the head (left side I think) & she fell over to right side of car & he bent thru window with knife & stabbed [?] side of neck as she threw her arms up to block him off & he slid knife around & repeated slices about 4 x & the finale was a thrust into her left temple. He rubbed everything off & got his stuff & shuffled his feet to prevent footprints & jogged back home. His tennis shoes were burnt along with his clothes. His knife was boiled & frozen. The defendant contends that these statements were inadmissible hearsay. He is correct. These extra-judicial assertions, offered to prove the truth of the statements, are hearsay. Evidence Rule 801(c). There are no exceptions to the hearsay rule under which Rita’s written statements in her diary are admissible and it was, therefore, error for the trial judge to admit them. Here, again, however, we must note that the diary statement does not differ in any significant manner from Rita’s preliminary hearing testimony in which she related defendant’s confession and description of the killing. We recognize that repeated admission of inadmissible matter may so strengthen the weight of the original admissible version that what would have been cumulative becomes conclusive and highly prejudicial. Therefore, had the defendant denied the fact that he had made the confession, we might well have concluded that the various hearsay repetitions of Ms. Sipler’s admissible testimony had caused prejudice. However, since the defendant’s testimony substantially corroborated the contents of the admissible testimony, we find that the admission of this particular set of statements from the diary constitutes harmless error. D. Diary — Part II The second set of statements from the diary to which the defendant objects reads as follows: Scott killed Penny & has worse temper than I imagined. He’s been slapping boys in face & looking wild! I fear for myself & Jan so I’m splitting for Phoenix.... It’s totally incredible. I’m tolerating him, but it won’t be forever. It’ll work out. It doesn’t phase him in the least w/the exception of a slight pleasure. It’s gross. I don’t know what to do except leave.... If anything should happen to me, all information should be revealed to police cos I would never ever provoke him to kill me as Penny did. So if I die — he’s sick. I’m not saying that he should be turned in cos it’s me, if it’s anyone else he should be kept away from society cos he’ll do it again & again. If he stops with Penny I can almost understand although it’s a sin & I would never — nor should anyone. It’s just that he’s suffered enough cos of her let alone go to jail the rest of his life for her... . told Scott I told detectives & he said it was all a lie to make me love him more... . 2-9-79-C.A. David Bergman [prosecuting attorney] Sorry couldn’t help you any more with your case. All I can say is ... he did do it, but how can you prove it now? The appellant objects to the admission of these excerpts both on the hearsay ground and because they are evidence of Rita Si-pler’s opinion, conclusions and belief regarding Scott Williams’ truthfulness or guilt and, as such, are irrelevant and not admissible. The opinions of a witness regarding questions of truthfulness and guilt are gen erally inadmissible for a variety of reasons. One reason is that Rule of Evidence 701, codifying and, hopefully, bringing reason to a morass of prior law, forbids lay testimony “in the form of opinions or inferences” except with respect to those which are “(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony .... ” (Emphasis added.) It had generally been the rule also that testimony on the ultimate issues in the case was inadmissible. See 1 M. Udall & J. Livermore Law of Evidence § 26, at 46 (2d ed. 1982). While Rule of Evidence 704 now provides that “otherwise admissible evidence” is not objectionable simply because it “embraces” the ultimate issue, the comment to that rule sets forth the reason for the general inadmissibility of testimony tending to establish the opinion of the witness as to the defendant’s guilt or innocence, truthfulness or untruthfulness. The comment states: Some opinions on ultimate issues will be rejected as failing to meet the requirements that they assist the trier of fact to understand the evidence or to determine a fact in issue. Witnesses are not permitted as experts on how juries should decide cases. [Emphasis added.] Thus, generally a witness may not indicate his belief in defendant’s guilt. See Arpan v. United States, 260 F.2d 649, 657-58 (8th Cir. 1958). Ms. Sipler’s diary statements show her belief in the truth or falsity of defendant’s confession and, thus, of his guilt or innocence and would therefore be irrelevant and inadmissible. Arpan v. United States, supra. Also, the diary entry would ordinarily be inadmissible hearsay because it was a statement made other than while testifying. Evidence Rule 801(c). Here, however, the diary entry was offered under rather unusual circumstances. Williams’ defense at trial centered around the contention that he had lied when he told Rita he had killed Penny Williams. To give substance to that contention and to his testimony on that point, defendant offered in evidence Ms. Sipler’s preliminary hearing testimony that she did not believe that the defendant had killed his wife, and did believe that the entire story he had told her had been made up. This evidence was admitted over the State’s objections on relevancy and hearsay. The diary entry in question was offered after the defense offer regarding Rita’s lack of belief. The entry shows Rita’s state of mind, i.e., her belief or disbelief of defendant’s “confession.” The diary clearly justifies an inference that Ms. Sipler gave more credence to defendant’s confession than was indicated in her preliminary hearing testimony and was, therefore, relevant to contradict her testimony, already in evidence, that she believed defendant had lied in “confessing” to her. See Ewing v. United States, 135 F.2d 633, 639-40 (D.C.Cir.1942), cert. denied, 318 U.S. 776, 63 S.Ct. 829, 87 L.Ed. 1145 (1943). Further, when offered for this purpose, the diary entry is not inadmissible hearsay. In order to constitute hearsay, a statement must be offered to prove the truth of the matter asserted. Evidence Rule 801(c). Here, the diary entry was not offered to prove the truth of the matters asserted — that the defendant killed Penny, that Rita feared him, that he might kill her, that he was provoked and shouldn’t go to jail, etc. — but to show inferentially that Ms. Sipler believed that the defendant killed Penny. Declarations offered as circumstantial evidence of the declarant’s state of mind are not hearsay at all because they are not offered to prove the truth of the declaration. Evidence Rule 801(c); M. Udall & J. Livermore, Law of Evidence § 122 at 242 (2d ed. 1982). See State v. Ramirez, 116 Ariz. 259, 264-65, 569 P.2d 201, 206-07 (1977). Compare, M. Udall & J. Livermore, Law of Evidence § 128 at 274 (2d ed. 1982) (dealing with statements which as direct assertions of the declarant’s state of mind constitute hearsay but are nonetheless admissible under the exception to the hearsay rule set forth in Evidence Rule 803(3)). Thus, while the diary entry tending to prove Rita’s belief in defendant’s confession and consequent conclusion that he was guilty would be irrelevant, highly prejudicial and inadmissible, that entry became important to rebut defendant’s evidence that Rita had known the “confession” was a fabrication. Defendant had put Rita’s belief in issue and Rita’s diary statement on that point then became “of consequence to the determination” of that issue. It was therefore relevant. Evidence Rule 401. When the entry was used for that purpose, it was used as a statement showing Rita’s state of mind and was not hearsay and therefore admissible. We conclude, therefore, that although Sipler’s taped statements, the first part of Sipler’s diary entry and Janes’ diagram were all hearsay and were erroneously admitted, no prejudice occurred because the evidence was merely cumulative to other testimony and tended, at worst, to establish a fact — the detailed confession to Sipler — which defendant admitted. Under the facts of this case, the second diary entry was relevant and also admissible on the issue of Rita’s belief. ALLEGED COMMENT ON THE EXERCISE OF THE PRIVILEGE The defendant next contends that the trial court erred by permitting the prosecutor to ask defendant’s mother whether she knew if her son had married Rita Sipler. Defendant contends that this question was inconsistent with his exercise of the anti-marital fact privilege. We disagree. In support of this proposition, defendant relies upon this court’s decision in State v. Holsinger, 124 Ariz. 18, 601 P.2d 1054 (1979). In that case, we held that: [a] defendant’s marital privilege is violated when a prosecutor comments [in argument] on the defense’s failure to call defendant’s spouse as a witness: “[T]he established principle which permits an inference that the excluded testimony would be unfavorable to the party who suppressed it ought to yield, as being inconsistent with the full exercise of the [marital] privilege.” State v. Holsinger, 124 Ariz. at 24, 601 P.2d at 1060 (citation omitted) (emphasis added). In this case, however, the prosecutor did not seek to admit evidence of the marital relationship so that he could later comment on the defendant’s failure to call Rita Sipler to the stand. Instead, he sought to establish the existence of the marital relationship for other purposes. Rita Sipler, through her preliminary hearing testimony was the State’s chief witness against the defendant. Throughout the trial, the defendant sought to impeach her credibility by showing that she was an alcoholic and a liar. The State then sought to rehabilitate its witness by introducing evidence of the marital relationship. To support its offer, the State argued that the evidence of marriage warranted an inference that Rita’s character was not so bad as defendant claimed at trial. The evidence was admissible for this purpose, see Rule of Evidence 806. Therefore, the trial court did not commit reversible error by allowing the prosecutor to prove the existence of the marital relationship. If anything, the evidence tended to explain the State’s failure to call Sipler, its most important witness. This is not inconsistent with the purpose of the rule prohibiting comment on defendant’s failure to call his wife. That rule exists to protect the privilege by prohibiting an adverse inference from the exercise of that privilege. Here there was no comment or mention of the exercise of the privilege or of defendant’s failure to call his spouse. There was only a mention of marriage — which served, perhaps, to explain the State’s failure to call Ms. Sipler. Nor do we find that the prosecutor in his closing argument impermissibly commented on the defendant’s exercise of the anti-marital fact privilege. It is true, as the defendant contends, that the prosecutor, in closing, stated: “You’re sitting here with this kind of malarkey testimony between Rita and Scott. They put this together, so I don’t have any testimony.” Read in context, it is clear that this statement by the prosecutor is not a reference to the ahti-marital fact privilege, but is, instead, a comment on the fact that Rita, after telling the police that Scott Williams killed his wife, substantially recanted part of that testimony. THREATS MADE BY THIRD PARTY Finally, the defendant contends that the trial court erred by refusing to admit evidence of threats allegedly made to Penny Williams by a high school girl from Globe. At the pretrial hearing, three witnesses, who were high school classmates of the girl, testified to the fact that Penny Williams had received threats prior to her death. The victim’s brother stated that approximately three weeks before the murder he had overheard the girl say that “[s]he was going to get even with Penny for taking Robby [the girl’s boyfriend] away from her.” The brother also testified that he had seen a letter in the girl’s purse to the same effect and that Penny Williams, who resided in Tucson, had told him by phone several days prior to the murder that she had received threats. Specifically, the brother testified that the victim told him that she found an anonymous note pinned to the slashed throat of her roommate’s dog, warning that the same fate awaited her if she continued to see Robby. Paul Heatherly testified that Penny Williams had told him of the dog incident as well, and that Penny had stated that she had found another anonymous note on her windshield after her tires had been slashed in Tucson and that she was going to borrow a gun. The third schoolboy from Globe, Brett Dalmolin, corroborated the testimony concerning the existence of the “get even” letter and Penny Williams’ statements relative to the dog and the tires. After hearing the above testimony outside the presence of the jury, the trial court held that evidence concerning the threats would not be admitted. He based his decision for this ruling on Rule of Evidence 403, which allows the trial judge to exclude even relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” The weighing and balancing under Rule 403 is within the discretion of the trial court and will not be disturbed on appeal unless it has been clearly abused. State v. Clark, 126 Ariz. 428, 434, 616 P.2d 888, 894 (1980). We find that the judge did not abuse his discretion in refusing to admit evidence of the threats. “The rule is that threats by a third person against a victim may not be shown unless coupled with other evidence having an inherent tendency to connect such other person with the actual commission of the crime.” State v. Schmid, 109 Ariz. 349, 356, 509 P.2d 619, 626 (1973) (citations omitted). In this case, the evidence did not connect the Globe girl to the commission of the murder. While the defense offered testimony that Penny Williams made statements that both her car tires and her roommate’s dog’s throat had been slashed, there was no corroboration since the defense failed to offer any evidence that these incidents had actually occurred. In fact, the only definitive evidence was that the dog incident had not occurred. In addition, the prosecutor was prepared to prove that Penny Williams had written the threatening notes herself. Thus, the testimony simply afforded a vague ground of suspicion against the Globe girl. As such, it was within the sound discretion of the trial judge to refuse to admit such evidence. See State v. Renteria, 21 Ariz.App. 403, 404, 520 P.2d 316, 317 (1974). This holding, however, does not end our discussion. The defendant argues that even if the evidence concerning the threats in general was properly excluded, the testimony of Paul Heatherly that Penny Williams told him that she was going to borrow a gun from the defendant was admissible under this court’s holding in State v. Gause, 107 Ariz. 491, 489 P.2d 830 (1971), vacated on other grounds, 409 U.S. 815, 93 S.Ct. 192, 34 L.Ed.2d 71 (1972), a case which dealt with the victim’s fear of the defendant. In Gause, 107 Ariz. at 495, 489 P.2d 834, we held that “expressions of fear by a murder victim, though they may be hearsay, are relevant, have probative value on the issue of identity, and when in human experience they have sufficient reliability, they should be admitted into evidence.” While we recognize that one could argue, as the defendant does, that the principle of Gause is equally applicable to cases where the defendant seeks to admit evidence that the victim was not afraid of the defendant, we need not reach that question. In this case, the trial court did not exclude the evidence on hearsay grounds. Instead, it relied upon its discretion to exclude evidence under Rule 403. Given the circumstances of this case, we do not believe that exclusion of Penny Williams’ statement was an abuse of discretion. First, there was other evidence introduced at trial to show that Penny Williams was not afraid of the defendant. Second, in order to lay a foundation for its admission, the defense would have had to admit considerable evidence concerning the threats on Penny Williams’ life. Thus, the trial court was justified in excluding evidence of the statement on the grounds that it was cumulative and because it may have led to confusion of the issues. See Evidence Rule 403. In conclusion, we find that the various assertions of error made by the defendant do not warrant reversal. Accordingly, we affirm his conviction. STATE’S CROSS-APPEAL At trial, the defendant invoked the marital privilege. On cross-appeal, the State contends that the privilege does not apply in this case since Rita Sipler was not married to the defendant at the time he confided in her that he had murdered his wife. We agree in principle that the privilege should not apply in this case, but are unable to so hold. A.R.S. § 13-4062 states: A person shall not be examined as a witness in the following cases. 1. A husband for or against his wife without her consent, nor a wife for or against her husband without his consent. ... The defendant and Rita Sipler were married at the time of the trial. Thus, under § 13-4062, the defendant had a right to prevent his wife from testifying against him. Because of this, we have no choice but to hold that the trial court did not err by refusing to compel the defendant’s wife to testify. The choice of whether the marital privilege should be recognized and under what circumstances is not only an evidentiary question but involves a determination of the rights and status which flow from the institution of marriage. See State v. Watkins, 126 Ariz. 293, 298, 614 P.2d 835, 840 (1980). Nor is this rule one which was made by the courts and which they are, therefore, free to rescind when they conclude that it no longer serves its purpose. Cf. Fernandez v. Romo, 132 Ariz. 447, 646 P.2d 878 (1982). Thus, the policy determination involving abrogation of the rule is an appropriate subject for legislative determination. In Arizona, our legislature has chosen to retain the marital privilege despite this court’s strong disapproval of the privilege in State v. Whitaker, 112 Ariz. 537, 540, 544 P.2d 219, 222 (1975). By doing so, it has made it clear that it places paramount importance on the marital relationship and believes the privilege is necessary to protect that relationship from the strain which would be placed upon it if spouses were allowed to testify against each other. With due respect, we still question the wisdom of this statute. One has only to look at the facts of this case to realize why we do so. While it is true that Rita Sipler and the defendant were married, there is little evidence to show that this marriage relationship ever existed except on paper. Aside from this, however, even if it could be shown that the defendant and his wife were happily married, we cannot look favorably upon a rule of law which permits the defendant to keep the State’s chief and perhaps only witness from testifying against him. As Wigmore, in his treatise on evidence, states: “[T]he peace of families does not essentially depend on this immunity from compulsory testimony, and, [even if it did], that result [should not be] allowed to stand in the way of doing justice to others.” See 8 Wigmore, Evidence § 2228, at 216 (McNaughton rev. 1961). Nevertheless, we continue to enforce the mandate of the legislature and hold that the trial court did not err in recognizing the privilege. We are also constrained to point out that in its present form the statute encourages marriages made for no other reason than to provide a witness with immunity from giving testimony necessary to accomplish the aims of justice. The state’s policy should not be to condone a rush to marriage before trial as a means of conferring testimonial immunity. If it is, perhaps, overly sentimental to wish that marriage should be made in heaven, it is foolish to encourage it to be made on the courthouse steps. HOLOHAN, C. J., GORDON, V. C. J., and HAYS, J., concur. . Ms. Sipler is now married to the defendant. However, most of the events set forth in this opinion occurred prior to Ms. Sipler’s marriage to the defendant. For the purpose of this opinion, therefore, we will refer to her as Ms. Si-pler. . At trial, both investigating officers testified that the subject of the temple wound was not discussed with defendant. . Section 13-4062(1) states: A person shall not be examined as a witness in the following cases: 1. A husband for or against his wife without her consent, nor a wife for or against her husband without his consent .... . Rita Sipler was not married to the defendant at the time these statements were made, nor at the time of the preliminary hearing. Therefore, their admission into evidence is not precluded by the defendant’s exercise of the anti-marital fact privilege under A.R.S. § 13-4062(1). . Defendant originally argued that the whole of Sipler’s preliminary hearing testimony was inadmissible hearsay when used at his trial. However, he has since conceded that the testimony given at the preliminary hearing was generally admissible as “Prior Recorded Testimony” under Rule 19.3(c), Arizona Rules of Criminal Procedure, 17 A.R.S. Therefore, we no longer need address this issue. . While Rule 19.3(c), Arizona Rules of Criminal Procedure, 17 A.R.S., permits general use of prior recorded testimony, subsection (2) of that rule provides that such testimony is subject to the same objections as though the witness were testifying in person. . Evidence Rule 801(a) reads as follows: Statement. A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by him as an assertion. . In addition, when defendant was questioned by the police after his arrest, the tapes of Rita’s statements to the police were played for him. After listening to the tapes, defendant admitted that he had told Rita the story related by Rita to the police. This admission was introduced in evidence under Evidence Rule 801(d)(2)(A). The defendant cannot even argue that he was forced to take the stand by the admission of the hearsay and then forced to admit the “confession” to Sipler. The making of that “confession” was not in controversy because of defendant’s admissions before trial. . At the preliminary hearing on January 30, 1979, Ms. Sipler testified that the defendant had told her that he murdered his wife and described to her how the murder was accomplished. She also testified, however, that the defendant had later told her that he had fabricated the entire story. Subsequently, Ms. Si-pler testified that the defendant had never told her that it was all a lie but that she and the defendant had gotten together and decided that she should go to the police and tell them that the defendant had told her that his confession was a lie. Then, in early October 1979, at the second preliminary hearing, Ms. Sipler testified that she had lied when she had testified that the defendant had never told her that the entire story was fabricated. This portion of the preliminary hearing testimony was admitted into evidence and was thus subject to comment by the prosecutor. As there was evidence admitted at trial showing that Rita did, indeed, change her story, the prosecutor’s statement was within the scope of permissible argument and did not constitute error. See State v. Freeman, 114 Ariz. 32, 45, 559 P.2d 152, 165 (1976). . Robin West, the roommate, testified as follows: Q. Were you the roommate of Penny Williams previously to November 28, 1978? A. Yes. Q. How long had you been a roommate? A. She moved into my house the last of October the same year. Q. Did you have any discussions with her, did she ever discuss with you any threats made upon her life? A. No. Q. Did you have any dogs? A. Yes, two dogs at the time. Q. During the period of time that Penny Williams was your roommate, did anything ever happen to these dogs? A. No. Q. There was no slashing of any of the dogs’ throats or anything like that? A. No. Q. Did Penny Williams during the time that you spent with her or live with her, did she appear frightened at any time? A. No. We talked several times. She never indicated anything like that.... . The record does not contain facts to support a finding that the marriage was a sham, undertaken for no reason other than to disqualify the witness. Cf. Lutwak v. United States, 344 U.S. 604, 615, 73 S.Ct. 481, 488, 97 L.Ed. 593, 602 (1953). Therefore, we do not decide the applicability of A.R.S. § 13-4062 to “sham marriages.”

OPINION NOYES, Judge. After one judge granted Petitioner a new trial because of prosecutorial misconduct in the first trial, Petitioner filed a motion to dismiss the indictment on double jeopardy grounds. The case was then transferred to another judge, who denied the motion to dismiss. Petitioner filed this petition for special action. We accepted jurisdiction and now deny relief. I. At Petitioner’s trial on two counts of aggravated assault, one of the victims (his ex-girlfriend) surprised the State by changing her story and testifying that Petitioner had not assaulted her. The State impeached the victim with contrary statements she had made to police officers, and with testimony from those officers. During final argument, Deputy Public Defender Vicki Lopez sought to bolster the credibility of the victim’s new story by telling the jury that the victim had come from Massachusetts to testify because she was “not going to let the Defendant get convicted of something that didn’t happen.” This was the first mention of Massachusetts in the trial and it alarmed the prosecutor, Deputy County Attorney Lyn D. Kane, who thought the defense was unaware that the victim was living in Massachusetts. The victim had refused to be interviewed by defense counsel and the only evidence about where the victim lived was her testimony that she had moved to California after the alleged assault. The prosecutor did not object to defense counsel’s improper “Massachusetts” comment. Instead, he waited until rebuttal argument and then made his own improper comment about a matter not in evidence: Did you hear any evidence that she was from Massachusetts? How did [defense counsel] know [the victim] was in Massachusetts? Unless [the victim] contacted the defendant recently and said, I am going to change my story and help you, that’s another fact. Defense counsel objected and the trial court, the Honorable Thomas Dunevant, III, instructed the jury to disregard the “inappropriate” argument of each counsel. Defense counsel did not move for a mistrial. The case went to the jury, which found Petitioner guilty on both counts. (The Count 1 victim was a police officer who testified that he had been assaulted by Petitioner.) Petitioner then filed a Motion for New Trial on Count II on grounds of the prosecutorial misconduct regarding the victim on that count. After a hearing, Judge Dunevant granted Petitioner a new trial and reported Mr. Kane to the State Bar. Petitioner then filed a motion to dismiss Count II on double jeopardy grounds. The State’s response, in part, was to ask Judge Dunevant to recuse himself. He did so. The case was transferred to the Honorable Michael O. Wilkinson, who held a hearing and denied the motion to dismiss. This petition for special action followed. II. Generally, the denial of a motion to dismiss is not appropriate for special action review. Andrade v. Superior Court, 183 Ariz. 113, 115, 901 P.2d 461, 463 (App.1995). Such review is appropriate, however, when the motion is based on a double jeopardy claim. Nalbandian v. Superior Court, 163 Ariz. 126, 130, 786 P.2d 977, 981 (App.1989), cert, denied, 498 U.S. 997, 111 S.Ct. 554, 112 L.Ed.2d 562 (1990); Quinton v. Superior Court, 168 Ariz. 545, 547, 815 P.2d 914, 916 (App.1991). We will not disturb a trial court’s denial of a motion to dismiss absent a clear abuse of discretion. State v. Hansen, 156 Ariz. 291, 294, 751 P.2d 951, 954 (1988). An abuse of discretion is “discretion manifestly unreasonable, or exercised on untenable grounds or for untenable reasons.” State v. Sandoval, 175 Ariz. 343, 347, 857 P.2d 395, 399 (App.1993) (citing Quigley v. City of Tucson, 132 Ariz. 35, 37, 643 P.2d 738, 740 (App.1982)). III. Before getting to the issue presented, we observe that Judge Dunevant was in the best position to rule on the motion to dismiss. He presided over the trial and he witnessed the misconduct which caused him to grant a new trial. The State argued that, because Judge Dunevant reported the prosecutor to the State Bar, a new judge should decide the motion to dismiss. We disagree. “A trial judge is presumed to be free of bias and prejudice,” and rebuttal of this presumption requires proof of specific grounds for disqualification of the judge. State v. Rossi, 154 Ariz. 245, 247, 741 P.2d 1223, 1225 (1987) (citation omitted); Ariz. R.Crim. P. 10.1. That the judge reported attorney misconduct to the State Bar showed proper regard for professional responsibility; it was not grounds to disqualify the judge. We move on. Judge Dunevant’s minute entry explained the factual basis for the grant of a new trial, as follows: At the oral argument held March 8, 1996, on Defendant’s Motion for New Trial, the prosecutor acknowledged that his argument was not based upon any evidence presented at trial and devoid of any good faith basis for making the argument. To use the prosecutor’s words he engaged in “supposition” as to how defense counsel or Defendant might have known that [the victim] was traveling from Massachusetts for trial, and as to how, whether and when defense counsel or Defendant might have spoken to her regarding her testimony. Additionally, the uncontroverted record establishes that [the victim] had refused to be interviewed by Defendant and was not interviewed by the Defendant in this ease. In this case, the Court instructed the jury to disregard the prosecutor’s and defense counsel’s comments in an attempt to cure the damage done by the prosecutor’s improper remarks. However, the court’s efforts could not cure the infirmity. The prosecutor’s argument was not based upon any fact in evidence and was not based upon any good faith belief, but rather was based upon mere speculation and supposition. The prosecutor’s argument and the inference that Defendant knew [the victim] had traveled from Massachusetts for trial and “was going to change her story to help the Defendant” created a misleading impression, an improper inference which was never cured at trial. The jury was never informed as to how defense counsel learned of [the victim’s] travelling from Massachusetts. The prosecutor’s improper remarks resulted in legal prejudice to Defendant. The credibility of [the victim] was pivotal to the jury’s determination, particularly since she denied making critical statements to detectives regarding the charged aggravated assault. The prosecutor’s argument could have left the jury with the erroneous impression that defense counsel, Defendant, or both had something to do with [the victim’s] trial testimony (i.e., “recanting” her testimony). Accordingly, the prosecutor’s misconduct manifestly affected Defendant’s right to a fair trial. Therefore, IT IS ORDERED granting Defendant’s Motion for New Trial in this case. In denying the motion to dismiss, Judge Wilkinson impliedly accepted not only Judge Dunevant’s findings but also the State’s “invited error” argument. He ruled as follows: It is ordered denying Defendant’s motion to dismiss re double jeopardy. Court finds that the cause of the mistrial was initially the comments made by Defendant’s counsel. The prosecutor responded to those comments in an inappropriate manner, but yet, that response was initiated by the improper comment of Defendant’s counsel. IV. The Double Jeopardy Clause of the Arizona Constitution provides that no person shall be “twice put in jeopardy for the same offense.” Ariz. Const, art. 2, § 10. Jeopardy attaches when a criminal trial begins and, “unless [it is] removed for some legal reason, the one in jeopardy cannot be again tried for the same offense.” State v. Reynolds, 11 Ariz.App. 532, 535, 466 P.2d 405, 408 (1970) (quoting State v. Puckett, 92 Ariz. 407, 409, 377 P.2d 779, 780 (1963)). Generally, when a mistrial is granted on motion of defendant, retrial is not barred on double jeopardy grounds. State v. Wilson, 134 Ariz. 551, 554, 658 P.2d 204, 207 (App.1982); United States v. Dinitz, 424 U.S. 600, 607-08, 96 S.Ct. 1075, 1079-80, 47 L.Ed.2d 267 (1976); United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971). The defendant who requests a mistrial is generally deemed to have consented to a retrial, thus “remov[ing] the bar of double jeopardy.” State v. Henderson, 116 Ariz. 310, 314, 569 P.2d 252, 256 (App.1977) (citations omitted). In federal court, a narrow exception exists to this general rule: When defendant’s motion for mistrial is caused by prosecutorial misconduct designed to provoke defendant into making the motion, jeopardy remains attached and retrial is barred. Oregon v. Kennedy, 456 U.S. 667, 673-79, 102 S.Ct. 2083, 2088-92, 72 L.Ed.2d 416 (1982). Arizona has broadened the Oregon v. Kennedy exception. Pool v. Superior Court, 139 Ariz. 98, 108-09, 677 P.2d 261, 271-72 (1984). The Pool court held that, in Arizona, the double jeopardy clause bars a retrial if the following factors exist: 1. Mistrial is granted because of improper conduct or actions by the prosecutor; and 2. such conduct is not merely the result of legal error, negligence, mistake, or insignificant impropriety, but, taken as a whole, amounts to intentional conduct which the prosecutor knows to be improper and prejudicial, and which he pursues for any improper purpose with indifference to a significant resulting danger of mistrial or reversal; and 3. the conduct causes prejudice to the defendant which cannot be cured by means short of a mistrial. Id. The findings made by Judge Dunevant when granting a new trial establish the first Pool factor, the third Pool factor, and the “intentional conduct which the prosecutor knows to be improper and prejudicial” element of the second Pool factor. The question is whether Judge Wilkinson clearly abused his discretion in concluding, in effect, that the prosecutor did not violate all of the second Pool factor; that the misconduct was not “pursue[d] for any improper purpose with indifference to a significant resulting danger of mistrial or reversal.” Id. at 109, 677 P.2d at 272. Pool involved an extreme example of pros-ecutorial misconduct. There, the prosecutor was so relentlessly abusive to the court, counsel, and witnesses during the trial that the court, on its own motion, revisited and granted the motion for mistrial which it had previously denied. 139 Ariz. at 101, 677 P.2d at 264. A newly-assigned trial judge later found that the prosecutor did not intend to provoke a mistrial. Id. at 102, 677 P.2d at 265. The supreme court disagreed; it found that “the written record supports the conclusion that this prosecutor intentionally engaged in improper conduct for the purpose of forcing defendant to seek a mistrial so that the prosecution could procure a new indictment with correct charges.” Id. at 107, 677 P.2d at 270. The Pool court further found that: The [prosecutor’s] purpose, so far as we can conclude from the record and in the absence of any suggestion of proper purpose from the State, was, at best, to avoid the significant danger of acquittal which had arisen, prejudice the jury and obtain a conviction no matter what the danger of mistrial or reversal. Accordingly, we hold that jeopardy attached and' retrial is barred. Id. at 109, 677 P.2d at 272. The prosecutorial misconduct in this case was considerably more limited than that in Pool, and it was differently motivated. Here, the misconduct was one improper comment, the purpose of which was to rebut an improper comment by defense counsel. We conclude that Judge Wilkinson did not clearly abuse his discretion in finding that an “invited error” factor existed and that the “improper purpose with indifference” element of the second Pool factor did not. One counsel’s error is no excuse for another’s misconduct, but the court can consider what provoked the misconduct. What Judge Wilkinson decided, however, and what we have said about his decision, is no excuse for what the prosecutor did. To put misconduct in perspective is not to excuse it. We acknowledge that some trial judges, in the exercise of their discretion, may have granted Petitioner’s motion to dismiss, using an analysis similar to that in Judge Fidel’s dissent here. We do not agree, however, that the only proper result a trial court could reach on these facts was to dismiss the case with prejudice.Rule 24.1(c)(2), Arizona Rules of Criminal Procedure, provides that the court may grant a new trial if “[t]he prosecutor has been guilty of misconduct.” In other words, the remedy for prosecutorial misconduct is generally the new trial which Petitioner initially requested and received here. Judge Dunevant found that the prosecuto-rial misconduct warranted a new trial and Judge Wilkinson found that it did not warrant a dismissal with prejudice. The first ruling is not challenged on appeal and we find no reversible error in the second. Jurisdiction is accepted and relief is denied. McGREGOR, J., concurs.

OPINION WEISBERG, Judge. Ernest Ochoa Beltran (“defendant”) appeals his sentences for transportation of marijuana for sale and possession of marijuana for sale. For the following reasons, we affirm the sentences as modified by vacating the trial court’s order imposing a $64,900 surcharge in addition to the fine of $110,000. FACTUAL AND PROCEDURAL BACKGROUND During a traffic stop, police found marijuana in defendant’s vehicle. Defendant was arrested and charged with transportation of marijuana for sale and possession of marijuana for sale. Following a trial, defendant was found guilty of both charges. The trial court sentenced him to concurrent terms of five years for each offense. The trial court also imposed a fine of $110,000 and, pursuant to Ariz.Rev.Stat. Ann. (“A.R.S.”) sections 12-116.01(A) and -116.02(A), a 59% surcharge of $64,900. The trial court then found defendant to be indigent, which the state does not dispute. DISCUSSION On appeal, defendant argues only that, because of his indigency, the trial court erred by imposing the $64,900 surcharge. The state responds that defendant has waived this issue by failing to request a hardship waiver below. The trial court imposed the 59% surcharge pursuant to A.R.S. sections 12-116.01(A), which provides for a 46% penalty assessment, and -116.02(A), which provides for an additional 13%. Subsection (D) of each section, however, permits the trial court to waive all or part of these surcharges if payment “would work a hardship on the [defendant] or on their immediate familfy].” Both parties rely upon State v. Torres-Soto, 187 Ariz. 144, 927 P.2d 804 (App. 1996). In Torres-Soto, this court vacated the imposition of an $85,500 surcharge upon an indigent defendant. Although the defendant in Torres-Soto did not request a hardship waiver below, we concluded that the error was fundamental. Noted in our decision was the fact that “[t]he record strongly suggested] that no one in the trial court understood that the surcharges ... were waivable for hardship reasons.” Id. at 145, 927 P.2d at 805. We held that “[t]rial courts have the discretion, and therefore the responsibility, to consider the hardship issue when deciding whether to enhance mandatory fines with surcharges.” Id. at 146, 927 P.2d at 806. We rejected the possibility of a remand for consideration of the defendant’s hardship because, “in light of [the defendant’s] undisputed indigency and his $150,000 mandatory fine, we conclude[d] that there [was] no reason for a remand.” Id. The instant case is virtually identical to Torres-Soto. As in Torres-Soto, there is nothing in the record to suggest that anyone at the sentencing hearing was aware that the surcharge could be waived for hardship reasons. The presentence report recommended, and the trial court summarily imposed, the surcharge without noting its discretionary nature, and neither defense counsel nor the prosecutor brought the waiver provisions to the court’s attention. Also, like the defendant in Torres-Soto, defendant in this case is undisputably indigent. According to the presentence report, defendant is a migrant worker whose jobs last only two to four months. His last job paid $1680 per month. However, the presen-tence report also reflected that his current household assets and monthly income were both zero. As in Torres-Soto, we conclude that the imposition of a $64,900 surcharge on top of a $110,000 fine constitutes “a clear abuse of discretion.” Id. The state does not dispute this, but argues only that the error was not preserved for appeal due to defendant’s failure to request a hardship waiver below. Issues raised for the first time on appeal are waived absent fundamental error. State v. Gendron, 168 Ariz. 153, 155, 812 P.2d 626, 628 (1991) (emphasis added). Although we held in Torres-Soto that this error was fundamental, the state relies upon language from that opinion suggesting that such may not be true for subsequent cases: An indigent was assessed surcharges and attorneys’ fees of $85,875 in addition to a mandatory fine of $150,000; and none of the participants in the process appeared to know that the surcharges and attorneys’ fees were waivable for hardship reasons. On those facts, we find an apparent system defect warranting sua sponte intervention — in this case — to assure that participants in future cases know that surcharges and attorneys’ fees are waivable for hardship reasons. Ordinarily, counsel must request waiver in the trial court to preserve this issue for appeal. 187 Ariz. at 146, 927 P.2d at 806. The state argues that, because Torres-Soto was filed in May 1996 and the sentencing hearing here was not conducted until September 1996, defendant was on notice that he was required to request a hardship waiver in order to preserve the issue for appeal. The State misconstrues Torres-Soto. Torres-Soto instructs counsel that it is imperative to address whether surcharges should be waived in the sentencing of their clients, but does not denigrate well-established caselaw concerning the non-waiver of fundamental error. Here, defendant apparently did not know that the court could waive the imposition of the surcharges and therefore did not waive his right to request the hardship waiver. Accordingly, we vacate the trial court’s imposition of the $64,900 surcharge. Furthermore, we conclude that a remand for determination of the hardship issue is unnecessary because of defendant’s undisputed in-digency. See Torres-Soto, 187 Ariz. at 146, 927 P.2d at 806. In all other respects, we affirm. EHRLICH, P.J., and GRANT, J., concur. . Effective September 1, 1996, A.R.S. section 12-116.01(A) provides a 47% penalty assessment. See 1996 Ariz. Sess. Laws, ch. 350 § 1. This amendment, however, does not apply to the instant case.

OPINION PATTERSON, Judge. FACTS AND PROCEDURAL HISTORY Sean M. (Appellant), a juvenile, was adjudicated delinquent of attempted child molestation in violation of Ariz.Rev.Stat. Ann. (A.R.S.) sections 13-1410 (Supp.1996) and 13-1001 (1989). At his hearing, Appellant admitted that he removed his trousers and attempted to initiate sexual intercourse with a five-year-old girl, but was stopped by the girl’s father. The juvenile court placed Appellant on probation and ordered him, inter alia, to register as a sex offender and undergo DNA testing. Appellant now appeals those two conditions of probation. We have jurisdiction pursuant to A.R.S. sections 12-120.21(A)(1) (1992) and 12-2101(B) (1994). DISCUSSION A. Standard of Review It is within the juvenile court’s discretion to determine the disposition of a juvenile following an adjudication of delinquency and, absent clear abuse of discretion, we will not disturb that disposition. Matter of Maricopa County Juvenile Action No. JV-503009, 171 Ariz. 272, 274, 830 P.2d 484, 486 (App.1992). B. Sex Offender Registration Appellant first argues that the juvenile court acted beyond its statutory authority and abused its discretion when it ordered that he register as a sex offender for the purpose of notifying the community. There are two statutory provisions relevant here under which a juvenile court may order sex offender registration. The first provides that a person who has been convicted of a-violation or attempted violation of any of several enumerated sexual offenses, including molestation of a child, shall register as a sex offender. A.R.S. § 13-3821(A)(5) (Supp.1996). The second provides that the juvenile court may require a juvenile to register as a sex offender if that person has been adjudicated delinquent of an act that would constitute any offense specified in subsection A. A.R.S. § 13-3821(C) (Supp.1996). Appellant was adjudicated delinquent of attempted child molestation. Because child molestation is an offense enumerated in subsection A, the juvenile court had the authority to require Appellant’s registration as a sex offender. Appellant argues, however, that the juvenile court erred when it ordered sex offender registration for the purpose of notifying the community. As Appellant points out, the statute providing for community notification does not apply to juveniles. A.R.S. § 13-3825(H) (Supp.1996). The flaw in Appellant’s argument, however, is that registration under the statute requested by the state does apply to juveniles. See AR.S. § 13-3821(0). While the judge in this case erroneously understood that the community would be notified upon Appellant’s registration as a sex offender, she did not order Appellant’s registration as a sex offender pursuant to the community notification statute. See A.R.S. § 13-3825. Rather, as the state requested, the judge ordered Appellant to register as a sex offender pursuant to section 13-3821. Because that statute provides for the registration of juveniles adjudicated delinquent of sexual offenses, the juvenile court was within its authority to order Appellant’s registration as a sex offender notwithstanding any misunderstanding that the community would be notified. We find no abuse of discretion. C. Deoxyribonucleic Acid (DNA) Testing Appellant next argues that A.R.S. sections 13-4438 (Supp.1996) and 31-281 (1996) do not allow for DNA testing of juveniles adjudicated delinquent of “attempted” sexual offenses. We disagree. This court rejected a similar argument in State v. Lammie, 164 Ariz. 377, 793 P.2d 134 (App.1990). There, the issue was whether the requirement to register as a sex offender applied to persons who commit “attempted” sexual offenses, even though the controlling statute made no reference to attempted offenses. Id. at 378, 793 P.2d at 135. In Lammie, we discussed the distinction between attempted and completed offenses, and determined that an attempted offense cannot be committed isolated from the substantive offense. Id. at 379, 793 P.2d at 136. Indeed, we specifically recognized an “attempt” as being part of a completed offense. Id.; but see State v. Tellez, 165 Ariz. 381, 383, 799 P.2d 1, 3 (App.1989) (where charged preparatory offense of solicitation to sell narcotics required different mental state and different acts than substantive offense, preparatory offenses are separate and distinct from substantive offenses). We further determined that the requirement to register as a sex offender serves a distinct purpose, grounded in public policy, irrespective of whether the offense was attempted or completed. Lam-mie, 164 Ariz. at 379, 793 P.2d at 136. We concluded that persons convicted of certain sexual offenses, attempted or completed, are subject to sex offender registration requirements. Id. Here, Appellant was adjudicated delinquent of attempted molestation of a child, one of the offenses enumerated in the DNA testing statutes. See A.R.S. §§ 13-4438 and 31-281. The juvenile court ordered DNA testing, notwithstanding that sections 13-4438 and 31-281 — like the sex offender registration statute referenced in Lammie — do not distinguish between attempted and completed offenses. See A.R.S. §§ 13-4438(0 and 31-281(A). Attempted molestation of a child carries the same mental state and elements as the completed offense. See A.R.S. §§ 13-1410 and 13-1001. The same policies supporting DNA testing for completed offenses apply to attempted offenses. DNA testing is consistent with the protection, treatment and guidance of children because it deters the juvenile from committing future sex offenses and assists police in the investigation of future crimes. Juvenile Action Nos. JV-512600 & JV-512797, 187 Ariz. 419, 425, 930 P.2d 496, 502 (App.1996). As with sex offender registration in Lam-mie, we find no basis for distinguishing attempted from completed offenses in the context of DNA testing. Appellant was not adjudicated delinquent for committing the crime of attempt but for committing the crime of attempted molestation of a child. See Lammie, 164 Ariz. at 380-81, 793 P.2d at 137-38. No distinction exists between the attempted offense and the completed offense sufficient to warrant setting aside important public policy considerations, or to preclude DNA testing for those adjudicated delinquent of attempted sexual offenses. Nor are we persuaded by Appellant’s argument that, because the legislature (when it amended several sexual offense statutes in 1995) did not include attempted offenses within the DNA testing statutes but did include attempted offenses within the sex offender registration statute, it must have intended that sections 13 — 4438 and 31-281 would not apply to attempted offenses. In essence, Appellant asks that we conclude from the legislature’s amendment to one statute that it intended the opposite result in another statute. We decline to interpret the amendment in question here so broadly. See Lammie, 164 Ariz. at 379, 793 P.2d at 136 (“a statutory amendment ought not to be interpreted so broadly as to destroy the entire objective of the statutory scheme”). We interpret a statute according to the fair meaning of its provisions, and our interpretation must take into account and further the statute’s underlying policies. Id. at 379, 793 P.2d at 136. As discussed above, DNA testing statutes further the protective and rehabilitative goals of the juvenile court. JV-512600, 187 Ariz. at 424, 930 P.2d at 501. In light of these factors, we conclude that the legislature’s amendment to the sex offender registration statute had no effect on the DNA testing statutes. Accordingly, we hold that the requirement to submit to DNA testing applies to attempted as well as completed sexual offenses. Appellant is subject to that requirement. CONCLUSION The juvenile court did not abuse its discretion by ordering Appellant to register as a sex offender and to undergo DNA testing. The juvenile court correctly ordered sex offender registration pursuant to the statute governing registration of sex offenders, rather than the statute governing community notification. Furthermore, because the statute governing DNA testing applies to attempted as well as completed sexual offenses, Appellant is subject to the juvenile court’s order to submit to DNA testing. The disposition of the juvenile court is affirmed. THOMPSON, P.J., and NOYES, J., concur. . A.R.S. section 13-4438(0) (Supp.1996) provides that when a person is "convicted or adjudicated delinquent of a sexual offense as provided in ... 13-1410 ... and is sentenced to a term of probation ..., a county probation department shall secure a blood sample sufficient for [DNA] testing and extraction.” . A.R.S. section 31-281(A) (1996) provides that any person “convicted or adjudicated delinquent of a sexual offense as provided in ... 13-1410 ... shall submit to [DNA] testing for law enforcement identification purposes."

OPINION GRANT, Judge. Petitioner Wayne Kent McClure, (“Defendant”) seeks review of the trial court’s dismissal of his Petition for Post-Conviction Relief pursuant to Rule 32, Arizona Rules of Criminal Procedure. We grant review, but deny relief. FACTUAL AND PROCEDURAL BACKGROUND A Maricopa County grand jury indicted Defendant in July 1993, for third degree burglary, theft, and trafficking in stolen property. Defendant entered into a plea agreement by which he pled guilty to Count I, burglary and Count II, theft. Count III, trafficking in stolen property, was dropped. The plea agreement stipulated that Defendant would receive the minimum four and five year sentences on the respective burglary and theft counts, to be served concurrently, “but consecutive to [a] federal sentence being served.” The trial court accepted Defendant’s guilty plea and sentenced him in accord with the plea agreement: four years imprisonment on Count I and five years imprisonment on Count II to be served concurrently with each other, but consecutive to the federal prison term Defendant was then serving. At the time of his indictment on the Arizona charges, Defendant was incarcerated in a federal penitentiary for violating federal parole conditions. Defendant had been paroled after a 1987 conviction for bank robbery. The bank robbery conviction resulted in a seven-year federal prison sentence which commenced on January 8, 1987. In January 1993, while on parole from his federal prison sentence, Defendant committed burglary and theft in Scottsdale, giving rise to the charges and convictions in this case. After his arrest on a federal warrant, Defendant was committed, in February 1993, to a federal prison in Louisiana to serve 968 additional days of prison time. On July 19, 1994 — while serving his 968 day sentence — the Maricopa County Sheriffs Office took temporary custody of Defendant pursuant to the Interstate Agreement on Detainers Act, and brought him to Arizona for trial on the Arizona charges. Defendant was in custody in the Maricopa County Jail for 136 days, from July 19,1994, until his sentencing on December 2, 1994 (the “Arizona jail time”). Defendant’s federal sentence did not expire until the day he was sentenced in this case. Although all of Defendant’s Arizona jail time was credited against his federal sentence, he requested 136 days of presen-tence incarceration credit against his Arizona sentences for the Arizona jail time. The State argued that Defendant was not entitled to presentence incarceration credit because it would contravene the provision in the plea agreement stipulating that the Arizona sentences were to be served consecutively to the federal prison sentence. The trial court agreed with the State and refused to credit any of Defendant’s Arizona jail time against his Arizona sentences. Defendant sought post-conviction relief claiming that his sentence was unlawful because presentence incarceration credit was mandatory under Arizona Revised Statutes Annotated (“A.R.S.”) section 13-709(B) and State v. De Passquallo, 140 Ariz. 228, 681 P.2d 380 (1984). The trial court dismissed the post-conviction relief petition after supplemental briefing by counsel and oral argument, setting forth its findings in a detailed minute entry order. Defendant then filed a petition for review by this court. We have jurisdiction pursuant to Rule 32.1(c), Arizona Rules of Criminal Procedure. DISCUSSION Defendant asserts that his incarceration in the Maricopa County jail constitutes time “spent in custody pursuant to” the Arizona charges for purposes of A.R.S. section 13-709(B). He maintains that presentence incarceration credit for that time was mandatory under A.R.S. section 13-709(B), which provides that time spent in custody pursuant to the offense charged “shall be credited against the term of imprisonment otherwise provided for” in the Arizona Criminal Code (emphasis added). Defendant relies on the following passage from De Passquallo: From January 26, 1982 to June 28, 1982, petitioner was in custody for purposes of A.R.S. § 13-709(B). It is true that while in the Maricopa County Jail he was receiving credit against his federal sentence, but we find this to be irrelevant. Petitioner was in jail in Arizona to stand trial for the crimes he committed in Arizona, and is entitled to credit against his Arizona sentence for this presentence custody. 140 Ariz. at 229, 681 P.2d at 381. As in this case, the defendant in De Pass-quallo was serving a sentence in a federal facility when Arizona officials took custody of him pursuant to a notice of detainer so that the defendant could stand trial on Arizona charges. After entering a guilty plea, the defendant in De Passqucdlo argued that he was “in custody pursuant to” the Arizona charges from the time the detainer was lodged on October 13, 1981, even though the federal correctional facility did not release him to Arizona authorities until January 26, 1982. The supreme court found that the defendant was not entitled to credit against his Arizona sentence for any of the time served in federal prison, but that he was entitled to credit for time served in Arizona after he was turned over to Arizona authorities, even though he was receiving credit against his federal offense. 140 Ariz. at 229, 681 P.2d at 381. We accept Defendant’s contention that his 136 days of Arizona jail time was time in custody pursuant to the Arizona charges. If the Arizona sentences ran concurrently with the federal sentence, or if the plea agreement and sentencing order neglected to address the federal sentence, then credit granted by the federal court against the federal sentence for time served in Arizona would be irrelevant. However, this case differs significantly from De Passquallo because both the plea agreement and sentencing order required that the Arizona sentences be served consecutively to the federal sentence. Defendant is seeking credit for time already credited against his federal sentence against a consecutive Arizona sentence. This is the “double credit windfall” we deemed impermissible in State v. Cuen, 158 Ariz. 86, 87, 761 P.2d 160, 161 (App.1988) (Court may not give double credit for presentence time served when consecutive sentences are imposed.). The state is correct in asserting that such double credit would violate the provision in the plea agreement requiring Defendant to serve his Arizona sentences consecutively to his federal sentence. Time credited against both the state and federal sentences would be time served concurrently. State v. Burchett, 107 Ariz. 185,188, 484 P.2d 181, 184 (1971) (“The service of a sentence made consecutive to another does not begin until the other has been satisfied. When consecutive sentences are imposed, the subsequent sentence commences at the expiration of the prior sentence or sentences.”). When consecutive sentences are imposed, a defendant is not entitled to presentence incarceration credit on more than one of those sentences, even if the defendant was in custody pursuant to all of the underlying charges prior to trial. See Cuen, 158 Ariz. at 88, 761 P.2d at 162; State v. Jackson, 170 Ariz. 89, 94, 821 P.2d 1374, 1379 (App.1991). It is irrelevant whether one of the consecutive sentences was federal, or whether the time credited against one of the sentences was served in-state or out-of-state. See State v. Mahler, 128 Ariz. 429, 430, 626 P.2d 593, 594 (1981) (in requiring credit for time served pursuant to an Arizona offense, “[t]he statute makes no distinction between out-of-state and in-state custody”). This is also the approach federal courts take under analogous circumstances. United States v. VonWillie, 59 F.3d 922, 930-31 (9th Cir.1995) (United States District Court properly refused to credit federal defendant’s time in custody pursuant to federal writ when that time had been credited against a state sentence, and federal sentence was ordered to run consecutively to that state sentence; the presentence incarceration credit was properly credited to defendant’s total term of incarceration.). Defendant’s sentence satisfied A.R.S. section 13-709(B) because he received credit for his Arizona jail time against his total sentence. See VonWillie, 59 F.3d at 930. Defendant also argues that presentence incarceration time must be credited against his Arizona sentence because he did not (and legally cannot) waive his incarceration credit. The trial court found that Defendant bargained for minimum, concurrent state sentences in exchange for serving those sentences consecutively to his federal sentence. That bargain is precisely what he received. Having bargained away the possibility of receiving state sentences concurrent with his federal sentence, Defendant had nothing left to waive in terms of incarceration credit. CONCLUSION The trial court correctly concluded that the post-conviction relief petition did not present a colorable claim. Accordingly, we deny relief. TOCI and RYAN, JJ., concur.

OPINION JONES, Vice Chief Justice. We are presented with conflicting opinions between Divisions One and Two of the Court of Appeals. In State v. McMillen, 154 Ariz. 322, 742 P.2d 823 (Ariz.App.1987), Division Two held that the crime of attempted kidnapping is cognizable in Arizona solely as a class 5 felony. In the instant case, Division One expressly rejected the Division Two holding based upon its own determination that the defendant, having entered a plea of guilty to attempted kidnapping, was properly convicted of a class 3 felony. State v. Rainwater, 187 Ariz. 603, 931 P.2d 1113 (Ariz.App.1996). We granted review pursuant to Rule 31.19 of the Arizona Rules of Criminal Procedure and have jurisdiction under Arizona Constitution, article VI, section 5(3). FACTS AND PROCEDURAL HISTORY Defendant William Oris Rainwater restrained Todd Reese at gunpoint at the direction of codefendants after Reese came to defendant’s mobile home. When the code-fendants arrived, they took Reese from defendant’s home and murdered him outside defendant’s presence. Defendant was indicted for first degree murder, assault, and kidnapping. By agreement, however, he entered a plea of guilty to attempted kidnapping as a class 3 dangerous felony. On the basis of the plea, he was sentenced in September 1994 to an aggravated ten-year prison term. In December 1994, defendant petitioned for post-conviction relief, alleging he was sentenced illegally on the class 3 felony plea and citing a statement by Division Two in McMil-len that “there is only one form of attempted kidnapping and that it must be designated as a class 5 felony.” 154 Ariz. at 324, 742 P.2d at 825. The trial court in the instant case, applying McMillen, granted defendant’s petition and ordered resentencing for a class 5 dangerous felony. On appeal, Division One vacated the trial court’s resentencing order and reinstated the class 3 conviction. Rainwater, 187 Ariz. at 605, 931 P.2d at 1115. We approve the Division One analysis and hold that attempted kidnapping is cognizable as a class 3 felony. Id. DISCUSSION Under A.R.S. § 13-1304(B), “Kidnapping is a class 2 felony unless the victim is released voluntarily by the defendant without physical injury ... prior to arrest and prior to accomplishing any of the further ... offenses in subsection A of this section in which case it is a class 4 felony.” The two-step reduction from class 2 to class 4 was included in Arizona’s kidnapping statutes to provide incentive for the voluntary and safe pre-arrest release of victims of completed kidnapping offenses under A.R.S. § 13-1304(A). In McMillen, the defendant opened his car door near a child and told her to get in. The child ran and hid until the defendant left. There was thus no completed kidnapping offense, but clearly there was an attempt A jury convicted McMillen of attempted kidnapping as a class 3 felony. 154 Ariz. at 322, 323, 742 P.2d at 823, 824. On appeal, Division Two reasoned that because the child was unharmed, McMillen’s crime, if completed, would have become a reduced class 4 felony under the incentive reduction language of section 13-1304(B). Because McMillen’s conviction was for attempt, the court concluded that the offense was necessarily chargeable under A.R.S. § 13-1001 as a class 5 felony, one step lower. This analysis is flawed. The two-step incentive reduction cannot be applied to attempted kidnapping because, as a matter of law, the reduction presupposes that all elements of a completed kidnapping have been established such that the victim has in fact been restrained. Where, as in McMil-len, an intentional, though failed, effort at kidnapping is established as an attempt, the attempt is subject only to the one-step-lower statutory penalty under section 13-1001. The erroneous implication in Division Two’s McMillen analysis is that kidnapping is presumptively a class 4 felony by reason of the two-step incentive reduction in section 13-1304(B) and is raised to class 2 if the victim is not voluntarily and safely released. Such analysis, however, is contrary to the plain meaning of the statute. Kidnapping remains a class 2 felony and was made subject to the two-step reduction as an expression of legislative policy to encourage the voluntary and safe release of victims by their kidnappers before actual injury or death might occur. The incentive reduction was not intended to alter the felony class applica ble to defendant in the present case, nor was it intended to affect the felony class attributable to a case of attempted kidnapping as in McMillen. Kidnapping is defined in Arizona as one or more of the offenses enumerated in A.R.S. § 13-1304(A). In the case at bar, defendant admitted that he did in fact restrain the victim at gunpoint until codefendants removed him from defendant’s home and murdered him. Rainwater, 187 Ariz. at 605, 931 P.2d at 1115. Division One concluded that these facts would have established defendant’s guilt of the completed offense of kidnapping and that under the penalty scheme applicable to attempted crimes, the bargained-for, lesser charge of attempted kidnapping as a class 3 dangerous felony was appropriate. See A.R.S. § 13-110; State v. Sanchez, 174 Ariz. 44, 45, 846 P.2d 857, 858 (Ariz.App.1993). Further, the court concluded that defendant was entitled to no further reduction in penalty because the victim was not safely released. Rainwater, 187 Ariz. at 605, 931 P.2d at 1115. We agree. Accordingly, we disapprove of Division Two’s holding in McMillen that attempted kidnapping must always be classified as a class 5 felony and approve the Division One pronouncement in the instant case that attempted kidnapping may legitimately be classified as a class 3 felony. DISPOSITION The trial court’s order for resentencing is vacated. Defendant’s class 3 felony conviction and ten-year sentence are affirmed. ZLAKET, C.J., and FELDMAN, MOELLER and MARTONE, JJ., concur. . A.R.S. § 13-1001, Arizona’s attempt statute, assigns the crime of attempt to a felony class that is one step below the class indicated for the completed offense. For example, attempt is a class 2 felony if the offense attempted is a class 1 felony, and is a class 3 felony if the offense attempted is a class 2 felony, etc. In the case at bar, where kidnapping, a class 2 felony, remains an incomplete crime but where the prerequisites of attempt are present, the attempted crime is chargeable as a class 3 felony. . We note the statement by Division Two in McMillen describing the “anomaly” that a kidnapper would be better off penalty-wise by completing the crime and thereafter releasing the victim unharmed, a class 4 offense, than by falling short of the completed crime and being charged with attempt, a class 3 offense. 154 Ariz. at 324, 742 P.2d at 825. Though such anomaly could exist, it is an anomaly created by statute and does not warrant correcting by the court. Indeed, cases of attempted kidnapping may well pose greater emotional or physical injury than what is envisioned by the voluntary and safe pre-arrest release of victims of the completed crime. In such cases, the result would not be anomalous. . A.R.S. § 13-1304(A) states: A person commits kidnapping by knowingly restraining another person with the intent to: 1. Hold the victim for ransom, as a shield or hostage; or 2. Hold the victim for involuntary servitude; or 3. Inflict death, physical injury or a sexual offense on the victim, or to otherwise aid in the commission of a felony; or 4. Place the victim or a third person in reasonable apprehension of imminent physical injury to the victim or such third person. 5. Interfere with the performance of a governmental or political function. 6. Seize or exercise control over any airplane, train, bus, ship or other vehicle.